Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr.

on 23 January, 1917

Madras High Court Madras High Court Chikkam Ammiraju And Ors. vs Chikkam Seshamma And Anr. on 23 January, 1917 Equivalent citations: 34 Ind Cas 578, (1917) 32 MLJ 494 Author: S Aiyar JUDGMENT Sadasiva Aiyar, J. 1. The defendants are the appellants. The only question in this case is whether the release-dead Ex. A. was executed by the plaintiffs with their free consent or whether it was obtained from the two plaintiffs (mother and son) through the exercise of coercion or undue influence or both, brought to bear upon them by the defendants (the younger brothers of the 1st plaintiff's husband) and their father Doraiyya through the 1st plaintiff's husband Swami who threatened to commit suicide unless the plaintiffs executed the release deed (Ex-A) in respect of their reversionary rights in certain lands which the 1st plaintiff's mother had sold without necessity to the defendant's father's vendor. 2. The lower Courts found (a) that the 1st plaintiff's husband (the 2nd plaintiff's, father) did threaten to commit suicide if the plaintiffs would not execute the release deed and that it was on account of that threat working on their minds that the plaintiffs executed the deed; (b) that such a threat was "coercion" and a deed brought about by such a threat is not a deed executed with free consent and (c) that though the threat was not made by the defendants (the parties to the deed) but by their brother, the document was voidable as "coercion" Used by a person who is not a party to the deed also negatived free consent. On these findings the plaintiffs suit for cancellation of the deed was decreed. 3. The material contentions in second appeal are found in the grounds 3 and 4 of the memorandum as follows: 3. The facts relied upon by the Courts below do not in law constitute coercion or undue influence. 4. The Courts below ought to have held that any persuasion on the part of the 1st plaintiff's husband who is no party to Ex. A, even if proved, cannot invalidate the document," Coercion is defined (Contract Act, Section 15) as "committing, or threatening to commit, any act forbidden by the Indian Penal Code, or the unlawful detaining, or threatening to detain any property to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement". I think the words "any person whatever" have been advisedly used by the legislature to indicate that the act need not be to the prejudice of the person entering into the Contract. I think also that the words " to the prejudice of any person whatever," which are separated by a comma from the previous word "property" relate both to the committing or threatening to commit an act forbidden by the Penal Code and to the unlawful detaining or threatening to detain property. It means the same thing whether, when a man kills himself, it is called an act of suicide or a successfully accomplished attempt to commit suicide; and an attempt to commit suicide is punishable under the Penal Code. Hence suicide and an attempt to commit suicide are acts forbidden by the Penal Code though the former cannot be punished under the code as a dead man cannot be punished. Provided the threat of the forbidden act does have the intended effect of bringing about the consent to the agreement, it does not matter who made the threat or to whose prejudice it was made. Mr. Patanjali Sastriar for the appellants argued that the "prejudice" to the feelings or to the supposed spiritual welfare of the wife and son of Swami by the carrying out of Swami's threat was not the sort of prejudice contemplated by Section 15 and that the "prejudice" to Swami's own life by the threatened act was immaterial as ho was not a party to the deed. It is unnecessary to go into the question whether prejudice or injury to sentiments, feelings or supposed spiritual welfare is also contemplated in the definition of coercion in the Contract Act. (See, however. Sections 298, 499, 508 etc., of the Indian Penal Code showing that the Criminal law does recognize also acts causing some of such sentimantal injuries as punishable). I agree with the lower Courts that the prejudice to Swami's own life is sufficient to bring his threat within the definition of "coercion," provided it was intended by the person using the threat to bring
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about the agreement thereby. Mr. Sastriar put the following question in support of his contention : "Suppose A threatens to blow up the Taj Mahal unless B gives C a pronote for Rs. 10,000 and suppose B is a man of such fine artistic feelings that to save the noble structure, he gives the pronote, is the note voidable for coercion?" I see no difficulty in answering the question in the affirmative, provided the court is able to arrive at the conclusion that the threat (which was to do an act of mischief or vandalism prohibited by the Penal Code to the prejudice of Government) was in-tended to bring about the execution of the pronote and did have that effect (I need not say that the mere use of the threat will not render the agreement voidable unless the agreement was not only intended to be but was actually "caused" by it. See Section 19 of the Contract Act and the explanation thoreto.) That the threat need not proceed from the party to the agreement has been held in Askari Mirza v. Jai Kishori (1992) 16 I.C. 344 relying on the well known books of Shephard and Pollock on the Contract Act. It is unnecessary to consider in detail the question whether the release deed was caused by undue influence. The line between coercion (Section 15 of the Contract Act) and undue influence (Section 16 of the Act) is sometimes thin and it is possible to conceive of cases where the Act might fall under both beads. In Ranganayakamma v. Alwar Setti (1889) I.L.R. 13 Mad. 214 a widow executed a deed of adoption, as her relations (not the adopted boy) obstructed the removal of her husband's corpse by her or her guardian to the cremation ground unless she executed the deed. Collins, C.J. and Muthuswami Aiyar, J., held that the act of the defendants was an unlawful act covered by Section 15 or Section 16 of the Contract Act (see at page 221). I think that when a man uses a threat of suicide to his wife and his son and they owing to the distress of mind caused by the strength of that threat execute a document, they are persons "whose mental capacity" which, I take it, includes volitional freedom and strength) "is temporarily affected by reason of mental distress" within the meaning of that expression in Clause 2(b) of Section 16 of the Contract Act. 4. I would therefore dismiss the second appeal with costs. Moore, J. 5. I regret that I have the misfortune to differ from my learned brother. 6. The findings of the Lower Courts which we must accept are that, under a, threat of suicide by Swami, his wife the 1st plaintiff, and his son the 2nd plaintiff executed the release deed. There is evidence that the 1st plaintiff was greatly distressed owing to her son having run away from home in order to avoid having to execute this document, and that owing to the pressure brought to bear upon her by her husband, coupled with his threat to commit suicide, she was induced to join in the execution of the document. I have found considerable difficulty in deciding the question whether the husband's threat to commit suicide amounts to (sic) as defined in Section 15 of the Contract Act. The difficulty lies in the records "to the prejudice of any person' which occurs in the section and which must I think be read with both branches of the section. The lower courts have not dealt with the question in a satisfactory manner. The Subordinate Judge says, "The degrading position to which a respectable Hindu wife would be reduced in case Swami had given effect to his threat should have considerably contributed in (sic) inducing the plaintiff to sign Exhibit A." The District Judge observes that "there is no doubt that a threat to commit suicide constitutes coercion within the meaning of Section 15 of the " Contract Act. The words of the section are very wide and the coercion invalidating the contract need not proceed from a party to that contract or be immediately directed against the party whom it is intended to coerce to enter into the contract or affect his property, or be specifically to his prejudice. 7. The words (act forbidden by the Penal Code) make it clear that the court must decide whether the alleged act of coercion is such as to amount to an offence. 8. Suicide is I take it (an act forbidden by the Penal Code) as the abetment of suicide is punishable (Section 304, Indian Penal code). 9. I am unable to accept as correct the view taken by the lower court that the prejudice to Swami's own life was sufficient to bring the threat within the definition of ''coercion" (assuming that Swami intended by the
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threat to induce his wife and son to execute the release deed). In Ranganayakamma v. Alwar Setti (1889) I.L.R. 13 Mad. 214 it was held that an adoption by a Hindu widow 13 years of age was not binding on her, it having been found that the relations of the adopted boy obstructed the removal of the corpse of her husband from her house until she consented to the adoption. The decision proceeded on the ground that the widow's consent to the adoption was not free. the court seems to have thought that the obstructing the removal of the corpse by the deceased's widow was within Section 15 of the Contract Act as being forbidden by the Penal Code, the section applicable being presumably Section 297, Indian Penal Code. In the 13 Madras case however there would have been no difficulty in finding that the widow's consent was obtained by "undue influence," within the meaning of Section 16 of the Contract Act. As regards the question whether the release deed was brought about by "undue influence," it may be that Swami was in a position to dominate his wife's will but he was not a party to the contract and Section 16(2)(b) of the Contract Act consequently does not, I think, apply. 10. The Subordinate Judge's finding (paragraph 12 of the Judgment) is that Exhibit A, was executed under coercion though not under undue influence in the strict legal sense (whatever that may mean). The conclusion I have arrived at though with considerable hesitation, is that the facts relied on by the lower" courts do not in law constitute "coercion" or "undue influence," so as to invalidate the release deed executed by the plaintiffs, I would, therefore allow the appeal. 11. Court :- Under Section 98 of the Code of Civil Procedure, the decree of the Lower Appellate Court is confirmed with costs 12. Against this an appeal was preferred under Clause 15 of the Letters Patent. JUDGMENT John Wallis, C.J. 13. It has been found by be Courts that the deed in question was obtained by coercion, the coercion consisting in a threat by the fifth witness for the plaintiffs to his wife and son that he would commit suicide if they did not execute the document. 14. It is easy to set up such a defence and the evidence in support of it should therefore be very closely scrutinized before it is held to be made out. Here it has been found as a fact and we are not at liberty to interfere with the finding on second appeal. 15. The case now comes before us on a Letters Patent Appeal owing to a difference of opinion between Sadasiva Aiyar and Moore, JJ. as to whether the facts as found amounted to coercion within the meaning of Section 15 of the Indian Contract Act. 16. The point mainly argued before us was that suicide was not an act forbidden by the Indian Penal Code within the meaning of the section. With this I cannot agree. At common law suicide was a form of homicide. "Homicide properly so called" says Hawkins, (Pleas of the Crown, Book I, Chapter 9) "is either against a man's own life or that of another." Wilful homicide was felony, and on finding that the suicide was felo de re his chattels were forfeited to the Crown like those of other convicted felons. In Section 299 of the Indian Penal Code the offence of culpable homicide is denned in terms which are sufficiently wide to cover deliberate suicide which is dealt with by Mr. Nelson in his Indian Penal Code as a species of unlawful homicide, though, of course, Section 302 and the following sections which prescribe the punishment for the various kinds of homicide are only applicable to living offenders. These sections are immediately followed by Sections 305 and 306 which make abetment of suicide punishable with death in some circumstances and with lesser penalties in others. Then after dealing in Sections 307 and 308 with attempts to commit murder and to commit culpable homicide the Code proceeds in Section 309 to provide for attempts to commit suicide. I find
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it impossible to hold that an act which it is made punishable to abet or attempt is not forbidden by the Indian Penal Code, especially as the absence of any section punishing the act itself is due to the fact that the suicide is in the nature of things beyond the jurisdiction of the Court, and it is no longer thought desirable to inflict a vicarious punishment on those who come after him by forfeiting his goods to the Crown. 17. As to the second point, the act threatened must be "to the prejudice of any person whatever", and would cover threats to a wife to murder her husband or to a son to murder his father. Here the threat was by the husband and father to kill himself, which must be taken to be an act to his own prejudice which seems to me sufficient to satisfy the section. I may add that I think the threatened act would also be directly to the prejudice of the wife? as it must be taken to be to the prejudice of any wife, to deprive her of her husband, especially of a Hindu wife who thereby incurs all the disabilities of a Hindu widow. For the same reason I think the act must be taken to be to the prejudice of the son'. I would therefore dismiss the appeal with costs. 18. Under Section 36 of the Letters Patent the appeal is dismissed with costs. Oldfield, J. 19. I have the misfortune to differ from the learned Chief Justice and therefore deal with the case at length. 20. The question is whether a threat to commit suicide is a threat to commit an act forbidden by the Indian Penal Code within the meaning of Section 15, Indian Contract Act; and it is conceded that it is not forbidden either directly or in the Sense that a penalty is provided for it. It therefore can be regarded as forbidden only by implication. It is accordingly in place to consider whether Section 15 can be construed by implication or should be read strictly. 21. Section 15 has given rise to few decisions and to none in which the policy of the portion we are concerned with, has been defined. No definition of that policy has been suggested before us and advisedly. For it would be hard to argue that any general policy is in question, when the coercive character of an act depends on the applicability to it of a statute, which, though wide, does not enumerate acts criminal in India exhaustively, which, (as the illustration shows) need not have been enacted at all or need not have been in force at the date or place in question and which might make conduct punishable although it would be so under no law binding on those concerned or of which they could even be presumed to have known. The test thus provided may commend itself as definite but can be regarded only as arbitrary and not as intended to promote any general policy, by reference to which liberal construction can be supported. Taking this view, I am bound to scrutinize respondent's arguments closely. 22. The first is that a threat to commit suicide is indistinguishable from one to attempt to do so and that such an attempt is forbidden by Section 309, I.P.C. which penalises it. The answer is that threats of these two descriptions are distinguishable unless the word "attempt" is used throughout the argument in its ordinary sense as equivalent to "endeavour" and not, as it must be in the second place, where it occurs, in the legal sense in which it is used in Sections 305 and 511. Further if the word is used in its legal sense throughout, a threat to attempt to commit suicide, is not only different from one to commit suicide, but is, like other threats to commit an attempt, a contradiction in terms. For an attempt in the legal sense can be recognised as such only after the criminal's intention has been frustrated, not when it is expressed; that is, when the threat is made. 23. The remaining contention relied on is that the Code impliedly forbids suicide, because in Sections 306 and 309 it explicitly forbids abetment of it and attempt to commit it. But this will advance the argument, only if it corresponds with some general principle; and it does not as regards abetment. For, apart from the cases of abetment of children and lunatics, it is not suggested that acts done without guilty knowledge or intention (and therefore innocently), but which nevertheless can be abetted under Section 108 Explanation 3, are forbidden. The principle, if there is one, is therefore sustainable only subject to these exceptions. But even so 'reference
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to it is useless. For it is not shown that it can be tested by application to any instance, except the case of suicide, with which we are concerned; and there is no more security for its validity, when such test is impossible, than for the validity of respondents' argument as applied to that case alone. 24. Respondents must therefore succeed, if at all, on the single and direct contention that in case of suicide a prohibition can be inferred from the prohibition of attempts to commit it; and with all respect, having decided in favour of a strict construction of Section 15, Indian Contract Act, I cannot accept it. No doubt the only species of prohibition, employed in the Code, the specification of a penalty, would be useless in this case. But it does not follow that the failure to employ the other direct prohibition, or to make provision for the case of suicide in the Contract Act was due to inadvertence and that the omission should be supplied by inference. For it is possible that provision was omitted deliberately, because cases for its application would be rare and their truth difficult to establish, the party alleged to be coerced having usually easier means of preventing the accomplishment of the threat than by entering into the agreements sought to be avoided. 25. Holding that respondents cannot succeed on Section 15, I turn to Section 16 on which they also rely. In this connection the threat of suicide is irrelevant, since Swami, who made it, was not a party to the contract; and there is no finding of fact, which would support any exercise of undue influence by the parties to the contract appellants. This plea therefore fails. 26. As the majority of the Court would dismiss the appeal with reference to Section 15, respondents' other contentions have not been heard, On the view I take it would be necessary to consider them before the appeal could be disposed of. Seshagiri Aiyar, J. 27. I agree with the judgment of the learned Chief Justice. 28. I do not think that the evidence in this case is sufficient to warrant a finding on the question of undue influence. On the question of coercion, although I had some doubts in the beginning, I have come to the conclusion that the facts do bring the case within Section 15 of the Indian Contract Act. Mr. Patanjali Sastri argued that threatening to commit suicide is not forbidden by the Indian Penal Code. A man who commits suicide goes unpunished, because the law cannot reach him, and not because the offence is not forbidden. The Code makes a person who abets the committing of suicide punishable. It also reaches a man who attempts to commit suicide. Although, therefore, there is no provision in the Indian Penal Code which forbids in terms commission of suicide, there can be no doubt that the intention of the legislature is to forbid such an act. I agree with Mr. Venkatramiah that the term "any act forbidden by the Indian Penal Code " is wider than the term " punishable by the Indian Penal Code." Simply because a man escapes punishment, it does not follow that the act is not forbidden by the Indian Penal Code. For example, a lunatic or a minor may not be punished. This does not show that their criminal acts are not forbidden by the Indian Penal Code. On the same analogy, a man who commits suicide escapes punishment because by committing the act, he is out of the reach of the law. Where the abetment of it and the attempt to do it are both made punishable by the Indian Penal Code, I am prepared to hold that the act itself is one forbidden by the Indian Penal Code. 29. The second contention of the learned Vakil was that the threat to commit suicide could not have prejudiced the plaintiff. I agree with him that mere sentimental prejudice is not what the law contemplates. As pointed out in The Queen v. The Metropolitan Board of Works (1863) 3 Best and Smith 710 some legal injury must flow in order that the man may be said to have been prejudiced. See also Clark v. London General Omnibus Co. Ltd. (1906) 2 K.B. 648 Accepting this test, I am unable to hold that the wife to whom the threat was addressed by a husband that he would commit suicide in case she does not execute a document is not prejudicially affected by such a threat. In my opinion, the possibility of the husband dying leaving the wife and the child uncared for is sufficient in the eye of the law to furnish the ground of prejudice. On this ground I agree with Mr. Justice Sadasiva Aiyar in thinking that Exhibit A was brought about by the use of coercion and
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that it should be set aside. 30. The appeal should be dismissed with costs.

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