Judgement Appeal from a judgment and decree of the Court of the Judicial Commissioner (March 14, 1910) reversing a judgment and decree of the Subordinate Judge of Sitapur (July 29, 1908). The appellants on February 27, 1908, commenced the present suit against the respondent, praying by their plaint for a declara tion that the compromise deed and the decree dated December 15, 1899, passed in two pre-emption suits to which they had been parties, as minors, were not binding upon them, and that they were entitled to be restored to the position they occupied prior thereto. In the first of the two suits referred to the respondent had been plaintiff and the appellants and others had been defen dants ; in the second the appellants had been plaintiffs and the respondent and others had been defendants. The suits were both in relation to the same property. The respondent, who upon the death of the appellants father assumed to act as their guardian and manager of their property, had caused the second suit to be brought in their names, apparently in order to prevent persons having an inferior right of pre-emption to the appellants but one superior to his own from claiming to pre-empt. No guardian ad litem had been appointed to the appellants in either suit, but one Hari Pershad purported to be acting in that capacity and his name appeared as guardian in the title of the suits. The parties to the pre-emption suit in which the respondent was plaintiff entered into a compromise whereby the respondent alone was to have a decree for possession of the property on payment of Rs. 15,000. This compromise was signed by Hari Chand, purporting to act as guardian of the appellants. The sanction of the Court to the compromise was not obtained as provided by the Code of Civil Procedure, s. 462. On December 15, 1899, the Court decreed the respondents suit in accordance with this compromise, and upon the same day, on the application of Hari Pershad for leave to withdraw the appellants suit, made an order dismissing it. At the time this order was made the attention of the Subordinate Judge was drawn to the fact that minors were parties to the suits, but not to the facts that no guardian ad litem had been appointed nor that the compromise had not been sanctioned by the Court. At the time this order was made the attention of the Subordinate Judge was drawn to the fact that minors were parties to the suits, but not to the facts that no guardian ad litem had been appointed nor that the compromise had not been sanctioned by the Court. In the present suit the appellants, as plaintiffs, joined as defendants the respondent, Hari Pershad, such of the other parties to the pre-emption suits as were alive, and the representatives of those who were dead. With the exception of the respondent none of the defendants appeared or took any part in the proceedings. The Subordinate Judge delivered judgment on July 29, 1908, in favour of the plaintiffs and made a decree as prayed. The respondent appealed to the Court of the Judicial Commissioner and the appeal was heard before the Judicial Commissioner and the First Additional Judicial Commissioner. The Judicial Commissioner held that the appellants were not bound by the proceedings in 1899 as they were not effectively represented in that litigation. He doubted whether the suit was brought within the Specific Relief Act, 1877, s. 42, but in any event, if the Court had any discretion in the matter of giving relief, he considered it ought to exercise it in the plaintiffs (appellants) favour. The First Additional Judicial Commissioner agreed in substance with the findings of the Subordinate Judge and the Judicial Commissioner that the appellants had not been effectively represented in the litigation and that the com promise had been improperly made on their behalf. He was, however, of opinion that, having regard to the consideration that the appellants in 1899 had no funds wherewith to take advantage of a decree for pre-emption in their favour, it was pre-eminently a case in which the Court should not exercise the discretion which he considered was vested in it by the Specific Relief Act, 1877, s. 42. The learned Commissioners further held that the point upon which they differed was a point of law within the meaning of s. 98 of the Code of Civil Procedure, 1908, and they accordingly directed that the appeal should be laid before the Second Additional Judicial Commissioner under that section. The learned Commissioners further held that the point upon which they differed was a point of law within the meaning of s. 98 of the Code of Civil Procedure, 1908, and they accordingly directed that the appeal should be laid before the Second Additional Judicial Commissioner under that section. The appeal was re-argued before the Second Additional Judicial Commissioner, who by his judgment held that the compromise of December 15, 1899, had been accepted by the Court trying the case, that the facts found to have been concealed from the Court by the respondent were not material points, and that their concealment by the respondent, if it was fraudulent at all, was not a fraud on the present appellants but on certain other possible pre-emptors. He was of opinion that the appellants proper course would have been to bring a suit against the respondent alone for specific relief by means of a conveyance to them of the property subject to their paying to the respondent the price paid by him under the pre-emption decree. Without referring in terms to the Specific Relief Act, 1877, s. 42, he stated that he con curred in the opinion of the learned First Additional Judicial Commissioner that the appeal should be allowed and the suit dismissed. Arthur Grey and R. Jacob, for the appellants. The appellants were not effectively represented in the suits, and the compromise in pursuance of which the decrees were made was never sanctioned by the Court. The facts were not brought to the attention of the judge and it should be declared that the decrees are not binding upon the appellants Manohar Lal v. Jadu Nath Singh. (( 1906) L. R. 33 Ind. Ap. 128.) The form of the suit, which was commented on in the judgments appealed from, is that stated to be the right one by Lord Macnaghten in the above cited case. The Specific Relief Act, 1877, s. 42, under which the Additional Judicial Commissioners thought the Court had a discretion entitling it to refuse to make a declaration, has no application to the suit. The Judicial Commissioner and the First Additional Judicial Commissioner agreed in finding the facts which in law entitled the appellants to relief; they differed only as to whether upon those facts the appellants should be given a decree. The Judicial Commissioner and the First Additional Judicial Commissioner agreed in finding the facts which in law entitled the appellants to relief; they differed only as to whether upon those facts the appellants should be given a decree. There was no point of law upon which they differed, and the appeal should have been dismissed under the Code of Civil Procedure, 1908, s. 98. If there was a point of law upon which they differed, the learned Commissioners should have stated it and referred it in terms to the Second Additional Commissioner. Having delivered their judgments they had no power to refer Lal Singh v. Ghansham Singh. (( 1887) I. L. R. 9 Allah. 625, at p. 642.) If the granting or refusing the declaration was a matter of discretion, the discretion should not have been exercised against the appellants unless a strong case of inexpediency was shewn Isri Dut Koer v. Mussumat Hansbutti Koerain. (( 1883) L. R. 10 Ind. Ap. 150, at p. 156.) De Gruyther, K.C., and Lowndes, for the respondent. The appellants had no funds as minors with which they could have exercised a right of pre-emption if a decree had been made in their favour, and there was no obligation upon the respondent to raise funds on their behalf for that purpose. The time within which, under the Limitation Act, 1877, s. 7, the appellants could bring a pre-emption suit expired before the present suit was commenced. The declaration prayed for would therefore place them in a more favourable position with regard to pre-emption of the property than they could have been in, either if these suits for preemption had not been brought, or if they had resulted in a decree in their favour. There was not any fraud by the respondent upon the appellants whatever his motives may have been in instituting the suit. Under the circumstances the particular relief prayed was properly refused. [Oudh Law Act (XVIII. of 1876), ss. 6 and 9, as to rights of pre-emption, were referred to.] Grey in reply. The judgment of their Lordships was delivered by SIR JOHN EDGE. The suit in which this appeal from a decree of the Court of the Judicial Comissioner of Oudh has arisen was brought by Kunwar Partab Singh and Kunwar Ahbaran Singh in the Court of the Subordinate Judge of Sitapur against Bhabuti Singh and others on February 22, 1908. The judgment of their Lordships was delivered by SIR JOHN EDGE. The suit in which this appeal from a decree of the Court of the Judicial Comissioner of Oudh has arisen was brought by Kunwar Partab Singh and Kunwar Ahbaran Singh in the Court of the Subordinate Judge of Sitapur against Bhabuti Singh and others on February 22, 1908. The plaintiffs, who are the appellants here, sought by their suit to have it declared that a decree which was made on December 15, 1899, in a suit for pre-emption which had been brought by Bhabuti Singh, who is respondent here, on June 26, 1899, against certain vendees and others, and in which the appellants, who were then minors, had been added as defendants, was not binding as against them. The plaintiffs-appellants also sought in this suit to have a decree set aside which had been made on December 15, 1899, in a suit for pre-emption which had been brought on July 27, 1899, by them under the guardianship of one Hari Pershad against vendees and others and in which Bhabuti Singh had been added as a defendant, and they claimed to be restored to the position which they had held prior to December 15, 1899, and such other relief as they were entitled to. The material facts which their Lordships find are briefly as follows. The plaintiffs were the sons of Raja Balbhaddar Singh, who died on December 27, 1897. The property of the joint family included shares in Mahal Ismailganj and Mahal Khushalpur, in respect of which Raja Balbhaddar Singh was at his death recorded in the Revenue papers as the proprietor. After the death of Raja Balbhaddar Singh the defendant-respondent, Bhabuti Singh, assuming to act as the guardian of the plaintiffs and as the manager of their property, obtained in April, 1898, mutation of names in the Revenue papers in their favour. Syed Mohammad Ismail, Syed Idur Hasan, and Syed Mohammad Sadig on August 3, 1898, sold certain shares in Mahal Ismailganj and Mahal Khushalpur to Munshi Niaz Ahmad, Babu Ram, and Bhagwan Das. It was in respect of that sale that the suits for pre-emption of June 26, 1899, and July 27, 1899, were brought. The vendors and the vendees were original defendants to these suits. It was in respect of that sale that the suits for pre-emption of June 26, 1899, and July 27, 1899, were brought. The vendors and the vendees were original defendants to these suits. Bhabuti Singh had a right of pre-emption equal but not superior to the right of pre-emption of Partab Singh and Ahbaran Singh in respect of the shares which were sold in Mahal Khushalpur, and he had a right of pre-emption inferior to theirs in respect of the shares which were sold in Mahal Ismailganj. It is obvious that the interests of the minors Partab Singh and Ahbaran conflicted with the interests of Bhabuti Singh. On June 26, 1899, Bhabuti Singh on his own behalf brought a suit to pre-empt the shares which had been sold in the two mahals, and made the vendors and ven dees defendants to the suit. On August 5, 1899, Bhabuti Singh caused Partab Singh and Ahbaran Singh, who were then minors, to be added as defendants to that suit. According to the amended plaint, Partab Singh and Ahbaran Singh, minors under the guardianship of Hari Pershad, were added as defendants under an order dated August 5, 1899. The Court appears to have made an order on August 5, 1899, that Partab Singh and Ahbaran Singh should be added as defendants, but it does not appear that the Court had ordered that they should be added as defendants under the guardianship of Hari Pershad. The amendment of the plaint adding Partab Singh and Ahbaran as defendants was not attested by the signature of the judge. No order appointing Hari Pershad as a guardian for the suit for Par tab Singh or Ahbaran Singh was applied for or was made. The amendment of the plaint adding Partab Singh and Ahbaran as defendants was not attested by the signature of the judge. No order appointing Hari Pershad as a guardian for the suit for Par tab Singh or Ahbaran Singh was applied for or was made. By s. 443 of the Code of Civil Procedure, 1882, it was enacted that " Where the defendant to a suit is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor, to put in the defence for such minor, and generally to act on his behalf in the conduct of the suit." By s. 441 of the same Code it was enacted that "Every application to the Court on behalf of a minor (other than an application under section 449) shall be made by his next friend, or by his guardian for the suit." The result is that the minors, Partab Singh and Ahbaran Singh, were not in law represented in the suit which was brought by Bhabuti Singh. On July 27, 1899, Bhabuti Singh, who was then the de facto guardian of the minors Partab Singh and Ahbaran Singh, and the manager of their property, caused a suit for pre-emption in respect of the sale of August 3, 1898, to be brought by Partab Singh and Ahbaran Singh under the guardianship of Hari Pershad against the same vendors and vendees who were defendants to the suit of June 26, 1899. The shares which it was sought to pre-empt by the suit of July 27, 1899, were the same shares which it had been sought to pre-empt by the suit of June 26, 1899. On August 7, 1899, Bhabuti Singh was added as a defen dant to the suit of July 27, 1899. On July 27, 1899, Hari Pershad had in the suit in which Partab Singh and Ahbaran Singh were the plaintiffs filed an application to be appointed their guardian ad litem. The application purported to be made under s. 456 of the Code of Civil Procedure, 1882. The Subordinate Judge to whom the application was made by his order of July 27, 1899, held that the application was unnecessary, and directed that the costs should be borne by the plaintiffs in that suit in any event. The application purported to be made under s. 456 of the Code of Civil Procedure, 1882. The Subordinate Judge to whom the application was made by his order of July 27, 1899, held that the application was unnecessary, and directed that the costs should be borne by the plaintiffs in that suit in any event. Bhabuti Singh, the vendors, the vendees, and Hari Pershad, professing to act on behalf of Partab Singh and Ahbaran Singh, entered into an agreement of compromise, and on December 15, 1899, filed in the suit in which Bhabuti Singh was the plaintiff a petition in which it was stated that it was agreed that Bhabuti Singh should pay Rs.15,000 without costs to the vendees, and that a decree for possession of the property sold should be passed in favour of Bhabuti Singh by right of pre-emption. On that petition the then Subordinate Judge passed a decree in that suit in favour of Bhabuti Singh. As Hari Pershad had not been appointed guardian for the suit for the minors Partab Singh and Ahbaran Singh, they were in law unrepresented, and the decree did not bind them. Further, Hari Pershad had not obtained the leave of the Court to enter into that agreement of compromise on behalf of the minors Partab Singh and Ahbaran Singh. In pursuance of the agreement of compromise to which their Lordships have referred, Hari Pershad, professing to act as guardian of the minors Partab Singh and Ahbaran Singh, on December 15, 1899, presented to the Court a petition in the suit in which Partab Singh and Ahbaran Singh were the plaintiffs, in which it was stated that it had been settled between the parties that a decree should be passed in favour of Bhabuti Singh in his suit, that the compromise had been filed in Court, and that Partab Singh and Ahbaran Singh were willing to withdraw their claim; and it was prayed that the withdrawal of their claim should be sanctioned, and that their suit should be dismissed. That petition was signed by Hari Pershad, Bhabuti Singh, the vendors, and the vendees. That petition was signed by Hari Pershad, Bhabuti Singh, the vendors, and the vendees. Hari Pershad appeared in Court in support of that petition, and stated that " Since Bhabuti Singh has acquired this hakkiat on the basis of pre-emption, therefore the minors have now no objection, and they do not advance a claim to the said hakkiat as against Bhabuti Singh." On that petition the then Subordinate Judge dismissed the suit of Partab Singh and Ahbaran Singh. It does not appear that the Subordinate Judge was informed that the minors Partab Singh and Ahbaran Singh were in law unrepresented in the suit of June 26, 1899, in which Bhabuti Singh had obtained a decree as against them and others for the pre-emption of the shares which Partab Singh and Ahbaran Singh were in their suit claiming to pre-empt; nor does it appear that the Subordinate Judge was informed that the petition for the dismissal of the suit of Partab Singh and Ahbaran Singh was made in pursuance of an agreement of compromise which Hari Pershad, acting as next friend of the minors Partab Singh and Ahbaran Singh, had entered into without the leave of the Court. This Board has held in Manohar Lal v. Jadu Nath Singh and Others (L. R. 33 Ind. Ap. 128.) that in cases to which s. 462 of the Code of Civil Procedure, 1882, applies there ought to be evidence that the attention of the Court was directly called to the fact that a minor was a party to the compromise, and it ought to be shewn, by an order on petition, or in some way not open to doubt, that the leave of the Court was obtained, and that it is not sufficient proof that the exigencies of s. 462 were complied with to shew that the minor was described in the title of the suit as a minor, as in that case, suing " under the guardianship of his mother," and that the terms of the compromise were before the Court. The agreement of compromise in pursuance of which Hari Pershad obtained the dismissal of the suit of Partab Singh and Ahbaran Singh was void as against them, and on that ground, if there were no other, they are entitled to have the decree dismissing the suit of July 27, 1899, set aside. The agreement of compromise in pursuance of which Hari Pershad obtained the dismissal of the suit of Partab Singh and Ahbaran Singh was void as against them, and on that ground, if there were no other, they are entitled to have the decree dismissing the suit of July 27, 1899, set aside. Hari Pershad had been a karinda of Raja Balbhaddar Singh, and he acted in a subordinate capacity under Bhabuti Singh in the management of the property of Partab Singh and Ahbaran Singh after Bhabuti Singh assumed the guardianship of the minors. Their Lordships agree with the learned Judicial Commissioner that in the proceedings to which they have referred "Hari Pershad was a mere dummy, that there was no one to protect the interests of the plaintiffs (Partab Singh and Ahbaran Singh), and that in fact Bhabuti Singh took advantage of his position." Their Lordships find that Hari Pershad was introduced into the suits of 1899 by Bhabuti Singh as the guardian or next friend of the minors Partab Singh and Ahbaran Singh to advance the interests of Bhabuti Singh and to defeat the interests of Partab Singh and Ahbaran Singh, for whom previously and subsequently Bhabuti Singh was acting as guardian and as the manager of their property. Hari Pershad throughout acted under the directions and on behalf of Bhabuti Singh and in his interests and contrary to the interests of Partab Singh and Ahbaran Singh, and to their detriment. Upon these findings of fact it follows as an obvious conclusion that the compromise and the proceedings which were taken in pursuance of it were not binding upon Partab Singh and Ahbaran Singh, and it is clear, apart from the other considerations which their Lordships have already discussed, that Partab Singh and Ahbaran Singh are also on these findings of fact entitled to relief. The Subordinate Judge of Sitapur in this suit gave Partab Singh and Ahbaran Singh a decree on July 29, 1908. From that decree Bhabuti Singh appealed to the Court of the Judicial Commissioner of Oudh. The appeal was heard by a Bench con sisting of the Judicial Commissioner and the First Additional Judicial Commissioner. The learned Judicial Commissioner, on the facts found by him, held that Partab Singh and Ahbaran Singh were entitled to the decree which they had obtained from the Subordinate Judge, and that the appeal should be dismissed with costs. The appeal was heard by a Bench con sisting of the Judicial Commissioner and the First Additional Judicial Commissioner. The learned Judicial Commissioner, on the facts found by him, held that Partab Singh and Ahbaran Singh were entitled to the decree which they had obtained from the Subordinate Judge, and that the appeal should be dismissed with costs. The First Additional Judicial Commissioner agreed with the findings of the Judicial Commissioner on all the material facts. In his judgment the First Additional Judicial Commissioner stated " I agree with my learned colleague in holding that it is satisfactorily established that the appellant [Bhabuti Singh] was de facto manager of the minors property at that time [ 1899], and that Hari Pershad in withdrawing the minors suit acted under his instructions. If the case had been fought out the minors [Partab Singh and Ahbaran Singh] would probably have obtained a decree for the larger portion of the property and lots might have been drawn with respect to a smaller portion thereof. In arranging for this compromise the appellant acted in his own interests, and the reason why he got a pre-emptive suit instituted on behalf of the minors was to protect himself in case other persons who had a better right of pre-emption than himself instituted suits claiming pre-emption of the property. After the period of limitation for such suits had expired he withdrew the minors claim and obtained a decree in his own favour." Notwithstanding that finding the First Additional Judicial Commissioner, for reasons which appear to their Lordships to be irrelevant, considered that exercising a discretion under s. 42 of the Specific Relief Act, 1877, he ought to refuse to grant the relief for which Partab Singh and Ahbaran had prayed, and held that the appeal should be allowed and the suit dismissed with costs. Sect. 42 of the Specific Relief Act, 1877, did not apply. The Judicial Commissioner and the First Additional Judicial Commissioner, having differed in. opinion on the point of law as to whether s. 42 of the Specific Relief Act, 1877, applied to the case, directed that the appeal should be laid before the Second Additional Judicial Commissioner under s. 98 of the Code of Civil Procedure, 1908. The Judicial Commissioner and the First Additional Judicial Commissioner, having differed in. opinion on the point of law as to whether s. 42 of the Specific Relief Act, 1877, applied to the case, directed that the appeal should be laid before the Second Additional Judicial Commissioner under s. 98 of the Code of Civil Procedure, 1908. The Second Additional Judicial Commissioner did not apparently confine himself to a consideration of the point of law with which alone he had under s. 98 of the Code of Civil Procedure, 1908, jurisdiction to deal; he apparently agreed with the opinion of the First Additional Judicial Commissioner that s. 42 of the Specific Relief Act, 1877, applied, and held that the appeal should be allowed and the suit should be dismissed with costs in both Courts. In accordance with the opinions of the First Additional Judicial Commissioner and the Second Additional Judicial Commissioner a decree was passed on March 14, 1910, by the Court of the Judicial Commissioner of Oudh allowing the appeal and dismissing the suit with costs. From that decree this appeal has been brought. Their Lordships are of opinion that this appeal should be allowed and the decree of the Court of the Judicial Commissioner should be set aside, and that the appellants, Partab Singh and Ahbaran Singh, should have a decree setting aside the decree of December .15, 1899, in their suit, and declaring that the agree ment of compromise and the decree of December 15, 1899, in the suit of Bhabuti Singh are not binding upon them or either of them, and that they are entitled to such rights as they had before their suit was dismissed on December 15, 1899. Their Lordships will advise His Majesty accordingly. Bhabuti Singh the respondent must pay the costs of this appeal and of his appeal to the Court of the Judicial Commissioner of Oudh.