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High Court Of Orissa
R. N. Misra, J.
BHUBANESWAR MISHRA - Appellant
Versus
UJALAMANI DEVI - Respondent
Second Appeal 274 Of 1976
Decided On : 04/16/1980
GUARDIAN AD LITEM - NEGLIGENCE - MINOR - SUIT FOR DECLARATION - MAINTAINABILITY - COMPROMISE DECREE - AVOIDANCE - MINORITY - ORISSA CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION OF LAND ACT, 1972 - ABATEMENT OF SUIT.
Fact of the Case:
Plaintiffs, minors, filed a suit for a declaration that a compromise decree in a previous suit was illegal, void, and did not bind them. They alleged that their guardian ad litem had been negligent in entering into the compromise, which resulted in the loss of their ancestral property. The trial court decreed the suit, but the lower appellate court reversed the decision, holding that the plaintiffs could not avoid the decree during their minority.
Finding of the Court:
The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and held that the plaintiffs were entitled to a declaration that the compromise decree did not bind them. The court found that the guardian ad litem had been grossly negligent in entering into the compromise, and that the transaction was thus voidable. The court also held that the suit was maintainable by the plaintiffs during their minority, and that it did not abate due to the notification under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.
Issues: 1. Whether the compromise decree was beneficial to the minor plaintiffs? 2. Whether the said compromise decree was vitiated by gross negligence by guardian ad litem? 3. Whether the suit was maintainable by the plaintiffs through next friend? 4. Whether the suit had been properly valued and appropriate court-fee had been paid?
Ratio Decidendi: 1. The guardian ad litem was grossly negligent in entering into the compromise on behalf of the minors, and the transaction was thus a voidable one. 2. A minor is entitled to avoid a decree on the ground of negligence of the guardian, and the suit could be filed during minority. 3. The suit does not abate due to the notification under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, as no relief under the Act can be obtained for a declaration that the compromise decree was not binding.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and held that the plaintiffs were entitled to a declaration that the compromise decree did not bind them.
R. N. MISRA, J.
( 1 ) PLAINTIFFS are in appeal against the reversing judgment and decree of the learned District Judge of Puri in a suit for a declaration that the compromise decree in T. M. S. No. 25 of 1968 was illegal, void, inoperative and did not bind them. They had also asked for confirmation of possession.
( 2 ) PLAINTIFFS who are the minor sons of one Satyabadi Mishra alleged that they lost their parents when they were quite young. Satyabadi, Chandrasekhar and basudeb were brothers but Satyabadi had been adopted to Balabhadra and he had succeeded to the properties left by Balabhadra as his heir. The disputed property appertaining to holding No. 180 was Satyabadi's ancestral property and he was in possession of the same. After his death, plaintiffs have come into possession. Plaintiffs' father lacked average intelligence and was very credulous. Taking advantage of his simplicity and lack of intelligence sale deeds in respect of various items of property had been taken from him without payment of consideration. Defendant No. 1's husband had given an impression to Satyabadi that he would obtain cancellation of these deeds and for the said purpose he obtained a mortgage deed by conditional sale from him in the name of defendant No. 1. The document remained in the custody of Satyabadi as it had not been acted upon. After Satyabadi's death, until plaintiffs' mother died, the document remained with her. During plaintiffs' mother's sudhi ceremony, chandrasekhar came to their house, looked after the obsequies and during that period took away the document, in a surreptitious manner. A few years after, defendant No. 1 in collusion with the second defendant who is plaintiffs' elder sister brought a suit for foreclosure against the plaintiffs on the basis of the mortgage deed, Defendant No. 2 was impleaded as the next friend of the minor plaintiffs though she was already in collusion with the present defendant No. 1 who was plaintiff. Defendant No. 2 under the influence of defendant No. 1 did not take any steps on behalf of the minors to protect their interests. The lawyer appointed to act as the minors' advocate on behalf of their guardian was gained over by defendant No, 1 and as a result of collusion, a compromise petition was filed in the suit stipulating declaration of right, title and interest of defendant no. 1. No certificate to the effect that the compromise was for the benefit of the minors had been appended nor did the court record such satisfaction. No permission had been granted by the court to the guardian for entering into such compromise. The property was valued at much more than Rs. 3,000 and the entire loan then subsisting could have been wiped out with less than Rs. 3,000. Yet, as a result of the compromise so entered, title to the property was permanently lost. In January, 1971, when the defendant No. 1 forcibly plucked fruits from trees standing on the disputed property and resistance was offered on behalf of the plaintiffs, defendant No. 1's title in terms of the compromise was disclosed and that led to the suit.
( 3 ) DEFENDANT No. 1 denied the allegations of fraud and collusion and maintained that plaintiffs' father had incurred a loan of Rs. 500 for legal necessity and had executed a mortgage by conditional sale on 17-11-1953 and had stipulated to pay back the loan with interest within throe years. When he failed to do so, the suit had been filed and a valid compromise was placed before the court. The second defendant in her written statement denied collusion with defendant no. 1 and maintained that the husband of defendant No. 1 being the youngest natural brother, she had full reliance and confidence in him. Chandrasekhar taking advantage of the simplicity of her father Satyabadi had obtained a 'kanta kabala' on the basis of which T. S. No. 25 of 1968 had been filed. Chandrasekhar instructed defendant No. 2 to compromise the said suit and there was compromise.
( 4 ) THE trial court came to find that th
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