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Sri Govind Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 1058 of 1968
Judge
Reported inAIR1973All464
ActsOaths Act, 1873 - Sections 9 and 11; Code of Civil Procedure (CPC) - Order 32, Rule 7
AppellantSri Govind
RespondentThe State of U.P. and ors.
Respondent AdvocateG.N. Verma, Adv.
DispositionAppeal allowed
Excerpt:
.....of the court as it affected minor's interest. - - babu too was claiming to be a co-tenant with tuley both having 1/3 share and thus both bad a common interest and not adverse to each..........through his mother and contended that babu not being his natural guardian was not authorised to offer special oath on his behalf and the objection in so far as it related to him could not be dismissed on the basis of the special oath taken by the appellant. the settlement officer (consolidation) and the deputy director of consolidation in first and second appeals respectively held on the basis of the evidence adduced in the case that respondents 5 and 6 were co-tenure-holders in the land in dispute. their names were, therefore, directed to be recorded along with the name of the appellant. the deputy director of consolidation hearing the second appeal held that there was nothing on the record to show that tuley was minor. he laid emphasis on an application presented on march 2. 1962 by.....
Judgment:

N.D. Ojha, J.

1. The village where the land in dispute is situated was brought under consolidation operations and in the basic year the appellant was recorded as the tenure-holder. An objection was filed on behalf of the respondents 5 and 6 claiming to be co-tenure-holders having a one-third share. It appears that Tuley respondent No. 5 was a minor and Babu respondent No. 6 as elder brother was acting as his guardian. After the evidence was recorded Babu made an offer that if the appellant could take special oath that his claim was incorrect Babu would be out of Court. The offer was accepted by the appellant and he took special oath reiving upon which the Consolidation Officer dismissed the objection of respondents 5 and 6.

Tuley respondent No. 5 thereupon filed an appeal through his mother and contended that Babu not being his natural guardian was not authorised to offer special oath on his behalf and the objection in so far as it related to him could not be dismissed on the basis of the special oath taken by the appellant. The Settlement Officer (Consolidation) and the Deputy Director of Consolidation in first and second appeals respectively held on the basis of the evidence adduced in the case that respondents 5 and 6 were co-tenure-holders in the land in dispute. Their names were, therefore, directed to be recorded along with the name of the appellant. The Deputy Director of Consolidation hearing the second appeal held that there was nothing on the record to show that Tuley was minor. He laid emphasis on an application presented on March 2. 1962 by the appellant wherein he had admitted the possession of respondents 5 and 6. The revision filed by the appellant was dismissed by the Joint Director of Consolidation. The appellant thereupon instituted a writ petition which too was dismissed bv a learned Single Judge. Hence this special appeal.

2. The learned counsel for the appellant urged that the objection on behalf of Tuley also having been filed by Babu his elder brother it was apparent that Babu was acting for himself and on behalf of his minor brother Tuley and the offer made by Babu in his capacity aforesaid was binding on Tuley also, and the appellant having made a statement on special oath in pursuance of the said offer the objection of respondents 5 and 6 had rightly been dismissed by the Consolidation Officer. The observation of the Deputy Director of Consolidation deciding the second appeal that there was nothing on the record to show that Tuley was minor was inconsistent with Tuley's own case. The dismissal of the objection by the Consolidation Officer was challenged by Tuley on this specific ground that he was a minor and the said observation of the Deputy Director of Consolidation was on the face of it unfounded. The question about the binding nature of a statement made on special oath upon a minor which statement has been made in pursuance of an offer made by his guardian has received the attention of three Division Benches of this Court. In Parbhu Dayal v. Jamil Ahmad. (AIR 1922 All 160) it was held that such a statement was binding on the minor. It was, however, observed that the statement of the guardian that the suit should be decreed on the basis of such statement could not absolutely bind the minor because that part of the statement amounted to a compromise or agreement by the guardian which had not been sanctioned by the Court nor had the Court considered whether it was for the benefit of the minor. In Deoraj Misra v. Mst. Abhai Raji, (AIR 1927 All 5841 an agreement by the guardian on behalf of the minor to be bound by the statement of a certain witness was held to be binding upon the minor. It was also held that such an agreement did not amount to a compromise requiring sanction of the Court. After discussing quite a number of cases on the point including the cases of Parbhu Dayal and Deorai Misra (supra) it was reiterated in Jokhu v. Bhaiya Lal : AIR1959All93 that an offer made by the next friend or guardian of a minor to be bound by the statement made on special oath by the other party did not amount to a compromise and did not require leave of the Court. The statement made on special oath in pursuance of the offer was held to be conclusive evidence on the point which was the subiect-matter of the statement and binding on the minor. Parbhu Dayal'p case (supra) was interpreted to hold that when an offer was that the whole suit be dismissed if the other party made a certain statement on special oath such an offer amounted to a compromise if there were issues other than those in respect of which statement was to be made. It was observed that if there was only one issue on which rested the decision of the case and the statement on special oath in pursuance of the offer made by the guardian was in respect of that very issue the case had to be decided on the basis of such statement inasmuch as the statement so made was conclusive.

3. Applying the principles laid down in the aforesaid cases it is to be found that in the instant case the only issue involved before the Consolidation authorities was as to whether the claim of respondents 5 and 6 in regard to their co-tenancy rights was correct or not. As would appear from the judgment of the Joint Director of Consolidation dismissing the appellant's revision, the offer made by Babu before the Consolidation Officer was that if the appellant took special oath that the claim of Babu was incorrect Babu would be out of Court. Apparently the statement made by the appellant on special oath was in respect of the entire matter involved in the litigation and not in respect of one out of several issues. Obviously, therefore, the Consolidation Officer was right in dismissing the objection of respondents 5 and 6 relying on the statement made I by the appellant. Since the statement made on special oath by the appellant was conclusive there was no scope for considering this statement in context with other evidence on record including any earlier admission made by the appellant.

4. As regards the plea of Tuley that his mother end not Babu was his natural guardian suffice it to say that Babu is the elder brother of Tuley. It was he who filed the objection for himself and as next friend of Tuley. The mother did not care to file any objection on behalf of her minor son. Had Babu not filed the objection, the claim of Tuley would have gone by default. Babu too was claiming to be a co-tenant with Tuley both having 1/3 share and thus both bad a common interest and not adverse to each other. In the absence of any clear bar it cannot be said that Babu was not competent to act as the next friend of his minor brother Tuley. It is not the case of Tuley that the act of his guardian was vitiated by fraud, undue influence or negligence and in view of the fact stated above, he could not challenge the order of the Consolidation Officer in appeal or revision simply on the ground that Babu was not his natural guardian.

5. In the result the appeal is allowed, the judgment of the learned Single Judge is set aside, the orders of the Settlement Officer (Consolidation), the Deputy Director of Consolidation and the Joint Director of Consolidation ere quashed and the order of the Consolidation Officer dismissing the objections of respondents 5 and 6 is restored. The appellant will be entitled to his costs.


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