Patna High Court
Mathura Singh And Ors. vs Deodhari Singh And Ors. on 23 December, 1970
Equivalent citations: AIR1972PAT17, AIR 1972 PATNA 17, ILR (1971) 50 PAT 547
JUDGMENT B.N. Jha, J.
1. In the partition suit filed by the plaintiffs-respondents, the Court below has passed a decree in the following terms:--
"It is accordingly ordered that the suit be decreed on contest with costs against defendant No. 4 and ex parte with rests against the other defendants in terms of the compromise petition filed on 25-7-62. Pleader's fee at the minimum contested scale. Let the compromise dated 25-7-62 be recorded and the suit be decreed in terms thereof. The final decree shall be drawn up on the taking of the necessary steps by the parties. So far as the balance area of suit properties, that is 10.221/4 acres of land which is not covered by the compromise petition filed on 25-7-62 is concerned, the suit is decreed preliminarily without costs, and a preliminary decree shall be drawn up for the same. The final decree for the same shall be drawn up on the taking of the necessary steps by the parties. The cost of the final decree shall be borne by the parties according to their proportionate shares."
Defendant No. 4 and his minor sons defendants 11 to 14 under the guardianship of their father Mathura Singh (appellant No. 1) have filed the appeal.
2. Mr. L.K. Choudhary, learned counsel for the appellants, has contended that the decree under appeal is not sustain-able in the eye of law inasmuch as the appellants were no parties to the compromise arrived at between the parties. According to him, appellant Mathura Singh (defendant No. 4) never consented to the compromise arrived at between the plaintiffs on the one hand and some of the defendants on the other and, as such, the same could not be recorded as against him and his minor sons defendants Nos. 11 to 14 and they could not be regarded as parties to the compromise. He, therefore, contended that the suit for partition could not be decreed in terms of the compromise which made allotments of the joint properties for different co-sharers. On the other hand, Mr. Ugra Singh, learned counsel for the plaintiffs-respondents contended that Mathura Singh had also joined the compromise and the compromise so effected was binding on all persons including the minor defendants Nos. 11 to 14 as a family settlement.
3. It appears that the plaintiffs had filed a petition for appointment of a receiver. January 25, 1960 was the date fixed in the case. Defendants Nos. 1, 3, 4, (appellant No. 1), 5, 6 7, 15 and 20 appeared on that date and filed petitions for time for filing objections to the appointment of a receiver in the case. The case was adjourned to February 9, 1960 for filing objections-In the suit, there were several sets of defendants having separate and distinct interests and there were several minor defendants also. As their natural guardians did not appear to represent the minor defendants, the natural guardians were removed by order No. 12 dated February 26, 1960. Mathura Singh, defendant No. 4 was discharged from guardianship of defendants Nos. 11 to 14 and in his place Shri Anandi Prasad Sharma, Pleader, was appointed as guardian of the said minor defendants. He was also appointed guardian-ad-litem for minor defendants 16, 17, 22, 23, 24, 25, 30, 32 and 33. Shri Shailesh Kumar Sanyal, Pleader, was appointed as guardian-ad-litem for minor defendants Nos. 38 and 39.
On July 25, 1962 a petition of compromise between the plaintiffs on the one hand and defendants 1, 5, 6, 7, 9, 15, 20 and 40 was filed. A separate petition was filed on behalf of the guardians-ad-litem of minor defendants 2, 3, 11 to 14, 16 to 19, 22 to
33. 38 and 39 for permission to compromise the Suit on behalf of the minor defendants. The applications were put up before the Court on the next date. Defendant No. 4 on his own behalf and on behalf of his minor sons defendants 11 to 14 filed a Vakalatnama. It appears that defendant No. 4 also filed a petition for the removal of the pleader guardian and for permission to represent his minor sons defendants 11 to 14. The Court cancelled the appointment of Shri Anandi Prasad Sharma as pleader guardian-ad-litem of minor defendants 11 to 14 and allowed defendant No. 4 to represent his minor sons as natural guardian and contest the suit on their behalf. Defendant No. 4 was also allowed to file written statement on his own behalf and on behalf of his minor sons which was filed on July 31, 1962 and was accepted on payment of cost of Rs. 50/-.
From a perusal of the compromise petition it appears that the properties mentioned in schedule No. 1 were allotted to the share of the plaintiffs; properties mentioned in schedule No. 2 were allotted to the share of defendants 1 to 3, properties mentioned in Schedule No. 3 were allotted to the share of defendant No. 4 and his minor sons defendants 11 to 14 (appellants); properties mentioned in Schedule No. 4 were given to defendant No. 5 and his sons defendants 15 to 19, Schedule 5 properties were allotted to the share of defendant No. 6 and his sons defendants 20 to 24, properties in Schedule 6 were given to defendant No. 7 and his minor son defendant No. 25; properties in Schedule No. 7 were given to defendant No. 8 and his sons defendants 28 to 30, defendant No. 9 and his sons Defendants 31 and 32, and defendants Nos. 25,27, 36, 37 and 38; and Schedule 8 properties were given to defendant No. 40. At the foot of the Schedules of properties it is stated as follows:--
"Defendant No. 34 Mossomat Ashrafo Kumari will get allowance from defendant No. 4 Mathura Singh and defendant No. 6 Dhanushdhari Singh and the person and properties of defendants Nos. 4 and 5 will e bound for payment of maintenance allowance to her and her Shradh will also be performed by defendants Nos. 4 and 5.
Defendant No. 35, Mossomat Rupa Kumari, the widow of Babu Matukdhari Singh, will get maintenance allowance from defendant No. 40 Bilayati Singh alias Binoy Mumar Singh and the person and properties of defendant No. 40 will be bound for payment of maintenance allowance to her and her Shradh will also be performed by defendant No. 40.
Be it noted that the property mention-ed below, situated in Mauza Khawaich, pergana Gidhaur, thana Tamui present thana Khaira, details whereof are given below was purchased by plaintiff No. 1 Deodhari Singh in the name of Babu Parmeshwari Singh, son of Babu Jagdip Singh, defendant No. 20 in this suit. But Babu Parmeshwari Singh was only a farzidar. The real purchaser of the said property is plaintiff No. 1. This property has been coming and will in future remain in possession and occupation of Plaintiff No. 1.
Khata No.-- 1.
Khasra No.-- 2122.
A. D.-- 2.79 towards north out of 7 A. 84 D. N. : Gopal Singh, S. : Nij at present Basudeo Singh and Srimati Kamla.
E. : Padu Dusadh.
W. : Pyne.
Be it noted that out of the 16 annas compensation money amounting to Rs. 1600/- one thousand and six hundred in cash in the shape of bond, which is to be paid, in respect of mauza Harla, twelve annas share will go to defendant No. 1 Kailash Singh and four annas share will go to the plaintiffs."
A prayer has also been made that a final decree may be passed in this suit in terms of the stipulations of the petition of compromise between the plaintiffs and defendants 1 to 3, 5 to 7, 9, 11 to 20, 22 to 33, 37 and 39 and final decree in terms of the petition of compromise may be passed ex parte as against defendant No. 4 Mathura Singh, defendant No. 8 Ambika Singh, defendant No. 10 Sarjug Singh, defendant No. 21 Nandkishore Singh, defendant No. 34 Ashrafo Kumari, defendant No. 35 Mossomat Rupa Kumari, defendant No. 30 Srimati Ramkali Devi, defendant No. 38 (mistake for 37) Srimati Kunti Devi. The compromise petition is signed by plaintiff Doodhari Singh for self and as guardian of his minor sons. The plaintiffs' advocate has also signed the compromise petition.
4. From a perusal of the aforesaid facts as mentioned above, it is clear that the compromise disposes of a bulk of the properties in suit and without the consent of some of the parties who are interested in the properties in suit and different properties are given in the share of different defendants even though defendants 4, 8, 10, 21 and 34 to 37 did not join and sign the compromise petition. It is also manifest that the appellants are no parties to this compromise and, as such, they could not be bound by the terms of the compromise. Though defendant No. 4 is no party to the compromise but still the properties allotted to his share are charged with maintenance allowance of Mossomat Ashrafo Kumari, defendant No. 34. Thus, this compromise petition affects the interests in the joint pro-parties of those defendants who are no parties to this compromise. Still the Court below by its order No. 59 dated July 31, 1962 recorded the compromise as between the plaintiffs and Defendants 1, 5, 6, 7, 9, 15, 20, 40 and minor defendants 2, 3, 10 to 19, 22 to 33 and 38 and directed the suit to proceed as against the remaining defendants who were not parties to the compromise. Now the question arises whether the Court below could dispose of the suit in terms of the compromise so recorded.
5. The plaintiffs filed the suit claiming certain shares in the properties mentioned in the plaint. A number of defendants including defendant No. 4 filed their written statements and they set up a case of previous partition. They also claimed certain properties as their self-acquired properties. Therefore, the controversy before the Court was as to whether there had been a previous partition or not. If the Court would have found that there was a previous partition, the Court would have dismissed the suit. If, on the other hand the Court would have found that there was no previous partition, a preliminary decree declaring the share of different co-sharers would have been passed and then a final decree would have followed. The final decree making allotments to different co-sharers could be passed only if all the parties to the suit having interests in the suit properties agreed to the manner of allotment but if all of them did not agree, the only alternative was to appoint a commissioner and then make allotments of the properties according to the interests of different co-sharers. Only some of the co-sharers have got no right to partition the properties and make allotment of those properties as they liked without the consent of others. Even in certain cases some co-sharers who are no party to this arrangement may accept the allotments and a final decree may follow on such allotments but if they do not accept the allotments the Court has got no jurisdiction to thrust those allotments on the head of non-consenting parties to the arrangement as ex parte. The Court below in the present case has adopted a novel method and has decreed the suit in terms of the compromise as against the parties who joined the compromise, on contest against defendant No. 4 and ex parte as against the rest. I fail to understand as to how the different allotments made in the! compromise could be thrust upon the head of defendant No. 4 and others who did noti join the compromise.
6. Though defendant No. 4 and some other defendants as stated above did not join the compromise, as the compromise petition itself shows, the plaintiffs came with the story at the trial that all defendants including defendant No. 4 entered into compromise and had accepted it. No such petition was ever filed for recording the compromise as against defendants Nos. 4, 8, 10, 21 and 34 to 37. If in fact they had accepted the compromise but subsequently resiled, an application should have been filed for recording the compromise and a separate proceeding should have been started under Order 23, Rule 3 of the Code of Civil Procedure and opportunity should have been given to the parties to contest it. In the compromise petition a prayer is made that the suit be disposed of in terms of the compromise ex parte as against those who had not signed the petition of compromise. The case made out by the plaintiffs at the trial reveals that Mathura Singh defendant No. 4 also agreed to the compromise and to the schedules of properties allotted to different co-sharers but he did not sign the compromise petition when it was faired out. The compromise petition mentions that all parties have affixed their signatures on it after going through it.
Plaintiff No. 1 who was examined as P. W. 6 in the case stated that Shri Bishwanath Sahay, Pleader, represented Mathura Singh, Jagdish Singh, Parmeshwar Singh, Dhanushdhari Singh, Ramrup Singh and Ramasis Singh but he did not sign the compromise petition on behalf of Mathura Singh. In the prayer portion of the compromise petition it is not stated that the compromise be recorded between the plaintiffs and defendant No. 4 also, rather it stated that a final decree be passed in terms of the petition of compromise ex parte against defendants Nos. 4, 8, 10, 21, 34, 35, 36 and 38. From these circumstances, it is clear that Mathura Singh was no party to the compromise and he never consented to the compromise arrived at between the parties as mentioned in the compromise petition. At the trial, evidence was adduced that Mathura Singh also consented to the compromise but at the time of filing the compromise petition, he did not sign it. This story cannot be accepted in view of the recitals in the compromise petition itself. The Court below has been very much influenced by the statement of D.W. 3 Harilal, who was aged 80. Of course, he stated that Mathura Singh also took part in the talk of compromise which took place in his presence and the compromise was arrived at with the consent or all the brothers, but in view of the circumstances stated above, it is difficult to accept the evidence of this witness though he was examined on behalf of defendant No. 4. He was examined as a formal witness to prove certain documents and he never talked about any compromise in examination-in-chief. Kashi Earn (P. W. 1) stated that the compromise was arrived at in his presence with the consent of Mathura Singh also. He stated that all the nine brothers of Mathura Singh were present. Kailash Singh and Bilai Singh were also present and that he was the only outsider when the compromise petition was executed.
According to Dwarika Singh (P. W. 2), four outsiders were present at the time when the compromise was arrived at. Bhuneshwar Babu, according to P. W. 5, scribed the compromise petition but he has not been examined in this case. Jadu Singh (P. W. 5) stated that he prepared the Schedules. He has stated that Deodhari Singh i.e. plaintiff No. 1 and Mathura Singh, defendant No. 4 had gone to call him for writing out the said Schedules. No special reason has been suggested as to why P.W. 5 would be called to prepare the Schedules and Bhuneshwar would write the compromise petition. He stated that the compromise petition was written at the house of Bhuneshwar. The Court below in the absence of any petition for recording the compromise as against defendants Nos. 4, 8, 10, 21 and 34 to 37 could not have permitted the plaintiffs to come with the story that all parties including defendant No. 4 consented to the compromise and as such the suit should be disposed of in terms of the compromise. Hence, in ray opinion, no reliance could be placed on the evidence adduced in the case that all the parties consented to the compromise. The Court below took one circumstance into consideration that only Mathura Singh raised objections and others did not, but there may be many reasons for it. They might have thought that Mathura Singh was contesting and there was no need for contest by all. Therefore, in view of the circumstances and evidence stated above, I am not prepared to accept that defendant No. 4 also consented to the compromise as is embodied in the petition of compromise filed in the case.
7. There is another difficulty in the way. Assuming that defendant No. 4 consented to the compromise but so far as, his minor sons defendants 11 to 14 are concerned, the compromise cannot be recorded as against them ex parte. Learned counsel for the plaintiffs-respondents tried to support the compromise on the ground that as defendant No. 4 who was the natural guardian of the minor defendants 11 to 14 entered into compromise, he would be deemed to have acted in the matter of compromise as guardian of his minor sons as well, being the karta of the family. But this argument is met with another difficulty. When a matter is pending before a Court and the natural guardian acts as guardian of a minor, either plaintiff or defendant, has power to compromise the suit on behalf of the minor is controlled by the provisions of Order 32, Rule 7 of the Code of Civil Procedure which reads as follows:--
"(1) 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.
(2) Any agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor."
The provisions of this rule is imperative and unless the Court expressly accords sanction to the guardian to compromise the suit on behalf of the minor, the guardian cannot compromise on behalf of the minor. If without the permission of the Court the guardian enters into a compromise, the minor can avoid it by appropriate proceeding. In similar circumstances the Privy Council in the case of Chhabba Lal v. Kallu Lal, AIR 1946 PC 72, set aside the reference to arbitration because no permission had been accorded to the natural guardian who acted as the guardian-ad-litem while referring the case to arbitration. In that case one Sohan Lal signed the agreement to refer the matter to arbitration without clarification, i.e., without specifying whether he was acting in his own capacity or as guardian-ad-litem of the minor. The Privy Council took the view that when a person had two capacities and signs the agreement without specifying in what capacity he was acting, he must be deemed to have acted in all his capacities. Their Lordships of the Privy Council set aside the reference to arbitration on the ground that the provisions of Order 32, Rule 7 of the Code of Civil Procedure were not complied with. There was no formal application by the guardian-ad-litem for the leave of the Court for entering into agreement for reference to arbitration nor was any such formal leave given or expressly recorded in the proceedings. In the present case also no application on behalf of defendant No. 4 was ever filed for permission to compromise as it was for the benefit of the minors, rather an application was filed by defendant No. 4 that the compromise was not in the interest of his minor sons defendants 11 to 14. The Court also while granting permission to other guardian-ad-litem did not accord such permission so far as minor defendants 11 to 14 were concerned.
8. Learned counsel for the respondents further urged that as father was the guardian of defendants 11 to 14 he could enter into family settlement without the leave of the court. The decision of their Lordships of the Judicial Committee in Ganesha Row v. Tuljaram Row, (1913) 40 Ind App 132 (PC) is a complete answer to his argument where similar argument was negatived in the following words:--
"It seems to their Lordships that there is a fallacy underlying the reasoning on which the Courts below have proceeded. No doubt a father or managing member of a joint Hindu family may, under certain circumstances and subject to certain conditions, enter into agreement which may be binding on the minor members of the family. But where a minor is party to a suit and a next friend or guardian his been appointed to look after the rights and interests of the infant in and concerning the suit, the acts of such next friend or guardian are subject to the control of the Court. Section 462 of the Code of Civil Procedure, 1882, expressly provides that "No next friend or guardian for the suit shall, without the leave of the Court, 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."
The Courts in India seem to think that because Rajaram was a party to the suit of 1336 and was also guardian ad litem for his minor son, who was a member of the joint family whom Rajuram was representing, it was open to him to enter into the compromise in his personal capacity, and as it was a bona fide settlement of a disputed claim, it became binding on the minor by virtue of his having acted as the managing member of the family. How far the acts of a father or managing member may affect a minor, who is a party to the suit represented by another person as next friend or guardian ad litem, is a question which does not arise in the case and their Lordships are not called upon to express an opinion on it. But they consider it to be clear that when he himself is the next friend or guardian of the minor his powers are controlled by the provisions of the law; and he cannot do any act in his capacity of father or managing member which he is debarred from doing as next friend or guardian without leave of the Court. To hold otherwise would be to defeat the object of the enactment." Therefore, if the father was the guardian of the minor defendants, he could not be deemed to have compromised the suit on their behalf.
9. Learned counsel for the respondents further tried to support the decree of the Court below on the ground that it was a family arrangement and the parties consented to it and the Court should not throw out such an arrangement lightly. But family arrangement always contemplates an arrangement by all parties concerned. In the present case, however, it has been found as a fact that defendant No. 4 at least never consented to the arrangement and, therefore, the compromise petition could not be treated as a family arrangement binding on defendant No. 4 and his sons. Moreover, it is a petition of compromise filed before the Court for being recorded as a compromise petition and for disposing of the suit in terms thereof. The matter of compromise, so far defendant No. 4 and his minor sons are concerned, has to be accepted in accordance with the provisions of law and it cannot be taken to be a family arrangement, binding upon defendant No. 4 and his sons independently of the provisions of Order 32, Rule 7 of the Code of Civil Procedure.
10. Learned counsel for the respondents then contended that defendant No. 4 was the guardian of the minor defendants 11 to 14 in the suit and if defendant No. 4 entered into compromise on behalf of the minor defendants even without the leave of the Court, defendants Nos. 11 to 14 could not be allowed to challenge the decree through the same guardian. In the present case, the guardian himself never compromised the matter, much less on behalf of his minor sons and, therefore, the question of challenging the decree through the same guardian ad litem does not arise to be considered in this case.
11. Learned counsel urged that as the decree which has been passed in this case is a consent decree, Section 96 of the Code of Civil Procedure is a bar to the maintainability of the appeal. It is difficult for me to accept this contention. Consent decree always means a decree arrived at between the parties with the consent of all persons concerned. In the present case, defendant No. 4 never consented nor could any consent be presumed on behalf of the minor defendants in the circumstances of the case. Moreover, the decree is not a consent decree pure and simple. It is a decree passed partly on compromise, partly on consent and partly ex parte. Therefore, the decree passed in the present case is not a consent decree. In Chhaba Lal's case, AIR 1946 PC 72 referred to above, while dealing with an appeal under the provisions of Section 16 of the Indian Arbitration Act which bars an appeal against a decree passed in terms of the award, their Lordships took the view that as the reference itself was invalid not having been legally made by the parties concerned, it was not a decree based on the award and so the appeal was maintainable.
In the present case also, as the decree was not a consent decree based on consent of all the parties concerned, the decree passed in this case could not be regarded as a consent decree. The principles of this case are fully applicable to the case of a consent decree under Section 96 of the Code of Civil Procedure. The principle of the case was applied by the Allahabad High Court in Sagwa v. Dalwa, AIR 1952 All 97 in case of a decree passed upon a compromise against a minor for which leave of the Court was not obtained under the provisions of Order 32, Rule 7 of the Code of Civil Procedure as it could not be said to be a valid consent decree and, as such, the minor can challenge it by way of appeal and Section 96 does not bar it. I respectfully agree with the view taken by the Allahabad High Court in that case. In view of the decision of the Judicial Committee, referred to above, the decision to the contrary in Smt. Golnur Bibi v. Sheikh Abdus Samad, AIR 1931 Cal 211 could not be regarded as a good law. In Nityamoni Dasi v. Gokul Chandra Sen, (1911) 9 Ind Cas 210 (Cal) the Calcutta High Court held that a person, not a party to the compromise, can successfully challenge the decree as invalid in appeal. Therefore, this contention of learned counsel for the respondents is without any substance and must be overruled.
12. Lastly, Mr. Ugra Singh contended that the compromise petition could not be thrown out in its entirety and at least it could be binding on the persons who are parties to the compromise. As pointed out above, the compromise affects the interests of even those who are no parties to it. It is a partition suit and if it is not binding against one of the co-sharers, it would not be binding on those who gave their consent. Facts of the aforesaid case of Nityamoni Dasi, (1911) 9 Ind Cas 210 (Cal) are on all fours with the facts of the present case. In that case, the partition suit was disposed of in terms of compromise as against those who were parties to the compromise and ex parte against non-consenting party. The Calcutta High Court set aside the entire decree with the following observation:--
"The decree of the Subordinate Judge must be set aside and the whole case retried, because as this is a suit for partition of joint property, a decree by consent amongst some only of the parties cannot possibly be maintained."
I respectfully agree with the aforesaid observation which correctly lays down the law on the point. Therefore, the suit cannot be disposed of in terms of the compromise even so far as the parties to the compromise are concerned.
13. The judgment in this case has been very much influenced by the fact that a compromise petition has been filed and a bulk of the properties were disposed of by the compromise petition which could not be sustained in law. In such circumstances, the parties had no opportunity to bring enough materials on record to enable us to decide the case and, hence, the case has got to be sent back to the Court below for a fresh hearing and decisions according to law after giving full opportunities to the parties to adduce such evidence as they may be advised, in support of their cases, and on the evidence already recorded in the case.
14. It appears that Dhanushdhari Singh (defendant No. 5) along with his sons and grandsons (defendants 15 to 19), after service of notice of this appeal on them, filed a cross-objection challenging the judgment and decree passed in the case, on various grounds. Since the judgment and decree under appeal are being set aside, it is not necessary to deal with the points raised in the cross-objection separately. Moreover, the cross-objection was not pressed at the time of the hearing of the appeal.
15. For the reasons stated above, the appeal is allowed, the judgment and decree of the Court below are set aside and the case is remanded back to it for fresh hearing and disposal according to law in the light of the observations made above. The cross-objection is dismissed as not pressed. In the circumstances of the case, there will be no order as to costs.
B.D. Singh, J.
16. I agree.