KALURAM RAMCHANDRA Vs. NANDLAL GULABCHAND

JUDGEMENT

(1.) THE applicant Kaluram who is one of the plaintiffs in Civil Suit No. 1-B of 1940 in the Court of the Additional District Judge, Basim, has come up in revision against an order rejecting his application for review.

(2.) THE application was made in the following circumstances. Three persons Nandlal, Mahadeo and Kaluram brought a suit for partition against the non-applicant Kachrulal and some other persons. Kaluram is a minor and in the suit Nandlal acted as his next friend. A preliminary decree for partition was passed and a commissioner was appointed to effect partition. There were several hearings before the commissioner and on 10th November 1944 the commissioner was considering the question of partition of a kotha. He recorded the statements of the parties. It appears that the kotha has got a roof of iron sheets but a part of the roof had been dismantled and the sheets which were taken down had been kept aside. It was found that some of the sheets were not on the spot but had been removed by Nandlal. In the statement which was taken, Nundlal, who represented the plaintiffs, stated that the price of the kotha was Rs. 2600. Kachrulal, the defendant, put the price at Rs. 3000. In the report which the commissioner submitted to the Court he found that 90 sheets which were part of the roof of the kotha were missing and Nandlal was responsible for their loss. The commissioner determined the price of the kotha at Rs. 2800, apparently taking it as the mean between the figures given by Nandlal and Kachrulal. He proposed a division of the kotha into two parts, eastern and western, and taking into consideration the fact that 90 tin sheets had been removed by Nandlal, gave direction that if Nandlal chose to take the eastern portion of the kotha which was covered with tin sheets he should pay Rs. 1000 to Kachrulal to compensate him because the western portion was in a dismantled condition and the tin sheets of its roof had also been taken away by Nandlal. He also provided that in case Kachrulal got the eastern portion he should pay Rs. 700 to the plaintiffs.

(3.) BEFORE this compromise was made, the plaintiffs inter se had arrived at an arrangement for a division of the properties which would come to their share in the partition and in that division had arranged amongst themselves that this portion of the kotha was to go to the share of Kaluram. It is thus evident that the compromise which Nandlal and Kachrulal had effected was going to affect only Kaluram because he alone under the arrangement between the plaintiffs was entitled to the kotha. Having regard to the statements which Nandlal and Kachrulal had made before the commissioner for the value of the kotha, the price which was now put on the kotha as a result of the compromise was very small. Though the compromise was thus going to act prejudicially to the interest of the minor Kaluram, Nandlal did not take permission of the Court for the compromise and the Judge without considering the question of Kaluram's interest and without giving sanction recorded the compromise and passed a decree in terms of it.