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HIGH COURT OF KERALA
RAJA VIJAYARAGHAVAN, M.A. ABDUL HAKHIM, JJ
RITHIKA C.R. – Appellant
Versus
N.B.CHANDRAMOHAN – Respondent
Mat.Appeal 435/2021
Compromise - Minor - Order XXXII Rule 7 CPC - Hindu Minority and Guardianship Act, 1956 - Compromise between parents regarding their own property does not require leave of court under Order XXXII Rule 7 CPC
Fact of the Case:
The appellant, a minor girl represented by her maternal grandfather, challenged the judgment and decree passed by the Family Court in a custody and guardianship case. The parents had entered into a compromise, and the court had passed a decree based on the compromise. The appellant contended that the compromise was in violation of Order XXXII Rule 7 of the Code of Civil Procedure (CPC) as the leave of the court was not obtained.
Finding of the Court:
The court held that the mandate of Order XXXII Rule 7 CPC would not apply as the property of the minor was not dealt with in the compromise. The parents had merely settled their rights over the property in favor of the minor. The court also referred to Section 8 of the Hindu Minority and Guardianship Act, 1956, which requires the natural guardian to obtain the previous permission of the court to mortgage, charge, or transfer the immovable property of the minor.
Issues: 1. Whether the compromise entered into between the parents without the leave of the court under Order XXXII Rule 7 CPC is valid?2. Whether the provisions of Order XXXII Rule 7 CPC apply when the parents are settling their own property in favor of the minor?
Ratio Decidendi: The court held that the mandate of Order XXXII Rule 7 CPC would not apply as the property of the minor was not dealt with in the compromise. The parents had merely settled their rights over the property in favor of the minor, and no property of the minor was involved.
Final Decision: The appeal is dismissed.
Raja Vijayaraghavan, J. The appellant is a minor girl aged about 14 years.She is represented in this proceeding by her next friend, who is her maternal grandfather. The 1st respondent is her father and the 2nd respondent is her mother.She has approached this Court with this appeal filed under Section 19 of the Family Courts Act, challenging the judgment and decree dated 24.12.2016 passed by the Family Court, Kollam in O.P. No.1250 of 2016.
2.The short facts are as under: The 1st respondent is the father of the minor and the 2nd petitioner is her mother.Their marriage was solemnized on 31.8.2006. At the time of marriage, the 1st respondent was a divorcee and the 2nd respondent was a widow. The parties fell apart, which led to the filing of O.P.(G &W) No.1250 of 2016 before the Family Court, Kollam seeking permanent custody and guardianship of the appellant, who was 9 years at that time. There were other litigations pending between the parties as well.
3.During the pendency of the matter, the husband and wife entered into a compromise and filed a compromise petition.On the strength of the compromise, the suit was decreed by judgment dated 24.12.2016. The order passed by the Family Court, Kollam reads as under:
4.Consequently, a decree was passed.
5.The contention of the petitioner is that as per the terms of the compromise petition, the minor was granted absolute right, title and possession of about 16 cents of land and a building situated in Re.Sy.No.319/9-2 in Block No.24 of Vadakevila Village, Kollam District. According to the petitioner, the said decree was passed in clear violation of the provisions of Order XXXII of the Code of Civil Procedure . She asserts that though as per the compromise, rights over the property have been granted to her, the life interest is retained with the 1st respondent. He is entitled to the possession of the properties and to take yield therefrom.The minor is not entitled to get any income from the same. She asserts that under Order XXXII, Rule 7 of the CPC, no next friend or guardian of the suit shall, without the leave of the Court, and expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. In the case on hand, the leave of the court was not granted by the court to enter into a compromise. It is on these assertions that this appeal is preferred, seeking to set aside the judgment and decree in O.P.No.1250 of 2016 on the file of the Family Court.
6.A statement has been filed by the learned counsel appearing for the 1st respondent. It is stated that the appeal is liable to be rejected on preliminary ground.It is stated that in terms of the provisions of Section 19 (b) of the Guardians and Wards Act, 1890, when both the parents or natural guardians are alive, a third person cannot be appointed as a guardian.In the case on hand, the maternal grandparent has approached this Court as a next friend of the minor to protect the interest of the minor appellant, which cannot be sustained. It is further stated that while arriving at the compromise, the welfare, interest of the minor was amply protected. As per the clause 5 of the compromise, the 1st respondent had undertaken to bear the educational expenses of the minor and pay the educational fees for higher studies. It is further stated that the minor, through her next friend, had instituted O.S.No.376 of 2018 seeking an order of injunction against the 1st respondent and his wife-Smitha, the application was rejected by the learned Munsiff, against which a Civil Miscellaneous Appeal has been preferred and the same is pending. It is further stated that O.S No.376 of 2018 was also preferred before the Munsiff Court, which also stands dismissed. In the additional statement, it is stated that a
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