1. The following pedigree will explain the right under which the parties to this appeal are litigating.
________________________________|_________________________________ | | | Atal Bihari. Bal Kakund. Kunj Bi bari
| | Lal .
Chhail Bihari | | Lal | Adopted son
his widow | Sri Na rain
Mausammat | | Harbansa | | Kunwar. | | _______________________________|_________________ | | | | | | Brij Bihari Ram Dayal Raghbir Murli | Lal. | Dayal Manohar. | ______|______ | | | | | | | | | | Jai Bihari Binod Kishan | | | Lal Bihari Dayal | | | | Lal | | | | | | | | | | | ____|____ | | | | | | | | Prem Anup | | | Bihari Bihari | | | | | |
____________________|_____ | | | | | | Maha | Badri | | Narain. Shiam Narain | | Narain Plaintiff. | |
__________|_____________________________ | | | | | Sukhadeo Basant Bihari Nit Bihari Lal, | Bihari Lal plaintiff. Plaintiff. | |
Gopal Bihari Madho Narain, Kunwar Bihari L
2. The property in suit is alleged to have belonged to Chhail Bihari Lal, a grandson of Makhan Lal. Chhail Bihari Lal died about 25 years ago leaving him surviving a widow of the name of Musammat Harbansa Kunwar. She died on the 26th of August, 1910. On her death a dispute arose between the grandsons of Bal Makund and Kunj Bihari Lal, the reversioners to Chhail Bihari Lal. There were eleven persons living at the time, namely, Badri Narain, Basant Bihari, Nit Bihari Lal, Kishan Dayal, Maha Narain, Shiam Narain, Binod Bihari Lal, Sukhdeo Bihari, Gopal Bihari Lal, Madho Narain and Kunwar Bihari Lal. The first eight were grandsons of Bal Makund and the last three were the grandsons of Kunj Bihari Lal, and all the eleven stood in the same degree of relationship to Chhail Bihari Lal. In 1912 the grandsons of Bal Makund instituted a suit against the grandsons of Kunj Bihari Lal, to recover 8/11th of the property alleged to have belonged to Chhail Bihari Lal. Three of the then plaintiffs namely, Sukhdeo Bihari, Basant Bihari Lal and Nit Bihari Lal, the sons of Murli Manohar, were minors at the time. Shiam Narain, their first cousin, was appointed their next friend for the suit. After several hearings a petition of compromise was filed on the 11th of September, 1912. It was filed by Chaudhri Dammai Lal and Babu Binod Bihari Lal, pleaders, for the plaintiffs and Madho Narain. Binod Bihari Lal was one of the plaintiffs in the case and Madho Narain acted for self and as guardian of his younger brother, Kunwar Bihari Lal. The court directed the pleader for the plaintiffs to produce his clients for verification of the compromise on a subsequent date, namely, the 8th of October, 1912. The case was taken up, but the verification on behalf of the plaintiffs was not made, and the 13th of November, 1912, was fixed for filing of the written statement. The case adjourned from time to time for various reasons, and on the 11th of December, 1912, a compromise was filed which was dated the 6th of December, 1912. The court directed that the parties should appear before it the next day to verify the compromise. On the 12th of December, 1912, Binod Bihari Lal, one of the plaintiffs, and Madho Narain, one of the defendants, were alone present. Babu Binod Bihari Lal objected to the compromise, and the case was put off to the 4th of February, 1913, for the reception of any objection that other parties might have to the compromise. On the 4th of February, 1913, the case was taken up and an objection was filed on behalf of Shaim Narain, Kishan Dayal and Maha Narain against the compromise on the allegation that it was injurious to the rights of the plaintiffs and especially the rights of the minor plaintiffs and that the leave of the court had not been asked for or granted to the minor plaintiffs to enter into a compromise. An application purporting to have been written on the 6th of December, 1912, by Shiam Narain, the next friend of the four minor plaintiffs, namely, Sukhdeo Bihari Lal, Basant Bihari Lal, Nit Bihari Lal and Badri Narain, was tendered on behalf of the defence. The application asked for leave of the court to accept the compromise of the 11th of December, 1912, on the ground that it was beneficial to the rights of the minor plaintiffs. The application was re-dated the 4th of February, 1913. The pleader for Shiam Narain and the other plaintiffs admitted the writing of the application by Shiam Narain, but objected to it on the ground that it was to be produced in court only on condition that some other matters which did not appear in the application had been settled between the parties out of court and which had not been settled. Objections were filed to the compromise of the 11th of December, 1912, by< some other plaintiffs also. The trial court framed an issue with regard to the validity of the compromise and fixed the 16th of April, 1914, for disposal of the issue, directing the parties to produce their evidence, both oral and documentary, on the date of hearing. On the 31st of March, 1913, before the date fixed for hearing of the case, an application was filed on behalf of the parties accepting the compromise of the 11th of December, 1912, with certain amendments. The application was verified by Madho Narain, one of the defendants, for himself and as guardian of his minor brother, Kunwar Bihari Lal. Prabhat Chandra, pleader for the other defendant, namely, Gopal Narain, verified the application for his client, Babu Binod Bihari Lal verified it for self and Kharagjit Misra, pleader, verified it on behalf of Kishan Dayal, Maha Narain and Shiam Narain. In compliance with the application, the 6th clause of the compromise was deleted. The same day a decree was passed in terms of the compromise. The result of the compromise decree was that the eight plaintiffs, namely, the grandsons of Balmakund, got half of the zamindari property in suit and the three grandsons of Kunj Bihari Lal retained the other half. In other words, instead of getting 8/11th of the property, the plaintiffs got half the property. Within eighteen months of the compromise decree the two minor sons of Murli Manohar, namely, Basant Bihari Lal and Nit Behari Lal, and the minor brother of Shiam Narain, namely, Badri Narain, brought the suit out of which this appeal has arisen, for the recovery of the difference between the share they would have got under the Hindu law and the share they were allotted under the decree. They stated in their plaint that they were minors at the time of the suit of 1912 and that the compromise upon which the decree was passed on the 31st of March, 1913, was made without obtaining the leave of the court as was required under the law and that the compromise had injuriously affected their interests. They further alleged that the compromise in question was fraudulent and collusive. The claim was brought against the three grandsons of Kunj Bihari Lal. The other eight persons who were co-plaintiffs in the former suit were not made parties to the present suit, The claim was resisted on various pleas. The court of first instance disposed of the case on the first issue only, namely, whether the compromise decree is valid and binding on the plaintiff's. The learned Judge held that the compromise upon which the decree was passed, was not fraudulent and collusive nor was it injurious to the rights of the minor plaintiffs nor can it be said that it was made without the leave of the court. The other issues raised in the case were not decided. The plaintiffs in appeal to this Court do not challenge the finding with regard to collusion and fraud. They, however, impeach the decree of the court below on the other two points. They contend that the compromise was injurious to their interests and that it was entered into without obtaining the leave of the court. We think thai the contention of the plaintiffs appellants must prevail with regard to the omission to obtain leave of the court authorizing the guardian of the minor plaintiffs in the suit of 1912 to enter into a compromise. The learned Judge of the lower appellate court admits that no such leave was granted, but thinks that as the trial court was aware of the fact that there wore some minor plaintiffs in the case, the matter was before its mind and the omission to record a formal order is immaterial We are unable to agree with the learned Judge of the lower appellate court. The law on the subject is embodied in Order XXXII, Rule 7, which is as follows: "No next friend or guardian for the suit shall, without the leave of the court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as a next friend or guardian. Any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor." The learned Counsel for the plaintiffs appellants refers to the following cases. Manohar Lal v. Jadunath Singh (1906) I.L.R., 28 All., 585 Subramanian Chettiar v. Raja Rajeswara Dorai (1915) I.L.R., 39 Mad., 115, Jamna Bai Saheb Mohitai Avergal v. Vasanta Rao Ananad Rao Dhybar (1916) I.L.R., 39 Mad., 409, Hanuman Rai v. Jagdis Rai (1916) 35 Indian Cases, 675, Ganesha Row v. Tuljaram Row (1913) I.L.R. 36 Mad., 295. For the respondents the argument of the lower court is adopted and in reply to the case-law it is contended that their Lordships of the Privy Council in the case of Manohar Lal v. Jadunath Singh(1906) I.L.R., 28 All., 585 remarked as follows: "In the opinion of their Lordships there ought to be evidence that the attention of the court was directly called to the fact that a minor was a party to the compromises, and it ought to be shown, by an order on petition or in some way not open to doubt, that the leave of the court was obtained." In the present case it is said that the proceedings of the suit of 1912 leave no doubt that the attention of the trial court was directly called to the fact that some of the plaintiffs in the case were minors and were entering into a compromise. In support of this the proceedings of the 4th of February, 1913, are referred to. We think that the present law is more strict than the dictum of their Lordships in the case of Manohar Lal v. Jadunath Singh(1906) I.L.R., 28 All., 585, which was given under Section 462 of the old Code of Civil Procedure, Act XIV of 1882. Under the old law the words "expressly recorded in the proceedings "did not appear. There is admittedly no order of the court in the suit of 1912 expressly recording permission to Shiam Narain to enter into a compromise on behalf of his minor brother and his minor cousins. Under the second sub-clause of Order XXXII, Rule 7, the compromise of the 11th of December, 1912, upon which the decree of the 31st of March, 1913, was passed, having been entered into on behalf of the minors without the leave of the court, is voidable at the instance of the minors. We, therefore, hold that the decree in question is not binding on the present plaintiffs. The case, however, is not disposed of by this finding. It is argued on behalf of the respondents that, even if the compromise decree is not binding upon the plaintiffs, it should not be set aside unless and until it is shown that the compromise in question was in fact injurious to the interests of the minor plaintiffs. The learned Judge of the lower court has found that the compromise in question was not injurious to the plaintiffs' interests. The reasoning upon which he has come to that conclusion does not commend itself to us. It is conceded on behalf of the respondents that the finding as it stands is insufficient and inconclusive. The learned Judge ought to have taken into consideration the value of the share of the plaintiffs under the Hindu law to which they were entitled, namely, 3/11 of the property alleged to have belonged to Chhail Behari, and the share that was allotted to them under the compromise. It should also have considered the transaction that preceded the compromise, namely, the sale of Muhabbatpur and Mehrabad to the defendants and the sale of a portion of Shahjalpur by the latter to the plaintiffs. There was an allegation that the defendants had paid almost double the price of the pl aintiffs' shares in the villages of Muhabbatpur and Mehrabad in consideration of the compromise that was subsequently entered into, that is, in other words in consideration of the plaintiffs' relinquishing a portion of their share in the inheritance. Another point to be considered in the case is, if the plaintiffs are not to be bound by the compromise decree of the 31st of March, 1913, should their claim be decreed in full or should they be put upon terms. The learned Judge of the lower appellate court did not have this question before his mind. We think that this appeal must prevail, but as the case is going back to the lower court, we direct that in addition to the issue that it has left untried, it should also try the following issues:
(1) Whether the compromise injuriously affected the rights of the plaintiffs?
(2) Assuming that the plaintiffs are not bound by the decree of the 31st of March, 1913, are they entitled to recover the property in suit or any of it unconditionally or should they be put upon terms, if so, upon what terms?
3. The first issue the court below will try in the light of the remarks we have made above. We, therefore, allow the appeal, set aside the decree of the court below and remand the case for trial under Order XLI, Rule 23, of the Code of Civil Procedure. The costs of this appeal to abide the event.