MT MARIAM Vs. MTAMINA

JUDGEMENT

(1.) This is an application in revision by Mt. Mariam and her. minor brother Latif Ahmad arising out of a suit in which there was a reference to arbitration and a decree in terms of the award. The suit had been brought by the applicants step- mother Mt. Amina, who was a lunatic, through a next friend. The claim was for recovery of the dower debt due against her deceased husband Habib Ahmad, the father of the present applicants. She had impleaded Sagir Ahmad, her eldest step- son, also as a defendant and had impleaded Latif Ahmad, minor, under the guardianship of his elder brother. It has been assumed that the Court had duly appointed Sagir Ahmad as the guardian-ad-litem of the minor Latif Ahmad. On 22 August, 1934, an application for reference to arbitration was filed which was signed by Sagir Ahmad for himself and as pairokar of the defendants other than Sharif Ahmad, the son of Mt. Amina, who signed the application himself. It was also signed by the advocates for all the parties and also by the next friend of the plaintiff. The attention of the learned Munsif does not appear to have been drawn to the fact that one of the defendants was a minor and that it was necessary for the Court to consider whether leave should or should not be granted to the guardian-ad-litem to enter into the agreement for reference to arbitration as required by Rule 32, Rule 7. The Court merely passed an order that, as the parties had agreed, the matter should be referred to arbitration. The sole arbitrator promptly delivered his award on 26 August 1934. Certain formal objections were taken to the award by Sagir Ahmad for himself and for Latif Ahmad, but these did not include the point that the reference was invalid inasmuch a the leave of the Court had not been expressly recorded in the proceedings. These objections were dismissed and a decree was passed in terms of the award.

(2.) The present application was accordingly filed challenging the validity of the proceedings on the ground that there had been a non-compliance with the requirements of Order 32, Rule 7. The Bench before whom the civil revision came up for disposal have referred the following questions to this Full Bench for answers : 1. Whether para. 1, Schedule 2, Civil P.C., is subject to the provisions of Order 32, Rule 7? 2. If the answer to the above question is in the affirmative, should the leave of the Court for the agreement to refer the suit to arbitration be obtained before an application for an order of reference is made, or, leave can be granted by the Court even after the award has been delivered? 3. (a) Does the omission of a next friend or a guardian-ad-litem of a minor party to a suit to obtain leave of the Court render the order of reference and the award void or only voidable at the option of the minor? (b) Can such an order of reference and the award be assailed by the minor in the suit itself or his proper remedy is to file a separate suit? 4. Whether an objection to the validity of reference to arbitration comes within the purview of para. 15, Schedule 2, Civil P.C.? 5. Whether the decision of the Court that made the reference to arbitration overruling an objection, relating to the invalidity of the order ol reference and passing a decree in accordance with the award can be challenged by an appeal or by an application in revision? Before 1908, Section 506, Act 14 of 1882, which corresponded to Schedule 2, Para. 1, Civil P.C., contained the word "desire" instead of the word agree" which now occurs in the rule. Section 462 of the Code did not contain the words "expressly recorded in the proceedings" which now find a place in Order 32, Rule 7. These variations are of significance.

(3.) Under the old Code it was held by a Bench of this Court in Hardeo Sahai v. Shankar (1905) 28 All. 35, that if the guardian of a minor consents to refer the matters in dispute to arbitration and if there is no fraud or gross negligence, then even though the Court has not under the provisions of Section 462 sanctioned the agreement to refer to arbitration the minor is bound, by the reference and the award. Apparently the view taken at that time following some earlier cases was that the provisions of Section 506 were really not controlled by those of Section 462. The case in Manohar Lal V/s. Jadunath Singh (1905) 28 All. 585 went up before their Lordships of the Privy Council for decision. That was a case where a compromise had been entered into on behalf of the minor by his guardian without the special leave of the Court and a decree1 was passed in terms of such a compromise. Their Lordships after quoting the provisions of Section 462 laid down that the mere fact that the minor was represented by a guardian was not sufficient but that there ought to be evidence that the attention of the Court was directly called to the fact that a minor was a party to the compromise and that it ought to be shown by an order on petition or in some way not open to doubt that the leave of the Court was obtained. The rule laid down by their Lordships applies with greater force to cases under the new Code where Order 32, Rule 7 has the additional words "expressly recorded in the proceedings." It is therefore obvious that in the case of a compromise entered into by a next friend or guardian ad litem of a minor party, it is absolutely essential that the attention of the Court should be drawn to the fact that there is a minor concerned and the Court should apply its mind to the consideration of the question whether the compromise is for the benefit and in the interest of the minor or not, and that it must record the grant of leave expressly in the proceedings. In view of their Lordships pronouncement in the aforementioned case, a compromise entered into on behalf of a minor by his guardian without such leave would certainly not be binding on the minor.