GULABCHAND KAPOOR CHAND Vs. CHHATARSINGH

JUDGEMENT

(1.) This second appeal was filed before the Rajasthan High Court. On the reorganisation of the States, this case was transferred to the Madhya Pradesh High Court where it is being decided now.

(2.) The short facts of the case are that one Bhola Singh, father of the two plaintiffs Chhatar Singh and Daulatsingb, pawned some ornaments with Gulab Chand defendants in year 1920. In 1925, Gulab Chand brought a suit against the present plaintiffs (who were minors) along with his other three brothers, who were majors for the sale of pawned articles and the repayment of his debts. In that case a compromise was effected whereby the defendant was allowed to keep the ornaments and thus the debt arising out of the pledge was liquidated. In other words the elder brothers of the plaintiffs thought that the ornaments when sold would not fetch the amount due on the pledge and that perhaps they may have to pay more to the pawnee out of their own pocket. A decree in terms of the compromise was passed by the trial Court in 1926. In 1944 the present plaintiffs, who were minors then, and whose ages at the time of this suit are 28 years, 30 years respectively, filed the present suit on the allegation that their father Bhola Singh has pawned certain ornaments with the defendant which they were entitled to redeem on payment of any amount found due. In fact, the plaintiffs alleged that the ornaments were merely deposited with the defendant and not pawned with him. The defence was that Bhola Singh has pawned the ornaments and that in 1925, when he brought a suit against the plaintiffs and his three elder brothers, there was a compromise whereby he was allowed to retain the property without putting it up for sale- It was contended by the defendant that in view of that decision, the present plaintiffs could not bring the suit on the original cause of action. The trial Court held that the ornaments were pawned, but the compromise was void because at the time of the compromise, no leave of the Court, on behalf of the minors was obtained for the compromise and the suit was therefore decreed in favour of the plaintiffs. On appeal, this decision was confirmed by the Senior Civil Judge, Baran.

(3.) The first question to be considered in this case is whether the compromise decree passed in a suit in 1926, without obtaining the leave of the Court, is void or voidable as against the present plaintiffs. I am happily relieved of the necessity of considering the point because the Supreme Court in Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280 have said that such a compromise is not a nullity, but is merely voidable at the option of the minor. From this it follows, that the minors shall have to bring a suit to avoid a decree based on such, a compromise. If the minors do not bring a suit for setting aside the compromise, the decree passed on the basis of the compromise would be binding on them. It being so, it is obvious that the present suit on the original cause of action cannot be filed by the plaintiffs because of a voidable decree against them. As long as the compromise decree is not set aside (for which there is no prayer in this case) the present suit cannot be allowed to continue. The reason why in the circumstances it is necessary for the minor to bring the suit to avoid a decree is that if he did not do so, the position will be that there would be one decree against him, based on the compromise, and there will be another decree regarding the same subject matter, perhaps in his favour. Both decrees would be executable and this conflict of judicial decision, would make confusion worse confounded,