Karnataka High Court
Basappa Siddagouda Biradar Patil vs Basagondappa on 27 June, 1991
Equivalent citations: ILR1991KAR4374
JUDGMENT Hiremath, J.
1. The appellant was defendant-4 in the Original Suit in which respondent-1 plaintiff challenged inter alia the compromise decree passed in Special C.S.No. 108/1949 on the file of the Civil Judge, Senior Division, Bijapur. From the evidence on record the trial Court has constructed a pedigree to be found in para-2 of its Judgment. The propositus Rayappa Biradar had a wife by name Yamanawwa and this Yamanawwa after the death of Rayappa adopted Madgonda on 7-4-1944. He however died on 12-5-1949. Another Bhimappa is said to have been adopted by the same Yamanawwa. Madagonda her first adopted son left behind a widow Rangawwa who adopted the present respondent-plaintiff on 15-6-1949. It appears that the plaintiff filed Spl.C.S.No. 108/1949. The plaintiff contended that Bhimappa's adoption which had taken place after his adoption was not legal and valid, that there was a registered adoption deed executed by his adoptive mother and hence he became the owner of the properties involved in that suit of 1949 by virtue of his adoption. As could be seen from the statement of facts in para-5 of the trial Court's Judgment the contention of the plaintiff in that suit was that after adopting Bhimappa, Yamanawwa drove the plaintiff and defendant-2 out of the family house with the help of Bhimappa and therefore the plaintiff's natural father Yarnanappa was compelled to fife C.S,No. 108/1949 as a next friend of the minor plaintiff for possession of the suit properties. In that suit Yarnanawwa, her daughter-in-law Rangawwa, i.e., the adoptive mother of the plaintiff as well as her adopted son Bhimappa were parties. Yamanawwa denied the adoption of the plaintiff by Rangawwa. As the pleadings in that suit are not on record here it is not possible to advert to all the contentions raised in that suit by the respective parties. Suffice it to note that on 29-8-1951 a compromise petition was filed in that Court by the plaintiff's natural father Yamanappa representing the plaintiff as his next friend in that suit and defendants as his next friend in that suit and defendants therein and the Court on the application filed for permission to compromise ordered "Granted by" and directed that decree be drawn in terms of the compromise. The consideration that the plaintiff's father received was cash of Rs. 1,250/-. Accordingly the entire suit came to be disposed of in terms of the compromise petition.
2. The plaintiff-respondent No. 1 on attaining majority challenged this decree on various grounds and one of the grounds was that the Court while granting permission to his father - next firmed as required under Order 32 Rule 7 of the Code of Civil Procedure did not apply its mind, that it did not consider whether the compromise was in the interest and for the benefit of the minor-plaintiff and in other words mechanically granted permission which has resulted in serious miscarriage of justice. It was also urged that that decree is a collusive one and the parties played fraud on the Court in as much as the very status of the plaintiff as adopted son by Yamanawwa was relinquished for a paltry consideration of Rs. 1,250/-. Incidentally the plaintiff also referred to his own adoption and other relevant facts giving him right to the properties of the adoptive family. The appellant and other defendants in that suit maintained that there was no collusion or fraud, that the Court even though did not make a detailed order that it was in the interest or the benefit of the minor plaintiff had applied its mind and granted permission. Both the Courts below found that mere noting that the permission was granted did not amount to substantial compliance of the requirements of Order 32 Rule 7 CPC, that there is nothing to show that the Court giving permission applied its mind to this aspect and so holding decreed the suit of respondent No. 1. The trial Court did not accept the contention of the defendants that this was only a provisional agreement as tried to be. made out before it. Rest of the issues were not answered by the trial Court for the reasons assigned in para-22 of its Judgment. It says:
"It is important to note that the decree which is sought by the plaintiff in the present case is only for setting aside the decree passed in SP.C.S.No. 108/1949. Whether Bhimappa had a legal right or not cannot be answered either affirmatively or negatively in the present case. Bhimappa's ownership can be decided only after holding the adoption of present plaintiff and his adoptive father. In the present case even if the decree in C.S.No. 108/1949 is set aside it will not immediately confirmed (perhaps ought to be confer) any right of ownership or title on the present plaintiff in respect of the suit property unless and until it is properly decided in that suit. Under such circumstances the reliefs sought by the plaintiff to set aside the alienation made by Bhimappa i.e., the husband of defendant No. 3 in favour of defendant No. 4 cannot be considered in the present suit. Such a relief will be prematured. So issue Nos.3 and 4 cannot be considered in the present case."
These two issues relate to the title of Bhimappa to the properties which were alienated to the present appellant. It thus follows that the trial Court kept these relevant issues to be decided in C.S.No. 108/1949.
3. The substantial question of law set down for determination in this appeal is as follows:
"Whether the Court below has committed an error of law in holding that there has not been substantial compliance with the provisions of Order 32 Rule 7 of the Civil Procedure Code when permission was granted in the earlier suit for entering into compromise on behalf of the minor?"
Advisedly Sub-rule (1A) to Rule 7 was introduced by the amendment to Code of Civil Procedure in the year 1976. Under Sub-rule (1A) 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. Certain better safeguards have been laid down by the Rules under Civil Rules of Practice framed by this Court by substituting Sub-rule (2) of Rule 7. This was of course in the year 1959. Neither the provision requiring a Pleader or an Advocate to file a certificate that the compromise is in the interest of the minor nor such safeguards introduced in the Civil Rules of Practice framed by the High Court were in existence when this compromise was entered into in the year 1951, in the Court of the Civil Judge, Senior Division at Bijapur. Therefore under Order 32 Rule 7 as it stood prior to this amendment it was only provided that no next friend or the 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) is the same as it was before the amendment. It says that any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.
4. Thus presently it is Rule 7 of Order 32 that is for consideration by this Court. Adverting to the application filed by the father of the plaintiff for permission the trial Court has reproduced the same verbatim. The natural father of the plaintiff appears to have stated therein that it was not possible to prove the adoption from the evidence available though the 1st defendant had taken him in adoption, that the 2nd defendant paid Rs. 1,250/- towards the Court costs etc., and he was satisfied that the plaintiff would not get any share in the suit properties and therefore he was benefited by receiving Rs. 1,250/-. As already stated, below this application the Court only ordered that it was "Granted by". Reference was made to the Decision of the Supreme Court by the first Appellate Court in the case of BISHUNDEO v. SEOGENI RAI in which the Court held that there is no set form in which the certificate which the Court is required to record need be made. Where the Judge passes an order granting permission to compromise on behalf of the minor on ground that it is for minor's benefit after applying his mind to the question there is substantial compliance with Order 32 Rule 7. Though as already stated Rule 7 by itself does not say that the Judge should record in the order that the compromise was for the benefit of the minor or in the interest of minor, this Decision was rendered ever before the amendment of 1976. The Supreme Court thus emphasised the necessity of the satisfaction of the Court granting permission that it was in the interest of and for the benefit of the minor. One of the arguments advanced on behalf of the appellant is that in view of absence of any such requirement as now could be found under Sub-rule (1A) of Rule 7 even if the Court to which the application for permission was made ordered that the permission was granted it is sufficient requirement of Order 32 Rule 7 CPC. The case as already stated was before the Court of Civil Judge at Bijapur and the High Court of Judicature at Bombay had jurisdiction over it. In the case of CHANDULAL v. NAGINDAS AIR 1929 Bombay 350 the High Court laid certain guidelines for the observance of the Courts in a situation like this. The Division Bench presided over by His Lordship Chief Justice observed that where the parties to suit arrived at a compromise and present it to the Court for passing decree in terms of it, asking the Court to satisfy itself that the compromise is for the benefit of the minors, there should be an affidavit from the next friend of the minor or the guardian of the minor defendants stating that he considers the proposed compromise to be for the benefit of the particular minor or minors and stating some grounds on which he bases his opinion. Further in heavy cases there should be an opinion of Counsel or else a statement of Counsel at the Bar that in his opinion the compromise is for the benefit of the minors. The Court should also satisfy itself that compromise was for the benefit of the minor. It thus follows that the Court before which the application is made for permission to compromise on behalf of a minor owes a duty to satisfy itself on going through the terms of the compromise that it is for the benefit of the minor. In the instant case both the Courts have found that the Court which granted permission did not apply its mind if the terms of the compromise are adverted to. The natural father-next friend received Rs. 1,250/- and gave up on behalf of the minor all the rights that flowed from his adoption and inspite of a registered deed of adoption given by the adoptive mother Yamanawwa the natural father's apprehension was that it was not possible to prove the adoption of the plaintiff. It also states that all the rights of the adopted son in the properties of the adoptive family were given up. This was a serious thing by which the adopted son loses his status as such and also loses his rights in the properties to which he would have been otherwise entitled to. Though evidence was also led with regard collusion and fraud the Courts did not find sufficient evidence in this behalf. In my view if the responsibility placed on the Courts called upon to consider the terms of the compromise presented on behalf of a minor is considered a one word order made by the Court that he was granted cannot be considered as an order made by applying mind of the Court.
5. Keeping in line with the judicial pronouncements when the Civil Procedure Code came to be amended in the year 1976 a specific provision has been made in this behalf to safeguard the interest of a minor by introduction of Sub-rule (1A) referred to above. In my view therefore the Courts below were justified in finding that the compromise decree passed in C.S.No. 108/1949 was so done without there being a proper permission for the grant after application of its mind. I do not find any merit in this appeal and the same is liable to be dismissed. The trial Court made it clear that the rest of the issues with regard to the title of the plaintiff to the properties involved and the adoption of Bhimappa could as well be gone into in the suit of 1949 in view of the pleadings therein. Finding that these observations are quite proper I dismiss this appeal with costs of respondent No. 1.