A compromise petition that stifles prosecution is illegal and void under Sec.23 of the Indian Contract Act, and no rights can be created as a result of such a contract.

1. In the suit which is the subject-matter of this appeal the plaintiffs alleged that they were the sons of Bujhawan Manto 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 Mosanimat 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.

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.

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.

2. 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 Womens Rights to Properly Act (Act XVIII of 1937) and tinder Sec.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 husbands heirs. Counsel for the appellants also relied upon the case of Kannappa Chettiar V/s. 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 Singh V/s. Ramaprasad Singh 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