Amberson Marten, Kt., C.J.
1. This is an application to compromise this First Appeal No. 454 of 1926. All the parties to the original suit are, however, not before us. The parties to the appeal consist of plaintiffs Nos. 1 and 2 and defendants Nos. 2 and 11-16. Consequently we have not before us defendants Nos. 1 and 3 to 10 and 17 to 20. We are, however, informed that owing to the course this litigation has taken, these latter defendants are not necessary for the purposes of the present appeal and the proposed compromise.
2. What we are asked to do is to sanction the compromise on behalf of the minors, viz., plaintiff No. 2 and defendants Nos. 14, 15 and 16, Their respective interests are in conflict, The litigation concerns the family property descending from one Murardas Rasikdas, who had four sons. The plaintiff's' contention was that there was never any partition between these four sons of Murardas, In that contention, however, they were defeated in the Court below. They have now accepted that, decision, and it is on that basis that defendants Nos. 1 and 18 to 20, who arts the descendants of a son Goverdhandas, are not concerned with, at any rate, that portion of the appeal.
3. [His Lordship, after dealing with subsidiary points, proceeded:] Now I may turn to the application before us,, which is a petition presented by the appellants and respondents to this Court setting out what the parties have agreed to, and asking the Court to satisfy itself that the above compromise is for the benefit of the minors, and to pass a decree in the terms of a document submitted to the Court. We appreciate here that the minors in each case have adult relatives, who prima facie have the same interests as the minors, and that as the rival parties have agreed to this compromise, there are prima facie grounds for assuming that it is in the interests of the minors as well as of the adults on either side that this compromise should be effected.
4. But the parties seem to be labouring under a misunderstanding as to the true position of the Court. This Court has to be satisfied that the particular compromise is for the benefit of the minors, and the practice that I have been accustomed to in England as well as on the Original Side of this Court is that there should be an affidavit by the guardian of the minors to that effect, and that is heavy cases there should be an opinion of counsel, or else a statement by counsel at the bar that in his opinion the compromise is for the benefit of the minors.
5. But we have no such affidavit here. There is no such opinion of counsel in writing, and I am not aware that counsel are even prepared to give that opinion at the bar. One reason apparently is that the precise grounds on which the compromise is for the benefit of the respective minors are by no means clear. For instance, one may infer that the debts of the business are such that it is to the pecuniary interests of the plaintiffs to abandon any interest in the business, and also to abandon any claim to a share in certain joint assets of the sub-branch of Bapubhai in order to escape the liability to pay the debts of the business. But that of course is a question of figures. We are told that the figures cannot be ascertained until the Commissioner has investigated the matter, I am not, however, referring to annas and pies. I am referring to an approximate statement of what the debts of the business are likely to be. For, until we know whether any debts at all have been incurred, and approximately what the shares of the infants are likely to be, the Court is entirely in the dark, Speaking for myself, I object to sanctioning a compromise on behalf of infants with the material facts left in what I may describe as a fog.
6. Therefore, in our opinion, there should in this case be an affidavit from the next friend of the plaintiffs and the guardian of the minor defendants stating (if it be the fact) that he con-eiders the proposed compromise to be for the benefit of the particular minor or minors, and stating some grounds on which he bases his' opinion. In particular it should be stated by one side or the other what approximately is the amount of the estimated loss in the particular business.
7. So, too, one would like to know what would be the general pecuniary' effect of this proposed compromise so far as regards the minor plaintiff and so far as regards the minor defendants, I say this because we are asked to alter the decision of the Judge in the Court below, and to say that there was a complete partition not only between the four main branches, but also as between the plaintiffs and Nagindas inter se.
8. Next I turn to the decree which we are asked to pass. There the parties seem to be under another misapprehension, and that is that this Court is obliged to pass a formal decree in the exact form which the parting propose. That, to my mind, is entirely Nagindas erroneous. The parties, for instance, may draft a decree which no self-respecting Court would dream of passing. Under those circumstances there is no legal obligation on the Court to put on its records a decree which would be a reflection on its competence. In this particular case the proposed decree is, generally speaking, in very confused terms, For our guidance we would, in the first place, ask the parties to number in consecutive paragraphs the preliminary decree of the learned Judge at p. 10 of the paper book, and then to show either by red ink alterations, or else by another full draft, exactly what will be the effect of the preliminary decree passed by the learned Judge as varied by the proposed consent order. I say this because this preliminary decree is an extremely long document. The proposed variations also run to a considerable length, and as at present advised I think it would give a great deal of unnecessary labour to anybody who wishes clearly to ascertain what is the effect of the joint orders, if he had to read first the preliminary decree, and then the document we have now before us.
9. Then another matter, which, so far as the form goes, I object to is this. Speaking generally, the practice on the Chancery Side is that the Court does not make declarations by consent, And that is for a very good reason, viz., that the Court not having heard the case is not in a position to form its own opinion as to the merits of the case. So, speaking generally, the Chancery Courts refuse to do that. Nor is there any real necessity to do it. It is easy to frame a decree by which in lieu of any declaration it is said that the parties agree to a particular legal situation, and then the operative part of the order, if anything substantial is to be done, can be framed in the ordinary way. Similarly, I do not like the expression that 'this Court reverses the finding of the lower Court,' when in fact we have not to decide whether the learned Judge is right or wrong. If, for instance, this case was argued out it might be that we should hold the learned Judge's decision to bo perfectly right. That we cannot say at present. The parties may, however, substitute their agreement for the formal decision of the Court. Therefore, instead of using the word 'reverses,' it is quite simple to say that by consent that finding, or that particular part of the order, is discharged.
10. We will, therefore, direct the parties to re-draft this proposed A. decree so that it can be put in a form which satisfies the conditions I have mentioned, Very often in cases of this sort it is convenient to set out in a schedule the precise compromise the parties have agreed to, and then in the order itself merely to state what the parties actually want as an operative order, e, g,, for payment of money. But as we are asked to vary a preliminary decree and some of the parties are not before us, that course may not be available here. On the other hand, we must get some document which clearly expresses the exact form of the final decree.
12. I agree.
11. The case was again placed before the court on March 28, 1929, when their Lordships settled the form of the decree, and ordered notice to issue to the absent respondents.