Khanna and Hadry, JJ.
(1) 'THIS regular first appeal by Sant Bhusan Lal plaintiff is directed against the judgment and decree of the learned Subordinate Judge 1st Class, Delhi, whereby he dismissed the plaintiff-appellant's suit.
(2) Sant Bhusan Lal plaintiff is the son of Munshi Lal defendant No. 3 from the latter's second wife, Puran Devi. BriJ Bhushan Lal and Onkar Bhushan Lal are the sons of Munshi Lal from his first wife, who died before his man iage with Puran Devi. On 23rd January, 1945 Munshi Lal, defendant No. 3, on his own behalf and as next friend of Sant Bhushan Lal plaintiff, who was then minor, brought a suit for partition and separation of the then plaintiff's 2/5th share in the house in dispute bearing Municipal No. 500, situated in Kundewalan Street, AJmeri Gate, Delhi. Brij Bhushan Lal and Onkar Bhushan Lal, sons of Munshi Lal, were defendants I and 2 in the aforesaid suit. Puran Devi, wife of Munshi Lal, was the third defendant in the suit. A preliminary decree for partition of the house was awarded in that suit on 25th June, 1946. It was directed that the share of each of the two plaintiffs as well as of each of the three defendants would be l/5th in the house. During the course of the proceedings subsequent to the preliminary decree a compromise was entered into between the parties on 13th November, 1952 and the same was embodied in the statement of the parties which was recorded by the Court. The statement reads as under :-
'We have adjusted the suit in this way that the share of defendants I and 2 stands sold to the plaintiff No. 1 and that the entire house stands mortgaged to defendants I and 2 separately in amounts of Rs 5,550.00 to defendant No. 1 and Rs. 5,200.00 to defendant No. 2 these amounts to carry interest at the rate of 6% p. a. Interest on the mortgage to defendants shall be computed from 1st November, 1951 and to defendant No. 2 from 1st May, 1962. Possession shall be deemed to be with plaintiff No. 1 from today. The compromise is for the benefit of plaintiff No. 2, and thereforee permission be given to compromise on his behalf. As regards the share of defendant No. 3, defendants I and 2 claim no interest in it after her death. If neessary formal deeds will be executed. Thus now remains no dispute as to costs, mesne profits etc. The parties shall bear their own costs. The period of payment is fixed for 2 years from today, toherwise the defendants shall have a right to get the property sold separately or jointly to realise their money principal and costs.'
As Sant Bhushan Lal plaintiff was a minor at that time, the learned Subordinate Judge, in whose Court the case was pending, passed an order that the compromise was for the minor's benefit and, thereforee, permission (to Compromise) was granted The suit of the then plaintiffs was, accordingly, decreed. A decree, copy of which is Exhibit P.,3, was prepared in accordance with the compromise between the parties.
(3) On 25th April, 1957 Sant Bhushan Lal plaintiff brought the present suit for declaration that the compromise dated 13th November, 1952 and the decree based thereon was nto binding upon the plaintiff as the above compromise was against the interest , the plaintiff. Further relief by way of injunction was sought against Brij Bhushan Lal and Onkar Bhushan Lal, defendants I and 2, restraining then from executing the above-mentioned decree.
(4) Munshi Lal, who was imp leaded as defendant No. 3, did nto put in appearance in spite of service and the case proceeded ex parts against him. The suit was resisted by defendants I and 2. Defendants I and 2 denied that the compromise was adverse to the interests of the plaintiff. On the contrary the aforesaid compromise was stated to be for the benefit of the plaintiff. It was also averred that the aforesaid compromise was intended to put an end to a family litigation which had lasted for more than eight years A number of toher pleas were raised but we are nto now concerned with them. The material issue for the purpose of the present appeal was issue No. 3 and it was to the following efect :-
'Is the decree in dispute liable to be set aside, on the allegations inParaNo.7ofthe plaint and further allegations in the replication ?'
The court below decided issue No. 3 against the plaintiff and dismissed the suit.
(5) In appeal Mr. Monga on behalf of the appellant has challenged the finding of the Court below on issue No. 3 and has contended that the impugned compromise and decree are nto binding upon the plaintiff- appellant. As against that, Mr. Tarachand Brijmohan Lal on behalf of respondents I and 2 (hereinafter referred to as the respondents) has convassed for the correctness of the finding of the Court below
(6) In order to determine the question relating to the binding nature of the impugned compromise and decree, we may refer to a few facts which emerge on the record. After the passing of the preliminary decree for partition, Puran Devi mtoher of the appellant, filed an application in the Court which had awarded preliminary decree that her l/5th share should remain joint with the 2/5th share of the plaintiffs in that suit and that their 3/5th share might be separated. On 26th July, 1946 the Subordinate Judge passed an order, copy of which is Exhibit D-2. It was ntoed that the above application had been contested by defendants 1 and2and there was a dispute between the parties as to whether Puran Devi was an absolute owner of the property or had life interest in the same. The learned Subordinate Judge directed that PuranDe is share should also be demarcated and her share be added to the portion alltoted to the plaintiffs. On 18th September, 1951 defendants 1 and 2 made a statement before the subordinate Judge that they were prepared to sell the 2/5th share, to the toher co-sharers on payment of Rs. 10,750.00. They also gave up their claim for rendition of accounts of mesne profits. Munshi Lal plaintiff thereafter made a statement agreeing to purchase 2/5th share belonging to defendants I and 2. He undertook to deposit Rs 10,750.00 within a month. The Court thereupon passed on toher directing the plaintiffs to deposit Rs. 10,750.00 by 18th October, 1951. The amount apparently was nto deposited. Report of the Local Commissioner was then received. According to that report, there was no practical way for partitioning the house into five equal shares and securing the parties their due share in the house by metes and bounds. On 24th April, 1952 the learned Subordinate Judge passed an order that leaving aside 1/5th share of Puran Devi, the remaining 4th/5th share of the parties be sold. It was also directed that the sale proceeds would be divided between the plaintiffs in that suit and defendants 1 and 2 in proportion to their shares. After the above order had been made, it was brought to the ntoice of the Court that 1/5th share of Puran Devi had nto been demarcated. Direction was, thereforee, given for demarcating that portion. On 29th May, 1952 Shri Bhupinder Nath Nayar, Pleader, who had been appointed a Commissioner, submitted his report. In that report it was mentioned that the ttoal area of the property in dispute was 950 square feet, 1/5th of which was 190 square feet. According to the report of the Local Commissioner the property in dispute was very old with no separate bath or latrine for each portion. It was, accordingly, held that the partition of the property was nto practicable. On 13th November, 1952, as stated earlier, the above compromiss was entered into.
(7) It would appear from the above that various efforts were made to find a way to partition the property in dispute but none of the methods, suggested, was found feasible. An offer had also been made on behalf of the plaintiffs in that suit to purchase the shares of defendants 1 and 2 and to deposit Rs. 10,750.00 in Court but ntohing came of that offer as the amount in question was nto deposited. It was, after exhausting all the toher methods, that the impugned compromise was entered into. It put an end to a long drawn out family litigation. As the plaintiff was a minor, he was represented by a next friend, who was none toher than his father. The plaintiff admittedly lived with him and, according to him, there has been no quarrel between him and his father. On account of the fact that the compromise had been made in a pending suit, it became necessary to obtain leave of the Court under Order 32, Rule 7 of the Code of Civil Procedure to enable the father to enter into compromise on behalf of the minor plaintiff. The father of the plaintiff, in the course of his statement to the Court, represented that the compromise was for the benefit of the minor. The learned Subordinate Judge agreed with that representation and specifically observed, while granting leave, that the compromise was for the benefit of the minor- plaintiff. In view of all the circumstances, the plaintiff-appellant, in our opinion, should be held to be bound by the compromise. According to section 147 of the Code, in all suits to which any person under disability is a party, any consent or agreement as to any proceeding shall, if given or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such person were under no disability and had given such consent or made such agreement. The effect of the above provision is as observed in a Bench decision of Lahore High Court. (Young, C.J. and Beckett, J.) Kanta Devi v Kalawati, that a minor would stand on the same fotoing as an adult when a compromise has been effected on his behalf with the express leave of the Court, The matter also arose in the Full Bench case of I ftkhar Hussain Khan v. Khant Singh-, Mahajan, J as he then was, observed-
'The effect of this section is that it places consent decrees passed against minors after certain formalities had been gone through on the same fotoing as consent decrees pased against adults, but the section does nto Justify the conclusion that consent decrees stand on a higher fotoing than contested decrees.'
(8) In Bishundeo Narain and antoher v. Seageni Raj, their Lordships of the Supreme Court went into the question of the right of a minor coparcener to assail a compromise effecting partition. In that case a compromise had been entered into on behalf of a minor in a suit for partition of the coparcenery property by his guardian. The Court, before which the case was pending, granted leave to the compromise on behalf to the i?inor in the following words :
'Permission granted as the compromise is for the minor's benefit.'
The above compromise was assailed inter alia, on the ground that the form of the order showed that the judge had nto applied his mind to the matter and satisfied himself that the compromise was for the minor's benefit. This contention was repelled and it was observed that there is no set form in which the certificate, which the Court is required to record, need be made. Dealing with the circumstances under which a compromise, entered into on behalf of a minor, can be assailed, Bose, J., speaking for the Court, observed.-
It is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor's benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside. The rule, however, does nto apply to decrees if the minor is properly represented before the Court and the decree is as binding on him as on the adult parties, unless the minor can show fraud or negligence on the part of his next friend or guardian ad litem.
(9) It would follow from the above that if a next friend For guardian ad litem of a minor enters into a compromise on his behalf with the permission of the Court under Order 32, Rule 7 of the Code, the Compromise and the decree based thereon would be as much binding on the minor as it is on the adult parties, unless the minor can show that the next friend or his guardian ad litem was guilty of fraud or negligence. The onus of provid fraud or negligence on the part of the next friend or guardian ad litem would be upon the minor and for this purpose he has to make clear and distinct allegations in his pleadings and to substantiate them. In the present case there are neither allegations of fraud or negligence on the part of Munshi Lal, nor has the plaintiff adduced any material from which an inference of fraud or negligence on the part of Munshi Lal can be drawn. Munshi Lal, as stated above, is the father of the plaintiff-appellant and the material on the record shows that they live together, and there is no conflict or estrangement between the two.
(10) Mr. Monga on behalf of the appellant has referred to the case of Narayanan Nambooripad and tohers v. Gopalan Nair, wherein it was observed as under:-
'The negligence of the guardian in ordar to lic a good ground for the guidance of a decree must as has been stated before be of such character as to justify the inference that the minor's interests were nto at all prtoected and in substance though nto inform the minor went unrepresented in the trial Court. Gross negligence on the part of the guardian can be inferred from his conduct in nto setting up proper defense.'
So far as the first part of the above observations is concerned, it is in consonance with the view we have expressed earlier. The appellant, in our opinion, can also nto derive any help from the latter part of the above observations because it has nto been shown to us that a good plea, which could have been raised on behalf of the plaintiff- appellant, was nto raised in the earlier litigation. On the contrary we find that the interests of the plaintiff-appellant and his father in the aforesaid case were identical and there is ntohing to show that the next friend was acting to the deteriment of the interests of the plaintiff- appellant.
(11) Antoher case upon which reliance has been placed on behalf of the appellant is a Bench decision of Nagpur High Court (Hidayatullah. C. J. and Ktoval, J.) in Ramprasad Ramdin v. Dagdulal Nandlal. That authority can be distinguished on the ground that the next friend of the minor plaintiff, who was nto initially a party to the case, entered into a compromise as a result of which the next friend was imp leaded as aparty. The plaint was amended and a substantial amount was paid to the next friend. It was held that as the next friend had carved out an interest for herself, the compromise and the decree must be treated as a nullity. Antoher distinguishing feature of the above case is that the compromise decree was nto sought to be assailed by means of a subsequent suit as is being done in the present case.
(12) Apart from the above, we are of the view that the compromise, which was entered into by the next friend of the plaintiff on 13th November, 1952, should be upheld as it was in the nature of a family arrangement. 'A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation and saving its honour. Family arrangements are governed by principles which are nto applicable to dealings between strangers, and the Court, when deciding the rights of parties under family arrangements or claims to upset such family arrangements, considers what in the broadest view of the matter is in the interest of the families and cannto import considerations which weigh in dealing with transactions between persons nto members of the same family.' See observations in this context on pages 215 and 216 of Halsbury's Laws of England, volume 17, Third Edition. The above observations were qutoed with approval by Subba Rao. J. (as he then was), speaking for the Court in the case of Matmi Pullaiah and antoher v. Maturi Narasimham, and it was observed as under : -
'Briefly stated, though conflict of legal claims in presentation or in future is generally a condition for the validity of a family arrangement, it is nto necessarily so. Even bona fide disputes, present or possible, which may nto involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into 'bona-fide and the terms thereof are fair in the circumstances of a particular case. Courts will more readily give assent to such an arrangement then to avoid it.'
(13) Keeping the above principle in view, we are of the opinion that the impugned compromise should be sustained as a family arrangement. As a result of this 'compromise along drawn out family litigation was put an end to and a fair and reasonable way was found to carry out the preliminary decree for partition of the property in dispate which could nto toherwise be partitioned by metes aid bounds. The house in terms of the compromise was retained in the family. It was agreed that respondents I and 2 would be paid the price of their share. The compromise should, thereforee, be upheld as a family arrangement.
(14) The appeal, consequently, fails and is dismissed, but, in the circumstances, we leave the parties to bear their own costs.