1. The defendant is the appellant. The respondent herein filed a suit for declaration that the compromise decree in O.S. 14 of 1958 on the file of the Sub-Court Cuddalore, is invalid and not binding on him, and for recovery of possession of the suit properties, 2.48 acres of nanja, with past and future mesne profits from the defendants. His case was that he was a minor represented by his mother as guardian in the said suit and that by her gross negligence she had compromised the suit agreeing to give the said extent of 2.48 acres to the defendant.
2. The defendant resisted the suit contending that the mother of the plaintiff acting as his guardian entered into a compromise bona fide and in the interests of the plaintiff, that she was not grossly negligent in entering into the compromise and that, therefore, the compromise decree cannot be set aside. He also contended that in any event, the plaintiff cannot recover possession of the suit properties even if the compromise decree is set aside.
3. The trial Court held that the compromise decree is not null and void and that it is binding on the plaintiff. In that view it dismissed on suit. The lower appellate court, however, came to the contrary conclusion and held that the compromise decree is vitiated by gross negligence on the part of the guardian and that, therefore, the compromise decree is not binding on the plaintiff. It also directed delivery on possession of the suit extent overlooking the fact the result of the compromise decree being set aside is that the suit O.S. 14 of 1958 will stand restored and that the plaintiff will not be entitled to recover possession of the suit properties in this suit. In this second appeal the defendant questions the correctness of the view taken by the lower appellate court.
4. The circumstances under which the present suit came to be filed may be briefly set out. One Doraiswami owned a house, a vacant site and an extent of 17-22 acres of land of which the suit property forms part. The said Doraiswami died in the year 1933 leaving behind him his daughter, Pattayee. Pattayee was in enjoyment of the said properties left by her father. The defendant herein who is the grandson of the said Doraiswami's paternal uncle filed a suit O.S. 38 of 1950 on the file of the Sub-Court, Cuddalore against Pattayee and her husband Ratna Padayachi for appointment of a receiver for those properties alleging acts of waste detrimental to his reversionary rights. During the pendency of that suit Pattayee adopted the plaintiff on 28-6-1951, after getting the consent of her husband's relations under Ex. A-2 dated 9-12-1950. With a view to question the said adoption the defendant filed another suit O.S. 14 of 1958 after the death of Pattayee on 7-7-1957. At that time the plaintiff was a minor. Therefore, he was represented by his natural mother as guardian in the suit. That suit was keenly contested by the said guardian and the trial also proceeded to some extent. But at that stage it was felt by the guardian that it will be in the interest of the minor to compromise the said suit and therefore, she actually entered into a compromise with the plaintiff in that suit after getting the necessary certificate from the counsel who appeared on her behalf and the sanction of the court. The compromise was to the effect that the defendant should recognise the adoption in consideration of his getting an extent of 2.48 acres out of the properties inherited by Pattayee from her father. That compromise was given effect to and the defendant took delivery of possession of 2.48 acres and the adoption of the plaintiff by Pattayee was upheld. The plaintiff, after attaining majority has filed the present suit for a declaration that the compromise decree is not binding on him and for recovery of the said extent of 2.48 acres of land given to the defendant in pursuance of the compromise. The substantial question to be considered in this appeal is as to whether the plaintiffs' mother who represented him as his guardian in O.S. 14 of 1958 has been grossly negligent in compromising the said suit on the terms set out above.
5. The lower appellate Court has gone into the question as to the truth and validity of the adoption and after holding that the adoption is valid goes on to say that the mother has been grossly negligent in entering into the compromise with the defendant. In my view, the finding that the adoption is true and valid will not automatically prove that the mother of the plaintiff has been grossly negligent in compromising the suit. Whether the plaintiff's mother acted in a grossly negligent manner in entering into the compromise has to be decided with reference to the circumstances under which she entered into the compromise. In the suit O.S. 14 of 1958, the adoption of the plaintiff by Pattayee has been questioned. If the Court were to pronounce against the truth and validity of the adoption the plaintiff would lose the entire benefit he got by virtue of the adoption. Even if the suit failed, the plaintiff in that suit would have gone in appeal and would have put the plaintiff to considerable expense. The plaintiff's mother might have thought it is better to induce the defendant by giving him a small portion of the property involved in the suit and to persuade him to recognise the adoption and thus put an end to the litigation once and for all. As a matter of fact, it is seen that the mother of the plaintiff applied to the Court for permission for entering into a compromise supported by a certificate given by her counsel that the compromise is for the benefit of the minor. This certificate was acted upon by the Court and the Court also felt that the compromise is for the benefit of the minor. The Court which death with the application for permission to compromise has passed the following order:--
'The suit is part heard. I have gone through the pleading. I have also heard the opening arguments of the learned counsel for plaintiff and defendants 1 and 2. I have gone through the terms of the proposed compromise. Having regard to the respective contentions of the parties, I am of the view that the proposed compromise is to the advantage of the minor, first defendant. Hence 1 accord sanction to D-2 the guardian ad litem of the minor defendant 1 to enter into the compromise. Petition is allowed.'
In these circumstances it is not possible for this Court to hold that the mother has acted in a negligent manner in entering into the compromise. As a matter of fact 2.48 acres given to the defendant as consideration for his recognising the adoption is a small portion when compared to the total estate which the plaintiff, as adopted son of Pattayee gets, that is 17.32 acres, a house and a house site. In my view, the plaintiff's mother acted quite reasonably and in the interest of the minor in entering into the compromise by giving a small bait to the defendant and getting his acknowledgment of the truth and validity of the adoption. If the mother had allowed the suit to go on, the litigation would have gone on much to the determent of the minor's estate. Instead of doing that, the guardian has put an end to the litigation once for all by entering into the compromise. Therefore, the lower appellate Court's view that the truth and validity of the adoption could not have been successfully challenged in O.S. 14 of 1958 and, therefore the mother was not well advised in compromising the suit and hence it does not bind the plaintiff does not appear to be sound. By the mere fact that the adoption is found to be true and valid in this suit, it cannot be said that the guardian of the minor should have pursued the plea of adoption and established the same in that suit and her failure to do so amounts to gross negligence. What is gross negligence has to depend on the facts and circumstances of each case. In Mt. Siraj Fatima v. Mahmood Ali : AIR1932All293 , it is stated--
'The word 'gross' qualifying negligence is not indicative of any standard of negligence. Gross negligence includes inexcusable absence of such ordinary care which under the circumstances of the case a prudent man was bound to take to safeguard his interest or that of a person who was dependent upon him. Where the prudent man abandons his prudence without any excuse in the conduct of any affair affecting the interest of his wards he must be held to be guilty of negligence. Where negligence is established, liability follows for all resultant consequences.'
Normally negligence in order to be a ground for the avoidance of a decree must be of such a nature as to justify the inference that the minor's interests were not at all protected and therefore he was not properly represented. Negligence must not be merely such as might be innocently committed even by a reasonable person taking the ordinary precautions which he would have taken in his own case. Where the negligence is so gross as to amount to a clear violation of the duty cast upon the guardian although not brought to the notice of the Court at the time the decree can be avoided. In this case it cannot at all be said that the minor's guardian was grossly negligent in entering into the compromise whereunder she gave 2.48 acres in consideration of the truth and validity of the adoption being recognised by the defendant herein and retaining the remaining extent of the properties which is considerably larger than the property that was given to the defendant.
6. In this case in addition to the plea of gross negligence the plaintiff alleged that the compromise has been entered into by his mother as his guardian under coercion. But the evidence adduced in the case relating to the plea of coercion is next to nothing. I am, therefore, of the view that the lower appellate Court is not right in setting aside the compromise decree.
7. In any event, the lower appellate Court had no justification to grant a decree for possession of the suit property in favour of the plaintiff, for even if the compromise decree in O.S. 14 of 1958 is set aside, the result will be that the suit will stand restored and has to be disposed of afresh and the parties would be relegated to the position which they held before the compromise. It is not as if possession of the suit property was taken by the defendant in execution of the compromise decree, so that it could be said that as soon as the compromise decree is set aside, the plaintiff will be entitled to have the restitution of the same. In any view of the matter the decision of the lower appellate Court cannot be held to be correct.
8. The result is the second appeal is allowed, the decree and judgment of the lower appellate Court are set aside and those of the trial Court restored. There will, however, be no order as to costs. No leave.
9. Appeal allowed.