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Ram Kumar Das Vs. Nanda Kumar Shaha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal248,75Ind.Cas.27
AppellantRam Kumar Das
RespondentNanda Kumar Shaha
Cases ReferredSmith v. Bromley
Excerpt:
contract act (ix of 1872), sections 16, 23 - undue influence--public policy--transfer made to stifle non-compoundale case, whether can be avoided--'in pari delicto meliorest conditio possidentis,' applicability of. - .....urges that he executed the document referred to above without any consideration and as a result of undue influence, coercion and threats of criminal prosecution exercised and used by the defendants 1 and 2, and he prays for a declaration that the said deeds are void and inoperative, and for an injunction restraining the defendants from exercising any rights over the properties comprised in the said deeds. there is also a prayer for recovery of possession of the said properties, should it be found that possession thereof is with the defendants. the allegations made by the plaintiff as regards charges of conspiracy, undue influence, coercion and threats of criminal prosecution are denied by the defendants, and it is urged on their behalf that the plaintiff voluntarily executed the deeds in.....
Judgment:

1. The plaintiff is the appellant before us, and the facts which have given rise to the suit out of which this appeal has arisen are shortly stated as follows : The defendants Nos. 1 and 2, who are the landlords, sued the plaintiff for an order for registration of an alleged agreement in respect of a tank. They were unsuccessful. They then sued the old tenant defendant No. 7, one Rajani Raha, for the rent of the holding and obtained an ex parte decree. The latter applied for the setting aside of the said ex parte decree. During the pendency of that application, the defendant No. 7 applied for an adjournment of the hearing of the said application on the ground of his illness, and in support thereof used an affidavit which had been sworn to by the plaintiff who had purchased the holding, which had originally belonged to defendant No. 7, and who had been recognized as tenant by the landlords, i.e., the defendant Nos. 1 and 2. The affidavit referred to above was filed on the 10th February, 1917 and it was alleged that the affidavit was false to the knowledge of the plaintiff. On the 14th March 1917, the defendants Nos. 1 and 2 applied to the Court for sanction under Section 195 of the Code of Criminal Procedure to prosecute tie plaintiff for offences under Sections 193 and 199, I.P.C., alleging that he had made a false affidavit. The application for sanction was set down for t hearing on the 2nd February, 1918, after various adjournments had been obtained by the parties. On that date the defendants 1 and 2 filed a list of their witnesses who were in attendance but subsequently on the same day they and the plaintiff filed a joint petition for time, alleging that they had come to terms, and that the plaintiff would execute certain deeds on the following Tuesday settling a tank and bhita with defendants 1 and 2's man Jagat Saha, and releasing some paddy lands to the defendant No. 7, Rajani Raha.' The case was accordingly adjourned to the 6th February, 1918, and on that date a petition was filed by both parties, stating that the matter had been settled and praying that the application might be dismissed. The application was accordingly dismissed. On the same day the plaintiff executed and presented for registration three deeds, Ext. C, a patta settling the tank with defendants 1 and 2; Ext. D, a deed of release, relinquishing the bhita in favour of defendant No. 3, and Ext. E, a conveyance conveying the nal lands to the defendant No. 7, Rajani Raha. The plaintiff, in the present suit, alleges that the defendants 1 and 2 gained over the defendant No. 7, and as the result of a conspiracy between these persons and defendant No. 3 and Naba Saha, who was the predecessor-in-interest of the defendants Nos. 4 to 6, the case for sanction to prosecute the plaintiff was started. The plaintiff was apprehensive that sanction might be granted for prosecuting him, and as the defendants continued to threaten him with prosecution, he was compelled to accept their proposals that he should execute certain deeds in consideration of their abandoning the application for sanction to prosecute. He urges that he executed the document referred to above without any consideration and as a result of undue influence, coercion and threats of criminal prosecution exercised and used by the defendants 1 and 2, and he prays for a declaration that the said deeds are void and inoperative, and for an injunction restraining the defendants from exercising any rights over the properties comprised in the said deeds. There is also a prayer for recovery of possession of the said properties, should it be found that possession thereof is with the defendants. The allegations made by the plaintiff as regards charges of conspiracy, undue influence, coercion and threats of criminal prosecution are denied by the defendants, and it is urged on their behalf that the plaintiff voluntarily executed the deeds in question.

2. The trial Court found that the possibility of a trial for perjury unsettled the plaintiff's mind and that on the 2nd February, 1918, he had no other alternative but to accept the proposal of the defendants 1 and 2 in order that he might extricate himself from the position in which he found himself. It was further found that the defendants 1 and 2 were in a position to dominate the will of the plaintiff, and that the facts connected with the execution of the deeds in question could fit in only with the theory that the defendants 1 and 2 did take advantage of their position to exercise undue influence upon the plaintiff to induce him to execute the deeds in question in respect of properties which the plaintiff had all along jealously guarded, and it was also found that no consideration whatsoever had passed in respect of the deeds. After reviewing the entire evidence in the case, the trial Court held that the deeds were executed by the plaintiff under undue influence practised upon him by the defendants 1 to 3 and 7, and for the purpose of avoiding a possible prosecution for perjury. In this view of the matter the plaintiff's suit was decreed.

3. The defendants preferred an appeal and it was held by the lower appellate Court that it could not be said that there was a criminal conspiracy for the purpose of putting the plaintiff to trouble. It was further held that the plaintiff understood that there was every chance of sanction being accorded for his prosecution, and in order to avoid the prosecution, I which might result in a conviction, the plaintiff agreed to a compromise with the defendants on such terms as they were willing to offer. In other words, it was found that the compromise was for the purpose of stifling a criminal prosecution for a charge which was not compoundable, and that the object of the compromise was consequently illegal. But the lower Appellate Court held that the plaintiff could not apply to set aside the said document, inasmuch as he was a person in pari delicto with the defendants, and further, that on the evidence no case of undue influence had been made out. The lower Appellate Court, therefore, set aside the judgment and decree of the Court of first instance.

4. Against this judgment and decree the plaintiff has appealed to this Court and it has been argued on his behalf that on the findings arrived at by the two Courts the conclusion that there was no undue influence exerted on the plaintiff is not sustainable, and secondly, that the circumstances show that the conduct of the defendants was oppressive and that there is nothing in the law to prevent the plaintiff from getting the relief he seeks. On behalf of the respondents it has been argued that assuming that the transaction in question was illegal, yet the plaintiff is disentitled to any relief, because the illegal purpose, whatever it was, had been carried out by the execution and registration of the deeds in question and the parties were in pari delicto and maxim melior est conditio possidentis applies; in other words, it is argued that if the plaintiff could not make out his case for relief otherwise than through the medium and by the aid of the illegal transaction, to which he was himself a party, then it must be held that the plaintiff and the defendants were in pari delicto, and therefore the plaintiff who seeks relief is disentitled to the same. The appellant relies upon the cases of Williams v. Bayley (1866) L.R. H.L. 200, Flower v. Sadler (1882) 10 Q.B.W. 572, Jones v. Merionethshire Permanent Benefit Building Society (1892) 1 Ch. 173. Nujebar Rahman v. Muktashed Hossein (1912) 40 Cal. 113 and Muthuveerappa Chetty v. Ramaswami Chetty (1915) 40 Mad. 258, while the respondents rely upon the cases of Taylor v. Chester (1869) 4 Q.B. 309, Scott v. Brown Doering, Mc Nab & Co. (1892) 2 Q.B. 724 and Holmanet Ali v. Johnson, alias Newland (1775) 1 Cowp. 341, where Lord Mansfield stated that the principle of public policy being ex dolo male non oritur actio, no Court will lend its aid to a man who founds his cause of action upon an 'immoral or illegal act.' The contention advanced by the respondents is only the application of the general rule that money paid on illegal contract cannot be recovered in the absence of fraud, duress or undue influence or oppression, where the payment was obtained by the innocent misrepresentation of the other party, See Harse v. Pearl Life Assurance Co. (1904) 1 K.B. 558. The generality of the rule referred to above is, however, subject to some qualification, e.g., where contracts or transactions are prohibited by law for the sake of protecting one sot of men from another set of men; the one from their situation and condition being liable to be oppressed or imposed upon by the other: there the parties are not in pari delicto, and it has therefore been held that the person injured after the transaction is finished and completed, may bring his action and defeat the contract per Lord Mansfield, Browning v. Morris (1778) 2 Cowp. 790, Kearley v. Thomson [1890] 24 Q.B.D. 742. It would, therefore, follow that if one person has, in such circumstances, paid money to another or has executed deeds in favour of another in pursuance of an illegal agreement, though both parties are in delicto, yet they are not in pari delicto, and the person who has paid the money or has executed the deeds may recover it back in an action for money paid and received, or may apply for [the setting aside of the deeds respectively. For instance, where a debtor has under pressure secretly paid a sum of money to his creditor to induce him to agree to a composition, the money so paid may be recovered back by the debtor see Atkinson v. Denby [1861] 7 H. & N. 934; see also Smith v. Cuff [1817] 6 M. & C. 160 where Lord Ellenborough says, 'It can never be predicated as par delictum when one holds the rod and the other bows to it.' See also Smith v. Bromley [1760] 2 Douglas 696. The case therefore resolves itself into this, whether, on the facts disclosed in the evidence on record, it can be inferred that pressure or undue influence was exerted on the plaintiff, and for that purpose we have carefully considered the judgments of the two Courts below and such portions of the records as have been brought to our notice. In our opinion the facts found by the trial Court, namely, that the application for sanction to prosecute was kept hanging over the head of the plaintiff from the 14th March, 1917 to the 2nd February, 1918; that on the last mentioned date the pleaders for the defendants 1 and 2 insisted upon a joint petition for further time being put in, alleging that the parties had come to terms; that on the next adjourned date the plaintiff not only executed the three deeds in question, but completed the registration thereof between 1 and 2 p.m.; that about 4 p.m. on the same date the application for sanction was allowed to be dismissed; that the defendant No. 7, whose illness was sworn to by the plaintiff in the affidavit referred to above, had been gained over by the defendants 1 and 2 (e.g., his name was included in the list of witnesses filed by the defendants 1 and 2 on the 2nd February, 1918); that under the deeds in question, defendants 1 and 2 got the tank, to obtain which they had propounded a forged lease in 1910 (exhibit 9); that the defendant No. 3 and Naba Saha got the homestead which they sought in vain to get under a decree; and defendant No. 7 got the land which his family had lost many years ago, and in respect of which the defendants 1 and 2 got the ex parte decree, which the plaintiff was seeking to set aside, lead to the irresistible conclusion that the deeds in question were not voluntary, and the transaction was brought about because the defendants held the rod and the plaintiff bowed to the same. The facts have been very exhaustively set out in the judgment of the first; Court, and as far as we can see, the findings arrived at by the first Court cannot be and have not been legitimately displaced. In this view of the matter, the judgment and decree of the lower Appellate Court must be set aside and those of the Court of first instance restored.

5. The result therefore is that this appeal is allowed with costs in this Court and in the lower Appellate Court.


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