An agreement to stifle a criminal prosecution is void under Section 23(h) of the Contract Act, 1872.

Kanhaiyaji, J.

1. These two appeals arise put of a decision of the learned Subordinate Judge, Hazaribagh. As these appeals arise out of the same judgment, they have been heard together, and this judgment will govern both of them.

2. The plaintiff filed a suit for partition of the properties given in Schedule A of the plaint. The plaintiff claimed 22/5 annas share in item No. 1. 12/5 annas share in Item No. 2 and 32/5 annas share in Item No. 3 of Schedule A properties. He also prayed that a separate takhta be carved out by the appointment of a pleader commissioner, and he may be put in khas possession of the takhta to be allotted to him.

3. The relationship of the parties is as shown in the genealogical table given below :

SK. NATHU

____________________________|_______________

| |

Habibul Hassan Md. Ellyas Hussain

| ____________________|____________

| | |

| 1st wife -- Kaziban 2nd wife--Bibi Haliman

| (Dead) (Defendant No. 1)

| |

| Bibi Kaniz Fatima

____|_____________________________________________________________

| | | | |

Azizul Hassan Abdul Hasan Md. Manir Bibi Kolsum Zainul Abodia

(Dead) (Defendant No. 3) (Plaintiff) (Defendant No. 4) (Defendant No. 5)

4 The case of the plaintiff is that Item No. 1 of Schedule A of the plaint was held by Habibul Hassan, father of the plaintiff, and by Md. Ell-yas Hussain, uncle of the plaintiff, in equal shares and was in their joint possession during their respective lifetime. Md. Ellyas Hussain died in or about the year 1948 leaving behind him his brother Habibul Hassan and his two widows, Bibi Kaziban and Bibi Haliman and his widowed daughter. Most. Kaniz Fatima; and, upon his death his half share devolved upon his brother, his two widows and his widowed daughter. On the death of Md. Ellyas Hussain the share of his brother Habibul Hassan in the house was augmented to -/11/- annas, while the remaining -/5/- annas share devolved upon his two widows and daughter. Bibi Kaziban died leaving behind her daughter Bibi Kaniz Fatima, defendant No. 2, and her share in the house devolved upon this defendant. The father of the plaintiff died about nine years back leaving behind him the plaintiff and defendants 3 to 5 as his legal heirs who came in joint possession of the -/11/- share of Habibul Hassan in the house and have been in joint possession of the same along with defendants 1 and 2.The further case of the plaintiff is that defendant No. 5 began to remove a lot of movable properties and ornaments of their father through his son. On the 27th May, 1951, the son of defendant No. 5 was caught red-handed in the act of stealing ornaments from the box of the plaintiffs father. When the people of the locality collected, defendant No 5 admitted before them to have removed through his son ornaments worth Rs. 1,325/- only and gave an undertaking in writing that he would not get any share in his fathers property unless he repaid the said amount to the plaintiff and other heirs of Habibul Hassan. In spite of repeated demands, defendant No. 5 has not repaid the amount and. therefore, he has forfeited his share in the suit properties.

5. The money in deposit in Postal Savings Bank at Hazaribagh standing in the name of the father described in Item No. 3 of Schedule A devolved upon the plaintiff and defendants 3 and 4 only as defendant No. 5 had forfeited his claim to a share in his fathers property. Md. Ellyas Hussain had also accounts in Postal Saving Bank of the United Bank of India and Chota-nagpur Banking Association at Hazaribagh. After the death of the plaintiffs father, the money i