1. The first point taken on behalf of the appellant was that the suit was premature. As regards this we agree with the Subordinate Judge that the words in exhibit A 'as scheduled in the aforesaid suit' mean as specified in the schedules to the suit in question. In our opinion the suit was not premature.
2. The second point taken was that the compromise in Original Suit No. 2 of 1896 which is embodied in exhibit A was not binding on the first defendant, inasmuch as, when the compromise was entered into, the first defendant was a minor and the leave of the Court was not obtained for the compromise. This being so Mr. Sundara Ayyar contended that the decree given by the Subordinate Judge against the first defendant in a suit on the compromise agreement was wrong.
3. He also contended that, the compromise being invalid as against the first defendant, and in view of the ' terms of the compromise as to the mode of payment of the sum which the defendants agreed to pay, the decree against the second defendant also was wrong.
4. We take the case of the first defendant first.
5. The Subordinate Judge found that the leave of the Court was not obtained on behalf of the first defendant for the compromise sued on. Here we think that for the reasons stated in paragraph 11 of his judgment there can be no question that the Judge was right.
6. Notwithstanding his view that the sanction of the Court had not been obtained either in fact or in law on behalf of the minor for the compromise the learned Subordinate Judge saw his way to holding, following Aman Singh v. Narain Singh I.L.R. (1898) All. 98, that the first defendant could not repudiate the contract. It is probably not material for the purposes of the question we have to consider, but, as a matter of fact, the first defendant is now of age. The learned Subordinate Judge based his decision upon the ground that it was then impossible for the first defendant to place the plaintiff in the same position as that in which he was when the suit was compromised and that the first defendant had not offered in the written statement to restore the property which he then obtained possession of; that being so, the Subordinate Judge was of opinion that the first defendant could not rescind the compromise.
7. The Subordinate Judge's view, as it seems to us, really comes to this, that where the application of Section 462 of the Civil Procedure Code of 1882 would work a hardship so far as the party seeking to enforce the compromise against the minor is concerned, the Court may on equitable grounds give the go-by to the section. There is no authority for this view, unless it be the case [Aman Singh v. Narain Singh I.L.R. (1898) All. 98], on which the learned Subordinate Judge relied. And if this case is to be regarded as an authority for this view, we must respectfully dissent from it.
8. Aman Singh v. Narain Singh I.L.R. (1898) All. 98 may possibly, however, be distinguished from the present case. There the minors sought to set aside a decree on a compromise. Here the minor relies' on the invalidity of the compromise as a defence to a suit on the compromise. There the ground on which the minors sought to set aside the decree on the compromise was fraud, Here the minor resisted the claim on the compromise on the ground that the requirements of Section 462 of the Code bad not been complied with,
9. We may observe that in Barhamdeo Prasad v. Banarsi Prasad (1906) 3 Cri.L.J. 119, Amir Ali and Pratt, JJ., expressed a guarded-dissent from the Allahabad decision to which we have referred, and it seems difficult to reconcile the decision with such oases as Sharat Chunder Ghose v. Kartik Chunder Mitter I.L.R. (1883) Calc. 810 and Virupakshappa v. Shidappa and Basappa I.L.R. (1802) Bom. 19.
10. The Advocate-General did not attempt to support the decree against the first defendant on the grounds taken by the Subordinate Judge. He contended that the contract being voidable and the restoration to the status quo before the contract being impracticable, the contract should only be set aside on the terms of the party against whom it was set aside being given compensation as on a quantum meruit for services rendered. It was suggested that the services rendered in the present case on which the quantum meruit could be based consisted in the abandonment of the suit, and that the party's own valuation of what these services were worth (viz., the sum which the first defendant agreed to pay in consideration of the plaintiff abandoning the suit) was the basis for the assessment of compensation. We cannot possibly accede to this contention. If it were sound the requirements of Section 462 could be dispensed with in every case and the party suing on a compromise which the minor was entitled to avoid could always rely upon the 'services rendered' which formed the consideration for the minor's voidable promise.
11. As regards the second defendant the contention was that under the compromise no personal liability was incurred by the second defendant but only a liability to payment out of the estate of the first defendant as and when ha obtained possession of his share of the property of the late Sakharam Sahib. As we read exhibit A it amounts to a personal covenant on the part of the second defendant to pay, the only condition being as to time of payment. It was not contended that the second defendant did not get some benefit under her agreement. We cannot go into the adequacy of the consideration so far as she was concerned.
12. It was also contended that the intention was that the second defendant should only be liable under the contract if the first defendant were also liable. There is nothing in the contract to suggest this. The case [Sivasami Chetti v. Sevugan Chttti I.L.R. (1902) Mad. 389] on which Mr. Sundara Ayyar relied is clearly distinguishable as there the contract was not complete. There is no authority for what we understood to be Mr. Sundara Ayyar's proposition that if a joint contract by A and B is unenforceable against A it is also unenforceable against B.
13. Mr. Sundara Ayyar also argued with considerable ingenuity that the second defendant was not liable since exhibit A contained an 'express agreement to the contrary' within the meaning of Section 43 of the Indian Contract Act, which precluded the plaintiff from claiming the benefit of that section and compelling one of the joint promisors performing the whole of the promise. He relied on the wording of exhibit A and contended that the words ' we the executants aforesaid hereby agree and bind ourselves conjointly to pay' (sic) did not constitute one joint promise to pay, but two separate promises to pay jointly. In our opinion exhibit A cannot be so construed and there is no 'agreement to the contrary' for the purposes of Section 43 of the Contract Act. Consequently the plaintiff in our opinion is entitled to a decree against the second defendant for the whole amount.
14. As regards the first defendant the appeal must be allowed and the suit as against him be dismissed, but, in the circumstances we direct that it be dismissed without costs.
15. As regards the second defendant the appeal is dismissed with costs.