JITENDRA NATH ROY Vs. SAMARENDRA NATH MITTER

JUDGEMENT

(1.) THESE are consolidated appeals from the judgment of the High Court of Calcutta reversing a judgment of the First Subordinate Judge of Hooghly. The question was as to the right of one Jitendra now deceased, whom the present appellants represent, to execute a decree of which he was an assignee from the then existing decree-holder. The matter arises in a suit brought in 1923 by the three surviving grandsons of Ishan Chandra Mitter against Tarubala Dassi the widow of their deceased uncle for the partition of the joint ancestral property. It is only necessary to summarise the proceedings which led to the present claim by Jitendra. In 1924 by a decree confirming a compromise agreement it was provided that the immovables should be divided, the widow to receive one-third share, and until partition to be paid Rs. 1,400 per month. Difficulties seem to have arisen in the course of the partition : the monthly payments were not duly paid, and the widow on several occasions had obtained leave to execute the decree, but without much success. In February; 1936, the widow by registered deed of surrender surrendered to the first two appellants the infant sons of her daughter Umarani all her interest in the estate including arrears of the monthly payments. On June 20, 1936, the widow died and on June 24, 1936, the two infants were substituted in the record for the widow, their father Anath being appointed their guardian ad litem. In September he died and in November, 1936, his widow Umarani the mother of the infants was appointed guardian ad litem in his place. On August 9, 1937, by a registered deed of sale Umarani as next friend and natural guardian of the infants sold to her father Jitendra for Rs. 1,28,000 certain immovable properties including some of the properties of the, estate under partition, the decrees in the suit, and certain surplus sale proceeds then in Court. The deed recited that Jitendra had financed Tarubala Dassi in the litigation to the extent of Rs. 3,11,969 of which Rs. 1,78,868 remained unpaid. He made an allowance of Rs. 65,868 leaving a net balance of Rs. 15,000 due to the transferor which was duly paid. The learned Judges in the High Court have expressed a doubt as to whether this agreement was for the benefit of the infants, but naturally made no pronouncement about it as the question was not before the Court. Their Lordships for the same reason abstain from expressing any opinion on this topic. On February 8, 1938, the Subordinate Judge on the application of Jitendra added him as a defendant to the suit. The application was supported by the pleaders for the infants and not opposed by the plaintiffs. On February 10 and February 25, 1938, Jitendra made the two applications the subject of the consolidated appeals now before the Board. The application of February 25, which should have been made first, was for leave to execute the decree for payment in respect of the execution applications then pending, and that of February 10 was to transfer the decree for execution so far as payments from May 1, 1937, to January 31, 1938, were concerned to the Court of the District Judge, Twenty-four Pargannas. The application was opposed by the appellants on various grounds which were disposed of by the Subordinate Judge. The only ground with which the appeal is concerned is that no leave of the Court to make the transfer had been obtained from the Court, and that the provisions therefore of Order XXXII, Rules 6 and 7, were an answer to the application. The rules in question are as follows : Order XXXII, Rule 6 . (1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other moveable property on behalf of a minor either (a) by way of compromise before decree or order, or (b) under a decree or order in favour of the minor. Order XXXII, Rule 7 . (1) 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. (2), Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

(2.) THE learned Judge appears only to have had Rule 7 argued before him. He came to the conclusion that the transfer in question was not within the meaning of the rule " an agreement with reference to the suit" : and being satisfied that there was no other valid objection, granted the application. Appeals were taken on both applications to the High Court. THE learned Judges were of the same opinion as the Subordinate Judge on Rule 7 : and their Lordships agree with them. THEy took the view that in the rule in the phrase " agreement or compromise with reference to the suit" the words mean agreement with a party to the suit: and do not cover a transfer of a decree to someone then unconnected with the suit even assuming that such transfer could properly be described as an agreement. THEy expressed their agreement on this point with a decision of the full bench of the Madras High Court in Venkatakrishnayya v. China Kanakayya [1938] Mad. 819, F.B., which is precisely in point. It appears to their Lordships that it cannot have been in-tended to require the leave of the Court to an agreement for example made with a non-party to finance a suit, whether with a stipulation to receive part of the proceeds or not. THE conjunction of the word " agreement" with the word " compromise " appears to indicate the kind of agreement intended. On this part of the case the applicant succeeded : but as there was no appearance for the respondents in the present appeal their Lordships have thought it proper to consider a ground on which they might have relied to support the decision in their favour. THEir Lordships, however, agree with the two Indian Courts on this point.