JUDGMENT Rachhpal Singh, J.
1. This is a plaintiff's second appeal arising out of a suit to recover a sum of money. One Jairaj Das, who is a son of the plaintiff was convicted on 5th February 1932 under Section 17(1), Criminal Laws Amendment Act. Jairaj was sentenced to a term of imprisonment and also to pay a sum of Rs. 300 as fine. The Government got an order of attachment for the purpose of realization of fine and certain buffaloes and bullocks were attached. The plaintiff, in order to save that property from sale paid in a sum of Rs. 300 to the Government on 27th February 1932. Later on, the plaintiff instituted a suit against the Secretary of State for India in Council to recover this sum. He alleged that the payment which he made was made under coercion and that the property attached belonged to him and not to his son and that he was therefore entitled to recover Rs. 300 together with interest by way of damages.
2. The defence of the Secretary of State for India in Council was that the above-mentioned sum was not paid by the plaintiff and therefore he was not entitled to recover it. Further, it was alleged that the attached animals beloged exclusively to Jairaj, the son of the plaintiff, that the payment made was a voluntary one, that there was no coercion and that the suit was barred by limitation. Both the Courts below have dismissed the plaintiff's suit who has now come up in second appeal before this Court. It may be stated here that it has been found by the Courts below that the property attached was not the exclusive property of the plaintiff himself but was joint family property. The Courts further found that the payment was voluntary and not made under coercion.
3. The question which I have to decide in this case is whether the payment of fine by the plaintiff was made under coercion and whether the plaintiff is entitled to recover the amount paid by him. No other point was argued before me. In order to decide this case, we have to remember that the property which was attached was joint family property of the plaintiff and his sons which was owned by them as coparceners. The trial Court took the view that the payment by the plaintiff was voluntary and not made under coercion. The learned Munsif referred to the evidence of Husainulabdin who had been examined by the plaintiff and who stated that Rs. 300 were paid by the plaintiff voluntarily and that no coercion or force was brought to bear upon him. The learned Munsif also referred to the evidence of the plaintiff himself and remarked that the plaintiff had not stated that he was coerced into paying the amount and all that he said was that because of the attachment he had made the payment. The learned Judge of the Court below has accepted the finding of the learned Munsif that there was no coercion. In my opinion, both the Courts below were wrong in holding that coercion was not practised. The wrong view is due to the fact that apparently the learned Munsif thought that Home kind of overt act had to be established by the plaintiff before he could be hoard to say that coercion had been used by the defendant in realizing the money. It is clear that the plaintiff was not required to prove any such thing. For the purpose of disposing of this appeal, I will accept the finding of both the Courts below Unit no force was used in realizing the fine from the plaintiff. I will take it further that it is established that the defendant got an attachment effected of the cattle belonging to the joint family and when that was done the plaintiff made the payment. On the admitted facts of the case have to decide whether the plaintiff is entitled to show that the payment was made under coercion. Section 386, Criminal P.C., enacts as follows:
(1) Whenever an offender has been sentenced to pay a firm, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say it may:
(a) Issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender.
(b) Issue a warrant to the Collector of the District authorizing him to realize the amount by execution according to civil process against the moveable or immovable property, or both, of the defaulters.
Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so....
4. The first question for consideration that arises in this appeal is whether fine imposed upon a coparcener can be realized by sale of moveable property belonging to the coparceners. On this question, I am of opinion that this cannot be done. Section 386(1)(a) authorizes the Court passing a sentence of fine to recover the amount by sale of move-able property of the offender. Now, it cannot be said that moveable property owned by a coparcenary body is the property of the 'offender.' It is the property owned by several persons in which the offender has an interest which is unascertained and this will be the state of affairs so long as the property is not partitioned and the joint conditions continue. In the case before me, both father and son owned the cattle attached and they could not have been attached to recover any amount due from the son before partition.
5. The next question for consideration is whether the payment of fine made by the plaintiff was a voluntary payment as held by the Courts below. I am of opinion that where a payment is made under a threat of attachment it cannot be said that the payment is voluntary. In Dulichand v. Ram Kishan Singh (1881) 7 Cal. 648 their Lordships of the Privy Council held that a payment made under compulsion of law, i.e. under pressure of the execution proceedings was not a voluntary payment. A similar view was expressed in Ganga Prasad Sinha v. Brindaban Chandra (1935) 22 A.I.R. Cal. 176. The plaintiff made the payment because property owned jointly by him and his son had been attached and in order to save it from being sold he was compelled to pay up. Such a payment can never be said to be voluntary. It is a payment made under the force of a legal process. If property belonging to the joint family had not been attached then there would have been no necessity for the plaintiff to have paid the amount which was not due from him but from his son. Both the Courts below have fallen into error in holding that there was no coercion. The learned Munsif refers to the evidence of the plaintiff's witness who stated that no coercion or force was used. It may be that no force was used. The plaintiff does not allege that any force was used. His case is that technically speaking he was coerced into making the payment. I think that his contention is right. According to Section 15, Contract Act, "coercion", among other things, includes the unlawful detention of another man's property with the intention of causing him to enter into an agreement. In the present case, the property belonged to two persons. The defendant in order to realize money due from the son attached the property belonging to both father and son. It was then that the father was made to pay the amount due to the defendant from his son. Legally, this amounted to coercion. For the reasons given I hold that the payment made by the plaintiff was not voluntary and that it was made under coercion. The plaintiff is in my opinion entitled to recover back the amount paid by him.
6. Learned Counsel for the respondent had argued that the decision of the lower Appellate Court should not be disturbed in a second appeal. I do not think that I am upsetting the conclusions arrived at by the Courts below on facts. The learned Munsif had hold that evidence did not disclose that any force was used. I accept this finding. The plaintiff is entitled to say that the view of the Courts below on a question of law is wrong. Learned Counsel for the respondent further argued that in the present case the plaintiff has obtained certain advantage by paying the fine and so he should not be permitted to get back the amount paid. It was contended that the plaintiff paid the fine so that his son may not undergo imprisonment which had been imposed upon him in default of payment of fine. It is said that the plaintiff succeeded in this attempt. But I find that no such case was set up by the respondent in the Courts below and he cannot be permitted to take an altogether new plea at this stage. For the reasons given above I allow this appeal, reverse the decisions of the Courts below and grant the plaintiff a decree for Rs. 300 with interest at 6 per cent, per annum from the date of the suit till satisfaction. He will get his full costs from the defendant in all the Courts. Leave to file Letters Patent appeal is granted.