1. The plaintiffs in 0. S. No. 17 of 1970 in the Court of the Subordinate Judge of Padmanabhapuram are the appellants. There was one A. P. Mohammed Noohu, who carried on extensive business in Ceylon and acquired properties in India as well as Ceylon during his lifetime. He died on 1st April 1959. On 30th May 1956 prior to his undertaking the Haj pilgrimage, he executed a number of settlements in respect of the properties covered by 'A' schedule to the plaint in favour of his wives and children. He had married two wives ' The first plaintiff is the Indian wife and the first defendant is the Ceylonese wife. He has seven children by his Indian wife, who was also the first wife, and he has six children by his Ceylonese second wife. It is in favour of these two wives and children that the settlement deeds were executed on 30th May 1956.
2. After Mohammed Noohu died on 1st April 1959, the plaintiffs filed a suit 0. S. No. 9 of 1964 in the Court of the Subordinate Judge of Padmanabhapuram, which was later transferred to Sub, Court, Nagercoil and numbered as O.S. No. 24 of 1965. That was a suit for partition of all the properties including those settled under the document dated 30th May 1956 in favour of the defendants. One of the contentions was that those settlements were invalid. Defendants 1 to 7 and others filed a suit O. S. No. 17 of 1964 in the same Sub-Court, Padmanabhapuram which was also transferred to the Sub-Court, Nagercoil and was numbered as O. S. No. 25 of 1965. The prayer was for administration of the estate and for accounts among other reliefs. O. S.'No. 24 of 1965 was compromised and a decree in terms of the compromise was passed on 17th March 1966. 0. 11Z No. 25 of 1966 was dismissed on 24th March 1969, on the ground that no suit for administration of the estate of a deceased Mohamedan lay. In pursuance of the compromise in O. S. No. 24 of 1965 certain other proceedings under S. 145 of the Criminal Procedure Code were disposed of. One of the terms of the compromise of O. S. No. 24 of 1965 was that the parties shall be in possession of the properties described in the schedule to the plaint in the said suit till the title to the said properties were settled after discussion between the first plaintiff on the one hand and defendants 1 to 7 on the other, in that case, and that such settlement shall be arrived at within a period of three years from that date, that is 7-51966. If no such settlement was arrived at by that time, the plaintiffs and the 8th defendant were to be entitled to the half of items I to 17 and the other half should belong to defendants 1 to 7. There was no such settlement arrived at between the first plaintiff and defendants 1 to 7 within the period of three years as contemplated by the said compromise decree, marked as Ex. A-3-in the present case.
3. The plaintiff came forward with the present suit for a permanent injunction restraining defendants 9 to 19 from disturbing their possession of the plaint A and B schedule properties and restraining defendants 1 to 8 from alienating the plaint A and B schedule properties and for partition of their half share in the 'A' schedule properties by metes and bounds. The allegations in the plaint were that the deeds of settlement executed by Mohammed Noohu on 30th May, 1956 in favour of the defendants were sham or nominal and, in any event, invalid deeds, that the plaintiffs and the 8th defendant were in joint possession of the 'A' schedule properties as co-owners in accordance with the terms of the compromise and that there should be a division by metes and bounds of the said properties. The alienations made by the defendants were questioned. '
4. This suit was contested by the defendants contending that the settlement deeds were valid and effective, that the compromise on the basis of which the present suit for partition has been filed was itself void, as there were minors, for whom there was no lawful guardian so as to represent their interests in the said litigation and that the plaintiffs were not entitled to challenge any alienation. The issues mainly related to the validity of the settlements and the compromise.
5. The learned Subordinate Judge held that the compromise was not enforceable, that the settlement deeds were valid and that the plaintiffs were not entitled to the reliefs claimed. The plaintiffs have, therefore, come forward with the present appeal contesting the findings of the Court below.
6. In the present case also the same two points viz., (i) whether the settlements in favour of the defendants m 30th May 1956 were valid and effectual and (ii) whether the compromise- is binding on all or any of the defendants arise for consideration. The settlement or gift deeds in question are in favour of the first defendant and her children. These gifts were challenged only on the ground that there was no delivery of possession. The learned Subordinate Judge has held that the gifts or settlements were valid. The law is clear on this point In the case of gift of immovable property no physical departure or formal entry is required, where the property is used by the husband and wife for their joint residence, or is let out to tenants. The fact that the husband continued to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case -being that the residence was on account of matrimonial obligation and that the rents are collected by the husband on behalf of the wife and not on his own account. It has also been held that no mutation of names is necessary if the deed of gift declares that the husband delivered possession to the wife and the deed is handed over to her and retained by her. See Mulla's Principles of Mohamedan Law, eighteenth edition, paragraph 153. Similarly in the case of a gift to a minor child by father no delivery of possession is required and all that is necessary is to establish a bona fide intention to give. See paragraph 155 of Mulla's Principles of Mahomedan Law. In view of the settled legal position, Mr. Parasaran, the learned counsel for the appellants, was not in a position to contend that the settlement deeds were invalid or ineffective because of the absence of my physical transfer of possession. It is rather curious to and that the plaintiffs questioned the gifts in favour of the defendants while the gifts in their favour were not considered to be bad and the properties covered by them have not been brought into hotchpots for the purpose of division, though the facts in all cases of the settlements were identical. The plaintiffs cannot have it both ways. The Court below rightly held that the gifts in favour of the defendants 1 to 7 are valid.
7. I shall now deal with the question of the validity of the compromise. Even though the gifts may be valid, still in so far as they were covered by the compromise decree, the contention of the appellants is that the compromise substitutes the rights of parties to the respective properties. It may be made clear here that as far as V schedule properties are concerned, the learned counsel was not in a position to contend that they were, in any way, affected by the compromise as far as 'BI schedule properties are concerned, the appellants will not be entitled to any relief of Partition or the other reliefs as prayed. As regards the 'A' schedule Properties the finding of the Court below was that the compromise itself was invalid and illegal, because defendants 2 to 7 were minors, and the leave of the Court had not been obtained for effecting the compromise on their behalf. It has also been found by the learned trial Judge that the compromise was not supported by consideration. The main contention of the learned counsel for the appellants was that the compromise was fully supported by consideration and that the omission to obtain the leave of the Court under Order 32, Rule 7, C.P.C. did -not render the compromise a nullity in its entirety. In the submission of the learned counsel the- compromise could be enforced as against the majors. I shall, therefore, first consider the question whether the compromise fails in its entirety for want of leave of the Court under Order 32, Rule 7, C.P.C. which runs as follows:-
7. (1) 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.
(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.'
8. The Supreme Court considered this provision in, Kaushalya Devi v. Baijnath Sayal, : 3SCR769 . That appeal arose out of a suit filed by Baij Nath, against his coparceners for a partition of the family properties. By consent of parties, a preliminary decree was drawn by the trial Court on 30th October 1951. This preliminary decree was successfully challenged on appeal with the result that it was set aside and the case was remanded for trial. After remand, the parties again came together and by consent requested the Court to pass a preliminary decree once again on 15th October 1943. This preliminary decree specified the shares of the respective parties and left three outstanding issues to be determined by one of the defendants, who was to be appointed Commissioner for that purpose. The Commissioner submitted his reports and ultimately, after hearing the objections, a final decree was drawn up on 21st June 1944. It was against this final decree that an appeal was filed and it was urged on behalf of the appellants that the preliminary decree was invalid in that, at the time of passing it, the Court had failed to comply with the mandatory provisions of Order 32, Rule 7 of the Code of Civil Procedure. The High Court did not allow this plea to be raised, as there was no appeal against the preliminary decree. In the further appeal to the Supreme Court, the legal position with reference to Order 32, 4ule 7 was enunciated as follows:-
'The effect of the failure to comply with 0. 32, R. 7 (1) is specifically provided by 0. 32, R 7 (2) which says that any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. Mr. Jha reads this provision, as meaning that the impugned agreement is voidable against the parties to it who are major and is void in respect of the minor, in other words, he contends that the effect of this provision is that the major parties to it can avoid it and the minor need not avoid it at all because it is a nullity so far as he is concerned. In our opinion this contention is clearly inconsistent with the plain meaning of the rule. What the rule really means is that the impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties against the minor. It is voidable and not void. It is voidable at the instance of the minor and not at the instance of any other party. It is voidable against the parties that are major but not against a minor. This provision has been made for the protection of minors, and it means nothing more than this that the failure to comply with the requirements of Order 32, Rule 7 (1) will entitle a minor to avoid the agreement and its consequences, If he avoids the said agreement it would be set aside but in no case can the infirmity in the agreement be us6d by other parties for the purpose of avoiding it in. their own interest. The protection of the minor's interest requires that he , should be given liberty to avoid it No such consideration arises in respect of the other parties to the agreement and they can make no grievance or complaint against the - agreement on the ground that it has not complied with 0. 32, 1,. 7 (1). The non-observance of the, condition laid down by R 1 does not make the agreement or decree void for it does not affect the jurisdiction of the Court at all. The non-observance of the said condition makes the agreement or decree only voidable at the instance of the minor. That, in our opinion, is the effect of the provision of 0. 32, FL 7 (1) and (2).'
Again at Page 793 their Lordships emphasized that the words used in 0. 32, R. 7 (2) were plain and unambiguous and that they did not lend any support to the argument that non-compliance with 0. 32, R. 7 (1) would make the impugned decree a nullity.
9. Mr. Habibullah Badsha appearing for the respondents relied strongly on two other decisions of the Supreme Court in support of his contention that the compromise decree was a nullity. The first decision was reported as Mohd. Amin v. Vakil Ahmad 1952 3 SCR 1133. In that case one Abdur Rahman died on 26th January 1940 leaving a large estate and a number of children. Soon after his death there were some disputes about the legitimacy of some of his children. There was also a dispute as regards the existence of an oral will bequeathing 1/3rd share of his estate to certain persons. Under these circumstances a family settlement was executed on 5th April 1940. One of the parties was a minor aged about 9 years and his elder brother purported to represent him as his guardian. On 25th November 1940, a suit was filed for a declaration that the deed of, settlement dated 5th April 1940, was invalid and for other reliefs. The question was whether the family settlement would bind all the parties. It was held that the minor's brother had no power to transfer any right or interest in the immovable property of the minor, and that such a transfer if made was void. At page 1141 it was pointed out that-if the deed of settlement was thus void it could not be void only qua the minor plaintiff but would be void altogether qua all 'the parties including those who were sui juris. That was a case of 'the parties executing a deed of settlement among themselves. The settlement was in the nature of a contract. Under Mahomedan Law, during the father's life, he is the legal guardian of his minor children, though the mother has rights as to their custody; after his death, his executor (in Sunni Law) is their legal guardian; or, if there is no executor, their grandfather, or if he be dead, his executor. In the absence of any legal guardian the duty of appointing one devolves upon the judge as representing the Sovereign. See Imambandi v. Mutsaddi (1918) 45 Ind App 73 and Gulam Ghouse Mohiuddin v. Ahmad Mohiuddin Kamisul Qadri : 3SCR734 . The former was a case where a mother purported to convey the shares of herself and her minor children in the property inherited from the father or the husband as the case may be. The contract was held to be void. The significant fact to be noticed in that case is that it was a contract between the parties and not a compromise to which the provisions of Order 32, Rule 7 were applicable.
10. In the latter case on the death of one Abdul Rahim his sons entered into two agreements in 1908 and appointed arbitrators to partition the properties left by him There was an award which was also made a decree of Court on 13th August, 190& The suit, which gave rise to an appeal to the Supreme Court, was instituted on 24th July 1941 for setting aside the decree confirming the award and for partitioning the property. This suit was dismissed. But later on, on a remand, the decree confirming the award was set aside. In the appeal before the Supreme Court it was contended that the award was void by reason of lack of lawful guardian to protect and represent the rights and interests of the minor in the arbitration proceedings and in the proceedings resulting in the decree upon the award. In dealing with this aspect the Supreme Court observed at page 2187 as follows:-
'The minority of the appellant is a fact found both by the trial court and the High Court. It is an admitted fact, that the appellant's guardian was his brother Nooruddin at the time of the arbitration proceedings and at the time of the decree on the award. The brother is not a lawful guardian under -the Mohammedan law. The legal guardians are the father, the executor appointed by the father's will, the father's father and the executor appointed by the will of the father's father. No other relation is entitled to the guardianship of the property of a minor as of right In default of legal guardians a duty of appointing guardian for the protection and preservation of the minor's property is on the court on proper application. This Court in Mohd held it. Amin v. VakilAhmed : 1SCR1133 relying on the dictum in Imambandi v. Mutsaddi (1918) 45 Ind App 73 : AIR 1918 PC 11 that where disputes arose relating to succession to the estate of a deceased The eldest son acting as guardian for and on behalf of the minor son the deed- was not binding on the minor son as his brother was not his legal guardian; and the deed was void not only qua the minor, but with regard to all the parties including those who were sui juris. It is clear on the authority of this decision that the arbitration, agreement and the award and the decree are all void in the present case by reason of lack of legal guardian of the appellant.'
11. Two aspects have to be noticed in regard to this decision, viz., (i) there was no appointment of any guardian ad litem, and (ii) the court had no occasion to go into the question in the light of O. 32, of the Code of Civil Procedure.
12. In the present case it was not in dispute that the first defendant had been appointed as guardian ad litem for the minors. The second defendant was the second plaintiff in that case and he was declared major. The rules relating to the appointment of guardian pendente lite for a minor defendant are to be found in Order 32 of the Code of Civil Procedure. There is nothing in the said provisions making it mandatory on the Court to appoint the natural guardian, even where he expresses his willingness, and not exercise its discretion, if it considers fit, and appoint another person as guardian ad litem for the suit. The essential requirements are that the person who is appointed as the guardian must be a major, of sound mind and must have no interest adverse to that of the minor. The rules under Order 32 of the Code clearly contemplate the possibility of appointment of a person, other than the natural guardian, as guardian ad litem., (See Kumara Kangaya Gounder v. Arumugha Gounder 1970 1 Mad LJ 286). That was a case, which arose between two Hindus. That fact does not make any difference, as the provisions of Order 32 are applied irrespective of the personal law of the parties. It is a part of the personal law of the parties. It is a part of the law of procedure, which regulates all matters going to the remedy, and when the matter passes into the domain of procedure, the law governing the action in the court must regulate it. This principle was applied by the Supreme Court in Mohammed Sulaiman v. Mohammed Ismail : 1SCR937 in a case where a decree had been obtained against three widows and a daughter of the deceased. The decree holder proceeded bona fide on the basis that they were the only heirs of the deceased. Later on the son filed suit claiming that he was not bound the previous decree, because he was .not a party to the said proceedings. It was held that whether a decree obtained by a creditor against the heirs of a deceased Muslim, was binding upon he entire estate or only on those who were impleaded eo nomine, was not a question to be determined by the personal law either of the deceased or of the defendant in the suit and that it was a part of the law of procedure which regulated all matters going to the remedy.
13. There are, in fact, direct decisions and this question as to how far procedure law takes precedence over the personal law in a matter like this. In Bhikaji Rantchandra, v; Ajagarally Sarafally, (AIR 1946 Bom. 57 : : AIR1946Bom57 ) the plaintiff filed a suit to recover vacant possession of a land purchased by him from a Mahomedan Widow and her minor daughter. The widow of one Abdul Rahman declined to be the guardian ad litem in- certain darkhast proceedings, which arose in execution of a mortgage decree obtained against the widow and the minor daughter. The Court Nazir had been appointed as the guardian ad litem. However, later on she applied to the Court agreeing to the appointment of herself as the guardian ad litem. She had agreed to sell the mortgaged land to the plaintiff for a sum of Rs. 25,000/-. She applied also for permission under Order 32, Rule 7 to effect the compromise. The application was granted and a sale deed was executed by her for herself and am guardian of the minor child. Thereafter the purchaser-plaintiff filed a suit for recovery of possession from the lessees. It was contended for the lessees that the sale deed was void and not merely voidable. This contention was accepted, as the mother was not guardian under Mahoomedan Law. This decision was noticed and not followed by the Nagpur High Court in Babu Gyanu v. . Mohammed Sardar (AIR 1955 Nag 193). In that case one Karim was indebted to three creditors, who had obtained a decree against his heirs after his death. His properties were attached. One of the decreeholders undertook to pay off the debts due under the three decrees against Karim. Permission to sell the property was sought from the Collector before whom execution proceedings came. The Collector gave the permission and the widow of Karim sold the property for herself and on behalf of her minor children. The minor children came forward with a suit claiming that their mother had no right to sell the property to bind their interest. A learned Judge of the Nagpur High Court, following the decision of the Bombay High Court cited above, upheld the minor's contention. The Bench consisting of Sinha C. J., and Hidayatullah J., on appeal, were of the opinion that as guardian ad litem the widow enjoyed powers which any stranger would in such a position and that the disability arising from Mahomedan Law did not affect her, provided, of course, she obtained proper sanction from the Court. If was held that the Collector was competent to give such sanction and that the sale was valid. In coming to this conclusion the learned Judges relied on an earlier decision of the Privy Council in Ganesh Ram v. Tuliaram Raw 1913 40 Ind App 132 where in a suit for partition the father was the guardian 'ad litem' of his minor son. He had purported to act as father and manager even after such an appointment Their Lordships of the Privy Council observed:-
'But they consider it to be clear that when he (the father) himself is the next friend or guardian of the minor his powers are controlled by the provisions of the late and he cannot do any act in his capacity of father or managing member which he is debarred from doing, as next friend or guardian without leave of the Court To hold otherwise would be to defeat the object of the enactment (Civil Procedure Code).'
The learned Judges of the Nagpur High Court as showing understood this pronouncement that even the actions of a legal guardian were controlled note by the personal law of the parties but by the (Civil Procedure Code when legal guardian was appointed a guardian,'ad Litem'. The earlier decision on this point of several High Courts have been noticed in paragraph 24 of the Judgment
14. The learned counsel for the respondents wanted me to follow the Bombay decision in preference to that of the Nagpur High Court I would prefer, with respect, to follow the Nagpur High Court's decision. The result is that the Civil Procedure Code in so far as the matter relates to the proceedings before the Court overrides the personal law. The decisions of the Supreme Court in Mohd. Amin v. Vakil Ahmed 1952 3 SCR 1133 and Gulam. Ghouse v. S. S. A. M. Kamisul : AIR1971SC218 had no occasion to go into the provisions of Order 32, Rule 7 and, therefore, they do not apply. In regard to the cases to which Order 32, Rule 7 applies; the relevant law has to be taken from the decision of the Supreme Court in Kaushalya Devi v. Baijnath : 3SCR769 . Consequently, in case where there is a failure to comply with Order 32, Rule 7, the compromise would not be void in toto, but would only be voidable at the instance of the minors and the majors would be bound by it
15. It is not in dispute that items 1 to 17 of the 'A' schedule are properties allotted to defendants 1 and 3, who are majors. They would be, bound by I the compromise decree. With reference to then properties the plaintiffs' claim deserves to succeed, subject to what is indicated at the close of the judgment.
16. The learned counsel for the respondents contended that a compromise has no better status then that of being .a contract and that the decisions in Mohd. Amin v. Vakil Ahmed1952 3 SCR 1133 would continue to apply. However, in so far as the compromise is one to which Order 32, Rule 7 applies, it is the decision in Kaushalya Devi v. Baijnath : 3SCR769 that would have to be applied.
17. My attention was drawn to the decision in Maqboolan v. Habib Ullah 0927 102 Ind Cas 470 (Oudh) and Imambandi v. Mutsaddi 1918 45 Ind App 73 PC). The first decision in so far as it is inconsistent with the decision of the Supreme Court in Kaushalya Devi v. Baijnath : 3SCR769 cannot be followed. The second does not lay down any proposition inconsistent with the Supreme Court's decision in Kaushalya Devi's case : 3SCR769 .
18. Even prior to the decision' of the Supreme Court there are decisions which have held that the decree would be voidable as against the minor, but would be binding as regards the others, who are not minors. See Durga Charan v. Akkari DesAIR 1949 Cal 617) and Chidambaram V. Subramanian : AIR1953Mad492 . In the Madras case, the judgment in which was rendered by Venkataraman Aiyar, J., as he then was, though there is no discussion as such, the opinion of the court that a decree in terms of the compromise as against the majors could be passed is clearly expressed at page 506. Thus, the Plaintiffs are entitled to succeed in the present suit as against those items to which first defendant is entitled.
19. The learned counsel for the respondents submitted that the compromise was void in toto for the reason that it lacks consideration. It has been held in Rameshar Mistri v. Babulal Pandit (AIR 1946 Pat 97) : : AIR1946Pat97 that when the matter had been compromised during the pendency of the suit the compromise by a litigant irrespective of the rights and wrongs of the parties was a good consideration for the compromise. I agree with this decision and I hold that the settlement of 4 disputed claim in a bona fide litigation is itself a consideration passing from one side to the other and that the compromise would, therefore, be supported by consideration.
20. The learned counsel drew my, attention to the fact that the possession of the properties was delivered on the basis of the compromise and that the giving up of the plaintiff's right for an accounting of the profits in respect of the Ceylon properties also furnished consideration. In the compromise memo it is provided that the first plaintiff was at liberty to finalise the share of plaintiffs and the 8th defendant by appropriate steps and the compromise was entered into without prejudice to those rights. It is not necessary for me to decide whether clause 7 of the compromise memo resulted in the plaintiffs' giving up the right to accounting. It is enough to point out that the compromise was acted upon by reason of its having been taken notice of in the Section 145 proceedings, in the deliveries of properties and in the withdrawal of certain amounts in court deposit. When the compromise is so acted upon, it is too late for the respondents to contend that it lacks consideration.
21. Another point that wag urged on behalf of the respondents was that the compromise had been entered into on behalf of the first defendant by her power of attorney agent and, that the agent could not have represented her in the transaction. It is not in dispute that the power is a general power. The power of attorney itself is not before me. The only aspect adverted to was that the power of attorney was executed long prior to the court proceedings. In order to exercise a power, it is only necessary that the grant of power should have preceded the exercise of power. Therefore, the fact that the power was executed before the earlier litigation or that the power was granted at a time when the litigation had not even been commenced so as not to be in the contemplation of the parties is not relevant. I see, no substance on this point. For the reasons given above, though the settlements were valid, still the compromise in so far as it affects the majors is binding on them. The plaintiffs would be entitled to a, share in the said properties. The appellant is entitled to a half share in -items 6 to 10 and 14 and 15 and a half share in the sale proceeds of, items 11, 12 and 13 with a charge on the, other half of the first defendant in her other properties. Preliminary decree on the above terms will be drawn up. In view of the decree being passed in favour of the plaintiffs to the extent of half share in the properties, the contention of the alienees was that they should be so accommodated and that the properties to the extent possible should be allotted to the shares of the alienors, so that they will get equities. I think there is equity in this contention. I direct accordingly.
22. The appeal is allowed. No order as to costs.
23. Appeal allowed.