1. The facts which led up to the institution of the suit from which this appeal arises are somewhat unusual. Two brothers, Tirbeni Sahai and Salik Ram, who were not however members of the joint family, executed a deed of simple mortgage for Rupees 6,000 in favour of one Kamle Singh. The mortgagee instituted Suit No. 203 of 1923 in the Court of the Subordinate Judge of Budaun for the sale of the mortgaged property. The mortgage debt amounted at that time to Rs. 6,000 principal and Rs. 4,625 interest. Kamle Singh impleaded, in addition to the two mortgagors, three other persons Suraj Prakash said to be insane, and Joti Sarup, adults, and Radha Raman minor, sons of Tirbeni Sahai, naming Mt. Katori, wife of Tirbeni Sahai, as the guardian of the 'insane' and minor defendants. Joti Sarup entered a written statement, resisting the suit on various grounds, in, which Mt. Katori joined as the guardian of Radha Raman, the minor, but none of the other defendants set up any defence. On 26th March 1924 an application was made by the mortgagee Kamle Singh to the effect that a compromise had been made, and asking that it should be verified by Mt. Katori on behalf of the insane and minor defendants and that permission might be given to file the compromise. An amin was sent to the house of Mt. Katori, and he made a report dated 10th April 1924 to the following effect:
Mt. Katori, guardian, identified by Babu Joti Sarup, son of the said Musammat, fully heard and understood the contents of the petition of compromise and admitted and accepted the same in a loud voice with her own tongue and verified the same.
2. The thumb impression of Mt. Katori is said to have been affixed to this document. On 14th April the Subordinate Judge, Mr. R.K. Aghe, made an order to following effect:
Parties contesting this suit have compromised. Two of the defendants have remained ex parte. The compromise is for the benefit of the minors. There shall be a decree in terms of the compromise against all the defendants as I think that the absent defendants, though not parties to the suit (sic), are really agreeable to the compromise.
3. It must be observed in the first place that in writing 'the absent defendants though not parties to the suit' the learned Judge evidently meant to write 'though not parties to the compromise.' But this is not the only inaccuracy in the brief order. There was only one minor, and the Judge does not seem to have realized that one of the parties to the suit was said to be of unsound mind. He has however come to no finding on the subject, as he might and should have done under Section 32, Rule 15, Civil P.C. Suraj Prakash is a major, and the Judge should certainly have been, at that stage of the case, definite in his mind as to whether Ms own acting in the proceedings on his own responsibility or through a guardian. The next thing to remark about the order is that even if we assume that Mt. Katori was acting on behalf of Suraj Prakash as well as for the minor, no express permission was given by the Court to the guardian to enter into an agreement or compromise on their behalf, nor was any application made on their behalf for their adjustment of the suit. Under Order 23, Rule 3, the Court must record a compromise, and pass a decree in accordance therewith so far as it relates to the suit, when it is proved to its satisfaction that the suit has been adjusted wholly or in part by the compromise and that the compromise is lawful. But the directions in Rule 7, Order 32 are not intended to be merely formal, and it is incumbent on the Court to protect the interests of a minor and of a person of unsound mind, and to apply its mind to any compromise which is offered on their behalf in order to ascertain as far as possible that the compromise is really for the benefit of the minor. However a decree was prepared on the basis of the compromise and indeed put into execution. It may be added that there is nothing to show that the two principal defendants, both of whom were the original mortgagors, and one of whom was the manager of a joint family owning part of the mortgaged property, knew anything whatever of the compromise.
4. On 3rd September 1924 Joti Sarup, and Suraj Prakash and Radha Raman under the guardianship of Mt. Katori, filed a suit for a declaration that the deed of compromise filed in the first suit was based on fraud practised by the defendants and that that compromise and the decree passed in terms thereof were null and void as against the plaintiffs. Kamle Singh, the mortgagee, was of course impleaded as a defendant, and with him was joined Babu Balwant Singh in virtue of some benefit under the compromise. It must be observed here that the fraud practised by the defendants according to the plaint was that of altering the compromise which had been entered into by Kamle Singh and Joti Sarup. It is unnecessary to describe in detail the terms either of the agreement which Joti Sarup, the principal plaintiff, said had been arranged between the two of them, or the compromise which was actually filed in the Court of Kamle Singh. It is only necessary to state that the second one, i.e., the compromise filed in Court by Kamle Singh, was very much more favourable to Kamle Singh than the other. It is not explained in the plaint exactly how Kamle Singh brought about the fraudulent alteration of the compromise, but Joti Sarup in Court said that although he heard it read out in Court he did not hear it attentively as his mind was pre-occupied, and he verified it apparently in a dream. The lower appellate Court not unnaturally concluded that his statement was false and frivolous but when the Subordinate Judge goes on to say:
The circumstances of the case are such as to completely negative the existence of any fraud or misunderstanding in the filing of the compromise,
we most emphatically disagree with him. Joti Sarup appears to have been the only one of the family who was taking any interest in the proceedings and it is fairly obvious that he was hoping to obtain some personal benefit to himself out of the compromise by agreeing to the sale of the family property. If it had been simply a case between him and Kamle Singh and this is the only point of view which the Subordinate Judge seems to have considered Joti Sarup's suit would have been rightly dismissed. The Subordinate Judge who decided this suit however--Mr. Preo Nath Ghose--does not seem to have entirely escaped from the confusion caused by the extraordinary proceedings of the other Subordinate Judge Mr. Agha, who dealt with suit No. 203. He remarks:
there were also other defendants in the case, but they appear to have been pro forma.
5. The so-called pro-forma defendants were the mortgagors. One of them was the owner of half the property, and the other was the manager of the joint family which owned the other half of the property which Joti Sarup so light heartedly agreed to sell. Mr. Preo Nath Ghose continues:
there can be no manner of doubt that the Court considered the compromise, found it beneficial to the minor and the lunatic and sanctioned it;
and while noticing that Mr. Agha had not formally given his sanction to the compromise, evidently believed that he had applied his mind to it and found a proper one. His attention was directed to the case of Kalawati v. Chedi Lal (1895) 17 All 531, in which it was held that from the mere fact that the Court passed a decree in accordance with the compromise it cannot be inferred that any of the steps, preliminary and necessary to the making of the decree, have been taken by the Court. But he differentiates the facts in the present case because
here the sanction is gathered from the language used by the Court and the inference is clear.
6. But if the Court, i.e., Mr. Agha, Jrad considered the compromise at all, he must have discovered that Joti Sarup had no right to agree to the sale of the property, that no decree could be passed in terms of the compromise against the non-appearing defendants, that the interests of the minor and the insane defendant, if he was insane, had not been consulted at all, and that the circumstances in which Mt. Katori had been said to have agreed to the contents of the petition of the compromise were most suspicious. The petition of compromise itself, which she is said to have fully heard and understood and accepted in a loud voice, has no reference to the mortgage suit which was pending, and cannot be read as an application to adjust the suit; and there was in reality nothing before Mr. Agha to show that Mt. Katori had any intention of adjusting the suit or indeed that she knew anything about it. The fact is that the whole proceedings were obviously fraudulent, but the Court below appears to have been misled because the principal plaintiff, Joti Sarup, was undoubtedly at any rate during a part of the time a party to the fraud himself. No account has been taken of the interest of the minor or of Suraj Prakash. If Suit No. 203 of 1923 in the Court of the Subordinate Judge of Budaun had come up to us in appeal we should have had no difficulty in the matter. But as it is, no appeal was made, and we have to consider whether it is possible for the plaintiffs in the present suit to set aside a decree which has become effective. It is only in extremely rare cases that such a course can be taken, and in the case of Ajudhia Prasad v. Gur Dayal AIR 1919 Oudh 272, it has been held and we consider rightly held that a decree can only be declared null and void in this manner where the fraud has occurred in preventing a party from having his claim adjudicated. Joti Sarup was not prevented by fraud from having his claim adjudicated, but the whole of the circumstances which we have described above make it quite clear to us that the minor and Suraj Prakash (if Suraj Prakash be of unsound mind, which is a matter that is yet to be decided) have not had their claims adjudicated, and that this has been due to fraud practised probably by Kamle Singh with the connivance of Joti Sarup.
7. We therefore allow the appeal and set aside the order and decree of the lower Court. We direct that the plaintiffs be given a decree to the effect that the deed of compromise filed on 26th March 1924, and the decree based on it, are null and void and ineffectual as against the plaintiffs; and we direct that Suit No. 203 of 1923 be restored to its original number, and that the hearing be continued from the stage which it had reached when the compromise was filed on 26th March 1924. The Judge who is in charge of the case should in the first place ascertain whether Suraj Prakash is a person of unsound mind, and whether he is to be represented by a guardian or not, and should then proceed with the hearing of the suit. As regards costs we feel some reluctance in awarding costs to Joti Sarup, who is partly responsible for the course the proceedings have taken; but as it is difficult to separate his interests from those of the minor and Suraj Prakash we direct that the plaintiffs-appellants receive their costs from defendant-respondent 1, Kamle Singh, in both Courts.