MATHURA SINGH Vs. DEODHARI SINGH

JUDGEMENT

(1.) In the partition suit filed by the plaintiffs-respondents, the Court below has passed a decree in the following terms:--

(2.) Mr. L.K. Choudhary, learned counsel for the appellants, has contended that the decree under appeal is not sustain-able in the eye of law inasmuch as the appellants were no parties to the compromise arrived at between the parties. According to him, appellant Mathura Singh (defendant No. 4) never consented to the compromise arrived at between the plaintiffs on the one hand and some of the defendants on the other and, as such, the same could not be recorded as against him and his minor sons defendants Nos. 11 to 14 and they could not be regarded as parties to the compromise. He, therefore, contended that the suit for partition could not be decreed in terms of the compromise which made allotments of the joint properties for different co-sharers. On the other hand, Mr. Ugra Singh, learned counsel for the plaintiffs-respondents contended that Mathura Singh had also joined the compromise and the compromise so effected was binding on all persons including the minor defendants Nos. 11 to 14 as a family settlement.

(3.) It appears that the plaintiffs had filed a petition for appointment of a receiver. January 25, 1960 was the date fixed in the case. Defendants Nos. 1, 3, 4, (appellant No. 1), 5, 6 7, 15 and 20 appeared on that date and filed petitions for time for filing objections to the appointment of a receiver in the case. The case was adjourned to February 9, 1960 for filing objections-In the suit, there were several sets of defendants having separate and distinct interests and there were several minor defendants also. As their natural guardians did not appear to represent the minor defendants, the natural guardians were removed by order No. 12 dated February 26, 1960. Mathura Singh, defendant No. 4 was discharged from guardianship of defendants Nos. 11 to 14 and in his place Shri Anandi Prasad Sharma, Pleader, was appointed as guardian of the said minor defendants. He was also appointed guardian-ad-litem for minor defendants 16, 17, 22, 23, 24, 25, 30, 32 and 33. Shri Shailesh Kumar Sanyal, Pleader, was appointed as guardian-ad-litem for minor defendants Nos. 38 and 39. On July 25, 1962 a petition of compromise between the plaintiffs on the one hand and defendants 1, 5, 6, 7, 9, 15, 20 and 40 was filed. A separate petition was filed on behalf of the guardians-ad-litem of minor defendants 2, 3, 11 to 14, 16 to 19, 22 to 33. 38 and 39 for permission to compromise the Suit on behalf of the minor defendants. The applications were put up before the Court on the next date. Defendant No. 4 on his own behalf and on behalf of his minor sons defendants 11 to 14 filed a Vakalatnama. It appears that defendant No. 4 also filed a petition for the removal of the pleader guardian and for permission to represent his minor sons defendants 11 to 14. The Court cancelled the appointment of Shri Anandi Prasad Sharma as pleader guardian-ad-litem of minor defendants 11 to 14 and allowed defendant No. 4 to represent his minor sons as natural guardian and contest the suit on their behalf. Defendant No. 4 was also allowed to file written statement on his own behalf and on behalf of his minor sons which was filed on July 31, 1962 and was accepted on payment of cost of Rs. 50/-. From a perusal of the compromise petition it appears that the properties mentioned in schedule No. 1 were allotted to the share of the plaintiffs; properties mentioned in schedule No. 2 were allotted to the share of defendants 1 to 3, properties mentioned in Schedule No. 3 were allotted to the share of defendant No. 4 and his minor sons defendants 11 to 14 (appellants); properties mentioned in Schedule No. 4 were given to defendant No. 5 and his sons defendants 15 to 19, Schedule 5 properties were allotted to the share of defendant No. 6 and his sons defendants 20 to 24, properties in Schedule 6 were given to defendant No. 7 and his minor son defendant No. 25; properties in Schedule No. 7 were given to defendant No. 8 and his sons defendants 28 to 30, defendant No. 9 and his sons Defendants 31 and 32, and defendants Nos. 25,27, 36, 37 and 38; and Schedule 8 properties were given to defendant No. 40. At the foot of the Schedules of properties it is stated as follows:--