1. This second appeal arises under the following circumstances. The appellant as plaintiff in O. S. No. 212 of 1953 on the file of the District Munsif, Madurai, sued to recover possession of certain property and for mesne profits from the defendants in that suit. Those defendants consisted of the father, the mother and the four minor defendants. The case set up by the present appellant (plaintiff in that suit) was that item of property had vested in him by reason of certain earlier partition arrangements which had been effected.
The defendants in that suit resisted that contention and attacked the alleged partition arrangements as sham and colourable transactions. Issues were joined, and at the time of trial, the plaintiff in that suit was challenged to take a special oath for the purpose of resolving the controversy whether there was a valid partition entitling the plaintiff to the property in question. Such an oath was taken, and, thereupon, the learned District Munsif passed a decree for possession of the property and for mesne profits, as prayed for in that suit.
2. The minor defendants in that suit, as plaintiffs in the suit leading to this appeal (O. S. No. 197 of 1957, District Munsif's Court, Madurai town), alleged that in so far as the decree in O. S. No. 212 of 1953 laid upon them the liability to pay mesne profits to the successful plaintiff therein, who is the appellant here, is vitiated for the reason that the decree was based on a compromise which required the permission of the court, and that such permission had not been obtained.
In claiming that the decree was based on a compromise, what is really contended is that, in putting the plaintiff in that suit on a special oath in resolving the controversy in that suit, the challenge to take the special oath and to abide by the result, thereof, virtually amounted to a compromise, which should invite the application of Order 32, Rule 7. The minors, as plaintiffs, however, did not attack that portion of the decree, which related to the possession of the premises in question, which also resulted from the taking of the special oath.
3. The contention of the appellant as defendant in this suit was that it was not a compromise and that no permission of the court was required for inviting the opposing parties to take the oath under the Special Oaths Act.
4. On the issue whether the decree should be set aside as against the minor plaintiffs, the learned District Munsif came to the conclusion that the requirements of the Civil Procedure Code were not attracted to the present case and that the decree in that suit O. S. No. 212 of 1953, was not liable to be set aside.
5. In an appeal, however, the learned Subordinate Judge of Madurai took a different view. He thought that the earlier decisions which dealt with this point and which were relied on by the learned District Munsif, did not have any application and that there had been a violation of the requirements of Order 32 Rule 7, which necessarily led to the result that the decree in so far as the minors are concerned, which proceeded on the basis of the compromise, had to be set aside. Hence this second appeal.
6. It has been argued on behalf of the appellant that, the only point in controversy between the parties being whether the possession by the minor plaintiffs along with their parents was in their own right and whether the partition that was pleaded by this appellant as plaintiff in that suit was vitiated for any of the reasons alleged by these minors, on a determination of that question, the inevitable result would follow that the suit had neither to be dismissed or decreed. There could not, it is argued by learned counsel for the appellant, survive any matter for any further examination by the trial court, and, certainly, the question of mesne profits would not also call for any further examination.
If it was found on the taking of the special oath that the contention of these defendants, who were in possession of the premises, that the partition transactions were sham and nominal could not be sustained, their possession become unlawful, and since in the written statement there had been no plea taken regarding the quantun or liability to mesne profits, the Court would naturally have passed the decree. It is urged, therefore, that, in so far as the question of mesne profits was concerned, there was no compromise between the parties, which, in order to bind the minor defendants, should have had the sanction of the court.
7. It is unnecessary to examine in detail the decisions bearing upon this point. Chengal Reddi v. Venkatareddi, ILR Mad 483 had clearly laid it down that the procedure of taking a special oath is only one method of letting in evidence on a disputed issue, and, in so far as there Is an agreement even on behalf of a minor party to a suit, inviting the other party to take an oath, such agreement does not come within the scope of Order 32, and the evidence so let in would be conclusive.
The learned Judges have taken care to specify that such evidence would be operative only in so far as that particular issue is concerned and would not decide the suit in its entirety. The importance of that decision consists in the fact that it establishes that, where a special oath is taken, it amounts to the tendering of evidence of a particular kind on a specified matter. This principle has been followed in Shco Nath Saran v. Sukhlal Singh, ILR Cal 229 and also Baldeo Singh v. Niras Singh, : AIR1946Pat272 .
8. What is, however, contended on behalf of the respondents in this appeal is that the agreement, Ex., B. 6, to take the special oath is couched in this manner,
'If the plaintiff will take oath by putting out camphor in court.....these defendants consent to a decree and vacate possession of the suit premises.'
The portion left out relate to the point in issue to be decided in a particular manner on the taking of the oath. Learned counsel for the respondents argues that, since this agreement goes to the extent of enabling the court to pass a decree on the taking of the oath, it comes within the mischief of Order 32 Rule 7. It seems to me that the matter cannot be examined without reference to particular facts which went to the challenge to lake the oath. It is obvious from what has been stated earlier that the only real point in controversy between the parties was about the possession of the house, and, when once it was decided in favour of the plaintiff in that suit on the basis of the oath, which was but a species of evidence, the result had necessarily to follow that the decree for possession as well as mesne profits had to be given.
The circumstance that 'these defendants consent to a decree' formed part of the memo filed on behalf of the minors does not amount, in my opinion, to a compromise entered into on behalf of the minors. It is true that, in Parbhu Dayal v. Jamil Ahmad, : AIR1922All160 , the distinction was drawn between the establishment of a fact on the basis of a special oath and a compromise or agreement by guardian which required the sanction of the court,
On the facts of that particular case, it was held that, though the minor was bound by reason of Section 11 of the Oaths Act, the statement of the minor's guardian that the suit could be decreed was held not to be binding on the minor, because that part of the statement, amounted to a compromise in respect of other matters in controversy I am not satisfied that the facts of that decision have any application here.
9. It seems to me, therefore, that, when once the minor defendants in that suit became bound as a result of the oath taken by the plaintiff therein, the subsequent decree of the suit followed as a matter of course and was not based upon any consent or agreement of the guardian. The grounds upon which the learned Subordinate Judge distinguished the decisions on the point do not appear to be valid.
10. Learned counsel for the appellant does not seek to enforce the decree against the minors on the basis of any personal liability.
11. In the result, the judgment and decree of the Subordinate Judge are set aside and those of the District Munsif restored. There will be no order as to costs in this appeal.
12. No leave.