GANGADHAR BALKRISHNA Vs. DATTATRAYA BALIRAM

JUDGEMENT

(1.) The principal question which, arises in this appeal is whether art-agreement entered into by the next friend or guardian of a minor without the sanction of the Court is entirely void or is voidable at the option of the minor. A subsidiary question of limitation also arises, but its decision will depend upon the answer that is given to the first question. Both the Courts below have found that the agreement entered into by the guardian of the plaintiff was void and so his suit was within time. When this matter was argued before Dixit J., he was apparently disposed to take the view that the agreement in question was voidable and the present suit was barred but he was requested to refer this matter to a Division Bench because there were conflicting judgments on this point. That is why this case has been referred to a Division Bench and has come before us for final disposal.

(2.) The facts leading to the present litigation are few and there is really no dispute about it. The property in suit is a field bearing survey No. 254 situate at Songir. The plaintiff's father executed a mortgage in respect of this property in favour of the defendant on 27-4-1920, for Rs. 400. Subsequently, the plainitiff's father died and the mortgagee sued the plaintiff by his guardian in 1929 (Civil Suit No. 350 of 1929). The plaintiff's mother was appointed as the guardian of the plaintifi. A decree was passed in favour of the mortgagee for Rs. 200 and costs. The mortgagee took out execution of this decree and filed darkhast No. 137 of 1932. He sought ta recover the decretal amount by sale of the mortagaged properties. The mortgaged property was valued and the panchas put the value at Rs. 700. Pending these darkhast proceedings, the mother of the plaintiff entered into a compromise with the mortgagee as a result of which the mortgaged property was sold to the defendant for Rs. 1000 in full satisfaction of his decretal claim. As a resuit, the decree was entire-Jy satisfied and the darkhast was accordingly disposed of. The mortgagee entered into possession of this property and has been in such possession ever since. The plaintiff became a major in 1941, and on 15-1-1946, he brought the present suit for accounts of the mortgage and for redemption. In respect of the sale executed by his mother in far vour of the mortgagee, the plaintiff's case was that the agreement of compromise and the resulting sale effected by his mother who had been appointed as his guardian in suit No. 350 of 1929 were void, since the sanction of the Court had not been obtained for the agreement, between the guardian and the mortgagee as required by Order 32. Rule 7, Civil P. C. The Courts below have held that the failure to comply with the requirements of Order 32, Rule 7, made the agreement void and so they have granted the plaintiff's claim for redemption and have held that his suit for redemption is within time. If the transaction of sale between the plaintiff's mother and the defendant is void, there is no doubt that his suit is within time. If, however, it is voidable, the question of limitation will have to be decided, because it has been argued before us that even if the transaction is voidable, the present suit should be held to be within time. That is how the principal question which we have to decide is as to the effect of the provisions of Order 33, Rule 7, on the agreement entered into by the plaintiff's mother with the defendant in 1932.

(3.) Rule 7 of Order 32 provides that "No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into an agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.'' It is common ground that the plaintiff's mother was appointed as the guardian for the p:aintiff in the suit which the mortgagee had filed against him in 1929; and it is not disputed that before the plaintiff's mother entered into a compromise with the mortgagee by which the mortgaged property was sold in full satisfaction of the decretal amount, the previous sanction of the Court had not been obtained. Therefore, it is clear that the requirements of Sub-rule 1 of Rule 7 of Order 32 have not been complied with. Sub-rule 2 of Rule 7 of Order 32 cea's with cases where the requirements of Sub-rule 1 have not been complied with. It provides that an agreement which has been entered into by the guardian of a minor without complying with the requirements of Sub-rule 1 shall be voidable against all parties other than the minor, and it is these words which we have to construe in the present appeal.