Applicability of the provisions of Section 23 of the Act.

Janarthanam, J.

1. The first defendant in Original Suit No. 384 of 1977 on the file of the learned District Munsif, Tenkasi is the appellant in the Second Appeal.

2. That suit was filed by the first respondent-plaintiff for the reliefs of declaration of her right to be in possession of the property in Schedule I of the plaint and for permanent injunction restraining her husband the second respondent-second defendant and the appellant-first defendant from interfering with her peaceful possession and enjoyment of the same or in the alternative for possession.

3. In pith and substance, the case of the plaintiff is as follows: -- She married the second defendant, after the death of his first wife. During the subsistence of her marriage, the second defendant also married one Mariammal in 1963. Consequently, she launched a prosecution against her husband second defendant before the Sub-Divisional Judicial Magistrate, Shencottah and the case had been taken on file in C.C. No. 165/63. The mediators in the village advised them to have the matter compounded and in view thereof, the second defendant executed a settlement deed, Ex. A1 in respect of the properties mentioned in Schedule II in the plaint on 26-12-1963. Ever since then, she had been in possession and enjoyment of those properties along with her husband-second defendant. The third item in Schedule II of the properties shown as the property in Schedule 1 had been alienated by the second defendant in favour of the first defendant on 15-5-1971 under Ex. A2, when she was away in her parents' house due to misunderstanding between the spouses. The second defendant has no right to alienate Schedule I property and consequently the alleged sale in favour of the first defendant is not valid in law.

4. The second defendant remained ex-parte and the first defendant alone contested the suit by filing a written statement contending as follows. The settlement deed Ex. Al is null and void under Section 23 of the Indian Contract Act. He purchased Schedule I property from the second defendant in good faith and for valuable consideration under Ex. A2 sale deed. Thereafter, he had been in possession and enjoyment of the same and effected improvements by planting coconut saplings. The suit filed as such is not maintainable. There is no misunderstanding between the first defendant and the plaintiff and in fact the suit had been brought about in collusion between the plaintiff and the second defendant.

5. The trial court, on consideration of the oral and documentary evidence, decreed the suit for declaration and recovery of possession in respect of one half of Schedule I property while negativing the relief of injunction. Aggrieved by that Judgment and decree, the first defendant preferred Appeal Suit No. 91 of 1979 before the learned Subordinate Judge, Tirunelveli. Learned Subordinate Judge, on consideration of the materials available on record and the arguments advanced by learned counsel on both sides, dismissed the appeal confirming the Judgment and decree of the trial court with costs, giving rise to the Second Appeal by the aggrieved first defendant.

6. Learned counsel appearing for the appellant would submit that the settlement of properties by second defendant in favour of the plaintiff under Ex. A1, on the facts and circumstances of the case, would tantamount to an agreement entered into between them to stifle the prosecution launched by the plaintiff against the second defendant, which is unlawful, as being opposed to public policy under Section 23 of the Indian Contract Act and consequently, the settlement deed under Ex. A1 is null and void and that the plaintiff cannot at all be conferred with any manner of right, title or interest in the properties settled in her favour under the document. In support of such a submission, learned counsel would draw my attention to the following decisions and a passage from the 'Law of Contract' by Mr. T.S. Venkatesa Iyer.

(1) Meenakshisundarammal v. Su