Judgement

Consolidated Appeals from a judgment and decree of the High Court (July 29, 1910) in part affirming and in part reversing a decree of the Subordinate Judge of Negapatam (January 19, 1906).

In 1896 Vasanta Rao instituted a suit in which Jamna Bai and Sethuram, her brother, were defendants, disputing the validity of a will of one Sakharam under which the said defendants benefited, and claiming the whole estate as nearest bandhu. In 1897 a compromise of the suit was effected on the terms that Vasanta Rao should receive Rs. 90,000 in full satisfaction of his claim. At the time of this compromise both Vasanta Rao and Sethuram were minors. In order to secure the above sum Jamna Bai and Sethuram, by his grandmother who was guardian of his property, entered into a bond by which they jointly agreed to pay Rs. 90,000 to Vasanta Rao within three months of their taking delivery of the movable and immovable properties of Sakharam as scheduled in the suit and then under the management and custody of a receiver.

Law. Rep. 43 Ind. App. 99 ( 1915- 1916)

Jamna Bai V. Vasanta Rao 21

An application was made to the Court on behalf of Vasanta Rao setting out the terms of the compromise and praying that the suit might be dismissed. Upon this application the minors were represented, and the Court caused inquiries to be instituted as to whether Jamna Bai, who was pardanishin, had entered into it of her free will and considered that it was in her interest. Upon being satisfied on these questions the Court ordered the suit to be struck out, but no leave was applied for or granted sanctioning the compromise on behalf of the minors as required by s. 462 of the Civil Procedure Code, 1882. On April 6, 1904, Vasanta Rao instituted the suit which gave rise to the consolidated appeals, against Jamna Bai and Sethuram claiming Rs. 90,000 and interest upon the bond. At the date of the suit the properties scheduled to the plaint in the compromised suit had been made over to the defendants for over three months.

The Subordinate Judge made a decree against both defendants. He rejected their contention that the properties referred to in the bond included properties which had not been handed over. He found that the sanction of the Court had not been obtained to the compromise on behalf of Sethuram, but he held upon the authority of Aman Singh v. Narain Singh (( 1897) I. L. R. 20 Allah. 98.) that the compromise was binding upon the minor as he did not offer to restore the property of which he had obtained possession under the compromise and it was not possible to place the plaintiff in the position in which he was at the date of its execution.

Upon appeal to the High Court the decree against Sethuram was set aside and that against Jamna Bai was affirmed. The learned judges (Sir Charles Arnold White C.J. and Ayling J.) held that the compromise agreement, not being sanctioned by the Court, was voidable as against Sethuram. In their opinion the decision relied on by the Subordinate Judge must be taken to have been overruled, though it was possibly distinguishable. They were of opinion that the fact that the bond was unenforceable against Sethuram did not render it unenforceable against Jamna Bai, his joint con tractor. They agreed with the view of the Subordinate Judge that the suit was not premature.

The appeal is reported at I. L. R. 34 Madr. 314.

Both Jamna Bai and Vasanta Rao appealed.

1916. March 13. De Gruyther, K.C., and E. B. Raikes, for Jamna Bai. The leave of the Court was not obtained to the compromise on behalf of the minor and it is unenforceable against him under s. 462 of the Code of Civil Procedure, 1882 Manohar Lal v. Jadu Nath Singh (( 1906) L. R. 33 Ind. Ap. 128.); Ganesha Row v. Tuljaram Row (( 1913) L. R. 40 Ind. Ap. 132.); Partab Singh v. Bhabuti Singh. (( 1913) L. R. 40 Ind. Ap. 182.) The decision in Aman Singh v. Narain Singh (I. L. R. 20 Allah. 98.) is in effect overruled by those cases. The bond imposed no obligation upon either this appe