Gurdial Singh vs Harbans Singh land Others

Teja Singh, C.J.—The facts of the case out of which this appeal has arisen are given in our order of 3-10-52 whereby we referred to the Full Bench the question whether the appeal was properly instituted in this Court. the Pull Bench, has answered the question in the affirmative and sent back the case to us for disposal on merits.

It may briefly be reiterated that the suit land was sold by the Plaintiff''s father for Rs. 6000/- ankle on the suit by the Plaintiff a decree was granted to him on payment of that amount. When the appeal was pending in the Court of the District. Judge Kalsia an application was made by the parties Under Order 32 Rule 7 for permission to. compromise. This application was signed by the mother and next friend of the Plaintiff who was minor and the vendee. The application was adjourned to 31-5-50, for consideration. In the mean while because of the exchange of enclaves the Court of District Judge Kalsia ceased to exist and the appeal was transferred first to the Court of the District Judge Pratapgarh at Bassi and then to the District Judge Patiala. The application for permission to compromise was finally heard by the latter District Judge and he refused to accord permission to compromise on the ground that the next friend of the minor had gone back upon it.

Mr. Hanwant Bir Singh counsel for the vendee-Appellant urges that since a compromise had been actually arrived at between the minor''s next friend and his client, it was the duty of the District Judge," before rejecting the application, to go into the question whether or not the proposed compromise was for the benefit of the minor. He refers us in this connection to the provisions of Order 23, Rule 3 and Order 32, Rule 7. The words of Order23 Rule 3 are:

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the Defendant satisfies the Plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.

I agree with Mr. Hanwant Bir Singh that if the panties to a litigation are suijuris and the application is made to the Court that a compromise has been arrived between them, in spite of the fact that one of the parties goes back upon it later on it is the duty of the Court to go into the matter and if it comes to the conclusion that there-was really a compromise or settlement between the parties it must give effect to it. The position is, However, different where one of the parties happens to be a minor, because then the provisions of Order 32, Rule 7 would apply. Sub-rule (1) of Rule 7 lays down that 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. Sub-rule (2) says that any such agreement or compromise entered into without the leave of the Court so recorded shall be avoidable against all parties other than the minor As I read the words of this Rule I take them to mean that before a compromise can be arrived at on behalf of the minor an express permission of the Court should be obtained. This means that if a compromise takes place without the express per- mission of the Court it has no effect whatsoever and cannot even be looked into. I am strengthen-subject in this view by the observation made by Chatterjee J. in - Sri Narayan Singh and Others Vs. Posan Singh and Others, that the Court cannot give effect compromise which has been entered in- to by the guardian of ,the minor without its previous sanction.

The same view was taken by Anr. Bench of the same Court in earlier case Awadhesh Prasad Missir and Others Vs. Widow of Tribeni Prasad Missir and Others, where it was held that the terms of Order 32, . Rule 7 are not complied with by merely asking the Court to approve of a compromise which has actually been entered into and that the language of the Rule makes it clear that the Court must consider the. proposed terms before they are agreed to by the parties and must grant leave to the guardian ad litem to enter into the compromise. As was held in Sat Narain v. Kanti Lal AIR 1943 Lah 313 (C), the provisions of Order 32, Rule 7 are mandatory and if a compromise is arrived at on behalf of the minor without the express permission of the Court it is avoidable against all parties other than the minor. It is not denied that in the present case the compromise between the Plaintiff''s next friend and the Appellant was arrived at not only before the Court granted sanction but even before an application had been given. In the circumstances when the next friend of the minor Plaintiff went back upon the compromise there was nothing for the Court to enquire into.

Learned Counsel for the Appellant relied upon Hemangini Dassi and Others Vs. Bhagwati Sundari Dassi and Others, The facts of the case are as follows:

A Suit for construction of a will and for administration of the estate left by the maker of the will was instituted in the Court of a Sub-Judge. One of the Defendants in the case was a minor. The Plaintiff filed a petition praying that the suit may be disposed of in accordance with the certain terms of the compromise arrived at between her and certain Defendants. Along with this petition of compromise an affidavit was filed in which it was pointed out that although the proposed compromise was beneficial to the infant Defendant, the said Defendant''s guardian ad litem who was also a Defendant in the case in her own right, had refused to give her consent to the said settlement and that in the circumstances it was necessary that the infant''s guardian be removed and Anr. per-son should be appointed guardian ad litem in her place. Both these petitions were vigorously con- tested by the Defendants who were not parties to the compromise. In the meanwhile a separate application had been brought by the Plaintiff before the District Judge for permission to compromise the suit in terms of the draft petition of compromise filed before the Sub-Judge. The District Judge called for a report from the Sub-Judge. The Sub-Judge at first reported that the petition for compromise should be approved of by the Court. Sometime later a fresh application to compromise on the terms which had already been mentioned to the Court, was filed before the Sub-Judge. That application contained the prayer that the minor''s guardian should be removed and Anr. person be appointed in her place. On this the Sub-Judge made the order that there were not sufficient grounds for removal of the minor Defendant''s guardian and for appointment of a fresh guardian. He further held that inasmuch as a second suit for administration of the same estate which was the subject matter of the suit pending in his Court had already been commenced by the guardian of the minor Defendant on behalf of herself and as guardian of the minor, the proposed compromise even if given effect to would not end litigation relating to the estate and accordingly he dismissed the Plaintiff''s application.

The Plaintiff as well as the Defendants who had compromised the suit with him went in appeal, to the High Court. One of the points urged before the High Court was that before the District Judge would have thrown out the application for permission to compromise, he should have enquired into the terms on which the compromise was alleged to have taken place with a view to finding out ] whether or not it was for the benefit of the minor. The learned Judge disposed of this contention with the following remarks:

As regards the second contention it is settled law that although the Court can and must approve of a compromise on behalf of infants, it cannot and will not force one upon them against the opinion of their next friend or guardian ad lite in the action. In the case of Re: Birchal Wilson v. Birchal'' (1880) 16 Ch D 41 (E), (Where Jessel, M. R., stated the practice adopted by himself and his predecessor Lord Romilly M. R.) it was definitely ruled that no compromise can be enforced upon infants against the opinion of their guardian or next friend. No doubt if the Court found that a guardian or next friend was acting improperly and against the infant''s in tersest in refusing to assent to an arrangement which appeared clearly beneficial to them, steps might be taken to remove him and substitute some other person.

The first part of these remarks instead of helping the Appellant goes against him and since the guardian of the minor Respondent was not agreeable to the compromise the Court could not force her to accept it. As regards the second part it has no applicability here because no prayer was ever made by the Appellant to the District Judge that the guardian ad lite of the minor Respondent be removed and some other person be appointed guardian in her place because she was not agreeing in the interest of the minor. The only question the District Judge had to decide was whether he should give effect to the compromise which the minor''s guardian had made with the Appellant before the permission of the Court had been obtained and for the reasons mentioned above, the District Judge had no other option but to ignore that compromise.

I wish also to add that the proposed compromise was not in the interest of the minor and could not have been permitted by the District Judge. It was mentioned in the application that complicated questions were involved in the appeal and the minor''s success was problematical. I have not been able to understand what force there was in these allegations. It was a simple case of pre-emption and since the Plaintiff was the grandson of the vendor his right of pre-emption could not be denied. In fact this was conceded by the other side. in these circumstances it was futile to suggest that the minor Plaintiff stood any chance of losing the suit.

Then it was mentioned that the minor had incurred considerable expenses in fighting the litigation and if the litigation was not put an end to he would have to meet other expenses. In view of the simple nature of the point involved and the minor''s success being certain I do not believe that there was any force in this allegation either. Last of all it was urged that the land was of very inferior quality, that it did not yield sufficient income, that it was not in the interest of the Plaintiff to acquire it on payment of Rs. 6000/- and that he was lucky that he would not only get Rs. 6000/- that he has deposited in Court, but he would be paid Rs. 7500/- more if the compromise was sanctioned. The only thing that I wish to say on this point is that the mere fact that the Appellant insists on keeping the suit land with him even though he has to pay more than double the amount that lie originally agreed to pay" to the vendor would show that it is very valuable and the Plaintiff''s guardian is well advised in keeping it for him on payment of only Rs. 6000/-.

The result is that the appeal fails and is dismissed with costs.

Gurnam Singh, J.

I agree.