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Bhikulal and ors. Vs. Kisanlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberM.F.A. No. 135 of 1956
Judge
Reported inAIR1959Bom260; (1958)60BOMLR1171; ILR1959Bom277
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 - Order 23, Rule 3 - Order 32, Rule 7; Hindu Law
AppellantBhikulal and ors.
RespondentKisanlal and ors.
Appellant AdvocateM.R. Bobde, ;J.R. Chandurkar, ;M.N. Phadke and ;S.S. Deshpande, Advs.
Respondent AdvocateD.T. Mangalmurti and ;D.B. Padhye, Advs. and ;S.P. Chandekar, Adv. for ;G.R. Mudholkar, Adv.
DispositionAppeal dismissed
Excerpt:
.....relied upon as partial adjustment of suit and decree in terms sought for to make it binding upon minor plaintiffs--whether leave under order xxxii, rule 7, necessary.;an application made by the next friend of a minor under order xxxii, rule 7, of the civil procedure code, 1908, for leave to enter into a compromise, pending a suit for partition, can be withdrawn by him and the court has no power to prevent such withdrawal.;sheik muhammad v. muhammad ammal 91 i.c. 521 karmali rahimbhoy v. rahimbhoy habibbhoy (1888) i.l.r. 13 bom. 137 doraswami pillai v. thungasami pillai (1903) i.l.r. 27 mad. 377 ranga rao v. rajagopala raju (1899) i.l.r. 22 mad. 378 and gulab dei v. vaish motor company, etawah (1925) i.l.r. 47 all, 782, 783 referred to.;if a compromise is relied upon as a partial..........the arrangement mentioned in the application no. 20 was in the interest and for the benefit of the minor parties. the learned trial judge relied upon one circumstance, namely, plaintiff's offer to exchange their share for that of defendants no.4 to 7 and to pay the latter an additional sum of rs. 25,000/-, and concluded that the, plaintiff's share including those of the minor plaintiffs was prima facie inferior and that there appeared no special benefit to the minor plaintiffs, by the proposed compromise. in the absence of any other evidence, i cannot say that the conclusion thus reached by the trial judge is unjustified. it is significant to note that defendants no.1, and 8 to 10 in their application no. 30 describe the share allotted to defendants nos. 4 to 7 as the best list according.....
Judgment:

1. Assuming, however, that it is such an application, Mr. Bobde's further contention is that the lower Court ought to have granted the necessary leave under Order 32, Rule 7 of the Code of Civil Procedure. Plaintiffs nos. 3, 4 and 5 and defendants no.s 6 and 7 are still minors. No evidence whatsoever was led in the lower Court to show how the arrangement mentioned in the application no. 20 was in the interest and for the benefit of the minor parties. The learned trial Judge relied upon one circumstance, namely, plaintiff's offer to exchange their share for that of defendants no.4 to 7 and to pay the latter an additional sum of Rs. 25,000/-, and concluded that the, plaintiff's share including those of the minor plaintiffs was prima facie inferior and that there appeared no special benefit to the minor plaintiffs, by the proposed compromise. In the absence of any other evidence, I cannot say that the conclusion thus reached by the trial Judge is unjustified. It is significant to note that defendants No.1, and 8 to 10 in their application no. 30 describe the share allotted to defendants nos. 4 to 7 as the best list according to them and that it is in the interest of the minor defendants no. 5 and 7 and defendant no. 4 to accept that allotment. Further the learned trial Judge did not record any finding as to whether the arrangement was in any way beneficial to the minor defendants. Mr. Bobde also could not point to any evidence for showing how the arrangement was in the interest of the minor parties. I must, however, also state that Mr. Bode submitted that I should call for a finding from the lower Court in this behalf after finding from the lower Court in this behalf after giving liberty to both parties to lead evidence. I have thought it unnecessary to do so as in my view the appeal can be disposed of without calling for any further finding.

2. In Muhammad Maracayar v. Muhammad Ammal, 91 Ind Cas 521 (Mad) it was held that one of the defendants having withheld his consent to the compromise it would be open to that defendant to agitate the matter and claim a partition of the properties in dispute afresh and on a different basis and as this obviously would not be in the interests of the minor the compromise was not for the benefit of the minor and should not be sanctioned.

3. In the present case no application under Order 32, Rule 7, Civil Procedure Code, was made at all by the next friend of the minor plaintiffs. On the other hand, plaintiff No. 2 in his application dated 6-2-1956 clearly stated that no application for sanctioning the compromise had been made so far and that he did not also thereafter propose to apply for any such sanction. Assuming that application NO. 20 was itself also an application for leave under Order 32, Rule 7, Civil Procedure Code, as contended by Mr. Bobde, it may be noted that application was withdrawn when the defendants nos.4 to 7 intimated that they were not in a position to accept it. Mr. Bobde says that plaintiff no.2 as the next friend of minor plaintiffs had no right to withdraw the application when once it had been solemnly filed in the Court. According to Mr. Bobde, the withdrawal of the application under the Circumstances was a capricious withdraw without regard to the minors' interests and it only entailed the removal of plaintiff no.2 as minors next friend from the suit. I do not think the conduct of the next friend has any relevancy on the question whether he can withdraw an application under Order 32, Rule 7, and whether the Court has any power to prevent such withdrawal. If the conduct of the next friend or a guardian ad-Item is found be adverse to the interests of the minor, the Court may in an appropriate proceeding taken in that behalf remove such next friend or guardian-ad-item, and may appoint a new next friend or guardian-ad-litem. But can the Court thereafter compel the new next friend or the guardian-ad-litem to prosecute the application for leave which had been withdrawn by his predecessor? Reference is made to Karmali Rahimbhoy v. Rahimbhoy Habibbhoy, ILR Rom 137 and Dora-swami Pillai v. Thungasami Pillai, ILR Mad 377. In the first case certain objections had been filed on behalf of the minor plaintiffs to the accounts submitted by the defendants. Thereafter as a result and in pursuance of some compromise between the plaintiff's guardian-ad-litem and the defendants, the objections were withdrawn and there was a decree. The minor plaintiffs on attaining majority sought to impeach the decree that the compromise had not been sanctioned by the Court. The Court held that there was an arrangement to withdraw from the opposition and as such arrangement had never been laid before the Court, the plaintiff would be en titled to impeach the decree and reopen the account. Thus in this case the withdrawal of objections was an integral part of the compromise which was never laid before the Court for its sanction. In the present case the withdrawal of the application no. 20 was no part of the compromise but was clearly in repudiation of it. In ILR Mad 377, a suit which was being conducted on behalf of the minor was withdrawn unconditionally though the Court asked minor's junior Vakil whether he wanted to withdraw with permission to bring a fresh suit. The High Court in revision found that the minor's junior Vakil at t he instance of the next friend was acting most prejudicially to the interest of the minor. There was also evidence to show that the withdrawal was brought about by the first defendant himself and that the suit was withdrawn by reason of the first defendant having promised to give to the plaintiff his share after the suit was withdrawn. If the withdrawal of the suit by the next friend was in pursuance of an agreement or compromise entered into with the defendant without the leave of the Court, it was voidable at the instance of the minor. In this view the Madras High Court followed ILR Bom 137.

4. That the Court cannot compel the next friend or guardian-ad-litem to ask for leave to enter into the compromise has been clearly laid down in Ranga Rao v. Rajagopala Raju, ILR Mad 378 where it was held that inasmuch as leave of the Court had not been asked for and the guardian had objected to the Court passing a decree in terms of the compromise, the Court had no power to enforce the compromise even though the terms of it might appear to be beneficial to the minors. The same view is taken in Gulab Devi v. Vaish Motor Co. Etawah : AIR1925All570 where it was observed that if before leave under Order 32, Rule 7. Civil Procedure Code was granted the guardian changed her mind and did not want the compromise, it was impossible to force the compromise on the minor.

5. Even, therefore, assuming that application no. 20 was an application for leave under Order 32, Rule 7, Code of Civil Procedure, I have no doubt that the plaintiffs were well within their rights when they withdrew the application on 30-11-1955. By a further application dated 6-2-1956, plaintiff no. 2 made it obviously clear that he was not asking for leave under Order 32 Rule 7, at all.

6. Mr. Bobde, however, says that if there is a difficulty in recording the compromise and in passing a decree in terms thereof so far as minor plaintiffs are concerned, then those plaintiffs may be dropped from the record of the suit, as they are not necessary parties to the present suit where partition is claimed by one branch as against the other branches of the family. Mr Bode relies upon the passage occurring in Mayne's Hindu Law 11th edition, at paragraph 459, where the learned author states that where partition is claimed as between branches of the family the heads of the branches along need be made parties. IN the present case the head of the branch to which minor plaintiffs and their father belong was their grand-father-plaintiff no.1. It is true that it would have been sufficient if plaintiff no. 1 along had filed the present suit as representing his branch. But when, as here, the other members of his branch, have joined in the institution of and have been made eo nomine parties to the suit, I do not see how I can remove them from the suit on the ground that they need not have been joined in the suit. They may not be necessary but are indeed proper parties to the suit. In the same paragraph the learned author has stated that when partition is claimed between the branches of the family, it is, of course, open to the other members to apply to be made parties. In the present suit, all the plaintiffs have together prayed for their 1/5th share in the family property. When the Court can pass such a decree in their favour I do not think there is any power in the Court to remove the minor plaintiffs from the suit.

7. Mr. Bobde then contended that there was no need in the present case to ask for any leave under Order 32, Rule 7, of the Civil Procedure Code for a compromise being entered on behalf of the minor parties to the suit. His argument was plaintiff no.1 was the head and the manager so far as his branch was concerned. As such head or manager he had under Hindu Law the undoubted right to enter into a boda fide compromise with the other branches of the family so as to make such compromise binding upon the minor members of his branch. Such a compromise can be brought about even during the pendency of a suit for a partition as in the present case. To such a compromise the provisions of Order 32, Rule 7, of the Civil Procedure Code cannot apply as the next friend of the minor plaintiffs is not plaintiff no.1 the head or the manager of his branch but plaintiff no.2. In support of his contention Mr. Bode relied upon Vannaji v. Ranga Rao, AIR 1937 Mad 446 and Udayammai Achi v. Umauyal Achi : AIR1944Mad289 . In neither of these cases was there any question of recording a compromise and passing a decree in terms thereof under Order 23, Rule 3, of the Code of Civil Procedure so as to make it binding upon the minors who are eo nomine parties to the suit. These cases were considered and distinguished in the later case of the same High Court reported in Ramanathan Chettiar v. Verrappan Chettiar 1955 2 Mad LJ 602: AIR 1956 Mad 89. In that case, it was held that when the manager and other adult members are parties and the minor coparceners are also impleaded as eo nomine parties it is true that the manager or the father does not lose his capacity as such to represent the minor coparceners and enter into a valid compromise binding on them. But when a minor coparcener is represented in a suit by some one else other than the father or manager, a decree cannot be passed binding on the minor without the minor's guardian applying on the minor without the minor's guardian applying to the Court for the necessary leave under Order 32, Rule 7, of the Civil Procedure Code. It was further held that where in a suit against minor a next friend or guardian-ad-litem has been appointed he alone can represent the minor and the Karta of the family or the father of the minor cannot enter into a compromise so as to bind the minor unless the guardian-ad-Item is a party to it. The reason underlying the decision was that the manager's right to represent the minor for the purpose of a compromise regarding the suit claim was taken away by some one else acting as guardian or next friend in the suit.

8. It is also to be noted that in the present case the compromise stated to have been entered into by plaintiff no. 1 as the manager of his branch was not at all a concluded compromise as it had not been entered into with all the remaining branches of the family. Defendant nos. 4 to 7 representing one branch were not parties to the compromise. In any case I have not doubt whatever that if a compromise is relied upon as a partial adjustment of the suit, and a decree in terms of such compromise is sought for so as to make it binding also upon the minor plaintiffs it must be shown that the necessary leave was asked for and granted under the provisions of Order 32, Rule 7, of the Code of Civil Procedure.

9. Finally, Mr. Bobde urged that the compromise should at all events be held binding upon the parties thereto and upon those who and subsequently assented to it and therefore it should be recorded and a decree passed thereon in so far as such parties are concerned. I do not think it is possible to accept this contention either. If the compromise is given effect to in this way, it would be giving effect so some thing which the parties themselves did not agree to. The Court would be making out a new compromise which the parties themselves did not make. The compromise mentioned in the application no. 20 states in paragraph 2 that plaintiffs nos. 1 to 5 have 1/5th share. In paragraph 7 and 8 it is stated that property mentioned int he list marked as no. 5 remained for he plaintiffs and that they have become full and exclusive owners thereof. If these clauses are not to affect the minor parties, variations will have to be suitably made in them; but this the Court cannot do in the absence of consent form the parties concerned. Besides, it must be remembered that the compromise relied upon by the appellants relates to the partition of some of the suit properties into several shares. It is obvious that the interests of plaintiffs nos. 1 and 2 and minor plaintiffs nos. 3, 4 and 5 are inseparable. A partial adjustment of the kind as now suggested by Mr. Bobde does not lead to the finality of the contest between the parties to the suit. It only leads to further complications and trends to protract, the litigation. A similar contention was raised in Lakhsmana Chetti v. Chainnathambi Chetti, ILR Mad 326 where it was held that the suit being a suit for partition among the members of an undivided Hindu family, a partial adjudication in such a suit was impossible and therefore the agreement must be held to be altogether incapable of being acted upon under Section 375 (now under Order 23, Rule 3) of the Code of Civil Procedure.

10. As all the contentions raised by Mr. Bobde fail, the appeal must be dismissed with costs.

11. Appeal dismissed.


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