MOHABIR PROSAD Vs. BANDI PROSAD

JUDGEMENT

(1.) This appeal is directed against a decree whereby the Court of Appeal below, in concurrence with the Court of first instance, has dismissed a suit for declaration that the plaintiffs, who are members of a joint Mitakshara family, are not bound by a conveyance executed by their father on the 4th November 1894, and by a consent decree obtained against themselves on the 12th August 1902, in a suit to enforce a mortgage security executed by their father on the 80th August 1897.

(2.) In so far as the conveyance is concerned, it has been found concurrently by the Courts below that the plaintiffs have failed to prove that the debts, for the satisfaction whereof it was executed, were either illegal or immoral; it has been found on the other hand that the debts were, as a matter of fact, contracted mostly for legal necessity. In view of these findings, the decree of the Court below must be maintained in so far as it disallows the claim for declaration that the conveyance is not binding upon the plaintiffs.

(3.) In so far, however, as the consent decree is concerned, matters stand on an entirely different footing. It appears that the mortgage was granted as security for a loan of Rs. 450 and comprised two properties, of which one was a half share of the property whereof the other half had been included in the prior conveyance. When the mortgage suit came on for trial, a petition of compromise was filed, under which the mortgagee in effect released his claim upon a half share or the smaller property and agreed to accept the remainder of the security in full satisfaction of the money due on the bond in suit and on a prior usufructuary mortgage. The essence of the transaction was that the properties were transferred to the mortgagee in lieu of the sums due to him, but no conveyence was executed. The parties agreed that a mortgage decree would be drawn up, that a very short period, namely, two weeks, would be allowed for re-payment of the judgment-debt, that, thereafter, the decree should be made absolute, and that finally the properties would be sold, with the reservation that if they did not fetch a sufficient value for the satisfaction of the dues on the two mortgages, the mortgagee would abandon the balance of his claim, while if they fetched a higher priced the balance of the purchase money would belong to the mortgagee. In order to determine whether this compromise was or was not beneficial to the infants concerned, the Court must have regard to the value of the properties which were practically conveyed away to the mortgagee. The record of the mortgage suit however does not indicate that there was any inquiry on the point. We find mealy an order recorded in the order sheet in the following terms: "The guardian of the minor defendants permitted to file a solenamah on behalf of the minors. Decree in terms of the petition of compromise which should be embodied in the decree." There is nothing to show that the I terms of the settlement were explained to the Court or that the Court had materials placed before it to enable it to determine whether the compromise was or was not for the benefit of the infants. Bat the Court below has held that there is some evidence to show that the terms of the compromise were placed before the Court, and, on this finding, it has been argued by the respondent that the compromise cannot now be assailed on behalf of the infants. In support of this proposition, reliance has been placed upon the cases of Aman Singh v. Narain Singh 20 A. 98 : A.W.N. (1897) 205 and Midnapore Zemindari Co. Ld. v. Gobinda Mahto 8 C.L.J. 31. The first of these decisions appears to have been doubted by this Court in the cases of Barhamdeo Prasad v. Banarsi Prasad 3 C.L.J. 119; the second is not in agreement with the earlier decision of this Court in the case of Sharat Chunder Ghose v. Kartik Chunder Mitter 9 C. 810 : 12 C.L.R. 455 or with the later decision in Biku Halwai v. Mohesh Halwai 8 C.L.J. 266 although to must be admitted that one of the learned Judges, who was a party to the decision just mentioned, took different view in the case of Krishna Pershad Roy v. Bonnes Chunder Mandol 8 C.L.J. 274. The matter, however, is really concluded by the decision of their Lordships of the Judicial Committee in the case of Manohar Lal V. Jadu Nath Singh 33 I.A. 128 : 28 A. 585 : 4 C.L.J. 8 : 8 Bom. L.R. 489 : 10 C.W.N. 898 : 9 O.C. 219 : 1 M.L.T. 210 : 16 M.L.J. 291 : 3 A.L.J. 710. In that case, Lord Macnaghten pointed out that Section 452 of the Civil Procedure Code, which prohibits a compromise on behalf of a minor by his guardian in the suit without the leave of the Court, is not complied with unless it is shown that leave was formally given after the attention of the Court had been directly called by petition or otherwise to the fact that the minor was a party thereto. In the absence of evidence to that effect, the compromise must be declared not binding on the minor who should be relegated to his original rights. These observations are very pertinent in relation to the facts of the case before us. The full effect of the terras of the compromise were, indeed, not realised on behalf of the respondent even in this Court, till after they had been analysed and discussed at considerable length. In the absence of any evidence to show that the terms of the compromise were considered by the Court in the mortgage suit, we are, consequently, not prepared to hold that the order recorded therein should be interpreted to embody by implication a statement that the Court had on proper materials considered the terms and accorded its approval thereto.