JUDGMENT : SUDHIR AGARWAL, J. 1. This is a defendant's appeal under section 96 of Code of Civil Procedure, (hereinafter referred to as CPC) has come up against judgment dated 21.12.2004 and decree dated 3.1.2005, passed by Sri U.S. Tomar, Special Judge (E.C. Act), Moradabad, decreeing Suit No. 975 of 1993 for partition and permanent injunction, holding that plaintiff-respondents have 4/6 share and defendant-respondent, Smt. Beena has share which may be separated and preliminary decree may be prepared. Court has also decreed counter claim of defendant 2. 2. Plaintiff-respondents (Ist set) and plaintiff-respondent-7 (IInd set) instituted O.S. No. 975 of 1993, seeking division of property situated at Mohallah Malviya Nagar, Moradabad to the extent of 4/6 share of plaintiffs and deliver possession thereupon to them. They also sought for a permanent injunction restraining defendant 1, Baldev Raj Ahuja or any of his agents neither to sell any property described in the Schedule "A" attached with the plaint nor raise any construction on the portion of their share. The property described in the schedule is plot no. 32 situated at Mohallah Malviya Nagar, District Moradabad, which includes basement and boundary wall. 3. Plaint case set up is that plaintiffs 1, 2, 4 and 3/1 to 3/4 had a common predecessor namely late Gulshan Kumar and Sri Tulsi Das, father of defendants were closely related and owner of several other properties besides plot no. 32 detailed in Schedule A. After death of Tulsi Das, his entire property was succeeded by his wife son and daughter. Parties entered into an oral family settlement which became part of decree dated 21.03.1978 in Original Suit No. 40 of 1978, Smt. Hukmi Bai and Others vs. Baldeo Raj Ahuja. Smt. Hukmi Bai, mother of plaintiffs 1, 2 and 4, defendants and wife of Tulsi Das, died in 1981. Her share also came to be succeeded by her legal heirs and according to property shown in Schedule A, plaintiff No. 1 succeeded on 7/12 share; plaintiffs 2, 3 and 4 and defendants No. 1 and 2 succeeded to 1/12 share each. Though plaintiffs had total share of 10/12 but in order to avoid any dispute they claim only 4/6 share and seek division by means of law. Several times defendants were requested to have smooth and consented partition of disputed property but they did not agree. 4. Though plaintiffs had total share of 10/12 but in order to avoid any dispute they claim only 4/6 share and seek division by means of law. Several times defendants were requested to have smooth and consented partition of disputed property but they did not agree. 4. Defendant 2 contested suit by filing his own written statement and stated that at the time of institution of Original Suit No. 40 of 1978, signatures of defendants 2 and 3 were obtained on blank paper. It is only after reading the plaint of suit in question he came to know of having not received any property from common ancestors. Claim of plaintiffs- appellants is based on demarcation made by plaintiffs though there is no documents, showing demarcation of partition amongst co-sharers. Counter claim was made by defendant 2 that entire property is to be taken as one and divided amongst co-shearers with share each. 5. Defendant 1 also filed a separate written statement in which he admitted that owner of plot no. 32 and other properties was late Tulsi Das Ahuja. 6. Trial Court formulated 11 issues and subsequently added 6 more issues and these 17 issues are as under:- 1. Whether Smt. Hukmi Bai, mother of plaintiff no. 1 and both the parties, became co- owners of disputed property mentioned at Schedule "A" of the plaint, by virtue of oral family compromise and decree passed by Court of Civil Judge, Moradabad in Suit No. 40 of 1978? 2. Whether plaintiffs have 4/6 share in the property described in Schedule "A" of plaint? 3. Whether disputed property Plot No. 32 Malviyanagar Moradabad was received by Smt. Hukmi Bai only pursuant to family compromise and decree in Suit No. 40/78 passed by Court of Civil Judge? 4. Whether plaintiffs and defendant-2 had any ownership right over the disputed property? 5. Whether boundaries of disputed property Plot No. 32, Malviyanagar, Moradabad is wrongly mentioned in the plaint and its effect? 6. Whether suit of plaintiffs is barred by sections 34 and 41 of Specific Relief Act? 7. Relief, if any, to which plaintiff is entitled? 8. Whether Late Smt. Hukmi Bai had executed any registered lease deed? If so, its effect. 9. Whether the documents got registered on 17.06.80 by Smt. Hukmi Bai was lease deed in her knowledge? If so, its effect. 10. 7. Relief, if any, to which plaintiff is entitled? 8. Whether Late Smt. Hukmi Bai had executed any registered lease deed? If so, its effect. 9. Whether the documents got registered on 17.06.80 by Smt. Hukmi Bai was lease deed in her knowledge? If so, its effect. 10. Whether Smt. Hukmi Bai had executed any will on 02.08.81 in favour of Baldevraj? 11. Whether will dated 02.08.81 shown by Baldevraj (defendant-1) was forged, fictitious and void document? 12. Whether the present counter claim by way of written statement is legally maintainable? 13. Whether the property mentioned in the counter claim is properly valued? 14. Whether the court fees paid is sufficient on counter claim? 15. Whether defendant no. 2 is entitled to involve other property in counter claim which was not subject matter of the present suit, as filed by the plaintiff. 16. Whether the plaintiff has obtained the signature on blank paper of defendant no. 2 without disclosing the fact and the same paper was used as a compromise in OS No. 40/78, if so, its effect? 17. To what kind of relief, if any, is defendant no. 2 entitled? 7. Issues 13 and 14 relating to court fee and valuation were taken up as preliminary issues and adjudicated vide order dated 16.4.2003. Requisite Court fee was further deposited by order dated 25.8.2003. Hence, both these issues were answered in favour of plaintiffs. Issues 12 and 15 related to maintainability of counter claim and Trial Court held that counter claim, set up by defendant 2, is maintainable. Issues 10 and 11 related to genuineness of Will dated 2.8.1991 made by Hukmi Bai and both have been answered against defendant 1. Issues 1 and 3 were taken up together and answered against defendant 1, holding that proceedings of Original Suit No. 40 of 1978 were bad and there was a conspiracy between parties and hence, claim of Smt. Hukmi Bai as co-owner in the property detailed in Schedule A cannot be accepted. Issue 5 was decided holding that parties agree that disputed property is identifiable and therefore, mere an error in description of boundary wall could be of no consequence. Issues 8 and 9 were taken together. In respect of Issue 8, Court below held that it could not be proved that any lease deed dated 17.6.1980 was executed by Smt. Hukmi Bai in favour of defendant 1. Issues 8 and 9 were taken together. In respect of Issue 8, Court below held that it could not be proved that any lease deed dated 17.6.1980 was executed by Smt. Hukmi Bai in favour of defendant 1. Issue 9 was also answered by observing that since defendant 1 stated that lease deed did not contain signature of his brother hence, knowledge of lease deed to the successors is not possible. Then Issues 2 and 4 were taken together. Claim and counter claim of plaintiff and defendant 2 both were held justified. Issue 6 was answered in negative. Thereafter, suit was decreed by declaring share of plaintiffs and defendant 2 to the extent of 4/6 and 1/6 respectively. 8. Counsel for appellant contended that there was no challenge to the decree passed in Suit No. 40 of 1978, hence, Court below erred in law in declaring it illegal, being result of conspiracy between parties in Suit No. 40 of 1978 Smt. Hukmi Bai, Km. Beena and Mahesh Chandra Ahuja were plaintiffs while Baldeo Raj Ahuja, Ramesh Chandra Ahuja, Gulshan Kumar and Krishna Kumar were defendants. Compromise was signed by respective parties of their own free will, attested by witnesses in presence of parties, hence, Court below erred in law in rejecting the said decree. Pursuant to decree passed in Suit No. 40 of 1978, respective parties came to possess their respective shares in ownership separately till Smt. Hukmi Bai, mother of plaintiffs and defendant 2 was alive. Thereafter they again separated. Parties are paying their house tax separately having separate assessment from Nagar Nigam, Moradabad. Mahesh Chandra Ahuja also did not challenge decree after attaining majority in 1993 and hence, the same is binding on him also. Counter claim was not maintainable and defendant 2, party in Suit No. 40 of 1978, could not have challenged the same. 9. After hearing counsel for parties, in our view, following points for determination have arisen in this appeal for decision on merits. (i) Whether Trial Court was justified in declaring that decree dated 21.3.1978 in Suit No. 40 of 1978 is void being result of conspiracy? (ii) Whether the finding recorded by Trial Court with regard to genuineness of Will dated 2.8.1991 is correct or not? 10. (i) Whether Trial Court was justified in declaring that decree dated 21.3.1978 in Suit No. 40 of 1978 is void being result of conspiracy? (ii) Whether the finding recorded by Trial Court with regard to genuineness of Will dated 2.8.1991 is correct or not? 10. Court below in order to record a finding against the decision in Suit No. 40 of 1978 relied on Order 32, Rule 3 (2) observing that Mahesh Chandra was minor and no guardian was appointed, hence aforesaid Suit was a conspiracy and cannot result in determining share of parties. 11. The effect of Order 32, Rule 7 (1) and 7(2) has been considered in Kaushalya Devi and Others vs. Baijnath Sayal (deceased) and Others, AIR 1961 SC 790 and it is held that non-observance of the conditions laid down by Rule 1 does not make agreement or decree void and it does not affect jurisdiction of the Court at all. The non-observance of the said condition makes agreement or decree only voidable at the instance of minor. Court held that a compromise decree may be avoided by minor either by a regular suit or by an application for review by the Court which passed said decree. 12. With regard to decree in Suit No. 40 of 1978 even DW-1, Baldeo Raj Ahuja admitted passing of such decree. Court held that a compromise decree may be avoided by minor either by a regular suit or by an application for review by the Court which passed said decree. 12. With regard to decree in Suit No. 40 of 1978 even DW-1, Baldeo Raj Ahuja admitted passing of such decree. Relevant extract of statement of DW-1 is reproduced as under: U;k;ky; flfoy tth eqjknkckn esa eqdnek uaŒ 40@78 okLrs fookfnr lEifRr dh ?kks"k.kk ds fy, og okn esjh ekrkth o chuk dqekjh o egs'k vkgwtk dh vksj ls esjs o rhu HkkbZ;ksa ds f[kykQ izLrqr gqvk FkkA bl eqdnesa esa vkil esa tk;nkn dk caVokjk gqvk FkkA igys gekjk caVokjk ekSf[kd gqvk fQj ekrkth us nkok fd;k FkkA fQj mlesa le>kSrk gksdj nkok fMØh gks x;kA tgka ;g eqdnek nk;j fd;k x;k Fkk mls vc flfoy tt lhfu;j fMohtu dgrs gSA esjh ekrkth us fookfnr IykV ij dksbZ fuekZ.k ugha djk;kA esjh ekrkth us ,ŒMhŒ,eŒ flVh ds lEeq[k IykV ij fcfYMax cukus dk uD'kk ikl djkus ds fy;s fn;k ;g uD'kk ikl gks x;k FkkA esjh ekrkth us fookfnr IykV dks vkgwtk lkbZfdy o fjD'kk b.MLVªht dks yht ij 30 lky gsrq lu~ 1980 dks fn;kA eSusftax Mk;jsDVj ds ikVZuj dh gSfl;r ls cYnsojkt us dCtk fy;kA cYnsojkt esa gh gwaA fookfnr IykV ij dCtk ysus ds ckn dk dksbZ dke ugha gqvkA bl ij esjk dCtk jgkA esjh eka dk fu/ku 14-10-1981 dks gks x;k FkkA fnukad 02-08-1981 dks esjh eka us fookfnr lEifRr o viuh vU; lEifRr dh ckcr~ olh;r fy[kh FkhA olh;r esa fookfnr lEifRr rUgk esjs fgLls esa vkbZA Suit No. 40/78 was filed against me and my three brothers on behalf of my mother, Beena Kumari and Mahesh Ahuja for declaration of disputed property. In this suit, partition of the property between parties took place. Earlier oral partition took place and thereafter, mother filed suit wherein suit was decreed after compromise. The Court where the case was filed is now known as Civil Judge (Senior Division). My mother did not get any construction raised over the disputed plot. My mother submitted map before ADM (City) for approval of construction of building and that map was approved. My mother leased out disputed plot to Ahuja Cycle and Rickshaw Industries for 30 years in 1980. Managing Director in the capacity of partner had taken possession from Baldevraj. It is I who is Baldevraj. My mother submitted map before ADM (City) for approval of construction of building and that map was approved. My mother leased out disputed plot to Ahuja Cycle and Rickshaw Industries for 30 years in 1980. Managing Director in the capacity of partner had taken possession from Baldevraj. It is I who is Baldevraj. After taking possession of the disputed plot, no work was done on it. It was occupied by me. My mother expired on 14.10.1981. On 02.08.81, my mother executed a Will in respect of dispute property and other properties. In the Will disputed property came to my share. (English Translation by Court) 13. He further said that Mahesh Chandra Ahuja was minor and oral compromise on his part was entered by his mother. Relevant extract of statement of DW-1 reads as under: 40 lu~ 1978 okys le>kSrs esa egs'k vo;Ld Fkk egs'k dh vksj ls ekSf[kd le>kSrk Hkh ekrkth us fd;k FkkA Mahesh was minor at the time of compromise in Suit No. 40 of 1978 and oral compromise was entered into by mother on behalf of Mahesh. (English Translation by Court) 14. Whatever has been observed with regard to Order 32, Rule 7 (1) and (2) CPC, in our view, it will also be applicable to Order 32, Rule 2 and 3 (2), since on principle, we do not find any reason to have a different test. Compromise decree executed on behalf of minor by natural guardian (mother) cannot be said to be per se void inasmuch as it is voidable at the instance of minor and it is nobody's case that minor after attaining majority, ever challenged or disputed said decree. Hence, mere fact that guardian was not appointed by Court, will not vitiate or nullify the decree which was passed with consent of parties and where against minor has not raised any dispute after attaining majority, within the period prescribed though it was open to him to challenge the decree before appropriate forum. Issue No. 1, therefore, is answered in favour of appellant and findings of Court below recorded otherwise are reversed. 15. Now we come to second question with regard to findings of Trial Court regarding genuineness of will dated 02.08.1991. Issue No. 1, therefore, is answered in favour of appellant and findings of Court below recorded otherwise are reversed. 15. Now we come to second question with regard to findings of Trial Court regarding genuineness of will dated 02.08.1991. For proving Will dated 2.8.1991, we find that it was not proved at all and it is evident from judgment of Court below that original Will was not produced before it though defendant claimed that it was in his possession. Relevant findings are as under: ------------i=koyh ij miyC/k lk{; ls ;g ik;k tkrk gS fd Jherh gqdeh ckbZ dh olh;r esa ftls rqylhnkl dh olh;r ds vk/kkj ij LokfeRo ÁkIr gksuk izdV fd;k x;k gS og olh;r U;k;ky; esa ÁLrqr ugha dh x;h tcfd Áfroknh uaŒ 1 ds }kjk mDr olh;r dks vius dCts esa gksuk Lohdkj fd;k x;k gS---------- ..........From the evidence available on record it is found that the Will of Tulsidas on the basis whereof ownership is shown to be claimed, has not been produced in Court whereas the aforesaid will is admitted by defendant no. 1 to be in his possession....... (English translation by Court) 16. One Attesting Witness Prithvi Raj, DW-2 was examined who did not say that Will was prepared or executed in his presence by the testator hence, his statement was found not sufficient to prove the Will. Second Attesting Witness was not examined at all. No reason for such non-production of Attesting Witness was given. Findings in this respect are as under: ------------;g Hkh Áekf.kr ik;k tkrk gS fd Áfroknh uaŒ 1 dh mDr olh;r dks lkfcr djus ds fy, u rks nwljk xokg miyC/k gksus ds ckotwn Hkh ijhf{kr ugha fd;k x;k--------- ..........This is also certified that no other witness despite being available was not produced to prove the aforesaid Will of Defendant-1....... (English translation by Court) 17. Therefore, so far as findings of Court below with regard to Will dated 2.8.1991 is concerned, we find that reasons assigned by Trial Court for holding that Will was not proved, are justified, hence, question with regard to genuineness of Will has to be answered in favour of plaintiff and against defendant 1. 18. With regard to decree dated 21.3.1978 in Original Suit No. 40 of 1978, Trial Court has erred in law in holding that since there was violation of Order 32, Rule 2 , therefore, decree is void. 18. With regard to decree dated 21.3.1978 in Original Suit No. 40 of 1978, Trial Court has erred in law in holding that since there was violation of Order 32, Rule 2 , therefore, decree is void. We have already referred to the judgment of Kaushalya Devi (supra) wherein it was held that for such violation compromise cannot be said to be void but it is only voidable. This question therefore, we have already answered in favour of appellant and against the plaintiff-respondents. 19. In the result, both questions formulated above are answered accordingly. Question-1 is answered in favour of appellant and question-2 is answered against appellant. 20. Appeal is allowed. Impugned judgment and decree passed in Original Suit No. 975 of 1993 are hereby set aside. Matter is remanded to the Court below to re-determine share of parties in the light of findings recorded in this judgment. 21. Costs made easy.