1. This is an appeal against an order of remand passed by the learned Additional Civil Judge of Azamgarh. The facts which are necessary for the purposes of this appeal, are these:
2. A suit for possession and damages with respect to a tenancy plot was brought by five plaintiffs of whom the third, fourth and fifth were minors and the first two were majors, one of the defendants raised the plea that he had been a tenant since 1941.
3. The issue of tenancy was referred by the learned Munsif to the revenue Court under Section 288, U.P. Tenancy Act. Before the revenue Court, a compromise was arrived at between the plaintiffs and the defendant, under which the former accepted the latter as a tenant. The learned Munsif passed a decree in accordance with that finding. An appeal was preferred against the decree of the learned Munsif by four, out of the five plaintiffs, including the three minors. Bishwa Nath Singh preferred no appeal; nor was he arrayed as a pro forma respondent. 4. The learned Additional Civil Judge held that Bishwanath Singh, as a next friend of the minors was not entitled to come to a com-promise without the leave of the Court, within the meaning of Order 32, Rule 7, Civil P.C. He, therefore, set aside the compromise and sent the case back for trial according to law. An appeal has, as already mentioned, been preferred against the order of remand.
5. The learned Counsel for the appellants has raised an ingenious argument, but it does not receive support either from the plain language of Order 82, Rule 7 or from the case law. He contends that the compromise may not be a good compromise in so far as it dealt with a matter 'with reference to the suit,' but it is not otherwise and wholly vitiated. In order to appreciate this argument it is necessary to follow the facts. The suit, the learned Counsel contends, was brought on the allegation that the defendant was a trespasser. The defence of the fourth defendant was that he had been a tenant since 1941. The issue which was referred to the revenue Court was : 'Is defendant 4 a tenant'? The com-promise speaks from the date it was executed and accepts defendant 4 as a tenant from that date. It does not speak of the defendant, either in terms of a trespasser or of him as a tenant from the year 1941 or even from the date of the suit; it has 'no reference to the suit.
6. This argument is, as we have already said, ingenious, but cannot stand scrutiny. The object of the suit was the ejectment of the defendant. The only manner in which it could be resisted was by a successful plea of tenancy. The position of the defendant as a tenant - whether from a date prior or subsequent to the suit - will make no difference. Besides, suit - at least the lis - continues up to the date of the decree. It is, therefore, obvious that the compromise had 'reference to the suit.'
7. It is also contended that Bishwanath Singh was the karta of the family, and the compromise entered into by him, even apart from the provisions of Order 32, Rule 7, Civil P.C. was binding upon the minors. This line of argument was rejected by their Lordships of the Judicial Committee in Ganesha Row v. Tuljaram Row ('13) 36 Mad. 295 Mr. Ameer Ali, who delivered the judgment of the Board, in rejecting it observed as follows at page 302:
(a) It seems to their Lordships that there is a fallacy underlying the reasoning on which the Courts below have proceeded. No doubt a father or managing member of a joint Hindu, family may, under certain circumstances and subject to certain conditions, enter into agreements which may be binding on the minor members of the family. But where a minor is party to a suit and a next friend or guardian has been appointed to look after the rights and interests of the infant in and concerning the suit, the acts of such next friend or guardian are subject to the control of the Court.
(b) The Courts in India seem to think that because Rajaram was a party to the suit of 1886 and was also guardian ad litem for his minor son, who was a member of the joint family whom Rajaram was representing. It was open to him to enter into the compromise in his personal capacity, and as it was a bona fide settlement of a disputed claim, it became binding on the minor by virtue of his having acted as the managing member of the family. How far the acts of a father; or managing member may affect a minor, who is a party to the suit represented by another person as next friend or guardian ad litem, is a question which does not arise in the case, and their Lordships are not called upon to express an opinion on it. But they consider it to be clear that when he himself is the next friend or guardian of the minor his powers are controlled by the provisions of the law and he cannot do any act in his capacity of father or managing member which he is debarred from doing as next friend or guardian without leave of the Court. To hold otherwise would be to defeat the object of the enactment.
If their Lordships rejected this argument even where the father acted bona fide and in settlement of a disputed claim, we cannot accept it in this case, as there is nothing to show that the compromise was in the interest of the minors.
8. There is, however, another difficulty. The learned Counsel for the appellants argues that, in any case, the compromise should be declared valid to the extent of the rights of Bishwanath Singh. He was, in the first place, one of the contracting parties and secondly, no party to the appeal before the learned Additional Civil Judge. The decision of the trial Court so far as it went against him, became final.
9. We do not think we are precluded from passing a proper decree in suitable cases. Order 41, Rule 83, Civil P.C. recognises such power in us, particularly when Bishnath Singh, though not a party in the Court below is a party before us. In Ganga Prasad v. Mt. Hardei : AIR1932All32 a Bench of this Court exercised its powers in circumstances somewhat similar. The question is whether circumstances exist in this case, which call for the exercise of such power We feel, satisfied that they exist. The compromise was one, indivisible. If it stands qua one party and falls qua the rest, it will lead to two contradictory decrees. It will, besides, serve no useful purpose, inasmuch as the appellants will be liable to ejectment at the instance of the plaintiffs other than Bishnath Singh.
10. We, therefore, dismiss the appeal, but, under the circumstances of the case, we direct the parties to bear their own costs of this appeal.
Harish Chandra J.
11. I agree.