1. In the suit which is the subject-matter of this appeal the plaintiffs alleged that they were the sons of Bujhawan Mahto who was the brother of Khublal Mahto who married two wives, Mosammat Murdani and Mosammat Lakhminia, defendants 3 and 4. Khublal had two daughters, Tapeshwari and Dhanwantia, defendants 1 and 2, through his wife Mosammat Murdani. The plaintiffs alleged that Bujhawan and Khublal died on the 2nd of August, 1938, and, as the family was joint, the plaintiffs claimed that they were entitled to the whole of the joint family property.
2. The plaintiffs stated that the widow of Khublal, Mosammat Murdani, filed a complaint of a criminal offence against the plaintiffs and there was a compromise petition filed in that case on the 22nd of December, 1938. In paragraph 4 of the compromise petition the plaintiffs agreed to give 7.43 acres of Kast nakdi land and one house described in schedule 3 of the plaint to defendants 3 and 4 for their maintenance and there was a stipulation in the compromise petition that the defendants 3 and 4 would not alienate or transfer the properties given.
3. The plaintiffs further alleged that on the 23rd of January, 1946, defendants 3 and 4 surrendered half share of the family properties described in schedule 4 of the plaint in favour of defendants 1 and 2. The plaintiffs brought the suit for a declaration that the deed of surrender dated the 23rd of January, 1946, was null and void and also prayed for confirmation of possession of the plaintiffs with regard to the properties described in schedule 4. The suit was contested by the defendants on the ground that in December 1937 there was separation in status between Khublal and Bujhawan and that defendants 3 and 4 inherited the share of Khublal after his death. It was also contended on behalf of the defendants that the compromise petition was illegal as there was stifling of prosecution and no effect could be given to the compromise. It was also said in defence that defendants 3 and 4 were perfectly entitled in law to surrender their interest in favour of defendants 1 and 2 in regard to their share of the family property. On these rival contentions, the lower Courts have held in the first place that there was no separation between Khublal and Bujhawan and also that the plaintiffs' case with regard to self-acquisition was not true. It was further held by the lower Courts that the compromise petition was not illegal and that no registration was required as it was by way of family arrangement. The lower courts have, therefore, decreed the suit; of the plaintiffs.
4. In support of this appeal preferred on behalf of the defendants, the Government Advocate argued in the first place that Khublal and Bujhawan died after the passing of the Hindu Women's Rights to Property Act (Act XVIII of 1937) and under S. 3(2) of that Act the widows of Khublal had half the interest in the joint family properties, that is, the same interest which was possessed by their husband, Khublal. It was also argued that the interest of the widows: conferred by Act XVIII of 1937 was taken by the widows not by survivorship but by inheritance and, as a result, the property goes on their death not by survivorship but by inheritance to her husband's heirs.
5. Counsel for the appellants also relied upon the case of Kannappa Chettiar v. Commr of Income Tax, Madras 2 ITC 381 (Mad) (A) for the proposition that, when the co-parceners of a Hindu family filed separate written statements to the effect that they had become separate, that was sufficient to show the intention of the parties having separated and there would be separation of the joint family estate. It was pointed out by a Division Bench of this High court in the case of Ramsewak v. Ramaprasad* AIR 1948 Pat 215 (B) that under the Hindu law it is not necessary that there should be a formal document executed by the parties concerned in order to effect a separation in estate; it was only necessary that one of the co-parceners should clearly and unequivocally intimate to the other co-parceners his desire to never himself from the others and the consent of the other co-parceners was wholly immaterial.
6. It was also pointed, out that the filing of a plaint unless subsequently withdrawn or of a written statement or giving of a notice to other co-parceners by a coparcener that he desired to be separate from the rest of them was enough to effect separation in estate. In the present case there is the statement of the two widows in the complaint petition in the criminal case that Khublal was separate from his brother, Bukhawan. The effect of this statement of the widows is that there is separation in estate and, in view of the principle laid down in the case of Kedar Nath v. Radha Shyam, AIR 1953 Pat 81 (C), the property would go not by survivorship, but by inheritance to the heirs of their husband.
7. The legal position has been made much stronger in favour of the widows by the enactment of the Hindu Succession Act. (ACT XXX of 1956). S. 14 of this Act declares that:
“Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act shall be held by her as full owner thereof and not as a limited owner”.
8. S. 15 is also important and lays down the general rules of succession in the case of female Hindu. S. 15 is in the following terms:—
“15. General Rules of Succession in the case of Female Hindus:— (1) The property of a Female Hindu dying intestate shall devolve according to the rules set out in S. 18
(a) Firstly upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(h) Secondly, upon the heirs of the husband;
(c) Thirdly, upon the mother and father;
(d) Fourthly, upon the heirs of the father, and
(e) Lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1):—
(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father: and
(b) Any property inherited by a female Hindu from her husband or from her father-in-law shall devolve in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon, the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs—of the husband.”
9. On the admitted facts of this case, therefore, the plaintiffs would have no right to the share of the joint family properties inherited by the two widows of Khublal. It is also obvious that the plaintiffs are not in the position of reversioners and they have no right of spes successions or any other right to the property of the two widows. The suit of the plaintiffs is, therefore liable to be dismissed on this ground, but the point taken by Mr. B.C De on behalf of the respondents is that the plaintiffs acquired a right to the disputed property because of the compromise petition dated the 22nd of December, 1938, in the criminal case. In our opinion, there is no merit in this argument also.
10. The compromise petition does not state ex-pressly on the face of it that the two widows had created any interest or had transferred their shares of joint family property in favour of the plaintiffs. On the contrary, paragraph 1 of the compromise petition states that 7.43 acres of land shall remain in possession of the two-widows during their life time and both the widows would be competent to appropriate the income of the land by way of maintenance, but they shall not have any right to alienate the lands or sell them or execute a deed of gift in regard to the same. In paragraph 5 of the-compromise petition the two widows said that they shall not proceed with the criminal case in view of the compromise effected between the parties. Paragraph 5 is in the following terms:
“Ba wajuhat bala wo aigar wajuhat apas men tai tasfia ho gaya is lie mokadama haza chalana nahi chahti hai is lie sawal dasthardar nama haza dakhil kar umidwar ke mokadama haza number bakiat se kharij farmaya jae.”
11. It appears to us that at the time of the compromise the widows were not aware of their legal rights under the Hindu. Women's Rights to Property Act (Act XVIII of 1937) and, therefore they agreed to take from the plaintiffs only 7.43 acres of land for the purpose of their maintenance and also agreed that they shall not have-any right to alienate the lands or make any gift of the same. There is nothing to show on the face of the document nor can it be gathered by necessary implication that the two widows created any interest in immoveable property in favour of the plaintiffs.
12. We have already stated that as the law stood in 1937 the widows had half share of the joint family property and there is nothing in the compromise petition dated the 22nd of December, 1938, to indicate or even to suggest that the two widows made a transfer of any portion of the interest in the joint family property to the plaintiffs. We shall assume in favour of the respondents that the widows did transfer to the plaintiffs any interest in the joint family property by the compromise petition of the 22nd December, 1038, but even in such a case it would be illegal since the transaction is hit by Section 23 of the Indian Contract Act which provides that if the object of agreement or the consideration of agreement is unlawful, then the contract is void and no rights are created as a result of the contract. It should be noticed that the complaint petition in the criminal case was with regard to two offences under sections 379 and 352 Indian Penal Code, and, according to paragranh 5 of the compromise petition, it is clear that the widows withdrew the criminal case because this compromise was effected between the parties and because the accused had given to the two widows, who were the complainants in that case, 7.43 acres of land for their maintenance though there was a condition that the widows had no right to alienate the lands but would only be entitled to get the produce of the lands during their life time.
13. A transaction of this character is manifestly illegal as it is hit by section 23 of the Indian (Contract Act. The legal position has also been ex-jplained by Lord Atkin in Bhowanipur Banking Corporation Ltd. v. Durgesh Nandirii Dassi AIR 1941 PC 95 (D) where the agreement to stifle prosecution was held to be illegal because it was against public policy and it would be a public mischief if on reparation being made or promised by the offender or his friends or relatives mercy shown by the injured party should be used as a pretext for avoiding the reparation promised.
14. On the other hand to insist on reparation as a consideration for a promise to abandon criminal prdceedings is a serious abuse of the right of private prosecution. The citizen who proposes to vindicate the criminal law must do so wholeheartedly in the interests of justice, and must not seek his own advantage. In view of the principle laid down in this case and also in view of the express terms of Section 23 of the Indian Contract Act, it is clear that the compromise petition is illegal and even if rights were purported to be created in favour of the plaintiffs by that compromise petition, such rights cannot be enforced in a Court of law.
15. It was also contended on behalf of the appellants that the compromise petition required registration if the intention on the part of the widows was to transfer rights in immoveable property to the plaintiffs. Reliance is placed in this connection upon the decision of a Full Bench decision of the Allahabad High Court in the case of Ramgopai v. Tulsi Ram, AIR 1928 All 641 (E). On behalf of the respondents Mr. B.C De relied upon the case of Lala Khuni Lal v. Gobind Krishna Narain, 38 Ind App 87 (PC) (F) and argued that the document was a mere family arrangement and recognised the title of the parties and did not create in itself any new or distinct title in favour of the plaintiffs.
16. We do not consider that the ratio of the case reported in 38 Ind App. 87 (PC) (F) applies to this case. On the contrary, we are definitely of opinion that the case, falls under the principle of the decision of the Full Bench of the Allahabad High Court reported in AIR 1928 All 641 (E). On this ground also we consider that the compromise petition dated the 22nd of December, 1938 does not create any title in favour of the plaintiffs with regard to the disputed properties.
17. For these reasons we hold that the suit of the plaintiffs must fail and this appeal must be allowed with costs. We would accordingly allow this appeal and set aside the decree of both the lower Courts and order that the suit of the plaintiffs must be dismissed with costs.
18. The appellants are entitled to their costs throughout.
D.H.Z
19. Appeal allowed.