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2003 DIGILAW 1273 (PNJ)

Chander Khan (Dead) through LRs. v. Suleman

2003-09-10

SATISH KUMAR MITTAL

body2003
JUDGMENT Satish Kumar Mittal, J. - Unsuccessful plaintiffs have filed this Regular Second Appeal against the judgments and decree passed by both the courts below vide which the suit of the plaintiff-appellants for declaration for setting aside the compromise judgments and decree dated 21.2.1969 (Ex.P-3 and Ex.P-4 respectively) has been dismissed. 2. The brief facts of the case are that one Smt. Hussaini, Wd/o Noor Mohammad was owner in possession of the land-in-dispute measuring 267 kanals 3 marlas. She was having only one daughter namely Smt. Sehmati who was having four sons. The husband of Smt. Sehmati was Khanadamad and was living in the in-laws house with Smt. Hussaini. On 20.6.1964, Smt. Hussaini executed a registered gift deed in favour of her grandsons (sons of Smt. Sehmati). The said gift deed was challenged by the collaterals (defendants No. 1 to 4 herein), of the husband of Smt. Hussaini in Civil Suit No. 102 of 1966. The said suit was defended by Smt. Sehmati as guardian ad litem of her minor sons in whose favour the aforesaid gift deed was executed. The claim of the defendants 1 to 4 was dismissed by the trial court vide judgment and decree dated 28.10.1968. Against that decree, the defendants preferred an appeal. During the pendency of the said appeal, a compromise was arrived at between the parties. Since one of the party was consisting of minors, a permission was sought by the guardian for entering into the compromise under Order 32 Rule 7 of the Code of Civil Procedure (hereinafter referred to as the Code). The Addl. District Judge after applying his mind granted the permission to compromise the case after recording the statement of the uncle of the minors, the mother of the minors as well as of Smt. Hussaini the alienor. According to that compromise half of the suit property was decreed in favour of the defendants No. 1 to 4. 3. The present suit was filed by Chander Khan one of the donee, after having attained the majority, for himself and as next friend of his minor brothers, challenging the validity of the aforesaid consent decree dated 2.1.1969. The case of the plaintiff was that the aforesaid consent decree was illegal and the same was not binding on the right of the plaintiffs. The case of the plaintiff was that the aforesaid consent decree was illegal and the same was not binding on the right of the plaintiffs. It was alleged that the permission of the Court for entering into the compromise on behalf of the minors was obtained by fraud and the appellate court while granting such permission did not apply its mind to the terms of the compromise which run counter to the interests of the minor. It was further pleaded that the guardian of the minors, Smt. "Sehmati", was an illiterate lady and she was presurrised and unduly influenced by defendants No. 1 to 4 in collusion with the uncles of the minors and Smt. Hussaini alienor. Because of the collusion, the guardian was not allowed to take legal advice. Even otherwise the guardian was thoroughly negligent and careless in prosecuting the case of the minors. It was further pleaded that the suit filed by defendants No. 1 to 4 was not maintainable at all and they were not competent to file a suit because they were not the collaterals of the husband of Smt. Hussaini within 5 degrees. On the aforesaid pleadings it was preyed that the compromise decree dated 2.1.1969 be declared as nullity, illegal and void and not operative on the rights of the plaintiffs. 4. Defendants No. 1 to 4 contested the aforesaid suit. It was contended that the previous suit was compromised between the parties after completing all legal formalities. The compromise was very much in the interest and for the benefit of the minors and the same was entered into after obtaining requisite permission from the Court. The allegations of fraud and misrepresentation were controverted. It was further pleaded that the suit filed by the plaintiffs is barred by the principle of res judicata. 5. On the basis of the aforesaid pleadings, the lower appellate court framed the following issues : 1. Whether the judgment and the decree dated 2.1.1969 are invalid, void and legal as alleged ? 2. Whether the suit is not maintainable in the present form as alleged ? 3. Whether the suit is bad for non-joinder of necessary parties. 4. Whether the suit is within time ? 5. Whether the suit is barred by principles of res judicata ? 6. Whether the suit has been properly valued for purposes of court fee and jurisdiction ? 7. Relief. 6. 3. Whether the suit is bad for non-joinder of necessary parties. 4. Whether the suit is within time ? 5. Whether the suit is barred by principles of res judicata ? 6. Whether the suit has been properly valued for purposes of court fee and jurisdiction ? 7. Relief. 6. Both the courts below dismissed the suit of the plaintiffs after deciding issue No. 1 against the plaintiffs. It has been held that the impugned compromise decree dated 2.1.1969 was perfectly valid and legal. The permission to enter into the compromise was allowed by the appellate court after applying its mind. It has been also found that the compromise entered into between the parties was in the interest and benefit of the minors. The court granted the permission not in a routine manner but after applying its mind. The statements of the uncle of the plaintiffs (Ex.P-8) and mother of the plaintiff Smt. Sehmati (P-9) and their grandmother Smt. Hussaini (P-10) were recorded. After considering these statements and other facts and circumstances of the case, the appellate court granted permission for entering into the compromise. It has also been held that the guardian of the minors acted in the best interest of the minors and she was not negligent in her duty to protect the interest of the minors while prosecuting the case. After recording the aforesaid findings of facts, both the courts below dismissed the suit of the plaintiffs. 7. Sh. C.B. Goel, learned counsel for the appellant submitted that the courts below have totally ignored the fact that the interest of the minors was not properly watched when the compromise in question was entered into. The guardian of the minors was wholly negligent and entered into the compromise without obtaining any legal advice. Entering into a compromise with defendants No. 1 to 4 then their suit was already dismissed by the trial court being not maintainable as they had failed to prove themselves to be the collaterals of the husband of Smt. Hussaini was wholly reasonable. Entering into a compromise with defendants No. 1 to 4 then their suit was already dismissed by the trial court being not maintainable as they had failed to prove themselves to be the collaterals of the husband of Smt. Hussaini was wholly reasonable. The learned counsel for the appellant, while relying upon the decisions of this Court in Ishar Singh v. Pritam Singh, AIR 1961 Punjab 500 and Gurcharan Singh v. Amar Singh and others, AIR 1972 Punjab and Haryana 194 canvassed that it is a case of gross negligence on the part of the guardian of the minors and in such a situation, the minors can avoid a decree passed against them on the ground of gross negligence on the part of their guardians ad litem, even if they have not been able to succeed in proving fraud, collusion, and misrepresentation on the part of such guardian. Since the interest of the minors was utmost and the appellate court should have safeguarded their rights. 8. On the other hand, learned counsel for the defendants submitted that pure findings of facts have been recorded by the courts below and no substantial question of law is involved in the instant appeal. Therefore this appeal is liable to be dismissed and no interference is called for in the Regular Second Appeal in the aforesaid findings of facts. 9. After hearing the arguments of the learned counsel for the parties and perusing the record of the case, I do no find any merit in the instant appeal filed by the appellants. Though a pure finding of fact has been recorded by both the courts below. However, keeping in view the fact that the interest of the minors are involved in the instant appeal, I have considered the submissions made by the learned counsel for the appellants. 10. In my opinion, both the courts below have rightly held that the compromise in question permitted to be entered on behalf of the minors, was in their interest and benefit and the permission was granted by the appellate court after applying its mind on the entire facts and circumstances of the case. At the time of granting such a permission, the appellate court recorded the statement of Smt. Hussaini who was the donor and the grandmother of the minors, the mother of the plaintiffs who was their guardian as well as the uncle of the plaintiffs. At the time of granting such a permission, the appellate court recorded the statement of Smt. Hussaini who was the donor and the grandmother of the minors, the mother of the plaintiffs who was their guardian as well as the uncle of the plaintiffs. I do not find that any coercion was exercised upon the guardian of the minors, nor there appears to be any fraud played upon the court or on the minors through their guardians. The court while granting the permission appears to have taken into consideration all the facts and circumstances of the case, particularly that the dispute was between the collaterals and the sons of the daughter of Smt. Hussaini who was married in another village but her husband was living in the village as Khanadamad. I am of the opinion that the permission to compromise the dispute was granted by the appellate court under Order 32 Rule 7 of the Code after due application of mind. The conscious (conscience ?) of the court was satisfied that the compromise was really in the interest of the minors. The court accepted the averments made in the compromise by satisfying itself that the said compromise will bring to an end the dispute between the parties and the minors will be able to enjoy the land which fall on to their share in the said compromise. Thus, I do not find any illegality or infirmity in the findings recorded by the courts below on this aspect of the matter. 11. I have also considered the second submission of the learned counsel for the appellant that the guardian of the minors was negligent while entering into the compromise with the defendants particularly when their suit was dismissed and they were not found to be the collaterals of the husband of Smt. Hussaini. The aforesaid judgements cited by the learned counsel for the appellants were also cited before the First Appellate Court. After considering those judgments, the learned First Appellate Court has recorded the following findings on the aforesaid contention of the learned counsel for the appellant : "This legal preposition is not in dispute but on facts the authorities are not of much assistance to the case of the appellants. After considering those judgments, the learned First Appellate Court has recorded the following findings on the aforesaid contention of the learned counsel for the appellant : "This legal preposition is not in dispute but on facts the authorities are not of much assistance to the case of the appellants. In this compromise it is not only Sehmati the guardian of them not was acting along but she was also assisted by the real uncle of the minors and then the alienor Smt. Hussaini. The mere fact that the defendants in that case has lost the litigation in the trial court by itself cannot be taken as a circumstance to hold that the (sic). in the appellate courts prejudicial to the interest of the minors. The fate of the appeal could not be anticipated by the guardian and thus in the interest of the peaceful living of the minors who were outsiders at the place where the property was situated, even by this compromise half of the land went away from their hands and cannot be hold to be prejudicial to the interests of the minors. It is in evidence that out of about 32 killas 27 killas were under mortgage with the defendants. So by the compromise they got possession of 17- 1/2 killas. Thus the compromise cannot be described as prejudicial to the interests of the minors in the circumstances of that case". I do not find any infirmity or illegality in the aforesaid finding. In view of the aforesaid discussion, I do not find any merit in this appeal and the same is hereby dismissed, with no order as to costs. Appeal dismissed.