KATNENI VENKATAKRISHNAYYA Vs. GARAPATTI CHINA VENKAYYA

JUDGEMENT

(1.) The appellants were the defendants in O.S. No. 27 of 1932 of the District Court of West Godavari, instituted by two minors through their mother, acting as their next friend. A decree was passed against them and this was subsequently transferred to the respondent by the mother, acting as the guardian of the property of the minors. The respondent then applied to be brought on the record in the place of the decree-holders and to be allowed to execute the decree. The learned District Judge allowed the application, and the appeal is from that order. The question for decision is whether a guardian of the property of a minor can transfer a decree passed in favour of the minor without first obtaining the sanction of the Court. In allowing the application the learned Judge relied on the decision in Govindarajulu Naidu V/s. Rang a Rao (1920) 40 M.L.J. 124. The appeal has been placed before a Full Bench as that decision was dissented from in Kancherla Kanakayya V/s. Mulpuru Kotayya .

(2.) Order 32, Rule 7 of the Civil P. C. provides that no 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 the minor with reference to the suit in which he acts as next friend or guardian. The Rule Committee of this Court has added to Rule 7 this further rule: (1-A) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader, the counsel or pleader shall file in Court with the application a certificate to the effect that the agreement or compromise or action proposed is in his opinion for the benefit of the minor or other person under disability. A decree or order for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party, shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No. 24 in Appendix D to this schedule.

(3.) It is said on behalf of the appellants that the words "for taking any other action on behalf of a minor or other person under disability" prohibit the lawful guardian of a Hindu minor transferring a decree obtained by the minor without the sanction of the Court. In Govindarajulu Naidu V/s. Ranga Rao (1920) 40 M.L.J. 124, Abdur Rahim and Odgers, JJ., held that these words did not take away the right of a guardian under Hindu Law to transfer a decree in favour of the minor, as the transfer did not constitute a proceeding in the suit. A decree is property and there is no reason why the guardian of a Hindu minor should not exercise the same powers with respect to it as he is allowed to do with regard to other assets of the minor. Hindu Law permits the guardian to alienate property under proper circumstances, but the minor can challenge the alienation on attaining majority if the power has been improperly exercised. It was on this reasoning that the learned Judges held that the sanction of the Court was not required to a transfer. The same question came before Ramesam and Spencer, JJ., in Kancherla Kanakayya V/s. Mulpuru Kotayya (1921) 41 M.L.J. 207. The learned Judges expressed their dissent from the decision in Govindarajulu Naidu V/s. Ranga Rao (1920) 40 M.L.J. 124 and regarded the decision in Shaik Davood Rowther v. Paramasami Pillai , as being in conflict with Govindarajulu Naidu V/s. Ranga Rao (1920) 40 M.L.J. 124. With great respect we can see no conflict. In our opinion Shaik Davood Rowther V/s. Paramasami Pillai has no bearing on the question. This was a case of an agreement adjusting a decree, the agreement which required to be recorded in Court being between the parties to the suit. We are here merely concerned with the transfer of a decree to a third party by a person who has in law the power to make the transfer. We consider that Govindarajulu Naidu V/s. Ranga Rao (1920) 40 M.L.J. 124 was rightly decided and consequently the decision in Kancherla Kanakayya V/s. Mulpuru Kotayya must be overruled.