Badri Singh vs Chhotu Singh and Others

Manohar Lall, J.—This is an appeal by the plaintiff against a decree passed by the learned Subordinate Judge on 13th February 1933, decreeing in part a suit for partition, by a preliminary decree. The plaintiff being dissatisfied has appealed to this Court. The case has taken a very tortuous course as appears from a study of the order-sheet, which is printed at pp. 47.48 of the paper, book. The suit was instituted in 1930 and on 6th June 1931 the parties asked the Court for an opportunity to file a petition of compromise. Accordingly two days afterwards a petition of compromise was filed. The guardian ad litem of the minor defendant 7 also applied for permission to com. promise the suit on behalf of all the minors. On 18th June 1931 the Court accepted the compromise petition and passed the following order:

Let the suit be decreed in terms of the compromise petition, filed on 8th June 1931. It is decreed ex parte against defendant 13 Let a final decree be prepared. The compromise petition will form a part of the decree. The suit is dismissed against the pro forma defendant 15.

It appears that thereafter on 28th May 1932, i.e. about a year afterwards, the learned Subordinate Judge proceeded to review the order of 18th June 1931, under the provisions of Order 47, Rule 1 read with Section 151, Civil P.C., and he set aside the compromise so far as the minor, at whose instance he was moved, was concerned, upon the ground that inasmuch as defendants 2 to 5 who have one-third share in the properties got by the com promise properties of the value of Rupees 1529 whereas the minor defendant 7 whose share was also one-third, got properties of the value of Rs. 302-14-0. The learned Subordinate Judge set aside the compromise upon his view that it was not for the benefit of that minor. He also took into consideration the fact that there was no express order recording that the com. promise was for the benefit of the minor.

Accordingly the suit was restored to its original number resulting, after hearing, in the decree of 13th February 1933 as already indicated. The learned Subordinate Judge was in error when he thought that it was necessary that there should have been an express order stating that the compromise was for the benefit of the minor. It has been repeatedly held by the Privy Council that it is enough if the attention of the Court is directed specifically to the fact that there is a minor involved and the compromise is brought to its notice and that if thereafter a decree is ordered to be passed in terms of the compromise, it must be assumed that the Court has complied with the requirements of the law. But however that may be, the situation is that the party affected not having appealed against the order of 28th May 1932 the appeal has to be decided on the merits.

This appeal came up for hearing several times before the Bench presided over by my lord the Chief Justice and we gave repeated opportunities to the guardian of the minor to take special instructions from his client as to why the compromise of 8th June 1931 should not be given effect to by this Court. It was then brought to our notice that the minor is now worse off than what he got by the terms of the compromise. Sir Manmatha Nath Mukherji appearing on behalf of the appellant and Mr. Sushil Madhab Mullick appearing on behalf of defendants 2 to 5 have assured us that this is so.

Under these circumstances it is difficult to see why the minor should not accept the terms of the compromise, which was already entered into by his guardian in the presence of the other members of the family. We are satisfied that the compromise is for the benefit of the minor and to his advantage. We have heard Mr. Rajkisbore Prasad at length on behalf of defendant 7 but he is unable to convince us that the minor is not benefited by this compromise. It is unfortunate that this litigation has been prolonged owing to the fact that the learned Subordinate Judge took a very strict view of the provisions of Order 32 and owing to the fact that on a summary decision of the merits of the case then before him, he was satisfied that the minor had not been fairly dealt with.

On the findings in the present case how ever, id would appear that a number of the properties sought to be partitioned are self-acquired properties of some of the party defendants in which the minor would have no share at all. On this view also, the compromise which was accepted by the Court on 18th June 1931 should be accepted in the interests of all the parties concerned.

The result is that the appeal is allowed and the judgment and decree of 13th February 1933 are set aside. The suit will be decreed in terms of the petition of compromise filed on 8thh June 1932, i.e. order No. 28 of 18th June 1931 will be restored. The ex parte decree against defendant 13 will stand, no appeal having been preferred by him from that order. The cross-objection is not pressed.

Chatterji, J.

I agree.