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PATNA HIGH COURT
B.N.Jha and B.D.Singh JJ.
Mathura Singh
Versus
Deodhari Singh
Appeal from Original Decree No. 553 of 1963 ;
Decided On : DECEMBER 23, 1970
PARTITION SUIT - COMPROMISE - CONSENT OF ALL PARTIES - FAMILY SETTLEMENT - GUARDIAN-AD-LITEM - LEAVE OF COURT - CONSENT DECREE - SECTION 96, CPC - APPEALABILITY.
Fact of the Case:
In a partition suit, a compromise petition was filed by some of the defendants and the plaintiffs, while other defendants, including appellant Mathura Singh and his minor sons, did not consent to the compromise. The Court below decreed the suit in terms of the compromise, recording it as against the consenting parties and ex parte against the non-consenting parties.
Finding of the Court:
The Court held that the compromise could not be recorded as against the non-consenting parties, including Mathura Singh and his minor sons, as they had not consented to it. The Court also held that the compromise could not be treated as a family settlement binding on Mathura Singh and his sons, as it was a petition of compromise filed before the Court and not an independent family arrangement. Further, the Court held that the decree passed in the case was not a consent decree as it was not arrived at with the consent of all the parties concerned.
Issues: 1. Whether the compromise could be recorded as against the non-consenting parties, including Mathura Singh and his minor sons? 2. Whether the compromise could be treated as a family settlement binding on Mathura Singh and his sons? 3. Whether the decree passed in the case was a consent decree?
Ratio Decidendi: 1. The Court held that the compromise could not be recorded as against the non-consenting parties, including Mathura Singh and his minor sons, as they had not consented to it. The Court relied on the provisions of Order 32, Rule 7 of the Code of Civil Procedure, which requires the Court's express permission for a guardian-ad-litem to enter into a compromise on behalf of a minor. In the present case, no such permission was obtained. 2. The Court held that the compromise could not be treated as a family settlement binding on Mathura Singh and his sons, as it was a petition of compromise filed before the Court and not an independent family arrangement. The Court relied on the decision of the Judicial Committee in Ganesha Row V/s. Tuljaram Row, (1913) 40 Ind App 132 (PC), which held that a father or managing member of a joint Hindu family cannot enter into an agreement which may be binding on the minor members of the family, if he is also the next friend or guardian ad litem of the minor in a suit. 3. The Court held that the decree passed in the case was not a consent decree as it was not arrived at with the consent of all the parties concerned. The Court relied on the decision of the Judicial Committee in Chhabba Lal V/s. Kallu Lal, AIR 1946 PC 72, which held that a decree passed in terms of an award is not a consent decree if the reference to arbitration was invalid.
Final Decision: The Court allowed the appeal, set aside the judgment and decree of the Court below, and remanded the case back to it for fresh hearing and disposal according to law.
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:-
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"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. Pleaders 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
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