SUBRAMANIA PILLAI Vs. SVBAIRAVAPERUMAL PILLAI

JUDGEMENT

(1.) The plaintiff is the appellant. The suit out of which this second appeal arises was instituted for a declaration that the decrees in O.S. Nos. 48 and 349 of 1922, are not binding upon him and to have them avoided.

(2.) O.S. No. 48 of 1922 was filed by one Sivasankaram Pillai and his wife (the alleged adoptive father and mother of the plaintiff herein) against his brother's son Piraviperumal Pillai and another for a declaration that certain properties were their own, even though the patta was allowed to stand in the name of the 1 defendant therein. In the course of the suit both Sivasankaran Pillai and his wife died and the present plaintiff who claimed to be the adopted son came on record represented by his natural father as his next friend. In the same capacity as a minor he filed Order 8. No. 439 of 1922 asking for relief with regard to certain other properties. Both these suits were offered to the arbitration of three men. The arbitrators did not have to take evidence to decide the suits for they were settled by a compromise. The compromise was signed by the plaintiff's father as his next friend but afterwards he wanted to resile from the compromise. When notice was given to him, he did not appear. Finally the arbitrators accepted the compromise and passed an award in accordance with it. In the present suit the plaintiff seeks to set aside the decrees on the ground of gross negligence on the part of the guardian. As a matter of fact it has been found by both the lower Courts, that the guardian has not been negligent at all and the compromise cannot be said to be unfair to the plaintiff. The arguments here advanced have not been pressed against the findings of the lower Courts on these matters.

(3.) The main argument of Mr. T.M. Krishnasawmy Iyer on behalf of the appellant is that for the compromise which was entered into before the arbitrators permission of the Court had not been obtained and that, therefore, it is invalid having regard to the provisions of Order XXXII, Rule 7, Civil Procedure Code. At this stage I may point out that it was not argued in either of the lower Courts nor is there any issue on it that when the award came before the Court the Court did not consider whether the award was beneficial to the minor or not under Order XXXII, Rule 7, and that order passed by the Court is, therefore, invalid. That argument was never advanced in either of the lower Courts. Here Mr. T.M. Krishnaswamy Ayyar has put that argument also before me for consideration. I overruled it on the simple ground that the case before the lower Courts proceeded on the assumption that so far as the decretal orders of the Court were concerned there was no such objection the objection being based on the ground as I have already pointed out that for the compromise accepted by the arbitrators, no sanction of the Court, had been obtained. Therefore, the only question for consideration in this Second Appeal is, whether the compromise entered into by the parties before the arbitrators before it was accepted by them should receive the sanction of the Court to make their award valid in law. No authority directly bearing on the question has been brought to my notice.