Venkataramana Rao, J.
1. This second appeal arises out of a suit brought by the two daughters of one Lingaraju Bytharu, a resident of Pandyajholi village, Berhampore taluk, Ganjam district, for a declaration that the compromise decree suffered by their grandmother Dimmala Mutyalu in Order. 8. No. 178 of 1921 on the file of the Court of the District Munsif of Berhampore is null and void and not binding on them. The ground alleged was that the properties, which were dealt with by the compromise decree, belonged to their father in his sole and absolute right, that they were devised by him before his death in favour of his daughters, the plaintiffs in this suit and another daughter since deceased, on certain terms mentioned in his last will and testament dated 12th August 1920, and that by reason of the gross negligence of their grandmother she was induced to enter into a compromise by Somanatha Bythari, the father of the defendants, and the paternal uncle of their father by reason whereof they lost a considerable portion of the property. The learned District Munsif upheld their plea and set aside the compromise decree. The learned Subordinate Judge reversed the decision of the learned District Munsif. He was of the opinion that as the compromise was certified by the counsel appearing for the plaintiffs in the prior litigation and sanctioned by the Court, it could not be set aside in view of the state of circumstances that existed at the time of the compromise. He further found that the father of the defendants was under no obligation to place before the Court any material opposite to the contention which he was advancing in the said suit. This second appeal has been preferred against the decision of the learned Subordinate Judge by plaintiff 2, plaintiff 1 being made a party to the appeal.
2. It is strenuously contended in appeal by Mr. Anantha Ayyar on behalf of the appellant that the learned Judge has not correctly appreciated the law bearing on the question as to how far the compromise decree suffered by the guardian of the minors can be set aside and that in arriving at the conclusion he did, he has omitted to consider several material facts which were admittedly beyond dispute. Before dealing with the contention, it is necessary to state exactly the circumstances and the facts that existed at the time the compromise was entered into. Lingaraju Bytharu, the father of the plaintiffs, was one of the four sons of one Jagannatho Bytharu, the other sons being Panchakshari, Gangadharo, the grandfather of the defendants and the father of Somanath Bytharu and Lokanatha Bytharu. Both Panchakshari and Lokanatha had no issue, male or female. Lokanatha appears to have died very early leaving his widow Mahalakshmi. It was found by the learned District Munsif that in or about 1890 there was a reference to arbitration as evidenced by Ex. J to divide the family properties and the parties thereto were Lingaraju, Panchakshari, Gangadharo and Mahalakshmi, widow of Lokanatha, and in pursuance thereof there was a division in and by which the family properties were divided in certain shares. This finding was not disturbed by the learned Subordinate Judge in appeal. Subsequent to the said date the brothers have been living separately and enjoying their properties and dealing with them separately. That the brothers were in enjoyment of their properties separately has been found by the learned District Munsif and this finding has not been challenged in second appeal. Further it could not be attacked in view of the undisputed documentary evidence in the case. So far as Lingaraju is concerned, he seems to have obtained about 1 acre odd lands and a house in Lati village.
3. Subsequent to the said partition, he appears to have purchased about 7 acres of land in the village of Satto Pandva in or about 1897 (Ex. P). All these properties were without any doubt admittedly enjoyed by Lingaraju; the pattas stood in his name, muchilikas were obtained from tenants in his name and even after his death the plaintiffs' grandmother successfully recovered rents from the tenants in spite of the opposition of Somanath whose title the tenant set up: vide Exs. H and H-l. The muchilikas are evidenced by Ex. Q series, the pattas are evidenced by Ex. R series and the cist receipts are evidenced by Ex. S series in the case. Shortly before his death, Lingaraju executed a registered will Ex. M wherein he asserted that the property was purely ancestral and self-acquired. This is true because part of his property, namely the house and lands in Lati village, is ancestral and part of the property, namely the lands in Sathopandya village, is self-acquired. He further stated that they were all then in his undisputed right and enjoyment. He devised the properties absolutely to his daughters to be taken by them in the manner provided for them in the said will. Thus, so far as Lingaraju is concerned, from 1890 up to the date of his death in 1920, his conduct was that of a divided member of the family enjoying the properties in his own right. So far as Panchakshari is concerned, he mortgaged in 1911 by Ex. D certain property which he got in the partition in favour of one Mallayya. The recital therein is very important. It runs thus:
Whereas I have executed in your favour possessory mortgage deed in respect of the lands which are mentioned in para. 3 here in below, and which having formed my ancestral acquisition and fallen to my share on partition, have till this day been in my rightful ownership, and put you in possession there of....
4. Thus it will be seen that there was a distinct admission by Panchakshari of the partition and the acquisition of that property in partition and an assertion that the said property has been in his rightful ownership and possession on the date he was purporting to mortgage the said proparty. Three years thereafter by a document Ex. C dated 8th February 1914, he disposed of the said property absolutely in favour of Lingaraju Achari. So far as Somanath, the father of the defendants, is concerned, he seems to have dealt with the property which he got in the partition in 1915; by a document Ex. E dated 13th October 1915 he sold certain lands and a house in favour of his wife Bavuri Amma. The recital therein also is significant. It states:
Whereas I have this day sold to you for Rupees 1,000...for the two items my ancestral immoveable property in land which is mentioned in para. 3 here in below, and which till this day remains in my rightful ownership and enjoyment together with the occupancy right therein possessed by me and put you in possession thereof....
5. That this was acted on is evidenced by the Settlement Register Ex. K from which it appears that the patta for the lands was transferred in favour of Bavuri Amma. Thus it will be seen that Somanath makes a distinct admission that the property which he disposed of was the ancestral acquisition and was in his rightful ownership and possession. This could only have been possible on the footing of a partition. From the proceedings in a later suit, O.S. No. 400 of 1922 on the file of the Court of the District Munsif of Berhampore and from the admission of Somanath Bythari in his written statement in O.S. No. 178 of 1921 (Ex. N), it appears that the family had two houses in Panyajoi; one appears to have fallen to the share of Mahalakshmi and the other to defendant 7 Somanath, which was disposed of under Ex. E. In Ex. E the southern boundary of the said house is described as the house belonging to Kasarapu Mahalakshmi. This seems to indicate that Mahalakshmi obtained a house. From Ex. K it appears that certain survey numbers which stood in the joint names of defendant 7 and Mahalakahmi were thereafter transferred in favour of Somanath's wife Bavuri Amma and in favour of Mahalakshmi.
6. Lingaraju, as I stated, died some time after the will. Somanath seems to have created trouble and trespassed the title to the lands and thereupon two suits were instituted, one being O.S. No. 178 of 1921 by plaintiff 2 represented by her grandmother Dimmala Mutyalu for a declaration that the suit house belonged to her under her father's will and that the property belonged to her father, and the other being O.S. No. 320 of 1921 by both the present plaintiffs represented by their grandmother, the said Dimmala Mutyala, seeking for a declaration of title to the lands devised under their father's will in their favour. The defence of Somanath was that the family was an undivided one, that there was no division, that the properties were separately being enjoyed for the sake of convenience and that he got the property by survivorship and that he was not a ware of the will left by his brother and the dispositions therein were not binding on him. It was in this state of facts that the compromise was mitered into as evidenced by Ex. T-1 dated 19th April 1922. Under the said compromise, the plaintiffs have completely lost the right to the house except, the right of residence and in regard to the lands they have lost half the right therein, both with reference to the lands in Lathi village and Satyapandya village. There can be no question that the plaintiffs have suffered real detriment or loss by reason of this compromise if the property had belonged absolutely to their father. It may also be stated in this connexion that very soon after this compromise in respect of the property disposed of by Panchakshari, Somanath seems to have also trespassed on the suit property and in regard to that there was a suit filed by the vendee to which Somanath and the present plaintiffs were parties, the suit being O.S. No. 400 of 1922 on the file of the District Munsif of Berhampore, wherein it was found that there was a partition in the family in 1890 and ever since the brothers were in separate enjoyment and possession of the properties which fell to their shares and were dealing with them separately, and Somanath did not appeal against that decision.
7. In this state of facts, the question is whether the compromise entered into by the plaintiffs' grandmother can be sustained. It is not disputed that a decree suffered by a next friend or guardian ad litem of the minors in a suit can be set aside on their attaining majority on the ground of fraud, collusion or gross, negligence of the next friend or guardian ad litem. What is gross negligence will depend on the facts of each case, but it must be such negligence as would lead to the loss of a right which must have been successfully asserted if the suit had been conducted or resisted with due care: Lilabati Misrain v. Bishun Chobey (1907) 6 C.L.J. 621. The omission to prosecute a claim Mt. Maneerun v. Mt. Luteefun (1866) 3 W.R. 46. to set up a valid plea Subbanna v. Narasamma A.I.R. 1915 Mad 384, to offer evidence to support a plea Jaddu Padhi v. Chokkappa Boddu : AIR1934Mad469 , have been held in the circumstances of a particular case to amount to a gross negligence as would warrant giving relief to a minor by setting aside the decree. A decree by consent would, it seems to me, stand on the same footing as other decrees. But Mr. Lakshmanna contends otherwise. He strongly relies on the decisions in Dhairyasingh v. Kissandas, : AIR1926Bom291 and Ramaswamy v. Alagathai Anni : AIR1929Mad96 it seems to me that no such distinction can be drawn though a consent decree obtained with the sanction of the Court cannot be set aside except upon very very strong grounds as was pointed out by Turner, Brooke v. Lord Mostyn, (1865) 2 De G.J. and Section 373. In that case, in discussing the circumstances which would furnish sufficient ground for impeaching such a decree, the Lord Justice observed thus:
They must be such as to amount to fraud in the party claiming the benefit of the compromise, meaning by fraud not moral fraud, but what in the eye of this Court is considered as amounting to fraud. A compromise of doubtful rights between adult parties cannot, as I conceive, be set aside on any other ground. If there be no fraud, and equal knowledge on both sides, the compromise cannot be disturbed, but if there is knowledge on one side which is withheld, the compromise cannot stand, because the withholding of the knowledge amounts in the view of a Court of Equity to fraud. The rule which applies to adults seems to me to be not less applicable to compromises by the Court on behalf of infants.
8. Later on he observes as follows:
If the compromise was fairly and honestly entered into at the time, its validity cannot, as I conceive, be affected by what subsequently occurred. The true question in this very complicated case seems to me to be, was this compromise fairly and honestly made at the time? If it was, the plaintiff must be bound by it. If it was not, he must be entitled to be relieved against it.
9. In that case he set aside the compromise on the ground that a material document which would have influenced the Court and which was in the possession of the party who was seeking an order against the minor, had not been placed before the Court. In relation to that he observed:
It is sufficient to say that in my opinion this document shows that the materials necessary to enable a fair judgment to be formed upon the question whether this compromise was for the benefit of the infant were not fairly and properly brought under the Master's consideration that there was a suppression of material facts which were within the knowledge of Lord Mostyn and his advisers, and were not within the knowledge of the plaintiff or of those who acted for him. It may be said, perhaps, that the Master was satisfied with the information laid before him and called for no further information, but the question is not whether the Master called further information, but whether the parties having this further information in their possession were justified in withholding it. I am satisfied that information was withheld which was material to have been given, and which, if given, might have altered the conclusion arrived at, and I think the fact of such information having been withheld amounts in the eye of this Court to fraud.
10. Thus it will be seen that the learned Lord Justice lays down that an obligation is laid on both the patties to place all the materials in their possession where minors are concerned in order to enable the Court to judge the fairness of the compromise and it is not, as the learned Subordinate Judge thought, that it is not incumbent upon Somanatha to lay before the Court any fact which was within his knowledge. It is also clear from this judgment that there must be a compromise of doubtful rights and there must be equal knowledge on both sides. It was therefore held that where a party seeking the benefit of the compromise against a minor had no honest belief in the claim he was making, and the claim was absolutely without any foundation as in Gungeshwar Kunwar v. Durga Prasad Singh A.I.R. 1917 P.C. 146 or Kondama Naioker v. Kandasami Goundar A.I.R. 1924 P.C. 56 the compromise would not be allowed to stand. The reason assigned is that the Court is not apprised of the real state of facts and the compromise sanctioned by the Court must be deemed to have been passed on a misapprehension of a material fact having been withheld by the party who had knowledge of the same. Such withholding would in law amount to fraud. Failure of a guardian to do his duty in getting all the available material and placing it before the Court would amount to gross negligence and stand on the same footing. In this connexion I should like to refer to the observations of the Vice-Chancellor Malins in In re Hoghton's Estate; Hoghton v. Fidday (1874) 18 Eq 573
The question which I have to decide is, whether this infant, on whose behalf a decree was taken by consent in 1867, is to Buffer by any negligence or want of knowledge on the part of her then next friend, I am clearly of opinion she cannot be called upon to endure that inconvenience.... The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and will protect her interests.
11. Judged in the light of these principles, can the compromise in this case stand? On the facts I have already indicated, there can be no question that Lingaraju and his brothers became divided in or about 1890, and for a period of 30 years to the date of Lingaraju's death, they have been in separate enjoyment and possession of the properties. So far as Somanath is concerned, he was fully aware of the fact that he was a member of a divided family and this is strongly evidenced by his own conduct in executing Ex. E. This fact and this document were entirely within his knowledge and control and it was not made available to the Court or to the legal advisers on behalf of the plaintiffs. He chose to assert a claim which to his knowledge is false and the compromise was arrived at on the footing that they were members of an undivided family whereas in fact it was not so. If the guardian ad litem had taken a little more care, as was expected of her, she could have got possession of Exs. E and K and the documents which were executed by Panchakshari, namely Exs. D-1 and C, which place beyond doubt all the facts of partition and support Ex. J. If these documents had been placed before the Court, it cannot be said that the Court could have sanctioned the compromise because, even apart from these documents, the state of facts was that the parties were admittedly in separate enjoyment and possession of the properties for a considerably long time which might have supported an inference of division. The learned Subordinate Judge observes:
The partition alleged was not evidenced by a partition deed which was in the possession of the party against whom the compromise is now sought to be vacated on the ground of its willful suppression by him. The partition is inferred from certain transactions and conduct of the parties which was within the knowledge of both parties, and in fact the plaintiff's next friend's case itself was that. Under such circumstances Somanath was not under any obligation to prove the opposite of his contention.
12. The learned Judge's view is entirely wrong. The document Exs. E.K.D-1 and C would have removed any doubt that might have remained at the date of the compromise in regard to the inference of division to be drawn. There is thus in this case both a withholding of real facts by the father of the defendant and a neglect of duty on the part of the guardian. Neither Kumaraswami Sastri J. nor Reilly J. in Ramaswamy v. Alagathai Anni, A.I.R. 1929 Mad 96 lays down that under such circumstances the compromise can be upheld. Referring to Gungeshwar Kunwar v. Durga Prasad Singh A.I.R. 1917 P.C. 146 Kumaraswami Sastri J. observed thus:
It was held that on the facts disclosed in that case there could be no question of a bona fide compromise where a person knowingly raises a dispute by setting up a false claim which he knows to have no foundation and in fact induces the other party to settle the claim.
13. Referring to Kondama Naioker v. Kandasami Goundar A.I.R. 1924 P.C. 56 Reilly J. observed thus:
It is clear that in both cases the Court which sanctioned the compromise was deceived and fraud was practised upon it. Each of those compromises must have come before the Court concerned as a compromise reached by free consent by parties negotiating at arm's length with full knowledge of the facts. But in each case it was found that the compromise was procured by the party who knowingly put forward a false plea and procured by taking advantage of the helplessness of the minor's guardian. In each of those cases there was plain fraud on the Court, which was deceived into believing that there was a compromise by free consent when there was no such consent.
14. In this case it will be seen that the plaintiffs represented by their grandmother had no independent male advice and she was on the date of the compromise in distressed circumstances. She lost both her daughter and son-in-law. It appears from the evidence that one Sanyasi, P.W. 5, was present at the compromise but he does not appear to have taken any part therein. Whatever it is, it has not bean shown that the documents referred to by me and the materials which they disclose were available to the plaintiffs' grandmother, whereas they were certainly available to Somanath. The decision of the Privy Council in Gungeshwar Kunwar v. Durga Prasad Singh A.I.R. 1917 P.C. 146 is vary instructive. In that case a decree for partition passed with the sanction of Court was set aside. There were two brothers Durga Prasad Singh and Bishambar Prasad Singh. Bishambar Prasad Singh died on 2nd August 1902 leaving his only child the plaintiff and his widow Mussammat. Durga Prasad filed a suit on 7th May 1904 against Mussammat and her daughter the plaintiff who was a minor then and also at the time of the Privy Council decision. In that suit Durga Prasad stated that his brother Bishambar Prasad had been born blind and therefore excluded from inheritance to his father's estate. In that suit there was a compromise by which Durga Prasad gave to Mussammat six villages. A suit was filed to set aside that compromise on the ground that it was to the detriment of the minor plaintiff. The Subordinate Judge in that case set aside that compromise but the High Court reversed it. Their Lordships of the Judicial Committee found that on the evidence it was fairly clear that Bishambar Prasad was not born blind and was entitled to a half share in the property. They further found that the fact of congenital blindness should have been known to every member of the family if it was a fact. Their Lordships also noticed that Mussammat, the mother of Durga Prasad, did raise an objection in certain succession proceedings on behalf of Durga Prasad that Bishambar Prasad was born blind. The parties apparently in view of this contention had the matter compromised by the sanction of the Court. But their Lordships nevertheless observed that Bishambar Prasad was admittedly not born blind on the evidence and that Durga Prasad could not possibly have been in doubt as to that fact, and had, when he induced Mussummat to enter into the compromise, no honest and bona fide belief in the claim which he was making and therefore the compromise which was made in pursuance of it, could not be allowed to affect in any way the right of the minor. Similarly, a partition decree was set aside in Kondama Naioker v. Kandasami Goundar A.I.R. 1924 P.C. 56 on the ground that the compromise decree proceeded on the footing that there was no division in status in the family, whereas in fact there was a knowledge of division in the person who set up that there was no division.
15. In the view I have taken on the facts there is nothing in Dhairyasingh v. Kissandas : AIR1926Bom291 which would help Mr. Lakshmanna. In that case the actual question that arose for decision was how far the learned Judge who granted the sanction can be guided by the representations made by the counsel before him and how far he should call further information. In that case Madgavkar J. after pointing out that the considerations in deciding the question of sanction are entirely different from the considerations in deciding the issues and the reliefs in a contested suit, observed thus:
If among the materials in para, 62 of the plaint there had been one or two documents or facts, so decisive in favour of the present ancestral character of the Girgaum property, and Gordhandas had deliberately omitted or even perhaps failed to bring them to the notice of the Court, when it considered the question of sanction, then possibly it might have been a plausible contention for the appellants that Gordhandas's action fell within the rule of culpable or willful negligence tantamount to fraud or misrepresentation on material facts, which alone in law would enable the minors to avoid the compromise sanctioned.
16. In that case the father in entering into the compromise was acting as guardian on behalf of his minor sons. In regard to the conduct of the father Madgavkar J. observed thus:
In my opinion no negligence-much less gross negligence-least of all misrepresentation or fraud, on the part of Gordhandas, is proved in the materials or the sanction obtained.
17. I have already shown in this case that Somanath withheld all the available material in his possession. I have also pointed out that even if Somanath was not guilty of any fraud, the grandmother, by neglecting to get all the material which was available and place it before the Court, was guilty of gross negligence. This would entitle the Court to say that all the material which ought to have been placed before the Court was not placed in considering the question of sanction and set aside the decree. As there is thus both fraud on the part of Somanath and neglect on the part of the guardian, I am of the opinion that the compromise decree in this case should be set aside. In the result, I reverse the decision of the learned Subordinate Judge and restore that of the learned District Munsif. But I direct each party to bear his own costs throughout. Leave to appeal refused.