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Daulat Ram Vs. Surinder Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Parent Appeal No. 376 of 1964
Judge
Reported inAIR1966P& H471
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3 - Order 32, Rules 3(5) and 7
AppellantDaulat Ram
RespondentSurinder Kumar and ors.
Appellant Advocate G.C. Mittal,;K.S. Saini for;N.C. Jain, Advs.
Respondent Advocate Puran Chand and; D.C. Ahluwalia, Advs. for Respondent Nos. 2, 4 to 6
Cases ReferredGhulam Nabi v. Basheshar Mal
Excerpt:
.....v maregowda, air 1952 mys 134. where precisely the same question fell for determination. i am, therefore, clearly of the view that the learned single judge was right in his view that the consent decree, in the circumstances of the present case, will not bind the minor......is a major defendant in a suit, another person can by his consent to a decree, make it a valid decree binding on him. there is no allegation here that hombalamma was the agent of the opponent, or that the opponent gave his consent to the decree and it cannot, therefore, be held that by the consent of hombalamma, the plaintiff has got a valid decree against the opponent. the consent of hombalamma to a decree against the opponent cannot be deemed to be his consent and a decree passed on such consent is not a consent decree binding on the opponent.whatever may be the effect of a decree obtained after adjudication on merits in a suit on a party who though a minor at the time of filing the suit had attained majority, was not brought on record as major before the decree was passed, it.....
Judgment:

D.K. Mahajan, J.

1. This is an appeal under clause 10 of the Letters Patent and is directed against the decision of learned Single Judge of this Court reversing, on appeal, the decision of the lower appellate Court deciding the appeal on compromise.

2. A consent decree was passed on the 24th December, 1962 in the lower appellate Court, Surinder Kumar was a party to that appeal. He was a minor at the time when the appeal directed against the decree in that suit was compromised. In that suit, he was represented by a guardian. He attained majority on 2nd December, 1961 as has been found by the District Judge in his report dated the 18th November, 1963. This report was called by the learned Single Judge by his order dated 13th September, 1963 It is, therefore, clear that on the date the appeal was compromised, Surinder Kumar was not a minor.

3. The short question that fell for determination before the learned Single Judge was whether a guardian of a minor could enter into a compromise with the leave of the Court when, at the time, the compromise is entered into, the minor had attained majority and had ceased to be a minor. The learned Single Judge has held that in such circumstances, the quondam guardian cannot enter into a valid compromise and even if it is entered into, it is not binding on the minor and the minor can avoid it in appropriate proceedings The learned Single Judge has, in this connection, based his decision on a Division Bench decision of the Madras High Court in Sanyasi v. Yerran Naidu, AIR 1928 Mad 294 and has preferred this decision to a decision of the Lahore High Court in Ghulam Nabi v. Basheshar Mal, AIR 1922 Lah 407, which had taken a contrary view. There is also a Division Bench decision of the Mysore High Court reported as Nanjiah v Maregowda, AIR 1952 Mys 134. where precisely the same question fell for determination. The Mysore Court has considered both the Lahore and the Madras decisions and has preferred to follow the Madras decision. It will be proper, therefore, to set out the relevant observations of the Mysore Court on this matter:

'The first point for consideration is whether a decree on the basis of a compromise entered into by the next friend of the minor plaintiffs is binding on one of the plaintiffs who had attained majority before the compromise. It has been laid down by Le Rossignol J. in AIR 1922 Lah 407 that.

'A quondam minor cannot maintain a suit for a declaration that a decree passed against him on a compromise accepted on his behalf by his guardian 'ad litem' with the consent of the Court, shall be of no effect, on the ground that at the time of compromise and decree the plaintiff had become 'sui juris', and consequently was not represented before the Court. A minor party who at the date of decree has attained majority may not impeach a decree passed against him by a separate suit on the ground of fraud or gross negligence of his guardian'. The judgment is that of a Single Judge and it must be stated that all that is Stated is that the plaintiff must be regarded an having been an adult judgment-debtor who could have applied for a review of the decree and that he is not competent to maintain a suit to avoid that decree except on grounds of fraud. No reasons are given to show how a decree based on consent cannot be avoided by a suit by a person who was not a party to the consent. As against this decision there has been the judgment in 55 Mad LJ 374: (AIR 1928 Mad 294) in which the question has been considered at some length. It has been observed in that case:

'It stands to reason and principle that an adjudication by the Court which, we may take it, in the absence of any fraud, collusion or gross negligence is an adjudication on the merits of the controversy, need not be set aside as vitiated merely because a certain defendant is found to have attained his majority without the matter being brought to the notice of the Court. But when the decree comes to be passed on a contract it becomes necessary to see whether the contract that was entered into was a con tract valid and binding on the party now seeking to set aside the decree..... When the law says that such a compromise is binding on a minor when the Court sanctions it, what the law has reference to is a contract made only for or on behalf of a minor and there could be no legal principle or reason for holding that when there is a major capable of entering into a contract apart from any question of agency any contract entered into or purported to be entered into on his behalf by some other person can be regarded as binding on him.... There is no provision or principle of the law of contracts which would make such a contract entered into by a previous guardian ad litem binding on a party defendant who had become a major.'Then, again we have the decision of this Court reported in (1930) 8 Mys LJ. 492. It has been observed in that decision as follows:

'The decree in O. S No. 25 of 24-25 was no doubt passed on the consent of the adoptive mother and the subsequent mortgagee, and it is necessary to see whether the consent is valid and binding on the present opponent who seeks to set aside the decree. If the opponent was really a major on the date of the suit then apart from the question of agency, there is no reason or principle for holding that when there is a major defendant in a suit, another person can by his consent to a decree, make it a valid decree binding on him. There is no allegation here that Hombalamma was the agent of the opponent, or that the opponent gave his consent to the decree and it cannot, therefore, be held that by the consent of Hombalamma, the plaintiff has got a valid decree against the opponent. The consent of Hombalamma to a decree against the opponent cannot be deemed to be his consent and a decree passed on such consent is not a consent decree binding on the opponent.

Whatever may be the effect of a decree obtained after adjudication on merits in a suit on a party who though a minor at the time of filing the suit had attained majority, was not brought on record as major before the decree was passed, it cannot be said that a decree based on the consent of a next friend or guardian ad litem is binding on him unless he was brought on record as major and he is a party to the consent. In this ease though the first plaintiff was a minor at the time O. S. 35/ 45-46 was filed, he had attained majority by the time his mother purporting to act as his next friend consented to the compromise. His mother could not act as the next friend after he attained majority and she was in no way his agent to bind him by her consent. The decree passed on such a compromise cannot be binding on the first plaintiff, and as such the decree as against him has to be set aside.'

4. I am in respectful agreement with the aforesaid statement of the law. I am not prepared to hold that merely because proceedings could be lawfully carried on by the quondam guardian in a litigation in which the minor is involved would confer on the quondam guardian power to enter into a contract on behalf of a minor who had ceased to be a minor when the contract was entered into. It is not disputed before us that a decree by consent is a decree passed on the basis of a contract. I am, therefore, clearly of the view that the learned Single Judge was right in his view that the consent decree, in the circumstances of the present case, will not bind the minor. The consent decree has to be set aside so far as the minor is concerned. The question as to what repercussion this order will have on the consent decree, so far as the other parties to it are concerned, is left open as that was not the matter which was canvassed before the learned Single Judge.

5. For the reasons recorded above, this appeal fails and is rejected; but there will be no order as to costs. The parties are directed to appear before the lower appellate Court on 21st March, 1966. The lower appellate Court is directed to dispose of the appeal without any further delay.

6. I agree.

D. Falshaw, C. J.

I Agree


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