JOTI SARUP Vs. KAMLE SINGH

JUDGEMENT

(1.) The facts which led up to the institution of the suit from which this appeal arises are somewhat unusual. Two brothers, Tirbeni Sahai and Salik Ram, who were not however members of the joint family, executed a deed of simple mortgage for Rupees 6,000 in favour of one Kamle Singh. The mortgagee instituted Suit No. 203 of 1923 in the Court of the Subordinate Judge of Budaun for the sale of the mortgaged property. The mortgage debt amounted at that time to Rs. 6,000 principal and Rs. 4,625 interest. Kamle Singh impleaded, in addition to the two mortgagors, three other persons Suraj Prakash said to be insane, and Joti Sarup, adults, and Radha Raman minor, sons of Tirbeni Sahai, naming Mt. Katori, wife of Tirbeni Sahai, as the guardian of the "insane" and minor defendants. Joti Sarup entered a written statement, resisting the suit on various grounds, in, which Mt. Katori joined as the guardian of Radha Raman, the minor, but none of the other defendants set up any defence. On 26 March 1924 an application was made by the mortgagee Kamle Singh to the effect that a compromise had been made, and asking that it should be verified by Mt. Katori on behalf of the insane and minor defendants and that permission might be given to file the compromise. An amin was sent to the house of Mt. Katori, and he made a report dated 10 April 1924 to the following effect: Mt. Katori, guardian, identified by Babu Joti Sarup, son of the said Musammat, fully heard and understood the contents of the petition of compromise and admitted and accepted the same in a loud voice with her own tongue and verified the same.

(2.) The thumb impression of Mt. Katori is said to have been affixed to this document. On 14 April the Subordinate Judge, Mr. R.K. Aghe, made an order to following effect: Parties contesting this suit have compromised. Two of the defendants have remained ex parte. The compromise is for the benefit of the minors. There shall be a decree in terms of the compromise against all the defendants as I think that the absent defendants, though not parties to the suit (sic), are really agreeable to the compromise.

(3.) It must be observed in the first place that in writing "the absent defendants though not parties to the suit" the learned Judge evidently meant to write "though not parties to the compromise." But this is not the only inaccuracy in the brief order. There was only one minor, and the Judge does not seem to have realized that one of the parties to the suit was said to be of unsound mind. He has however come to no finding on the subject, as he might and should have done under Section 32, Rule 15, Civil P.C. Suraj Prakash is a major, and the Judge should certainly have been, at that stage of the case, definite in his mind as to whether Ms own acting in the proceedings on his own responsibility or through a guardian. The next thing to remark about the order is that even if we assume that Mt. Katori was acting on behalf of Suraj Prakash as well as for the minor, no express permission was given by the Court to the guardian to enter into an agreement or compromise on their behalf, nor was any application made on their behalf for their adjustment of the suit. Under Order 23, Rule 3, the Court must record a compromise, and pass a decree in accordance therewith so far as it relates to the suit, when it is proved to its satisfaction that the suit has been adjusted wholly or in part by the compromise and that the compromise is lawful. But the directions in Rule 7, Order 32 are not intended to be merely formal, and it is incumbent on the Court to protect the interests of a minor and of a person of unsound mind, and to apply its mind to any compromise which is offered on their behalf in order to ascertain as far as possible that the compromise is really for the benefit of the minor. However a decree was prepared on the basis of the compromise and indeed put into execution. It may be added that there is nothing to show that the two principal defendants, both of whom were the original mortgagors, and one of whom was the manager of a joint family owning part of the mortgaged property, knew anything whatever of the compromise.