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Raj Bahadur Vs. Mt. Jamna Kuer - Court Judgment

LegalCrystal Citation
Subject Family
CourtAllahabad
Decided On
Reported inAIR1939All607
AppellantRaj Bahadur
RespondentMt. Jamna Kuer
Excerpt:
- - where a minor is represented in mutation proceedings by his mother who bona fide entered into a compromise with the other party without the leave of the court as required by rule 7 of order 32, the compromise is not bad merely for want of such leave......father was made defendant 3 and his son, a minor, was made defendant 6 and the court appointed the father guardian. ad-litem of the minor; the question was whether the power of the father as the natural guardian was controlled by section 462, civil p.c., (act 14 of 1882). their lordships of the judicial committee held that the powers of the father were controlled by the provisions of section 462 of the code and he could not, without leave of the court, do any net in his capacity as father, or managing member of a joint family which he was debarred from doing as guardian-ad-litem. to hold otherwise would be to defeat the object of the enactment. another case cited is marvadi vanhaji v. ranga rao (1937) 24 a.i.r. mad. 446. in this case a learned single judge held:the disability imposed by.....
Judgment:

Mohammad Ismail, J.

1. The facts out of which this appeal has arisen are fully stated in the judgment of the Court below. The plaintiff is the stepmother of the defendant. On the death of the defendant's father there-was a dispute between the parties with respect to the mutation of names in the revenue papers. The defendant at the time was a minor and was represented by Sobha Ram who was appointed a guardian by the District Judge under Guardians and Wards Act. The dispute ended in a compromise. In this compromise it was agreed that the name of the plaintiff would be recorded in the village records with respect to one-fourth share in a certain village. It was further stipulated that the defendant would give a sum of Rs. 200 per annum in lieu of profits to the plaintiff regardless of the actual income realized from the share allotted to the plaintiff. There were certain other stipulations in the deed which are not relevant for the purposes of this suit. This compromise was entered into in 1920 and was acted upon on behalf of the plaintiff during his minority and by the plaintiff himself since he attained majority. The plaintiff brought the suit for recovery o the arrears of profits for the years 1339, 1340 and 1341 and Kharif 1342 Fasli. The suit was contested on several grounds. Only one of them is pressed before me by learned Counsel for the appellant. It is contended that the compromise was inoperative as the mandatory provision of Order 32, Rule 7 was not followed. The Courts below have repelled this plea and have held that the compromise was for the benefit of the defendant and was acted upon for a number of years.

2. The first question to be determined is whether the disability imposed by Order 32, Rule 7 applies to a guardian appointed by the District Judge under Guardians and Wards Act, or is limited in its operation to guardians appointed for the suit. As stated above the defendant in the present case was represented by Sobha who was a guardian appointed by the District Judge. Under Order 32, Rule 4 where a minor has a guardian appointed by a competent authority no person other than such guardian shall act as the next friend of the minor or be appointed as guardian for the suit un less the Court considers for reasons to be recorded, it is for the minor's welfare that another person be permitted to act or be appointed as the case may be Sobha admittedly was appointed to act as guardian for the suit In my opinion there is no sufficient ground to hold that when a nature guardian or a guardian appointed by the Court is appointed a guardian under Order 32 Rule 7 the provisions of Rule 7 will not be applieable to him. In Ganesha Row v. Tulja Ram Row (1913) 36 Mad. 295 in a suit for partition by a member of a joint family the father was made defendant 3 and his son, a minor, was made defendant 6 and the Court appointed the father guardian. ad-litem of the minor; the question was whether the power of the father as the natural guardian was controlled by Section 462, Civil P.C., (Act 14 of 1882). Their Lordships of the Judicial Committee held that the powers of the father were controlled by the provisions of Section 462 of the Code and he could not, without leave of the Court, do any net in his capacity as father, or managing member of a joint family which he was debarred from doing as guardian-ad-litem. To hold otherwise would be to defeat the object of the enactment. Another case cited is Marvadi Vanhaji v. Ranga Rao (1937) 24 A.I.R. Mad. 446. In this case a learned single Judge held:

The disability imposed by Order 32, Rule 7, Civil P.C., will apply only to a father who is also the guardian-ad-litem for his minor son in a suit. Where the minor defendant is represented not by the father but by a Court guardian and where no attempt has been made to show that the compromise entered into by the father on behalf of the minor is improper or prejudical to his interest, the Court is not justified in extending the provisions of Order 32, Rule 7 either by analogy or on considerations of policy.

3. It will be observed that in that case the compromise was not entered into by the guardian-ad-litem. How far this case enunciates the correct rule of law is not necessary to be considered as it is conceded that in the present case it was the guardian-ad-litem who entered into a compromise on behalf of the minor. Having regard to the language of the rule and the observations of their Lordships of the Judicial Committee I must hold that even if a certificated guardian appointed by the District Judge is appointed guardian-ad-litem he is bound by the provisions of Order 32, Rule 7. The next question for determination is whether Order 32, Rule 7 applies to proceedings under the Land Revenue. Act. As stated above the compromise was entered into in mutation proceedings. The provisions of the Code of Civil Procedure are not applicable en bloc to proceedings under the Land Revenue Act. Certain Sections of the Code have been made applicable and express provision to that effect is to be found in several Sections of the Land Revenue Act, e.g. Sections 194, 199 and 204, etc. Under Section 234, Land Revenue Act, the Local Government is empowered to make rules consistent with the Act. In Circular No. 6 of the Board of Revenue, Department 2, certain rules have been made affecting the procedure of Revenue Courts. Rule 10 of the aforesaid rules runs thus:

Previous to appointing a guardian-ad-litem under the provisions of Order 32, Rule 5 of 1905 the Court shall ascertain whether the person who it is proposed to appoint is willing to act.

4. It is manifest that all the rules of Order 32 have not been made applicable. Under the circumstances it cannot be said that the omission to take the permission of the Court for a compromise on behalf of a minor is fatal to the validity of the compromise. It is always open to a minor to avoid a compromise on theaground that it was prejudicial to his interest or that it was fraudulent. My attention has not been drawn to any ruling of this Court on this point, but there are several cases of the Oudh Chief Court where this question was considered and decided. In Sitla Prasad v. Savgir Singh (1932) 19 A.I.R. Oudh 44 Wazir Hasan C.J. and Kisch J. held:

The provisions of Order 32, Civil P.C., have not been expressly made applicable to proceedings under the Land Revenue Act either by that Act or by the Code of Civil Procedure itself.

Where a minor is represented in mutation proceedings by his mother who bona fide entered into a compromise with the other party without the leave of the Court as required by Rule 7 of Order 32, the compromise is not bad merely for want of such leave. If the minor, on attaining majority, can show that the compromise is not in his interest he can have his remedy under the general law. But where it is found as a fact that it is to his benefit want of leave of Court will not help him to set it aside.

5. The same view was taken in another case, Harpal Singh v. Mt. Sukhrani (1918) 5 A.I.R. Oudh 217. It may be mentioned that both the Courts have come to the conclusion that the compromise was for the benefit of the minor and was not prejudicial to him. Under these circumstances the compromise cannot be avoided for want of permission of the Court. Several other questions were discussed at the Bar, but in view of my decision as to the applicability of the provisions of Rule 7, Order 32 to proceedings under the Land Revenue Act, it is not necessary to discuss them. This compromise was entered into in 1920 and has been acted upon ever since. The exact date on which the minor attained majority is not known, but it is conceded that he became major some time ago. The plaintiff as widow of the defendant's father is en-titled to be maintained from the income of the estate. According to the plaintiff the defendant continued to pay the stipulated amount until the year 1339 F. So far the defendant has taken no steps to have a declaration from a competent Court that the compromise is now void. Until he has obtained such a declaration he is bound fey the terms of the compromise and he must continua to pay the amount agreed upon. I hold that the Court below was right in awarding a decree to the plaintiff for the profits of the years 1339, 1340, 1341 and Kharif 1332 Fasli. The appeal fails and is dismissed.

6. The respondent has filed a cross objection against the decree of the Court below. The lower Appellate Court while upholding the decree of the trial Court has reduced the amount of annual profits. The reason for this decision was that the income from the share allotted to the plaintiff had been reduced to a great extent. From the language of the compromise it appears that the defendant undertook to pay Rs. 200 per annum irrespective of the income derived from the plaintiff's share in the village. In fact it was stated that even at the time of the compromise the income was less than Rs. 200. In my judgment the defendant is hound to pay Rs. 200 per annum regardless of the actual realization from the village. With regard to the interest payable on arrears in my opinion having regard to the prevailing rates the interest should be reduced to 3 per cent, per annum on the amount due. Pendente lite and future interest should also be charged at the same rate.

7. The cross objection is allowed. The plaintiff will be entitled to her costs of the appeal and cross objection. Leave to appeal under Letters Patent is refused.


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