JUDGMENT

1. First Civil Appeals Nos. 117 and 118 of 1941 are connected and arise out of a judgment and decree passed by a Special Judge under the U.P. Encumbered Estates Act, whereby the claims of some of the respondents were allowed against the appellant Mohammad Wahid Mirza Beg. The appeals have been preferred under Section 45, Encumbered Estates Act. The circumstances giving rise to the claims are as follows. By an agreement dated 12th July 1909, the property of one Agha Jan Beg was divided in equal shares between three branches of his descendants, represented by Hamid Mirza Beg, a grandson, Amir Mirza Beg, another grand-Son, and Ahmad Mirza Beg, a son. Their rights under this agreement were determined by the late Court of the Judicial Commissioner and; the case is reported in Bisheshwar Nath v. Hamid Mirza Beg, A.I.R. 1918 Oud 390 On 13th January 1915 Hamid Mirza Beg executed a mortgage in respect of his third share for Rupees 10,000 in favour of one Kalyan Das, who, on 9th November 1927, assigned his rights to three of the respondents, Purshotam Das, Kanhaiya Lal and Ganesh Prasad. They are the claimants referred to. In 1924 Hamid Mirza Beg transferred a half share in his property to Amir Mirza Beg, and the other half to Ahmad Mirza Beg. Amir Mirza Beg transferred his half share to his son Arid Mirza Beg and upon the latter's death it devolved on his brother, Mohammad Wahid Mirza Beg, the appellant. Ahmad Mirza Beg's half share came to his son Siddiq Mirza Beg. Separate applications under the Encumbered Estates Act were made by Wahid Mirza Beg and Siddiq Mirza Beg, and each was made a party as a co-debtor to the proceedings on the other's application. In 1929 the three transferees of the original mortgagee sued on the mortgage. There were a large number of defendants and included among them were Siddiq Mirza Beg and the appellant Wahid Mirza Beg. The latter is shown in the plaint as a minor aged about 9 years under the guardianship of his paternal grandmother. It was claimed that a sum of Rs. 1,88,745-10-0 was due under the mortgage, but the suit was brought for one lac only, the claim to the rest being waived. The suit was compromised on 30th August 1929 (Ex. A2) and a decree was passed in terms of the compromise for Rs. 70,000 on the same date (Ex. A3). The decree was made final on 10th December 1932.

2. The appellant's application under Section 4, Encumbered Estates Act, was made on 28th October 1986. Purshotam Das and Kanhaiya Lal made a joint claim on the basis of the decree, and Ganesh Prasad made a separate claim both claims being made in 1937. The appellant objected in both cases, that is in the proceedings on his own application and in the proceedings on the application of Siddiq Mirza Beg, where he was impleaded as a co-debtor, that he was not bound by the decree because he was a minor at the time of the compromise in 1929, and the compromise was not entered into with the leave Of the Court, as required by Rule 7 of Order 32, Civil P.C. In a judgment governing both cases the Special Judge rejected this objection, holding that the compromise decree was not void, but only voidable, and that the appellant could not raise the question in proceedings under the Encumbered Estates Act. He could only do so by regular suit. These are the only questions which have been argued in the present appeals, it not being disputed that the leave of the Court was not obtained to the compromise. From the authorities to which we have been referred on each side, it is clear that there is some conflict on the construction to be placed on Sub-rule (2) of Rule 7 of Order 32, which reads:

Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

3. One construction is that the minor can plead against all parties that the compromise should be avoided as against him, though other parties cannot take this plea against the minor. That is to say, it is voi