MAHATAB SINGH Vs. RAJA DURGA NARAIN SINGH

JUDGEMENT

(1.) These are two connected appeals arising out of two suits instituted by the plaintiff for recovery of rent. The facts briefly stated are these: In 1925, the plaintiff-respondent instituted four suits, namely 827, 833,933 and 1266 for enhancement of rent in respect of the four holdings which were held jointly by Mehtab Singh, Jadunath Singh, Phul Singh, Lakhan Singh and Partab Singh. In those suits decrees for enhancement of rent were passed on the basis of compromise. The plaintiff on the strength of the compromise decrees instituted four suits for the recovery of rent at enhanced rates. In the two appeals before us, we are only concerned with the two of those four suits, namely Nos. 7 of 1930 and 591 of 1932, and have no concern with the other two suits. In defence the defendants of these two suits pleaded that the decrees for the enhancement of rent passed on the basis of a compromise in the year 1925, are not binding upon them as at the time when the compromise was made they were minors and the compromise sought to be enforced was arrived at without obtaining the sanction of the Court in which the suits were pending.

(2.) The trial Judge held that the plaintiff was not entitled to get rent at an enhanced rate and therefore decrees were passed against the defendants with reference to the rates of rent that prevailed before the compromise decrees were obtained by the plaintiff. The plaintiff preferred appeals to the Court of the learned District Judge who came to the conclusion that the compromise decrees obtained by the plaintiff were binding upon the defendants. The appeals were therefore allowed and the plaintiff was given a decree with reference to the enhanced rate of rent in accordance with the terms of the compromise decrees. The defendants have now come up in second appeal before this Court. It may be mentioned here that it is conceded that the defendant-appellants in these two appeals are still minors. Learned Counsel appearing for the appellants has pointed out that before the trial Court the counsel appearing for the plaintiff had admitted that in the cases in which compromise-decrees were passed, the minor defendants had not been properly represented. The learned Judge of the lower appellate Court, however, went into this question and did not treat the statement of the counsel for the plaintiff before the trial Court as an admission. It has been found that the compromise was arrived at on behalf of the minor defendants by one Partab Singh who acted as their guardian ad litem. It has further been found that sanction of the Court in which the suits were pending was not obtained for compromising the suit as laid down by the provisions of Rule 7, Order 32, Civil P.C. Rule 7, Order 32, Civil P.C. provides: (1) No next friend or guardian for the suit shall, without the leave of the Court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian; (2) any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minors.

(3.) It has been argued by learned Counsel appearing for the defendant-appellants that as the compromise was arrived at without complying with the provisions of Rule 7, Order 32, Civil P.C., it is void and not merely voidable so far as minors are concerned. On this point the view that has prevailed in the various High Courts in India is that a compromise arrived at in disregard of the provisions of Rule 7, Order 32, is not void but only voidable at the instance of the minors. The ruling cases on this point are collected and noted in Chitaley's Civil Procedure Code, Vol. 3, p. 2318, Edn. 2. In Phulwanti Kunwar V/s. Janeshar Das 1924 46 All 575 a Bench of two learned Judges of this Court has expressed the view that a compromise entered into without the leave of the Court is not void and a nullity but is voidable only: see p. 589. In this connection I may refer to two cases decided by their Lordships of the Privy Council. They are Subramanian Chettiar V/s. Raja Rajeswara Dorai 1915 39 Mad 115 and Partab Singh V/s. Bhabuti Singh (1913) 35 All 487. In Subramanian Chettiar V/s. Raja Rajeswara Dorai 1915 39 Mad 115 their Lordships of the Privy Council made the following observations: If on the other grounds the deed of compromise could be supported, it is invalid in not complying with the conditions imposed by Section 462, Civil P.C., applicable when the compromise was made. One of the parties to the suit was a minor, the Raja's son, the present appellant, and the trustee of the voluntary settlement, was appointed his guardian ad litem. Section 462, Civil P. C , enacts that no next friend or guardian for the suit, shall, without the order of the Court, enter into any agreement or compromise on behalf of a minor, with reference to the suit in which he acts as next friend or guardian. In the present case the leave of the Court was not obtained and in the absence of such leave the compromise cannot be supported.