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Suresh Chandra Saha Chowdhury Vs. Gobind Nath Saha Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal796,103Ind.Cas.522
AppellantSuresh Chandra Saha Chowdhury
RespondentGobind Nath Saha Chowdhury and ors.
Cases ReferredBhiva Jotiba v. Devchand Bechar
Excerpt:
- .....for time to file the petition of compromise on the ground that the permission for compromising the suit on behalf of the minor plaintiffs has not yet been granted to the certificated guardian by the district judge of pabna. the case is more than two years old and it is desirable that it should be disposed of as early as possible. time was granted twice previously to the parties for the purpose and it is difficult to grant time repeatedly. however, in the interest of justice, i allow the parties an opportunity once again and adjourn the case to 28th april 1917, for final disposal.3. the district judge, however, did not grant any permission for compromising that suit or for granting any lease of the property of the minors during the period, on the other hand, he asked for certain accounts.....
Judgment:

B.B. Ghose, J.

1. The relevant facts may be shortly stated thus:

There were two brothers Haranath Saha and Sambhunath Saha. Haranath had two sons, Govinda and Prosanna, and Sambhunath had one son, Sarat Chandra. The plaintiff is one of the three sons of Sarat Chandra described as Chhota Taraf in the proceedings. The descendants of Govinda are the principal defendants 1, 2 and 3, called the Bara Taraf. The sons of frosanna are pro forma defendants 4, 5 and 6 in suit. These pro forma, defendants have no connexion with the matter in controversy in this litigation. The plaintiff has one surviving brother Bhabesh, who is pro forma defendant 8 and is described as a minor in the plaint, represented by his certificated guardian and mother Ambica Sundari Choudhurani. There was a partition suit between the ancestors of the parties in 1907. A decree was made but it is unnecessary to state anything in detail about it. The plaintiff and his brother were minors when their father died and their mother Ambica Sundari Choudhurani obtained a certificate of guardianship under Act 8, 1890 for all of them. In the year 1914 Ambica Sundari, Choudhurani as guardian and next friend of her minor sons, brought, a suit, 523 of 1914, for recovery of certain properties on the allegation that thoSe properties were allotted to the share of the plaintiffs under the previous partition decree but from which they had been dispossessed. The suit was contested by the principal defendants in the case and the suit dragged on for some time. There were other litigations between the parties which it is unnecessary to state in detail. It appears that the guardian of the infant plaintiffs in the suit of 1914 entered into a negotiation for the compromise of that suit along with other disputes between the plaintiffs and the defendants. As for the purpose of compromise it was necessary to make a transfer by way of lease of the property of the infants, the mother of the plaintiffs, as certificated guardian, made an application to the district judge under Section 29, Guardians and Wards Act, for permission to grant a lease of some of the properties which were the subject matter of suit No. 523 of 1914. With that object it appears that the plaintiffs' guardian, as well as the defendants in the suit, made an application before the subordinate judge for an adjournment of the caSe and for certain other orders on the ground that they would pray for permission to file a petition of compromise.

2. On the 10th February 1917, the subordinate judge recorded the order that 'the parties do file a petition of compromise on or before the fixed date.' On the 16th February 1917, there was another order from which it appears that both the parties filed a joint petition for time for filing a petition of compromise-It was ordered that '15 days' time be allowed.' The next important order is dated the 3rd March 1917, when the Court ordered an adjournment for 14 days to file the petition of compromise, and it was further directed that the parties must understand that 'no further time will be allowed in future.' On the 17th March 1917, an order was recorded, which is somewhat important in connexion with the controversy before us. It runs thus:

Parties again pray for time to file the petition of compromise on the ground that the permission for compromising the suit on behalf of the minor plaintiffs has not yet been granted to the certificated guardian by the District Judge of Pabna. The case is more than two years old and it is desirable that it should be disposed of as early as possible. Time was granted twice previously to the parties for the purpose and it is difficult to grant time repeatedly. However, in the interest of justice, I allow the parties an opportunity once again and adjourn the case to 28th April 1917, for final disposal.

3. The District Judge, however, did not grant any permission for compromising that suit or for granting any lease of the property of the minors during the period, On the other hand, he asked for certain accounts and information which the guardian apparently did not supply to the District Judge. The next thing that the guardian did was to file a petition on the 28th April 1917, stating that the suit had been compromised in terms of the solenamah filed therewith. It was stated in it:

As this compromise is very beneficial to the interests of the minor plaintiffs in this suit it is humbly and respectfully prayed that Your Honour will be pleased to grant permission for the filing of the solenamah on behalf of the minor plaintiff.

4. Upon this an order was made in the order sheet:

On plaintiff No. 3's petition it is ordered that she be permitted to file petition of compromise on behalf of the minor plaintiffs 1 and 2.

5. It is only necessary to mention one fact with regard to the compromise in order to refer to certain arguments addressed before us. It is to this effect : that the plaintiffs' title to the land in suit was established; but the property was granted in perpetual lease in two shares - 8 annas were given to the principal defendant 1, and 8 annas to defendants 2, and 3. It was also provided that the plaintiffs should execute separate pottas in favour of the said defendants within a certain period and that the defendants would execute kabuliyats with regard to those lands. It should be observed that plaintiff 3 was Ambica Sundari, the mother and certificated guardian of plaintiffs 1 and 2, who, it is stated, also inherited a share of one of her sons who had died in the meantime. The present suit of the plaintiffs, shorn of all unnecessary statements of facts, is for the purpose of setting aside the 'decree that was made upon the compromise on the main ground that it was in contravention of Order 32, Rule 7, Civil P.C., and also because the guardian did not obtain the permission of the District Judge under Section 29, Guardians and Wards Act. It is urged that the Court did not sanction the proposed compromise of the suit brought on behalf of the plaintiff and his brother by their next friend.

6. Various questions were raised in defence before the Subordinate Judge and a large Humber of issues were framed which were decided by him and he dismissed the suit of the plaintiff. The plaintiff is the appellant before us. It appears to us that the real question to be tried in this case was whether the compromise made in suit No. 523 of 1914 was in contravention of Order 32, Rule 7 Civil P.C., and was as such voidable at the instance of the plaintiff, who was then a minor and has since attained majority; and secondly, whether on attaining majority, the plaintiff has ratified the compromise. The learned advocates on both sides agreed that those were real points for decision in the appeal. The learned subordinate judge seems to have travelled beyond the main question to be tried in such a case as this and entered into the question whether the original compromise was for the benefit of the minor or not. Certain matters of fraud also were ?alleged by the plaintiff by various persons concerned, but that question has not been argued before us. We have, therefore, simply to see whether the plaintiff is entitled to succeed in the appeal on these two questions. The law with regard to the subject has been laid down by the Privy Council in a series of cases : see Subramanian Chetttar v. Rajeswara Dorai A.I.R. 1915 P.C. 33 and the cases there referred to. That case was decided with reference to Section 462 of the coda of 1882. It should be mentioned here that there has been some alteration in Rule 7, Order 32 of the present code by the insertion of the words 'expressly recorded in the proceedings' in Sub-rule (1) and the words 'so recorded' in Sub-rule (2). By this alteration the legislature had adopted the principle which was laid down by the Judicial Committee that the leave required should be expressly given.

7. The position, therefore, to my mind is this : that the rule by the new code has been made more stringent than what was laid down in Section 462 of the old code and in some cases before the passing of the code of 1908. In the case of Subramaniam Chettiar v. Rajeswara Dorai A.I.R. 1915 P.C. 33 their LordshipS observed, after referring to Section 462 of the old Code, as follows:

Their lordships regard the provision making it necessary to obtain the leave of the Court as of great importance to protect the interests of a minor. It clearly applies to the compromise in question in the present appeal. It may be well to quote the language used by Lord Macnaghten in Manohar Lal v. Jadu Nath Singh [1906] 28 All. 585 : 'It is not sufficient that the terms of a compromise are before the Court. There ought to be evidence that the attention of the Court was directly called to the fact that a minor was a party to the compromise, and it ought to be shown by an order on petition, or in some way not open to doubt, that the leave of the Court was obtained.' Reference may also be made to the more recent case of Ganesha Row v. Tulja Ram Row [1913] 36 Mad. 295.

8. It is contended on behalf of the appellant that the order that was recorded in the present case is not a sufficient compliance with the provisions of the law as laid down by the Privy Council and it does not show that the interest of the minor was considered by the subordinate judge by the order that he had made. On the other hand, it is contended by the respondents that the words

she be permitted to file petition of compromise on behalf of the minor plaintiffs 1 and 2

satisfy the rule as laid down by their Lordships of the Privy Council. It is contended that it was brought to the notice of the judge that minors were concerned. It was also brought to his notice that the compromise was beneficial to the minor plaintiffs in the suit and he granted permission to file the petition of compromise. From this it is quite apparent that the subordinate judge had in his mind and had taken into consideration the fact whether it was for the benefit of the minors. In my judgment it doeS not appear to have been so. It is quite clear that the subordinate judge knew chat in this case an application had been made to the district judge for permission to compromise the suit by the next friend, who was also the certificated guardian. The district judge made no order granting such permission and it was on that account that the subordinate judge was adjourning the case from time to time; and from the orders I have already quoted it appears that he was anxious to finish the case whether there was any sanction of the district judge or not. I do not mean to say that the subordinate judge could not grant his sanction to the compromise of the suit in, the absence of any sanction by the district judge. There is, however, authority that before accepting a compromise affecting rights in immovable property filed by a guardian appointed under a certificate on behalf of a minor, the Court would require the guardian to produce the consent of the Court, by which be was appointed, to the filing of the compromise : Sheonundun v. Kahsot Kooer 6 N.W.P. 179. In this case the sanction of the district judge was applied for and it was brought to the notice of the subordinate judge that no sanction from the district judge was obtained. Under this circumstance the subordinate judge should have carefully considered the question whether the proposed compromise was for the benefit of the infants. There is no indication anywhere on the record that this was done. It is argued by Dr. Basak on behalf of the respondents that it was not necessary for the judge to say that it was for the benefit of the infants as there is no such provision in the code or any such direction expressed in any of the several judgments of the Judicial Committee, But it is well known that this had been the practice even under the old code for the Court to record the fact that it took into consideration all the circumstances and having done so it considered that the compromise was for the benefit of the infant. I may refer to the case of Kalabati v. Chedilal [1895] 17 All. 531 in which Sir John Edge, Chief Justice and Mr. Justice Banerjee made the following observations:

In order to make an agreement or compromise to which Section 462, Civil P.C. applies a lawful agreement or compromise it is necessary that the next friend or guardian should ask the Court to consider the purposed terms of the agreement or compromise, and before making the agreement or entering into the compromise should obtain permission from the Court to enter into the agreement or compromise proposed. Further, the Court should record the fact that such application was made to it; that the terms of the proposed agreement or compromise were considered by the Court; and that having regard to the interests of the minor the Court granted leave to the making of the agreement or compromise.

9. I would also refere to the case of Govindasami v. Alagirisami Naidu [1906] 29 Mad. 104 where Sir Subramania Ayyar, Offg, Chief Justice and Mr. Justice Sankaran Nair made the following observation:

We wish to point out that in sanctioning a compromise on behalf of an infant the order granting the sanction should in terms state that the question whether the compromise was for the benefit of the infant was considered. The Court should also ascertain and record that in the opinion of the pleaders if any, representing the infant, the compromise was one entered into in the interests of the minor and fit and proper to be sanctioned.

10. In Pirojshah v. Manibhai [1912] 36 Bom. 53 an endowment was made by the Court on the application for compromise, that the application has been allowed and filed in the suit.

11. This was held to be no sanction according to the provisions of the code : see also Lala Majlis Sahai v. Narain Bibi [1903] 7 C.W.N. 90. I shall refer to one other case, Erishun Prosad v. Bomesh Chunder (9). The Judge in that case permitted the guardian ad litem

to file petition admitting the plaintiff's claim on behalf of the minor

and again

on application (the guardian) is permitted to file solenamah on behalf of the minor defendant.

12. This was not considered to be a sanction to compromise as required by the code. The orders in that case have a strong resemblance with the order under consideration here. I may also state that it is the practice of this Court when a compromise is proposed to be entered into by a guardian of an infant litigant, to hear the facts of the case and to determine judicially on the materials placed before the Court whether the compromise would be for the benefit of the infant and to make the order with reference to the sanction for the compromise distinctly stating that it is for the benefit of the infant where the Court is so satisfied. If the procedure which the learned advocate for the respondents contends for is to be adopted, there would be no guarantee that the interest of the minor was properly considered while sanctioning the compromise, The spirit of the rule should be observed and not the mere form. In my opinion, therefore the provision of Order 32, Rule 7, Sub-rule (1) were not properly complied with in this case. The appellants have, therefore, succeeded in establishing the first point that was raised on their behalf.

13. The next question is with regard to the ratification by the plaintiff on his attaining majority and this question of ratification is based upon the fact that rent was received by or on behalf of the plaintiff after the attainment of his majority. The plaintiff attained majority soma time in July 1918. Two sets of rent receipts have been produced in this case. One is series (m) and the other is series (n). The (m) series of receipts are four in number beginning from December 1919, to January 1920. The rent was paid by a lessee of the defendant with regard to the property in question. The receipts were granted on behalf of Ambica Sundari Choudhurani for self and as certificated guardian and mother of the minors - Surehe, that is the plaintiff, and Bhabesh, that is, his brother pro forma defendant 8.

14. There is nothing to show that this receipt, although the plaintiff had then attained the age of majority, was signed by the plaintiff himself, but evidence is given on behalf of the defendants that these receipts were given under the direct order of the plaintiff and this evidence is given by two witnesses for the defendant, witness 5 and witness 6. Great reliance has been placed on behalf of the respondent on the evidence of these two witnesses while the appellant says that these two persons should not be believed, because although they were servants of the plaintiff at the time when the plaintiff attained majority, shortly after that they left the plaintiff's service and took service under the defendants and were in their service when they gave evidence on behalf of the defendants. It was also alleged that these persons brought about the compromise that is now in question. One of these persons, Pran Gopal Roy, had been playing fast and loose, because this gentleman has verified the plaintiffs' plaint and has given evidence on behalf of the 'defendant. What he says is this : that the (m) series of receipts were given under the direct orders of the plaintiff. This was done because there were various old forms in their sherista which had not been exhausted during the time of the minority of the plaintiff and his brother, and these old forms were used even afterwards for the purpose of granting rent receipts. Their evidence is very difficult to accept having regard to the conduct of these two persons. Kristo Gopal Roy has not only changed his side but he has borrowed Rs. 2,000 from one of the defendants and Pran Gopal also, as I have stated, has transferred his allegiance from the plaintiff to the defendants. In order to ratify the transaction it would mot be enough to show that the rent was received by the am-mukhtear, unless it was further shown that that am-mukhtear was given the power not only to collect rent from tenants, but also for ratifying contracts which his master could avoid. The act of ratification must be clear and distinct in order to bind an infant after he has attained majority and it is difficult to say that either the (m) series receipts or (n) series receipts granted through the post office : for money sent by postal money order, amount to such a ratification. It need only be mentioned that when the plaintiff gave his evidence no question was put to him as to whether he had actually ordered receipt of the rent with regard to this property in dispute. On the other hand, he swears that he had always been trying to avoid the transaction. The subordinate judge has mixed up the question of ratification with the question whether the compromise was in the interest of both parties. This is a question which is foreign to the present enquiry. In my opinion the plaintiff cannot be said to have ratified the compromise so as to disentitle him from asking for the avoidance of the compromise as provided by Order 32. Rule 7, Sub-rule (2).

15. One thing further should be mentioned. In the solenamah there was a provision that separate pottah and kabuliyats should be executed on account of the properties which were granted in perpetual lease to the two sets of defendants. The defendants witness Behari Lal Bose gives evidence that no attempt was made on the part of the defendants to get the pottas from the plaintiff or to execute kabuliyats in his favour. That further shows that there was no attempt to get any proper ratification of the compromise from the plaintiff after he had attained majority. Taking all these circumstances into consideration it seems to me that the plaintiff is not precluded from bringing this suit on the ground of ratification.

16. One other point has been mentioned by the learned advocate for the respondents and it is this : In the petition of compromise there is nothing stated about any other transaction between the parties. But there is an ekrarnam which is referred to in the petition of compromise filed in the suit in which the defendants compromised certain other suits against the plaintiff and his brother and gave up certain other properties and the contention on behalf of the respondent is that in making a decree in favour of the plaintiff we should give a direction that the compromise with regard to those other suits and the making over of all these properties should be annulled. The difficulty in giving effect to the prayer is that we are not in seisin of these suits nor have we got anything to say with regard to the properties mentioned, which were neither the subject-matter of the previous suit of 1914 nor* of the present suit. The contention that the plaintiff cannot get any relief under the circumstances is to my mind answered by the observation in the case of Sethuram Sahib v. Vasanta Rao [1911] 34 Mad. 314:

A compromise unenforceable against a minor cannot be treated as binding upon him on the ground that its being set aside would work hardship on the other party. It is also no ground for not setting it aside that it is impossible to place the parties in the position in which they were when the compromise was effected.

17. It should, however, be observed that the plaintiff himself presented an application in Court on 21st June, 1924 in which he repudiated any benefit that he had obtained under the ekrarnama. But this is a matter which, as I have already stated, is beyond the scope of the present appeal.

18. It need only be further observed that where a minor after attaining majority seeks to set aside a compromise under Sub-rule (2) of Rule 7, of Order 32 the question whether the minor derived any benefit from the compromise or not is foreign to the enquiry : see the case of Bhiva Jotiba v. Devchand Bechar [1911] 34 Mad. 314.

19. On these grounds this appeal must be allowed. The judgment and decree of the Subordinate Judge are set aside and the proper order to make under such circumstances is that the compromise decree in suit No. 523 of 1914 is set aside so far as the plaintiff is concerned. The parties will be relegated to the position in which they were before the 20th April, 1917 in the suit No. 523 of 1914. They will be allowed to make such amendments in their pleadings or with reference to the parties as has become necessary on account of subsequent events, and the case will be tried on its merits.

20. The prayer for khas possession must be dismissed.

21. Having regard to the fact that the plaintiff claimed too much and also to the manner in which he fought out the suit he is only allowed half his costs in the trial Court. He will get the full costs in this appeal. Hearing fee five gold mohurs.

Roy, J.

22. I agree.


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