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Kalavati Vs. Chedi Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All531
AppellantKalavati
RespondentChedi Lal and ors.
Excerpt:
civil procedure code, section 462 - minor--circumstances necessary to make a compromise by a guardian or next friend on behalf of a minor binding on the minor. - .....who is a minor, is, through her guardian, the appellant. the respondents are defendants in the suit. the parties, after the suit had been instituted, agreed to a compromise. they filed the compromise in the court, and the compromise having been verified, the subordinate judge made a decree in the terms of compromise and thus disposed of the suit. it is no doubt the duty of the court under section 375 of the code of civil procedure to pass a decree in accordance with any lawful compromise which may be made by the parties, so far as that compromise relates to the suit. but in order to see what a lawful compromise is, where a minor is concerned, we must turn to section 462 of that code. that section was enacted for the protection of minors, and it positively forbids any next friend or.....
Judgment:

John Edge, Kt., C.J. and Banerji, J.

1. This is an appeal from the decree of the Subordinate Judge of Aligarh. The plaintiff, who is a minor, is, through her guardian, the appellant. The respondents are defendants in the suit. The parties, after the suit had been instituted, agreed to a compromise. They filed the compromise in the Court, and the compromise having been verified, the Subordinate Judge made a decree in the terms of compromise and thus disposed of the suit. It is no doubt the duty of the Court under Section 375 of the Code of Civil Procedure to pass a decree in accordance with any lawful compromise which may be made by the parties, so far as that compromise relates to the suit. But in order to see what a lawful compromise is, where a minor is concerned, we must turn to Section 462 of that Code. That section was enacted for the protection of minors, and it positively forbids any next friend or guardian for a suit from entering into any agreement or compromise on behalf of a minor in reference to a suit in which such friend or guardian acts as such friend or guardian without the leave of the Court. The section would be entirely inoperative to afford any protection for minors in such cases if it meant that the Court was not to exercise, and was not bound to exercise, a judicial discretion as to the propriety, in the interests of the minor, of the agreement or compromise. In order to make an agreement or compromise to which Section 462 applies a lawful agreement or compromise, it is necessary that the next friend or guardian should ask the Court to consider the proposed terms of the agreement or compromise, and before making the agreement or entering into the compromise should obtain permission from the Court to enter into the agreement or compromise proposed. Further, the Court should record the fact that such application was made to it; that the terms of the proposed agreement or compromise were considered by the Court; and that having regard to the interests of the minor, the Court granted leave to the making of the agreement or compromise. Prom the mere fact that the Court passed the decree in accordance with the compromise, it cannot be inferred that any of those steps preliminary and necessary to the making of the decree had been taken by the Court. Indeed, looking at the proceedings in this case and the orders passed, it is obvious that the Court never considered the question as to whether the compromise was a proper one in the interests of the minor, and the only point to which the Court directed its attention was the acknowledgment by the parties that the agreement had been made.

2. We allow this appeal, and, setting aside the decree of the Court below, remand the suit under Section 562 of the Code of Civil Procedure to the Court below, to be decided on the merits. It will be competent for the guardian to apply to the Court for permission to compromise the suit, and if the Court grants leave, after considering the question of the interests of the minor, and the parties agree to the compromise, it will then be the duty of the Court to make a decree in accordance with Section 375 of the Code of Civil Procedure. If the suit is tried out, the Court must take special care be see that justice is done to the minor, if she has any title. The costs of this appeal will abide the event.


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