Abhay Kumar Singh v. Kirit Narain Singh — 1951 DIGILAW 1 (PAT)

Judgment C.P.SINHA, J. 1. These misc. appeals arise out of a proceeding under O. 23, R. 3, Civil P. C. which was initiated by the applts. in rent appeals Nos. 141, 142, 145, 146 & 147 of 1946 pending in the Ct. of the Subordinate Judge of Purnea. In the view which we take of these appeals, it is not at all necessary to mention the facts in detail: it is enough to say that the applts. in those rent appeals alleged that a compromise had been entered into between them & the resps. to those appeals. The applts. to those appeals got an order in their favour by the learned subordinate Judge under O. 23, R. 3, Civil P. C. recording the compromise as alleged by them. The resps. in the rent appeals have filed these appeals against the said order of the learned Subordinate Judge. 2. It appears that in the rent appeals there were six minor resps., rramely, five sons of resps. 1 Abhay Kumar Singh & they were under the guardianship of their father, & a minor son of Jaikumar Singh who was under the guardianship of his father. The Ct. below has found "that the compromise is proved & is lawful & as such must be enforced". 3. These appeals must be decided in favour of the applts. on a very short point. Abhaykumar Singh & Jaikuntar Singh are brothers, & it is alleged by the resps. that the rent appeals were compromised on certain terms; & that according to the compromise Abhaykumar Singh one of the applts. & a resp. in those rent appeals, had agreed to the terms of the compromise. In this case, there was no appln. by the guardian, either written or oral, for tne leave of the Ct. to enter into the compromise on behalf of the two sets of minors aforesaid; neither is there any order giving leave to the guardians of the minors to enter into compromise, nor is there any indication on the record to show that, while holding that the compromise should be recorded, the Ct. had consd. the interest of the minors in making its order under O. 23, R. 3 of the Code. It appears, therefore, that there is a clear violation of the provisions of O. 32, R. 7, Civil P. C, which runs as follows: "1. had consd. the interest of the minors in making its order under O. 23, R. 3 of the Code. It appears, therefore, that there is a clear violation of the provisions of O. 32, R. 7, Civil P. C, which runs as follows: "1. No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. 2. Any such agreement or compromise entered into without the leave of the Ct. so recorded shall be voidable against all parties other than the minor." It has to be remembered that the provisions contained in this rule, as they stood in the earlier Act of 1882, did not contain the words "expressly recorded in the proceedings" in Sub-R. (1) & the words "so recorded" in Sub-R. (2). These words were added in the present rule to give effect to the practice established under the old section. From the provision contained in the aforementioned rule, it is quite clear that the leave of the Ct. must be asked for by the next friend or guardian & the leave must be given by the Ct. before recording the compromise & it is also well settled now, upon authorities, that, while giving that leave to the guardian or the next friend, the Ct. must consider whether the proposed terms were for the benefit of the minor concerned. In the present case, the guardians had never applied for leave of the Ct. for entering into any compromise on behalf of the minor resps., rather they have been repudiating all through the factum of a compromise. 4. The learned counsel appearing on behalf of tne resps. has cited a number of authorities, which I will presently consider, but none of these authorities supports his contention that a compromise could be recorded by the Ct. without the guardian or the next friend having asked for the leave of the Ct. & without the leave having-been granted. The case of Rajeswararao V/s. Satyanarayana, (AIR (33) 1946 Mad 377), has been cited to show that before the conclusion of the terms of the compromise & before the compromise is made a decree of the Ct., a guardian-ad-litem can obtain the leave of the Ct. & without the leave having-been granted. The case of Rajeswararao V/s. Satyanarayana, (AIR (33) 1946 Mad 377), has been cited to show that before the conclusion of the terms of the compromise & before the compromise is made a decree of the Ct., a guardian-ad-litem can obtain the leave of the Ct. It is not the case here that the leave of the Ct. was asked for & granted at any stage &, therefore, this case gives no support to the resps. It is rather against them as their Lordships say that a guardian-ad-litem must obtain the consent of the Ct., before the compromise is concluded. The case of Dharnidhar v Phulkumari, (24 Pat 529), is also to the effect that leave of the Ct. can be granted after the terms of the compromise have been finalised & it is not necessary under o. 32, R. 7 (1) for the guardian-ad-litem to obtain leave of the Ct. to negotiate the terms of the compromise. The case of Rameshwar Pershad V/s. Ram Bahadur Singh, (34 Cal 70), is a decision of the P. C. This case is absolutely of no assistance, because, it does not consider the provisions of O. 32, R. 7 of the equivalent provisions thereof in the previous Civil P. C. Prom the statement of the argument in the report, however, it appears that in that case also leave had been asked for and sanction of the Ct. had been given to the guardian concerned and the question which we have to decide in this case did not fall for consideration in the case before the P. C. Reference has been made to the case of Badri Singh V/s. Chhotu Singh, AIR (25) 1938 Pat 202. That case also is no authority for the proposition that a Ct. can record a compromise without the guardian or the next friend of the minor having obtained leave of the Ct. In that case their Lordships held that a certain compromise was for the benefit of the minor concerned. What happened in that case was that a certain suit was decreed in terms of the compromise. Later, on an appln. for review of the order the Ct. set aside that order on the ground that the minors had not been benefited by that compromise & also that there was no express order by the Ct. What happened in that case was that a certain suit was decreed in terms of the compromise. Later, on an appln. for review of the order the Ct. set aside that order on the ground that the minors had not been benefited by that compromise & also that there was no express order by the Ct. recording the compromise that it was for the benefit of the minors, & the suit was restored to its original number. On appeal against the decree in the suit, their Lordships were assured that the compromise in the Ct. below was beneficial to the minors concerned, &, in that view of the matter, their Lordships accepted the terms of the original compromise & incidentally observed that "if the attention of the Ct. is directed specifically to the fact that there is a minor involved & the compromise is brought to its notice..........it must be assumed that the Ct. has complied with the requirements of the law." No authorities were refd. to in support of this general proposition & I doubt very much its correctness. In this case, however, it is not necessary to decide that point. In the case of Umar v. Mahabir Lal, (18 Pat 708), it was held that a decree passed on an award made on a reference, which was in contravention of O. 32, R. 7 of the Code, was not void but voidable at the instance of the minor, &, therefore, could not be impeached In an execution proceeding arising out of that decree. This case also does not throw any light upon the question that we have to consider in this case. The case of Sakinabai V/s. Shirinibai, (47 IA 88), was a case where a compromise was arrived at while the appeal was pending before the P. C. & that case is not at all relevant to the decision of the question in this case. 5. It has been further urged by the learned counsel on behalf of the resps. that no particular formula is required by the Ct. in granting leave & the case of Ramnarain Singh V/s. Atal Behari Singh, (AIR (26) 1939 Pat 387), & the case of Ishan Chandra V/s. Nilratan, (2 Pat 538), have been reld upon for this proposition. 5. It has been further urged by the learned counsel on behalf of the resps. that no particular formula is required by the Ct. in granting leave & the case of Ramnarain Singh V/s. Atal Behari Singh, (AIR (26) 1939 Pat 387), & the case of Ishan Chandra V/s. Nilratan, (2 Pat 538), have been reld upon for this proposition. The learned counsel, however, forgets that the present case Is not one where there has been substantial compliance with the provisions of O. 32, R. 7, Civil P. C. but it is a case where those provisions have been entirely ignored. 6. The learned counsel appearing for the applts. has contended that a compromise cannot be forced upon the guardian or the next friend of a minor & that it is for the guardian & guardian alone to consider whether he should or should not apply for leave of the Ct. to enter into any agreement or compromise on behalf of the minor; & that if he does not choose to enter into compromise & ask for leave of the Ct. to enter into a compromise on behalf of the minor, the minor cannot be forced to accept the compromise & if any such compromise is made a decree of the Ct. it is not binding upon the minor. He has placed before the Ct. several cases, & it is necessary to refer only to some of those cases which throw light on the point under consideration. In the case of Ranga Rao V/s. Rajagopala Raju, (22 Mad 378), the facts were that the guardian-adItem of the minors had agreed to a compromise in a suit & had also signed the petn. embodying the terms arrived at, but later on the guardian changed his mind & declined to present that petn. of compromise & opposed a decree being passed in terms thereof. One of the parties to the compromise wanted to enforce the terms of the compromise & an issue was raised in the suit, whether such a compromise had in fact been effected, & if so, whether it was binding on the minor defts. to the suit, & the Dist. J. held that the said compromise was valid & binding on the minors & he decreed the suit in terms of the compromise. to the suit, & the Dist. J. held that the said compromise was valid & binding on the minors & he decreed the suit in terms of the compromise. The matter went up in appeal & their Lordships made the following observations: "Assuming that the applts guardian did as urged for the resps. agree to compromise the suit on the terms alleged, was it competent to the Ct. in the circumstances of the case to enforce the compromise as against the applts? Now, leave to. enter into such compromise was never asked for on behalf of the applts., & their guardian-ad-litenm has all along been objecting to the Ct. passing- a decree according to the compromise. In the face of such opposition on the part of the person representing the applts. in the litigation the Ct. had clearly no power to enforce the compromise:. even though it appeared to the Ct. that the terms of the compromise were beneficial to the applts." This case is on all fours with the facts of the present case &, with very great respect to their Lordships, I entirely endorse the observations made above. In the case of Gulab Dei V/s. Valsh Motor Co., (47 All 782), their Lordships, accepting the view of the Madras H. C. in Ranga Rao V/s. Rajagopala Raju, (22 Mad 378), have observed: "The mere fact that the decree has been passeed in terms of the compromise does not necessarily. justify an inference that the Ct. granted leave. or that it was satisfied that the compromise was for the benefit of the minor. Any compromise without the leave of the Ct. is a nullity. As, before any leave has been granted, the guardian herself does not want the compromise, it is impossible to force the compromise on the rninor." 7. That the guardian or the next friend of the minor is the sole judge as to whether or not he. should enter into any agreement on behalf of the minor, has been reiterated by their Lordships of the Calcutta H. C. in Hemangini Dasi v Bhagwati Sundari Dasi, (AIR (10) 1923 Cal 685). Their Lordships have held: "It is settled law that although the Ct. should enter into any agreement on behalf of the minor, has been reiterated by their Lordships of the Calcutta H. C. in Hemangini Dasi v Bhagwati Sundari Dasi, (AIR (10) 1923 Cal 685). Their Lordships have held: "It is settled law that although the Ct. can & must approve of a compromise on behalf of infants, it cannot & will not force one upon them against the opinion of their next friend or guardian ad litem in the action." & further "No doubt if the Ct. found that a guardian or next friend was acting improperly & against the infants interests in refusing to assent to an arrangement which appeared clearly beneficial to them, steps might be taken to remove him & substitute some other person." In the case of Hanuman Rai V/s. Jagdis Rai, AIR (3) 1916 Pat 223, a Bench of this Ct. has held that it is open to a guardian to withdraw the appln. for leave to enter into an agreement at any time before the leave of the Ct. was granted. 8 On a review of the authorities mentioned above, it is clear that if it is intended that minors to an action be bound by a compromise, then the guardian or the next friend of the minor must apply for the leave of the Ct. to enter into the compromise & if the guardian refuses to do so a compromise cannot be forced on the minor concerned although, in the opinion of the Ct. the terms of the proposed compromise may be beneficial to the minor. It is the guardian or the next friend alone who can decide for himself whether or not he should obtain the leave of the Ct. to enter into a compromise. If he chooses not to apply for leave, then no compromise could affect the interest of the minor & the minor is not bound by any compromise which may have been entered into between the parties Co the action. 9. It was contended by Mr. Sanyal, the learned counsel for the resps. that Abhaykumar Singh being the karta of the joint family, of which the minors are members, & it having been found by the Ct. below that he had entered into the compromise, the compromise should be held binding upon the minors as well. That the family of the applts. is joint, is not admitted by Mr. that Abhaykumar Singh being the karta of the joint family, of which the minors are members, & it having been found by the Ct. below that he had entered into the compromise, the compromise should be held binding upon the minors as well. That the family of the applts. is joint, is not admitted by Mr. G. C. Mukherji, learned counsel for the applts. Even if the family was joint & Abhaykumar Singh was the karta of the family, the resps. cannot get any advantage out of it. In the first place, the minors & under the guardianship of their respective fathers & as such the provisions of O. 32, R. 7 will apply & the powers of the karta of a joint Hindu family must be subject to the provisions of that rule, that is to say, the leave of the Ct. must be asked for by the guardian to enter into compromise & after the leave is granted by the Ct., the guardian can enter into compromise. In the second place, one of the minors is under the guardianship of his father Jaikumar Singh & the case of the resps. being that Abhaykumar Singh had entered into the compromise on behalf of the family, the acceptance of the compromise by Abhaykumar Singh alone will not bind the other minor. It has been held by the P. C. in the case of Ganesha Row V/s. Tuljaram Row, (36 Mad 295), that if the father was guardian-ad-litem of his minor son, then he could not, without the leave of the Ct. do any act in his capacity of father or managing member of the family, which he was debarred from doing as guardian-ad-item. Their Lordships observed that to hold otherwise would be to defeat the object of the enactments. Their Lordships were considering S. 462, Civil P. C, which was replaced by O. 32, R. 7 of the present Code. 10. Lastly, it was contended that If the compromise is not binding on the minors, the compromise is binding on the major applts. The difficulty in accepting this argument is that the interest of the minors & the major applts. are joint & not separate, &, therefore, the compromise cannot be given effect to. 11. In the result, the appeals are allowed with costs. There will be one set of hearing fee as all these appeals were heard together. The difficulty in accepting this argument is that the interest of the minors & the major applts. are joint & not separate, &, therefore, the compromise cannot be given effect to. 11. In the result, the appeals are allowed with costs. There will be one set of hearing fee as all these appeals were heard together. B.P.SINHA, J. 12 I agree.