1. This appeal arises out of an order recording a compromise in a suit for a declaration that the present appellant--second defendant in that suit--was not validly adopted by the widow of the maternal uncle of the plaintiffs. The family with which we are concerned comprised originally one Lakshminarasimham who died in May 1934, leaving certain properties, his sister, the present first defendant and another sister Sundaramma who died in 1938, the mother of the plaintiffs. His widow Seethayamma had a number of sisters, one of whom was married to the present third defendant, her son being the minor appellant. She also had a brother, the fourth defendant, who is said to have been acting as the guardian of the appellant. Seethayamma died in July 1941 and she is alleged to have adopted the appellant shortly before her death and to have made a will entrusting to her brother, the fourth defendant, the guardianship of the minor. There were two suits pending at the time of the compromise. One with which we are immediately concerned is O.S. No. 63 of 1941. The connected suit was filed by the same plaintiffs against the sisters of Seethayamma.' Without going into the details of that suit, which is O.S. No. 54 of 1943, we may say that it concerned the title of the estate of Lakshminarasimham to certain properties originally mortgaged in his favour and sold in discharge of the mortgage to the sisters of Lakshminarasimham's wife. The contention of the plaintiffs was that the sisters-in-law were benamidars for Lakshminarasimham and that he was entitled to the properties and that they as his heirs could claim it.
2. The compromise was put into Court by the plaintiffs with an ordinary petition to record it. There was no formal application for leave to enter into the compromise filed on behalf of the guardian ad litem, the fourth defendant. Nor was there any formal certificate by the advocate appearing for the minor that the compromise was beneficial to the minor; but the advocate himself signed the agreement of compromise and this is, in the opinion of the learned trial Judge, a sufficient indication of his opinion that it was beneficial to the minor, though we must point out that the learned Judge was wrong in saying that in the body of the compromise it is stated that the compromise is beneficial to the minor second defendant. There is no reference in the compromise petition to the minority of the second defendant except in the heading thereof.
3. While this petition to pass a decree in terms of the compromise was pending an application was preferred by the natural mother of the second defendant praying for the removal of the fourth defendant from the guardianship and her appointment in his stead. This petition was plainly filed in order to put a stop to the compromise proceedings; but it was rejected. The terms of the compromise are that the first defendant should at once get possession of items 1 and 2 of schedule A and should receive profits in respect of those two items, that she should also get possession of certain salt pans and the first defendant with the consent of the plaintiffs should abandon the contention that items 1 and 2 of B schedule are the stridhanam properties of Seethayamma. By way of quid pro quo the minor second defendant is given item 2 of schedule B and the plaintiffs and the first defendant give up all claim to the moveable properties specified in the plaint schedule. Then the compromise turns to the matters in the connected suit, O.S. No. 54 and it is provided that the sisters of Seethayamma, who are the defendants in that suit, shall undertake to discharge a certain promissory note debt and that in return the plaintiffs shall withdraw their suit for the properties standing in the names of the defendants in that suit. Then follows a provision which seems to us to be of great importance in considering this matter, though it has been apparently overlooked by the trial Court. This is a provision that towards the cost of the first plaintiff both in O.S. No. 63 and in O.S. No. 54, the defendants 2, 3 and 4 in O.S. No. 63 shall pay a sum of Rs. 400 and the first defendant shall pay Rs. 1,000. By the time when the compromise was recorded in the adoption suit, O.S. No. 63 it was already clear that the connected compromise of O.S. No. 54 had broken down and the order recording the compromise of Q.S. No. 63 directs that the trial of O.S. No. 54, Which is coveted by the same petition, should proceed.
4. Now the contentions mostly emphasised in the appellate arguments rebate to the procedural defects in the recording of the compromise in O.S. No. 63. The decision in Awadheth Prasad Missir v. Widow of Tribeni Prasad Missir I.L.R. (1939) Pat. 343 has been quoted as authority for the proposition that not only must the guardian of the minor obtain the leave of the Court to enter into a compromise, but he must obtain that leave before the agreement to compromise is concluded. This decision proceeds on the wording of Order XXXII, Rule 7(1) which says:
No next friend or guardian for the suit shall, without the leave of the Court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
5. With the greatest respect to the learned Judges, who decided the case cited, we find it difficult to hold that the guardian must obtain the consent of the Court before the agreement is reached. No doubt he must obtain the consent of the Court before the compromise is concluded, but the conclusion of the compromise comes about when that compromise is made a decree of the Court. It would no doubt be improper after the compromise had been made effective by the Court for the guardian to obtain an ex post facto sanction of the Court for the compromise. But it does not seem to us that the Code contemplates the obtaining of the sanction of the Court to what are mere proposals of a compromise and there must necessarily be some agreement between the parties before the Court is approached for its approval.
6. A more serious defect in the procedure is the omission of the advocate appearing for the minor to record in proper form his certificate contemplated in Clause (i-A) of Rule 7, Order XXXII as amended in Madras. But we doubt whether it is necessary that the certificate of the advocate should be in any particular form and if in substance the advocate does certify to the Court that in his opinion the compromise is beneficial to the minor, we should be inclined to hold that he has sufficiently complied with the provisions of that clause. There is, however, a certain difficulty on the facts of the case in holding that the pleader appearing for the minor has signified to the Court his opinion that the compromise as reported in the present suit O.S. No. 63 is beneficial to the minor. This difficulty is mixed up with what seems to us the more serious defect in the procedure before the lower Court. The lower Court has treated this compromise, which is the subject of a joint petition and of a joint agreement, as if it was in fact two separate compromises of the two suits dealt with therein. Not only is it a single compromise covered by a single petition relating to the two suits but the compromise is not capable of being split into two parts, one relating to each of the two connected suits. Nor has any attempt been made to study the compromise for purpose of such division. No doubt the main provisions relating to O.S. No. 63 and the main provisions relating to O.S. No. 54 are quite distinct and separable but we do not know to what extent the provisions relating to the settlement of one suit were recorded as consideration for the provisions relating to the settlement of the other suit. One thing is quite clear and that is that there is a joint provision regarding the costs of these suits and there is nothing to indicate how those costs are to be apportioned between the two suits. Moreover, the minor second defendant is under the compromise made jointly liable along with others for Rs. 400 out of the total of Rs. 1 400 which is fixed as the costs, not of O.S. No. 63 alone, but of both O.S. No. 63 and O.S. No. 54. The decree as drawn by the trial Court on the compromise of O.S. No. 63 seems to imply that all these costs agreed to be paid are to be paid as costs in O.S. No. 63. It is of course quite out of the question to impose any liability on the minor second defendant for the costs of O.S. No. 54 in which he was not a party and the lawyer who signed this joint compromise does not seem to have applied his mind to the question what should be the liability of the minor second defendant if the compromise fails so far as O.S. No. 54 is concerned.
7. In this view it seems to us that the absence of a proper certificate by the pleader is more than a mere matter of form, that it affects the substance of the compromise and it does appear to us that the trial Judge in ordering that the compromise be recorded as being beneficial to the minor has entirely overlooked the fact that the failure of the compromise in part must in the circumstances of this case vitiate the compromise in its entirety. In this view we allow the appeal with costs and set aside the order recording the compromise and also the decree which flows therefrom and direct the suit to be restored to file and decided on its merits.