MADAN MOHAN Vs. RAM LAL

JUDGEMENT

(1.) THE suit of the quondam minor on attaining majority challenges the compromise decree entered on his behalf by his guardian on the ground that the guardian had been negligent in his act in entering into a compromise that gave up his viable claims to the property. The trial court dismissed the suit and the Appellate Court affirmed the decision of the trial Court. The plaintiff is the appellant before this Court. The plaintiff was the son of Som Parkash @ Som Datt. He had sold the property in suit to the defendants -purchasers on 11.10.1954 for the consideration of Rs. 1100/ -. The plaintiff was born on 24.05.1955. A suit had been filed on his behalf challenging the sale during his minority through his maternal grandfather on the ground that he was a child in womb and he had competency to challenge the transaction as invalid and not supported by family necessity. The suit had been decreed and in appeal filed by the purchaser, a compromise had been entered into on his behalf where the guardian grandfather received Rs. 600/ - and the Court recorded the same and allowed the appeal and upheld the sale in favour of the purchaser. The decree was passed in appeal on 14.08.1958. The plaintiff had attained majority on 24.05.1973 and he filed a suit on 23.04.1976 i.e. within three years from the date of his attaining majority challenging the compromise as invalid and made by the negligence of the grandfather. The plaintiff lost in both the courts below.

(2.) ON the issue of whether the plaintiff could be treated to be a person in womb to make a claim, there is sufficient case law that allows for a child in womb to lay a claim to the property as though he was already born, if he was born alive. In Guramma Bhratar Chanbasappa Deshmukh and others v. Mallapa Chanbasappa : AIR 1964 SC 510, the Supreme Court held, while considering the issue of a challenge to a sale that even a child in the womb but subsequently born alive would be competent to challenge an alienation of gift as void ab initio. There are decisions of other Courts as well cited before me but I am not referring the case laws, for I take the position of law as well established. Considering the fact that the child was born on 24.05.1955, he must have conceived on 11.10.1954 when the sale was made. It was indeed on this basis that earlier suit had been filed and a decree had also been granted. I, therefore, would hold that the plaintiff had a competency to institute the suit to challenge the sale made by the father. The suit was also within time.

(3.) LEARNED counsel points out that there was nothing brought out on record that there was any certificate from the lawyer at the time when the decree was, passed on compromise certifying that the compromise was for the benefit of the minor. The provisions relating to the certificate of the guardian under Order 32 Rule 7 CPC has come through a legislative change only by insertion of Act 104 of 1976 by Clause (1A) and there existed no such similar clause earlier. The counsel however would argue that there were Punjab and Haryana High Court Amendment Rules 3 to 6 providing for a particular manner of appointment of a guardian. I have gone through the provisions. The provisions do not make any serious deviation from the core provisions of the Civil Procedure Code itself that a guardian who is appointed must be a person who shall not hold any interest adverse to the minor. If there was father alive at that time, the notice to father would alone require to be given before a guardian is appointed. In this case, the father was still alive was not in dispute and the father himself was a party. Evidently, the grandfather who was acting on the behalf of minor was surely a person, who had competence to act as guardian and therefore, I will find no provision of law that would hold the plaintiff to argue that the grandfather was not competent.