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2013 DIGILAW 201 (PNJ)

Anita Kumari v. Ramesh Chand

2013-02-15

K.Kannan

body2013
JUDGMENT Mr. K. Kannan, J.: (Oral) - The revision petition is against the order dismissing an application to recall the compromise decree obtained on 04.08.1992. This application came to be filed by quondam minors, who after attaining majority, sought to contend that the compromise effected in the name of the mother, purporting to act as guardian on their behalf, had not acted to their welfare. The compromise was void and unenforceable in view of the fact that the statutory mandate of an express order of the Court granting leave to the compromise was not made at the time when the decree was passed. The compromise was grossly unfair, since the suit had been filed for their entitlement to whole of the property but the compromise restricted their interest only to 1/3rd share and that too, for all the plaintiffs together. This, according to the petitioners, was grossly prejudicial to their interest. Yet another objection stated against the compromise decree was that the decree itself was vague as it did not predicate the exact extent of property which each one of the plaintiffs was to take. 2. The application for recalling of the decree came to be filed after an initial attempt to challenge the decree by means of independent suit failed and in Civil Revision No. 4830 of 2005, decided on 6.9.2007, this Court had held that an independent suit was not maintainable and that the petitioners would be at liberty to move before the same Court which granted the decree to recall the judgment and decree in accordance with law. On the matter being adjudicated before the same Court, the Court below rejected all the objections taken by the petitioners and dismissed the petition. The petitioners are in revision challenging the correctness of the order. 3. The first issue is whether the compromise that purported to bind the minors was passed in terms of legal provision relating to compromise that could bind minors. The procedural mandate comes through Order 32 Rule 7 CPC that sets out that a guardian or next friend shall not enter into a compromise without seeking the leave of the Court and without the certification that the compromise was for the benefit of the minors. The procedural mandate comes through Order 32 Rule 7 CPC that sets out that a guardian or next friend shall not enter into a compromise without seeking the leave of the Court and without the certification that the compromise was for the benefit of the minors. The said provisions are reproduced as under:- “7(1) Agreement or compromise by next friend or guardian for the suit.- 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. (1-A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor. Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.” 4. The expression used under Order 32 Rule 7 Clause (i) is that on an application being moved, the Court shall expressly allow for sanction. Learned counsel for the petitioners would argue that by words used under Order 32 Rule 7, the Court is bound to record its satisfaction and grant leave expressly. In this case, the order that was passed by the Court while allowing for the compromise to be recorded reads as under:- “Murti Devi Vs. Ramesh: Present: Counsel for the plaintiff. File be taken up today. Statement of the counsel for the plaintiff recorded. Compromise Ex. C1 placed on record. In view of the statement, the suit of the plaintiff is therefore hereby decreed in terms of the compromise Ex C.1. Decree-sheet be drawn accordingly. File after compliance be consigned to the record room. Announced. Sd/-SJIC/4.8.92" 5. This order regarding compromise by the Court on 04.08.1992 does not use the expression that leave had been granted to the minors. In view of the statement, the suit of the plaintiff is therefore hereby decreed in terms of the compromise Ex C.1. Decree-sheet be drawn accordingly. File after compliance be consigned to the record room. Announced. Sd/-SJIC/4.8.92" 5. This order regarding compromise by the Court on 04.08.1992 does not use the expression that leave had been granted to the minors. This argument is contested by the learned senior counsel appearing on behalf of the respondents and he states that the issue is finally settled through the judgment of the Hon’ble Supreme Court in Milind Moreshwar Kowley Vs. Manohar Bhaskar Kowley and others 2006 (5) SCC 691. The point raised is answered in paragraph 24 of the judgment. “24. The Appellate Court also considered the material on record and came to the same conclusion. It rejected the submission that the consent decree was void as the leave of the Court was not expressly recorded in the proceedings and that such leave could not have been granted without notice to the plaintiff and his brothers who were interested in the properties in suit. It held that it was not correct to say that the leave of the Court was not expressly recorded in the proceedings. The fact that the consent terms were tendered in Court and the Court proceeded to pass decree in accordance with the consent terms was sufficient to hold that the leave of the Court was expressly recorded. It was not necessary to use particular words to record the leave of the Court, and the fact that the Court proceeded to pass the consent decree was sufficient indication that the Court had granted leave. It further held that issuance of notice as contemplated in sub-rule 3-B of Order 23 of Code of Civil procedure was not mandatory, and in case the Court found that all parties interested in the suit had joined in the consent terms and were fully conscious of consent terms, then issuance of notice was an empty formality. On the facts and circumstances of the case, it was held that the Court was fully satisfied that the two sons of Moreshwar, namely, the plaintiff and his brother were fully conscious of the consent terms. It also noted that it was not the case of the plaintiff that by entering into consent decree his father had affected his interest to his detriment. It also noted that it was not the case of the plaintiff that by entering into consent decree his father had affected his interest to his detriment. The complaint was only about compliance with the procedure envisaged by Rule 3B of Order 23 of the Code of Civil Procedure. 6. The actual manner of how the Court went about its order could be seen from the nature of applications and the conduct of parties as seen from contemporaneous proceedings. The application reads as under:- “In the Court of Mrs. Anup Yadav, Sub-Judge, Ist Class Rewari. Murti Vs. Ramesh. Suit for permanent injunction Application for permission to compromise: Madam, In the above mentioned suit the parties have come to a compromise as per terms of the compromise the plaintiff shall be the owners of 1/3rd share of the suit land and the defendants shall be the owners of the remaining to 2/3 share of the suit land. The parties belong to same family and due to litigation the earliation are likely to become strained. The compromise is for the benefit of the minors and both the parties. It is therefore, prayed that the parties be allowed to make a compromise and the compromise be allowed to be filed in the Court. Place: Rewari Applicant Dated 3.8.1992 Murti Wd/o Dev Anand.” 7. This application is supported by an affidavit of Murti Devi, which reproduced as under:- “In the Court of Mrs. Anup Yadav, Sub-Judge, Ist Class Rewari. Murti Vs. Ramesh. Suit for permanent injunction Application for permission to compromise: I, Smt, Murti Wd/o Sh Deva Nand r/o Village Gangaycha Jat, the & District Rewari do hereby solemnly affirm and declare as under:- 1. That the parties have come to a compromise according to which the plaintiff shall be the owners of 1/3rd share of the suit land and the defendants shall be the owners of the remaining 2/3rd share of the suit land. 2. That the parties belong to the same family and due to litigation the relations between the parties are likely to become strained. 3. That the compromise is in the benefit of the minors and I being the mother and natural guardian of the minors am in a position to look after the interest of the minors. 2. That the parties belong to the same family and due to litigation the relations between the parties are likely to become strained. 3. That the compromise is in the benefit of the minors and I being the mother and natural guardian of the minors am in a position to look after the interest of the minors. Place: Rewari RTI/- Dated 3.8.1992 Deponent Verification:- I the above named deponent do hereby verify that the contends of the above affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed in therefrom. Place: Rewari RTI/- Dated 3.8.1992 Deponent” 8. On the application being put up before the Judge, the Judge had recorded the statements of the parties and the counsel. The translation of the statement recorded in the vernacular is as follows:- “1.Statement of Smt Murti Wd/o Deva Nand, aged 30 years, Housewife, resident of Gangaycha, Jat by caste, in person and as guardian on behalf of minor plaintiff Nos 2 and 3 on S.A. 2.Anil Kumar, Advocate, counsel for plaintiffs w/o 3. Statement of Sh N.S. Rao, Advocate, counsel for defendants w/o. 4. Statement of Ramesh Chand S/o Shimbhu Dayal, aged 43 years, occupation Zamindara, resident of Gangaycha, Jat on S.A. 5.Hans Raj S/o Shimbhu Dayal, aged 40 years, occupation Zamindara resident of Gangaycha, caste Jat on S.A. Stated that we, the parties have effected a compromise. The compromise deed is Ex. C-1. This compromise is in the interest of minors. According to this compromise, the suit may be decreed and the parties may be left to bear their own cost. R.O. & A.C. Sd/- SJIC Rewari Sd/- Murti (with RTI) Dt. 4.8.1992 Sd/-Ramesh Chand ( In Hindi) Sd/- Hans Raj (In Hindi) Sd/- N.S. Rao ( In English) Sd/- Anil Kumar, Advocate ( In English).” 9. The Court was conscious about its own duty and therefore, when the Court passed a decree it has made reference also to the fact that it recorded the statement of the mother. I find that there is a full compliance of the statutory legal requirements and the compromise decree cannot be assailed on the ground that it had not expressly recorded its satisfaction. 10. As regards the argument that the decree is vague that does not predicate the exact extent to which each of the plaintiffs was entitled, I find such argument to be erroneous. 10. As regards the argument that the decree is vague that does not predicate the exact extent to which each of the plaintiffs was entitled, I find such argument to be erroneous. If the plaintiffs joined together and they had no conflict of interest in the compromise and the plaintiffs were declared entitled to 1/3rd share, it admits of no ambiguity that the mother and children would continue to be joint owners without predicating their share which each one of them was entitled. Even otherwise, joint entitlement in India would be treated as equal share for each one of the coowners. Therefore, there is nothing vague about this order. 11. The other argument is that the plaintiffs were entitled to whole of the property as claimed by them and would therefore contest that the earlier decree of compromise effected between the grandfather Shimbhu Dayal and a person purporting to act as mother by impersonation was bound to have been interfered with. There was fair chance of success in the suit. The mother had not acted to the benefit of the minors, by giving up a major share and taking to themselves only 1/3rd share. In this case, it must be noticed that the person, who had filed the suit earlier, namely, Shimbhu Dayal was the grandfather of the petitioners. Shimbhu Dayal himself had died. The petitioner’s father Deva Anand has also died. The mother of the petitioner had married in karewa form with the husband’s brother Hans Raj. The person against whom the children could have fought litigation had all become one family. The parties wanted to bury the hatchet and proceeded to enter into a compromise. A litigation in its usual course takes long number of years and depletes all resources and time. Finding a solution through compromise is always beneficial. In fact, the new mantra is ADR. If in this case, parties decided to compromise the matter and even if it meant that the mother was prepared to have a smaller share, she did what was appropriate for the benefit of the children. I find no reason to suspect that the mother had any adverse interest to her own minor children at that time. 12. The compromise decree satisfies all the legal requirements and the challenge made by the minors who had attained majority, is clearly misguided and therefore, the application was correctly dismissed. I find no reason to suspect that the mother had any adverse interest to her own minor children at that time. 12. The compromise decree satisfies all the legal requirements and the challenge made by the minors who had attained majority, is clearly misguided and therefore, the application was correctly dismissed. There is no interference call for. Therefore, the present civil revision petition is dismissed. ---------0.B.S.0------------