BASAPPA SIDDAGOUDA BIRADAR PATIL Vs. BASAGONDAPPA

JUDGEMENT

(1.) The appellant was defendant 4 in the original suit in which respondent 1 plaintiff challenged inter alia the compromise decree passed in Special C.S. No. 108/1949 on the file of the Civil Judge, Senior Division, Bijapur. From the evidence on record the trial Court has constructed a pedigree to be found in para 2 of its Judgment. The propositus Rayappa Biradar had a wife by name Yamanawwa and this Yamanawwa after the death of Rayappa adopted Madgonda on 7-4-1944. He however died on 12-5-1949, Another Bhimappa is said to have been adopted by the same Yamanawwa. Madagonda her first adopted son left behind a widow Rangawwa who adopted the present respondent-plaintiff on 15-6-1949. It appears that the plaintiff filed Spl. C.S. No. 108/1949. The plaintiff contended that Bhimappa's adoption which had taken place after his adoption was not legal and valid, that there was a registered adoption deed executed by his adoptive mother and hence he became the owner of the properties involved in that suit of 1949 by virtue of his adoption. As could be seen from the statement of facts in para 5 of the trial Court's Judgment the contention of the plaintiff in that suit was that after adopting Bhimappa, Yamanawwa drove the plaintiff and defendant 2 out of the family house with the help of Bhimappa and therefore the plaintiff's natural father Yamanappa was compelled to file C.S. No. 108/1949 as a next friend of the minor, plaintiff for possession of the suit properties. In that suit Yamanawwa, her daughter-in-law Rangawwa, i.e., the adoptive mother of the plaintiff as well as her adopted son Bhimappa were parties. Yamanawwa denied the adoption of the plaintiff by Rangawwa. As the pleadings in that suit are not on record here it is not possible to advert to all the contentions raised in that suit by the respective parties. Suffice it to note that on 29-8-1951 a compromise petition was filed in that Court by the plaintiff's natural father Yamanappa representing the plaintiff as his next friend in that suit and defendants therein and the Court on the application filed for permission to compromise ordered "Granted by" and directed that decree be drawn in tenns of the compromise. The consideration that the plaintiff's father received was cash of Rs. 1,250/-. Accordingly the entire suit came to be disposed of hi terms of the compromise petition.

(2.) The plaintiff-respondent No. 1 on attaining majority challenged this decree onvarious grounds and one of the grounds was that the Court while granting permission to his father - next friend as required under Order 32, Rule 7 of the Code of Civil Procedure did not apply its mind, that it did not consider whether the compromise was in the interest and for the benefit of the minor-plaintiff and in other words mechanically granted permission which has resulted in serious miscarriage of justice. It was also urged that that decree is a collusive one and the parties played fraud on the Court inasmuch as the very status of the plaintiff as adopted son by Yamanawwa was relinquished for a paltry consideration of Rs. 1,250/-. Incidentally the plaintiff also referred to his own adoption and other relevant facts giving him right to the properties of the adoptive family. The appellant and other defendants in that suit maintained that there was no collusion or fraud, that the Court even though did not make a detailed order that it was in the interest or the benefit of the minor plaintiff had applied its mind and granted permission. Both the Courts-below found that mere noting that the permission was granted did not amount to substantial compliance of the requirements of Order 32, Rule 7, CPC, that there is nothing to show that the Court giving permission applied its mind to this aspect and so holding decreed the suit of respondent No. 1. The trial Court did not accept the contention of the defendants that this was only a provisional agreement as tried to be made out before it. Rest of the issues were not answered by the trial Court for the reasons assigned in para 22 of its Judgment. It says:

(3.) The substantial question of law set down for determination in this appeal is as follows: