Richardson, J.:— This is an appeal from the judgment and decree of the Subordinate Judge, Dacca, dated 19th April 1915, confirming the decree of the Munsif of Munshiganj. The suit was brought by the plaintiff, Shashadhar Kumar Ghose, for the cancellation of an agreement dated 22nd Magh 1319 (4th February 1913). It appears that the plaintiff and the defendants are co-owners of certain properties. Something occurred early in November 1912, which led the parties to file complaints against each other in the criminal Court. The agreement in question, which is an agreement for the partition of the common properties, is expressed to have been made for the purpose of putting an end to all disputes between the parties and for the purpose of settling or compromising the criminal cases which had been instituted and were still pending at the time. The Courts below have concurred in setting aside the agreement on three grounds. They have held, firstly, that the agreement is opposed to public policy as being an agreement to stifle criminal prosecutions and, therefore, void under Section 23 of the Contract Act: secondly, that the Registering Officer had no jurisdiction to register the agreement, and thirdly, that the agreement was obtained by the exercise of undue influence.
2. There is room for considerable doubt as to the correctness of those conclusions. On the question of the agreement being opposed to public policy, the decision of this Court in Muhammad Ismail v. Samad Ali Bhuyan (13), and its bearing on the view of the law taken in the Courts below would at least require consideration on the question of registration again, I am quite unable to follow the reasoning of those Courts and am satisfied in my own mind that they were wrong in supposing that the agreement was not validly and effectually registered.
3. It is unnecessary, however, to examine these questions in detail because on the remaining question, the question of undue influence, while I doubt very much whether I should have reached the same result on the merits, the merits are not open in second appeal and the jurisdiction of this Court to interfere is limited. The learned Subordinate Judge, at any rate, seems to have found that the implication of the plaintiff's son-in-law in the criminal proceedings caused the plaintiff much distress of mind and placed defendant 1 in a position to dominate the plaintiff's will, and further that the defendants obtained an unfair advantage over the plaintiff. I have considered whether there is a sufficient finding that the defendants or any of them actually brought; pressure to bear on the plaintiff. It appears that the plaintiff's son-in-law was due to appear in the B.A examination of the Calcutta University and that defendant 1 filed a petition in the criminal case which he had instituted and in which the son-in-law was an accused, objecting to the latter appearing through a pleader and insisting upon his personal appearance. The Subordinate Judge lays stress upon that and upon the defendants refusing to consider any modification at all of the agreement which they offered to the plaintiff. According to the Subordinate Judge they issued a sort bf ultimatum. If the offer was not accepted in its entirety the criminal case would be proceeded with. I do not know whether I should have taken the same view of the evidence.
4. The case is one somewhat near the line. It bears a strong resemblance to the case of Gobardhan Das v. Jai Kishen Das (14). That case was decided by the Allahabad High Court under the old Section 16 of the Contract Act, but according to the commentators is still good law under the section as it now stands: Pollock and Mulla's Contract Act, Edn. 2 p. 79. It came before the Court as a first appeal and the merits were open. Here, as I have said, the merits are not open and I cannot say either that there is no finding that the plaintiff was subjected to pressure or that there is no evidence at all on which that finding or the finding that an unfair advantage was obtained can be supported. That being so the present appeal fails, but, in my opinion, the suit does not redound to the plaintiff's credit. He and his son-in-law were acquitted in the criminal proceedings and though the plaintiff may have got the worst of the bargain, I have a strong impression that if the plaintiff had been a man of sensitive honesty the suit would not have been brought. I propose, therefore, that the appeal should be dismissed without costs.
Walmsley, J.:— I agree.
V.B/R.K
5. Appeal dismissed.