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HIGH COURT OF CALCUTTA
HARRIES,SINHA, JJ.
Benoy Shankar Dhandania
Versus
Choteylal Dhandania
A.F.O.D. No. 94 of 1948
Decided On : 31-03-1949
Jurisdiction - Hindu Law - Mitakshara School of Hindu Law - O. 32, R. 7, Civ. P. C. - Cl. 12 of the Letters Patent - [JURISDICTION] - [HINDU LAW] - [O. 32, R. 7, Civ. P. C., Cl. 12 of the Letters Patent] - The court discussed the necessity of obtaining leave under Cl. 12 of the Letters Patent and O. 32, R. 7, Civ. P. C. for joining new parties and entering into a compromise on behalf of minors. The court held that the addition of new parties by order of the court made them subject to the jurisdiction of the court and amounted to joining them as new parties. The court also emphasized the imperative nature of O. 32, R. 7, requiring the guardian to obtain the court's leave before entering into a compromise on behalf of a minor. The court found that the compromise was an accomplished fact before the parties approached the court, and the provisions of O. 32, R. 7 were not complied with, leading to the minors being prejudiced and sacrificed by the terms of the settlement.
Fact of the Case:
The suit involved a dispute between two Hindu joint families governed by the Mitakshara School of Hindu Law over the partition of immoveable properties. The suit was ultimately settled, and the terms of settlement were filed before the court. Shortly after the terms were put in, one of the parties transferred the properties to a third party. Subsequently, a notice of motion was taken out for setting aside the decree made by the court. The court dismissed the suit, and an appeal was filed against this decision.
Finding of the Court:
The court found that the addition of new parties by order of the court made them subject to the jurisdiction of the court and amounted to joining them as new parties. The court also found that the compromise was an accomplished fact before the parties approached the court, and the provisions of O. 32, R. 7 were not complied with, leading to the minors being prejudiced and sacrificed by the terms of the settlement. Therefore, the court allowed the appeal and declared the decree and order referred to in the plaint and the conveyance in favor of a third party as void and inoperative against the appellants.
Issues: The issues raised in the appeal included the necessity of obtaining leave under Cl. 12 of the Letters Patent and O. 32, R. 7, Civ. P. C. for joining new parties and entering into a compromise on behalf of minors.
Ratio Decidendi: The court held that the addition of new parties by order of the court made them subject to the jurisdiction of the court and amounted to joining them as new parties. The court also emphasized the imperative nature of O. 32, R. 7, requiring the guardian to obtain the court's leave before entering into a compromise on behalf of a minor. The court found that the compromise was an accomplished fact before the parties approached the court, and the provisions of O. 32, R. 7 were not complied with, leading to the minors being prejudiced and sacrificed by the terms of the settlement.
Final Decision: The court allowed the appeal and declared the decree and order referred to in the plaint and the conveyance in favor of a third party as void and inoperative against the appellants.
SINHA, J. :- This is an appeal from a judgment of Das, J., dated 12-8-1948 dismissing the plffs suit for a declaration that the decree and order made in suit No. 1676 of 1941 (hereinafter referred to as the said suit) are invalid and void, for setting aside the said decree and order and for other reliefs.
2. The relationship of the parties will appear from the following genealogical table :
3. The said suit was instituted by Hiralal Dhandhania and his three infant sons against Choteylal and his infant son Tulsidas and one Bhagwatiprasad. It was alleged in the plaint that plffs. formed a Hindu joint family governed by the Mitakshara School of Hindu Law, and the deft. Choteylal and his son Tulsidas formed a joint Hindu family, the deft. Bhagwatiprasad having separated from Choteylal. The plffs. asked for a declaration of their half share in the immoveable properties mentioned in the schedule to the plaint and for partition and separate possession. Bhagwatiprasad in his written statement stated that he, along with his two infant sons, was entitled to a one-third of halt share or one-sixth share in the properties and claimed separate allotment and possession in respect of his said one-sixth share.
4. During the pendency of the suit, on 14-10-1943 the plff. 3 Bimal Sankar, the third son of Bhagwati Prasad was born.
5. The said suit was ultimately settled on 9-8-1944, when terms of settlement were filed before Ameer Ali, J.
6. The terms of settlement were as follows :
"1. Beony Shankar Dhandhania, Bejoy Shankar Dhandhania and Bimal Shankar Dhandhania, sons of the deft. Bhagwati Prasad Dhandhania are added as parties to this suit and the deft. Bhagwatiprasad Dhandhania be appointed guardian ad litem of the said minors Benoy Shankar Dhandhania, Bejoy Shankar Dhandhania and Bimal Shankar Dhandhania.
(2) The four properties in the suit namely, (1) 55 Muktaram Babu Street, Calcutta, (2) Garden house and land at 25 Ghosepara 2nd Lane in the district of 24 Parganas, (3) Two storied house in the Mohalla Sujaganj in the town of Bhagalpur district Bhagalpur and (4) one storied house known as Silk Factory at No. 40, Chunahartolla Lane in Bhagalpur district Bhagalpur let out on rent have been valued at Rs. 1,65,000 (Rupees one lac sixty five thousand).
(3) The said four properties are allotted to the deft. Choteylal Dhandhania and Tulsiprasad Dhandhania and as owelty they have paid to the plff. Hiralal Dhandhania for self and as karta and the next friend of the minor plffs. Purshottandas Dhandhania Ratanlal Dhandhania and Banwarilal Dhandhania the sum of Rs. 82,500/-.
(4) The defts. Choteylal Dhandahnia and Tulsiprasad Dhandhania have paid Rs. 27,500/- to the deft. Bhagwatiprasad Dhandhania.
(5) The plffs. Hiralal Dhandhania, Purshottamdas Dhandhania, Ratanlal Dhandhania and Bankarilal Dhandhania and the defts. Bhagwatiprasad Dhandhania (the said Hiralal Dhandhania and Bhagwatiprasad Dhandhania are also acting for as next friends and guardians of their respective minor sons) will have no claim whatsoever to the said four properties mentioned in Cl. 1 hereof and the said plff. Hiralal Dhandhania and the deft. Bhagwatiprasad Dhandhania have not in any way encumbered their share in the said properties in question.
(6) The possession on the properties will be delivered to Choteylal Dhandhania by the said Hiralal Dhandhania, Purshottamdas Dhandhania, Ratanlal Dhandhania and Banwarilal Dhandhania and Bhagwatiprasad Dhandhania, Benoy Shankar Dhandhania, Bejoy Shankar Dhandhania and Bimal Shankar Dhandhania provided that the pltfs. Hiralal Dhandhania and his sons and members of his family as also Bhagwatiprasad Dhandhania and his sons and members of the family may occupy the portions of the premises No. 55 Muktaram Babu Street, Calcutta, now in their occupation as licensees of the said defts. Choteylal Dhandhania and Tulsiprasad Dhandhania upto Kartik Sudi 2001 sambat year. Each party will bear and pay their own costs."
7. On 9-8-1944, Ameer Ali, J., made
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