SRI GOVIND Vs. STATE OF U P

JUDGEMENT

(1.) THE village where the land in dispute is situated was brought under consolidation operations and in the basic year the appellant was recorded as the tenure-holder. An ob jection was filed on behalf of the res pondents 5 and 6 claiming to be co-tenure-holders having a one-third share. It appears that Tulev respondent No. 5 was a minor and Babu respondent No. 6 as elder brother was acting as his guar dian. After the evidence was recorded Babu made an offer that if the appel lant could take special oath that his claim was incorrect Babu would be out of Court. The offer was accepted by the appellant and he took special oath rely ing upon which the Consolidation Offi cer dismissed the objection of respon dents 5 and 6. Tuley respondent No. 5 thereupon filed an appeal through his mother and contended that Babu not being his natu ral guardian was not authorised to offer special oath on his behalf and the objection in so far as it re lated to him could not be dismis sed on the basis of the special oath taken by the appellant. The Settlement Officer (Consolidation) and the Deputy Director of Consolidation in first and second appeals respectively held on the basis of the evidence adduced in the case that respondents 5 and 6 were co-tenure-holders in the land in dispute. Their names were, therefore, directed to be recorded along with the name of the appellant. The Deputy Director of Consolidation hearing the second appeal held that there was nothing on the re cord to show that Tulev was minor. He laid emphasis on an application present ed on March 2. 1962 by the appellant wherein he had admitted the possession of respondents 5 and 6. The revision filed by the appellant was dismissed by the Joint Director of Consolidation. The appellant thereupon instituted a writ petition which too was dismissed by a learned Single Judge. Hence this spe cial appeal.

(2.) THE learned counsel for the appellant urged that the objection on behalf of Tuley also having been filed by Babu his elder brother it was appa rent that Babu was acting for himself and on behalf of his minor brother Tuley and the offer made by Babu in his capa city aforesaid was binding on Tulev also and the appellant having made a state ment on special oath in pursuance of the said offer the objection of respon dents 5 and 6 had rightly been dismissed by the Consolidation Officer. The ob servation of the Deputy Director of Consolidation deciding the second appeal that there was nothing on the record to show that Tulev was minor was in consistent with Tuley's own case. The dismissal of the objection by the Con solidation Officer was challenged by Tuley on this specific ground that he was a minor and the said observation of the Deputy Director of Consolidation was on the face of it unfounded. The question about the binding nature of a statement made on special oath upon a minor which statement has been made in pursuance of an offer made by his guardian has received the attention of three Division Benches of this Court. In Parbhu Dayal v. Jamil Ahmad. (AIR 1922 All 160) it was held that such a| statement was binding on the minor. It was. however, observed that the state ment of the guardian that the suit should be decreed on the basis of such statement could not absolutely bind the minor because that part of the state ment amounted to a compromise or agreement by the guardian which had not been sanctioned by the Court nor had the Court considered whether it was for the benefit of the minor. In Deorai Misra v. Mst. Abhai Raji, (AIR 1927 All 5841 an agreement by the guardian on behalf of the minor to be bound by the statement of a certain witness was held to be binding upon the minor. It was also held that such an agreement did not amount to a compromise requir ing sanction of the Court. After dis cussing quite a number of cases on the point including the cases of Parbhu Dayal and Deoraj Misra (supra) it was reiterated in Jokhu v. Bhaiya Lal (AIR 1959 All 93) that an offer made by the next friend or guardian of a minor to be bound by the statement made on special oath by the other party did not amount to a compromise and did not re quire leave of the Court. The state ment made on special oath in pursuance of the offer was held to be conclusive evidence on the point which was the subiect- matter of the statement and binding on the minor. Parbhu Dayal's case (supra) was interpreted to hold that when an offer was that the whole suit be dismissed if the other party made a certain statement on special oath such an offer amounted to a compromise if there were Issues other than those in respect of which statement was to be made. It was observed that if there was only one issue on which rested the deci sion of the case and the statement on special oath in pursuance of the offer made by the guardian was in respect of that very issue the case had to be decid ed on the basis of such statement inas much as the statement so made was con clusive.

(3.) AS regards the plea of Tuley that his mother and not Babu was his natural guardian suffice it to say that Babu is the elder brother of Tuley. It was he who filed the objection for him self and as next friend of Tuley. The mother did not care to file any objec tion on behalf of her minor son. Had Babu not filed the objection, the claim of Tuley would have gone by default. Babu too was claiming to be a co-tenant with Tuley both having 1/3 share and thus both had a common interest and not adverse to each other. In the ab sence of any clear bar it cannot be said that Babu was not competent to act as the next friend of his minor brother Tuley. It is not the case of Tuley that the act of his_ guardian was vitiated by fraud, undue influence or negligence and in view of the fact stated above, he could not challenge the order of the Consolidation Officer in appeal or revi sion simply on the ground that Babu was not his natural guardian.