Ramnarain Singh and Others vs Atal behari Singh and Others

Agarwala, J.—The opposite party instituted a suit for the recovery of 15 dhurs of land alleging that the petitioners had encroached upon the land of the plaintiffs. Two of the plaintiffs and two of the defendants were minors. These minors were represented in the suit by guardians. An application was filed on behalf of all the parties requesting the Court to refer the matter in dispute to arbitration. The application was signed by the adult plaintiffs and defendants and by the guardians of the minor plaintiffs and defendants.

There was also an application made by the guardian of the minor defendants for permission to enter into the agreement to refer to arbitration but no such application was made by the guardian of the minor plaintiffs. The Court considered the application to refer the matter to arbitration and referred it to arbitration. When the arbitrators submitted their award, objection was taken on behalf of the minor defendants. This objection was overruled. An application was then made on behalf of the minor defendants for review on the ground that the Court had not recorded express permission to the guardians of the minor plaintiffs and defendants to agree to refer the suit to arbitration. The application for review having been disallowed, this petition in revision has been presented on behalf of the defendants.

In course of the argument reference was made to the decision of this Court in Hanuman Rai v. Jagdish Rai A.I.R (1916) . Pat. 223 where it was held that the next friend or guardian of a minor cannot compromise on behalf of the minor without the leave of the Court expressly recorded in the proceedings. It is noticeable that in that case the guardian sought to withdraw from the compromise before the Court recorded its permission for her to enter into the compromise and it was observed by the learned Chief Justice:

It appears to me that it would not be right to hold that the Court was entitled to force the compromise on Mt. Raj Rani (the guardian)'' after she had withdrawn her petition praying for the leave of the Court to enter into the compromise.

The next case referred to was Har Sarup Vs. Tohfa Singh and Others . That was a suit for ejectment against two cotenants, one of whom was an adult and the other a minor under the guardianship of the adult defendant. The suit was compromised without the sanction of the Court and without the leave of the Court having been sought for the guardian to enter into the compromise on behalf of the minor defendant. The present case approximates nearer to the decision of this Court in Ishan Chandra Kundu v. Nilratan Adhikari A.I.R (1923) . Pat. 375, where it was held that when it is shown that an application for leave to compromise a suit on behalf of the minor was made by the guardian and noted by the Court, a decree passed on the compromise entered into by the guardian is binding on the minor. The view which the learned Judges took of the language of Order 32, Rule 7, requiring the leave of the Court to be expressly recorded in the proceedings, was that this did not indicate any particular formula to be used by the Court in granting leave and that so long as an application is made to the Court for leave and the Court is aware that the application is on behalf of the minors and exercises its judicial discretion to permit the guardian to enter into a compromise on behalf of the minors, the compromise is binding even though there is no record expressly grant, ing the Court''s leave.

Now as I have already stated, the present application in revision arises out of an application for review. On the application for review the question the Court was asked to investigate was whether there had been a granting of leave to the guardian to refer the matter to arbitration. The Court held that in view of the application to refer to arbitration being signed by the guardians of the minor plaintiffs and the defendants and in view of the application filed by the guardian of the minor defendants seeking permission to refer the matter to arbitration and in view of the order of the Court on these petitions directing that the matter should be referred to arbitration that the provisions of Order 32, Rule 7 had been.sufficiently complied with. In view of the observations in Ishan Chandra Kundu and Another Vs. Nilratan Adhikari and Others, it was certainly open to the Court to find that the circumstances mentioned above, indicated that the Court had applied its mind to the application of the guardian of the minors for permission to agree to the reference and that the order directing reference to be made was the recording of its permission.

In these circumstances, there is no ground made out for interfering in revision with the decision of the Court below, more particularly as it is not alleged that there was any fraud or misconduct on the part of the guardian of the minors or on the part of the arbitrators. I will therefore dismiss this application with costs; hearing fee one gold mohur.