BHIKULAL Vs. KISANLAL

JUDGEMENT

(1.) ASSUMING, however, that it is such an applica?tion, Mr Bobde's further contention is that the lower Court ought to have granted the necessary leave under Order 32, rule 7 of the Code of Civil Procedure. Plaintiffs nos. 3, 4 and 5 and defen-a. Portion of the judgment omitted is not ma?terial to this report - Ed. dants nos. 6 and 7 are still minors. No evidence whatsoever was led in the lower Court to show how the arrangement mentioned in the application no. 20 was in the interest and for the benefit of the minor parties. The learned trial Judge relied upon one circumstance, namely, plaintiff's offer to exchange their share for that of defendants nos. 4 to 7 and to pay the latter an additional sum of Rs. 25,000/-, and concluded that the plaintiffs' share including those of the minor plaintiffs was prima facie inferior and that there appeared no special benefit to the minor plaintiffs by the pro?posed compromise. In the absence of any other evidence, I cannot say that the conclusion thus reached by the trial Judge is unjustified. It is significant to note that defendants Nos. I, and 8 to 10 in their application no. 30 describe the share allotted to defendants nos. 4 to 7 as the best list according to them and that it is in the interest of the minor defendants nos. 5 to 7 and defendant no. 4 to accept that allotment. Further the learned trial Judge did not record any finding as to whe?ther the arrangement was in any way beneficial to the minor defendants. Mr. Bobde also could not point to any evidence for showing how the arrange?ment was in the interest of the minor parties. I must, however, also state that Mr. Bobde submitted that I should call for a finding from the lower Court in this behalf after giving liberty to both parties to lead evidence. I have thought it unneces?sary to do so as in my view the appeal can be dis?posed of without calling for any further finding.

(2.) IN Muhammad Maracayar v. Muhammad Ammal, 91 Ind Cas 521 (Mad) it was held that one of the defendants having withheld his consent to the compromise it would be open to that defendant to agitate the matter and claim a partition of the properties in dispute afresh and on a different basis and as this obviously would not be in the interests of the minor the compromise was not for the benefit of the minor and should not be sanc?tioned.

(3.) IN the present case no application under Order 32, rule 7, Civil Procedure Code, was made at all by the next friend of the minor plaintiffs. On the other hand, plaintiff No. 2 in his applica?tion dated 6-2-1956 clearly stated that no applica?tion for sanctioning the compromise had been made so far and that he did not also thereafter pro?pose to apply for any such sanction. Assuming that application No. 20 was itself also an application for leave under Order 32, rule 7, Civil Procedure Code, as contended by Mr. Bobde, it may be not?ed that application was withdrawn when the de?fendants nos. 4 to 7 intimated that they were not in a position to accept it. Mr Bobde says that plaintiff no. 2 as the next friend of minor plaintiffs had no right to withdraw the application when once it had been solemnly filed in the Court. Ac?cording to Mr. Bobde, the withdrawal of the appli?cation under the circumstances was a capricious withdrawal without regard to the minors' interests and it only entailed the removal of plaintiff no. 2 as minors' next friend from the suit. I do not think the conduct of the next friend has any rele?vancy on the question whether he can withdraw an application under Order 32, rule 7, and whether the Court has any power to prevent such withdra?wal. If the conduct of the next friend or a guardian-ad-litem is found to be adverse to the interests of the minor, the Court may in an appropriate pro?ceeding taken in that behalf remove such next friend or guardian-ad-item, and may appoint a new next friend or guardian-ad-litem. But can the Court thereafter compel the new next friend or the guar-dian-ad-Mtem to prosecute the application for leave which had been withdrawn by his predecessor? Reference is made to Karmali Rahimbhoy v. Rahi-mbhoy Habibbhoy, ILR 13 Bom 137 and Dora-swami Pillai v. Thungasami Pillai, ILR 27 Mad 377. In the first case certain objections had been filed on behalf of the minor plaintiffs to the ac counts submitted by the defendants. Thereafter as a result and in pursuance of some compromise between the plaintiffs' guardian-ad-litem and the defendants, the objections were withdrawn and there was a decree. The minor plaintiffs on attain ing majority sought to impeach the decree that the compromise had not been sanctioned by the Court. The Court held that there was an arrangement to withdraw from the opposition and as such arrangement had never been laid before the Court, the plaintiff would be entitled to impeach the decree and reopen the account. Thus in this case the withdrawal of objections was an integral part of the compromise which was never laid before the Court for its sanction. In the present case the withdrawal of the application no. 20 was no part of the compromise but was clearly in repudiation of it. In ILR 27 Mad 377, a suit which was being conducted on behalf of the minor was withdrawn unconditionally though the Court asked minor's junior Vakil whether he wanted to withdraw with permission to bring a fresh suit. The High Court in revision found that the minor's junior Vakil at the instance of the next friend was acting most prejudicially to the interest of the minor. There was also evidence to show that the withdrawal was brought about by the first defendant himself and that the suit was withdrawn by reason of the first defendant having promised to give to the pliaintiff his share after the suit was withdrawn. If the withdrawal of the suit by the next friend was in pursuance of an agreement or compromise entered into with the defendant without the leave of the Court, it was voidable at the instance of the minor. In this view the Madras High Court follow ed ILR 13 Bom 137.