1. This is an appeal from a judgment of Das J. dated 12-8-1948 dismissing the plffs' suit for a declaration that the decree & order made in suit No. 1676 of 1941 (hereinafter referred to as the said suit) are invalid & void, for setting aside the said decree & order & for other reliefs.
2. The relationship of the parties will appear from the following genealogical table:
Jawala Prasad Gobordhandas (died)
Hiralal (deft. 3) Banarashi debi = Choteylal (deft. 1)
______________________________________| (Ist wife deceased) = Narbadadebi (2nd wife)
| | | | |
Purushottamlal (minor) Ratanlal (minor) Banwari (minor) | Tulsiprasad (minor) (deft. 2)
(deft. 4) (deft. 5) (deft 6) Bhagwatiprasad = Savitri Debi
| | |
Benoy S sakar Bejcy Shankar Bimal Shatikar
(minor) (Pltf. 1) (minor) (Pltf. 2) (minor) (pltf3)
3. The said suit was instituted by Hiralal Dhandhania & his three infant sons against Choteylal & his infant son Tulsidas & one 'Bhagwatiprasad. It was alleged in the plaint that plffs. formed a Hindu joint family governed by the Mitakshara School of Hindu Law, & the deft. Choteylal & his son Tulsidas formed a joint Hindu family, the deft. Bhagwatiprasad having separated from Choteylal. The plffs. asked for a declaration of their half share in the immoveable properties mentioned in the schedule to the plaint & for partition & separate possession. Bhagwatiprasad in his written statement stated that he, along with his two infant sons, was entitled to a one-third of half share or one-sixth share in the properties & claimed separate allotment & possession in respect of his said one-sixth share.
4. During the pendency of the suit, on 14-10-1943 the plff. 3 Bimal Sankar, the third son of Bhagwati Prasad was born.
5. The said suit was ultimately settled on 9-8-1944, when terms of settlement were filed before Ameer Ali J.
6. The terms of settlement were as follows:
'1. Beony Shankar Dhandhania, Bejoy Shankar Dhandhania & Bimal Shankar Dhandhania, sons of the deft. Bhagwati Prasad Dhandhania are added as parties to this suit & the deft. Bhagwatiprasad Dhandhania be appointed guardian 'ad litem' of the said minors Benoy Shankar Dhandhania, Bejoy Shankar Dhandhania & Bimal Shankar Dhandhania.
(2) The four properties in the, suit namely, (1) 65 Muktaram Babu Street, Calcutta, (2) Garden bouse & land at 25 Ghosepara 2nd Lane in the district of 24 Parganas, (3) Two storied house in the Mohalla Sujaganj in the town of Bhagalpur district Bhagalpur & (4) one storied house known as Silk Factory at No. 40, Chunahartolla Lane in Bhagalpur district Bhagalpur let out on rent have been valued at Rs. 1,65,000 (Rupees one lac sixty five thousand).
(3) The said four properties are allotted to the deft. Choteylal Dhandhania & Tulsiprasad Dhandhania & as owelty they have paid to the piff. Hiralal Dhandhania for self & as karta & the next friend of the minor plffs. Purshottandas Dhandhania Ratanlal Dhandhania & Banwarilal Dhandhania the sum of Rs. 82,500/-.
(4) The defts. Choteylal Dhandahnia & Tulsipraead Dhandhania have paid Rs. 27,500/- to the deft. Bhagwatiprasad Dhandhania.
(5) The plffs. Hiralal Dhandhania, Purshottamdas Dhandhania, Ratanlal Dhandhania & Bankarilal Dhandhania & the defts. Bhagwatiprasad Dhandhania (the said Hiralal Dhandhania & Bhagwatiprasad Dhandhania are also acting for as next friends & guardians of their respective minor sons) Will have no claim whatsoever to the said four properties mentioned in clause 1 hereof & the said plff. Hiralal Dhandhania & the deft. Bhagwatiprasad Dhandhania have not in any way encumbered their Share in the said properties in question.
(6) The possession on the properties will be delivered to Choteylal Dhandhania by the said Hiralal Dhandhania, Purshottamdas Dhandhania, Ratanlal Dhandhania & Banwarilal Dhandhania & Bhagwatiprasad Dhandhania, Benoy Shankar Dhandhania, Bejoy Shankar Dhandhania & Bimal Shankar Dhandhania provided that the plffs. Hiralal Dhandhania & his sons & members of his family as also Bhagwatiprasad Dhandhania & his sons & members of the family may occupy the portions of the premises No. 55 Muktaram Babu Street, Calcutta, now in their occupation as licensees of the said defts. Choteylal Dhandhania & Tulsipra-sad Dhandhania upto Kartik Sudi 2001 sambat year. Each party will bear & pay their own costs.'
7. On 9-8-1944, Ameer Ali J. made an order the minutes of which are as follows:
'The suit treated on the list & this suit & the pending application are disposed of on the following terms:
1. Benoy Shankar, Bijoy Shankar & Bimal Shankar sons of Bhagwatiprasad Dhandhania added as party defts. in this suit.
2. Bhagwatiprasad Dhandhan'a the deft, in this suit appointed guardian-ad-litem of Benoy Shankar, Bejoy Shankar & Bimal Shankar the said Bhagwatiprasad Dhandhania not having any in-terest directly or indirectly in conflict with that of Benoy Shankar, Bejoy Shankar & Bimal Shankar. No formal order need be drawn & the said defts. waive service of the writ of summons.
(3) Order in terms of settlement filed.
(4) Liberty to Hiralal Dhandhania & Bhagwati Prasad Dhandhania to compromise the suit on be half of their minor sons the minor plffs. & minor defts. herein.
(5) Certified for the benefit of the minor plffs. & defts.
(6) Each party to pay its own costs throughout irrespective of any order to the contrary.'
8. Shortly after the terms were put in, Choteylal transferred the properties to his cousin Babulal.
9. On 5-1-1944 a notice of motion was takea out on behalf of the applts. for setting aside the said decree made by Ameer Ali J. The application was heard by Das J. who held that the applicants had adopted a wrong procedure & that the application was not maintainable. He also held that no grounds had been made out for setting aside the said decree & dismissed the application alike on grounds of procedure & on merits.
10. Against this order an appeal was preferred. On 28-4-1945, the appeal was dismissed. The appeal Court did not go into the merits as it held that the proceedings before Das J. did not lie.
11. On 30-5-1945 the suit, out of which this appeal arises, was filed by the applts. against (a) Choteylal & his sons Tulsiprasad (b) Hiralal & his infant sons (c) Bhagwatiprasad & (d) Babulal Dhandhania, claiming 'inter alia' a declaration that the decree & order made by Ameer Ali J. on 9-8-1944 were invalid & void, for setting aside the said decree & order & rehearing of the said suit & for a declaration that the conveyance in favour of Babulal was void & inoperative & for other incidental reliefs.
12. The suit came up for hearing before Das J. on 12-8-1948 . No oral evidence was adduced before him. The pleadings in the said suit, the terms of settlement, & the minutes of the order & the decree made by Ameer Ali J. on 9-8-1944 were put in. The learned Judge did not go into the matter in detail having regard to the fact that he had considered the points raised before him, in his judgment on the application for setting aside the decree dated 9-8-1944 to which I have already made reference. He adhered to the views which he had expressed in that judgment & dismissed the suit with costs.
13. On the hearing of the appeal before us the following contentions were raised by the appellants' counsel, (a) No leave under clause 12 of the-Letters Patent having been obtained when the appellants were added as defts. in suit No. 1676 of 1941, the decree made by Ameer Ali J. on 9-8-1944 was without jurisdiction & void, (b) No leave to compromise the suit on behalf of the minors was applied for or obtained by Bhagawati Prasad before the compromise was effected. The compromise had been efiected by the parties before the suit was mentioned to the Court on 9-8-1944. When the compromise was effected no leave had been obtained as it could not have been obtained, because the minors had not till then been made parties to the suit. Rs. 27,500/- payable under the terms of settlement had been paid by a cheque before the suit was mentioned before Ameer Ali J. The terms of settlement were filed before the order was made, (c) No formal application was made to the learned Judge for amendment of the plaint & for adding the appellants as defts. in the said suit & for the appointment of Bhagwatiprasad as the guardian-'ad-litem' of his minor sons. No notice was given to the minors under Order 32 Rule 3(4) & the order for appointment of Bhagwatiprasad as guardian-'ad-litem' was made without any such notice. No affidavit of fitness & absence of conflicting interest was filed as is required to be done under Order 32, Rule 3 (3). The appointment of Bhagwatiprasad as guardian-'ad-litem' was improper as his interest was adverse to that of the minors. By the terms of settlement no property was allotted to the minors, nor was any money in lieu of their share in the properties given to them. All the properties were allotted to Choteylal & Tulsi Prasad, who were to pay to Hiralal as owelty Rs. 82,500/-for himself & as karta & next friend of his infant sons & Rs. 27,500/- was paid to Bhagwati Prasad. In the result, the minors did not obtain any share in the properties or any money in lieu of their share.
14. I will deal with the points raised in the order in which they have been mentioned, (a) Das J. in his judgment dated 5-2-1945, held that no leave under clause 12 was necessary as Bhagwati was the father & karta of his branch of the family, though he was not so described in the plaint in suit No. 1676 of 1941. Bhagwati Prasad in his written statement asserted not only his own rights, but also those of his sons. Bhagawati Prasad, therefore, fully represented the interest of the minors in the said suit. He also observed as follows:
'The plffs were, dormantly as it were, parties to the suit. Therefore the bringing them on the record did not amount to addition of new parties, but only clarified the position by making explicit what was implicit.'
15. If the appellants were already parties to the suit No. 1676 of 1941, it is clear that no leave under clause 12 was necessary for joining them. But the question is, were they parties to the said suit? It will appear from a reference to the plaint in that suit that it was nowhere stated therein that Bhagwati had any sons or that he was being made a party as representing himself & his minor sons. The sons of Hiralal & Choteylal were expressly mentioned in the plaint. It is true that it was not necessary to mention in the plaint that Bhagwati was made a party as karta provided it was clear from the pleading that it was intended to implead him as representing his sons. There is no such indication anywhere in the plaint. On a plain reading of the plaint one would come to the conclusion that Bhagwati was impleaded in his individual capacity. It is true that in his written statement Bhagwati mentioned that he had two sons & he claimed a declaration that he, along with his said two sons, was entitled to a one-sixth share in the property. The written statement, however, need not be considered for the decision of the question as to whether or not leave under Cl 12 was necessary at the time of the addition of the minor sons of Bhagwati Prasad by order of Ameer Ali J. If in the plaint the minors sons-of Bhagwati had not been made parties, the fact that they were mentioned in the written statement of Bhagwati could not have the effect of joining them as parties. It will also be remembered that the plff. 3 was born subsequent to the filing. of the written statement.
16. I seems to me that when the order was made by Ameer Ali J. amending the cause title & adding the three sons of Bhagwati Prasad as party defts. in the suit, new parties were brought in for the-purpose presumably of binding them by the decree. Prior to that date Bhagwati Prasad had been impleaded in his individual capacity & his sons had not been made parties to the suit. Even if it is assumed that Bhagwati Prasad had been impleaded in the said suit as karta, the order made by Ameer Ali J. had the effect of adding new parties. It may be that the minor sons would have been bound by the decree made in the suit as originally framed if their interest was represented by their father & karta Bhagwati Prasad. But it does not follow that simply because a person is bound by a decision in the suit, he must be taken to be a party to it. Before the amendment no order could be made in tne suit against them in their individual capacity. When they were made parties by the order of Ameer Ali J., they became entitled to ask for a decree declaring their share & also to ask for a partition as between them & their father. By the amendment the scope of the suit was enlarged. Reliefs which could not be given in the suit as originally framed could be given after the amendment.
17. In my view, therefore, the addition of the appellants as parties by the Order of Ameer Ali J. made them in their individual capacity subject to the jurisdiction of the Court & amounted in any event to joining them as new parties. Up to the time of the amendment no suit had been 'received' by the High Court against the appellants at all & in any event, against the appellants in their individual capacity.
18. It is not disputed that out of the four properties three were situate outside & one within . the jurisdiction of the High Court. Leave was, therefore, necessary for filing a suit for partition, which is a suit for land, against these minors. No such leave was obtained. It is now established that leave originally obtained at the time of the filing of a suit does not cover an amended plaint. Where a deft, is added fresh leave must be obtained even if leave had been obtained when the suit was originally filed. It is contended that there was no change in the cause of action. Even so, if new parties are joined against whom it is intended to proceed in the suit & to obtain a decree, the obtaining of the leave is imperative, because it is the foundation of the jurisdiction of the Court. The Court gets jurisdiction to decide the suit against the parties only if it grants leave which is a condition precedent. No leave was obtained to proceed against the newly added defts. & it follows that the Court never got any jurisdiction to make any decree or order against them in the suit. The decree made, unless declared to be void, or set aside, binds the minors & prevents them from laying any claim to the sum of Rs. 27,500/- which by the decree is stated to have been given to Bhagwati Prasad.
19. In my judgment it must be held that the Court had no jurisdiction to make the decree against the appellants.
20. Mr. Khaitan next contends that no leave was necessary as the defts. were, residing within, the jurisdiction. He urges that in a suit for land if a portion of the land is situate, & the defts., reside, within jurisdiction, it is not necessary to obtain leave of Court for the institution of the suit. He referred to the terms of clause 12 in support of his submission. Whatever may be the grammatical construction of clause 12, it is now well established that in a suit for land, if the entire land is not situate within jurisdiction, it is necessary that leave of the Court should be obtained before the institution of the suit in order that the suit may be filed in this Court. It is unnecessary to refer to the authorities which are numerous. I will only set out a passage from the judgment of Rankin C. J. in 'Manindra Chandra v. Lal Mohun', 56 Cal 940. The passage is as follows:
'Clause 12 is a clause which, if it was to be construed for the first time according to its grammatical construction & in strict accordance with its wording, might perhaps have to be given a somewhat different meaning to that which is well settled now in all the High Courts of India. The effect of the construction upon which all the High Courts are agreed is that as regards suits for land, the H.C. can take cognizance, if the land is situate wholly within the local limits or, where the land is situate in part only within such limits, if leave has been first obtained; and that as regards suits, other then those for land, the High Court has jurisdiction, if the cause of action has arisen wholly within the limits or where the cause of action has arisen in part only within the limits, if the leave of the Court shall have been first obtained or if the deft, dwells or carries on business or personally works for gain within these limits.'
21. Mr. Khatian's contention, on this point made. Order 32, Rule 7, Civ. P. C. provides:
22. (b) The next point is whether the decree was bad by reason of the fact that no leave to compromise was obtained before the decree was made. Order 32 Rule 7, Civ. P. C. provides:
'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.'
23. It was held by the P. C. in 'Chhabbalal v. Kallu Lal', 73 IA 52 that Rule 7 of Order 32 is imperative & its terms must be strictly complied. The rule contemplates, as is clear from the language used, that the guardian must approach the Court in which the suit is pending & obtain its leave to compromise & after having obtained such leave, he obtains the right to enter into a compromise on behalf of the minor whom he represents in the suit. The result of not obtaining the leave as contemplated by Order 32 Rule 7 is that the compromise is voidable at the instance of the minor. It was held in the case of 'Awadhesh Prasad v. Widow of Tribeni Prasad', A. I. R. (27) 1940 Pat 663 that the guardian cannot enter into a compromise without the leave of the Court & such leave must be expressly recorded in the proceedings by the Court:
'The terms of Order 32 Rule 7, Civ. P. C. are not complied with by merely asking the Court to approve of a compromise which has actually been entered into. The language of the rule makes it clear that the Court must consider the proposed terms of the compromise before they are agreed to by the parties & must grant leave to the guardian to enter into the compromise. It has been strongly urged on behalf of the respondent that approving of the terms of the compromise after it has been entered into is sufficient compliance with Order 32 Rule 7, Civ. P. C. but, in my judgment, approving of something already done is very different from considering the terms of the proposed compromise. This matter was considered by the Full Bench of the Allahabad High Court in 'Mariam Bibi v. Amna Bibi', I. L. R. (1937) All 317. In that case it was expressly laid down that leave to enter into an agreement in a suit must be obtained before the agreement is entered into & leave cannot be given after the agreement has been concluded. A similar view was held by a Bench of this Court in a recent case 'Kedar Nath v. Basant Lal', 18 Pat 271 & in my judgment these cases must be followed.'
Per Harries C. J. in 'Awadhesh Prasad v. Widow of Tribeni Prasad', A. I. R. (27) 1940. Pat 663.
24. Let us now see on the facts of this case whether the compromise was effected before leave had been obtained to settle the suit by the guardian. It will be remembered that the compromise was effected on the date of the decree i.e. on 9-8-1944. Mr. Khaitan has drawn our attention to an affidavit filed by Choteylal Dhandhania on the application to set aside the decree dated 9-8-1944 to which I have already referred. Relevant portion of the affidavit may be quoted.
'Through the intervention of Mr. Anandilal Poddar (at present the Mayor of Calcutta) helped by other friends & relations of the party, the disputes were amicably settled between the parties 'bona fide' & for the benefit of all concerned. The said compromise was entered into with full understanding & consent by or on behalf of all the parties concerned. The deft. Bhagwati Prasad was assisted by Madangopal Poddar who is a Mar-wari Lawyer of experience & who fully looked after & protected the interest of the deft. Bhagwati Prasad Dhandhania & his family. I crave reference to the original terms & the signature therein appearing. It was suggested by Madangopal that although the deft. Bhagwati Prasad was representing his sons in the suit, the sons of Bhagawati Prasad might be added simply for the sake of greater safety & none of the parties objected thereto.'
25. On a reference to the terms of settlement it appears that one of the terms was that the appellants should be added as parties to the said suit & Bhagawati Prasad should be appointed their guardian 'ad litem' & the terms are signed by Bhagawati Prasad as self & guardian 'ad litem' of his minor sons. It will be remembered that when the terms were signed no application had been made to the Court for the appointment of Bhagawati as guardian. The terms of settlement recite that a sum of Rs. 27,500 had been paid to Bhagwati Prasad. It is, therefore, clear that Bhagawati Prasad & the other parties had entered into a compromise at a time when his minor sons had not been added as parties & when Bhagawati Prasad was not acting as guardian of the minor defts. Bhagawati Prasad, however, had obtained payment of a sum of Rs. 27,500 on agreeing to those terms. On the same day, though the suit was not appearing on the hearing list, it was mentioned to the learned Judge & the terms of settlement, -signed by the parties, were filed. On that the learned Judge made an order the terms of which will appear from the minutes which I have already quoted. The minor defts. were added as parties, Bhagawati was appointed as guardian though no formal appln. had been made in that behalf, & an order was made in terms of the settlement filed. The learned Judge after having made the order according to the terms of settlement, gave liberty to Bhagawati to compromise the suit on behaif of his minor sons & certified the compromise for their benefit. It is clear that the learned Judge considered the terms not of a proposed compromise but of a compromise which had already been effected, & in accordance with which payment had already been made. Nothing was done by the guardian Bhagawati after he had obtained the leave of the Court to compromise. The compromise was an accomplished fact before the parties had approached the Court. The learned Judge only put his seal of approbation on a compromise already effected.
26. This is not in my judgment in accordance with the provisions of Order 32 Rule 7, which contemplates, as I have already stated, that the learned Judge must consider the terms of the compromise before it has been effected & make-up his mind whether it would give the guardian permission to enter into the proposed compromise. After that leave has been obtained, the guardian has to consider the terms of the compromise & the effect thereof & to enter into the compromise if he thinks fit. The salutary provisions of Order 32 Rule 7 were not, in my judgment, complied with in this case, & the machinery of the Court was utilised for the purpose of binding the minors to a compromise which Bhagawati had already effected & under which he had already obtained payment.
27. (c) The next point is whether the compromise which was effected by Bhagawati on behalf of his minor sons was for their benefit & can be upheld. It will be noticed that no formal application was made for appointment of Bhagawati Prasad as guardian 'ad litem' of his minor sons. No notice was given to the minor sons as is required to be done under Order 32 Rule 4. No affidavit verifying the facts that the proposed guardian had no interest in matters in controversy in the suit adverse to that of the minors & that he was a fit person to be so appointed was filed as is required to be done under Order 32 Rule 3(4). The interest of Bhagawati Prasad was adverse to that of the minors inasmuch as the properties of the joint family were allotted to Choteylal & his sons including the ancestral dwelling house of the joint family, & the other parties were paid out in money representing their share in the joint family property & the minors' share in the money was paid to Bhagawati Prasad not for & on behalf of his minor sons but to himself individually. It will be noticed from the terms of settlement that in the case of payment of Hiralal it was expressly mentioned that payment was to be made to Hiralal on behalf of himself & his sons. The minor sons of Bhag-wati are mentioned when it is stated in Cls. (5) & (6) of the terms of settlement that they would have no claim to the whole property & that possession would be delivered by them but they are not mentioned in clause (4) which provides for payment of Rs. 27,500 to Bhagawati Prasad. Under terms of settlement, therefore, Bhagawati Prasad became entitled to the entire sum of Rs. 27,500/-& the decree having been made in the presence of his minor sons it became impossible for them to claim after the decree that they had any interest in the said amount. Even if the terms provided for payment of Rs. 27,500/- to Bhagawati for self & on behalf of his minor sons, he could not receive the minors' share of the money without leave of the Court as provided in Order 32 Rule 6. No such leave was obtained & indeed the Court does not, seem to have considered this point presumably because th,e terms provided for payment to Bhag-wati Prasad in his individual capacity. The Court could not in view of Order 32 Rule 6(2) give leave to Bhagwati to receive the money of the minors without requiring Bhagawati to furnish security & without giving directions for sufficiently protecting the property of the minors from waste & for ensuring its proper application. It is clear, therefore, that by the decree no share in the joint properties was allotted to the minors nor was any money in respect of their share paid to them nor was any money directed to be paid to Bhagawati on behalf of his minor sons which would have necessitated the Court granting leave & taking security & making directions under Order 32 Rule 6.
28. It seems to me, therefore, that the interest of the minors was prejudiced & sacrificed by the terms of settlement. If the decree is upheld the result would be that the minors would be relieved of all their properties without having obtained anything in lieu thereof. They would be completely at the mercy of Bhagawati Prasad in the matter of payment of any share in the sum of Rs. 27,500/-to them. The provision of Order 32 Rule 6 has been clearly violated if the payment was intended to be for Bhagawati & his minor sons. Bhagwati, if he wants, can stick to the money as his own. It appears to me that the appellants were not properly or substantially represented before Ameer Ali, J. & their interest was not properly or at all looked after. Leave to compromise & the certificate of the learned Judge that the settlement was for the benefit of the minors were obtained as a matter of course without all the relevant matters being placed before the learned Judge by somebody who could represent the interest of the minors in the settlement.
29. It follows that the minors cannot be bound, by decree which was made without their being! properly or substantially represented in the suit.
30. For these reasons the appeal is allowed & it is declared that the decree & order referred to in the plaint & the conveyance in favour of the resp. Babulal are void & inoperative as against the plff. appellants. The respondents will pay the costs of the suit & of the appeal.
31. Certified for two Counsel.
32. I agree.