KOSHY GEORGE Vs. SARA MARIA AND ORS.
HIGH COURT OF KERALA
Sara Maria And Ors.
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Nanadana Menon, J. -
(1.) THIS appeal by the Plaintiff arises out of a suit for setting aside a compromise decree and for declaration of his rights in the plaint schedule properties. Two brothers Varied Chona and Varied Oommen, separated as per a partition deed, Ext. A, dated 6 -12 -1079. Plaint A and B schedule immovable properties and D schedule mortgage right were set apart to the share of Varied Chona. On his death they devolved on his son Chona Varied who died in 1098 leaving his widow Mariyamma, their sons having pre -deceased the father. He left behind the plaint schedule properties, C schedule item being an amount due from a chitty. Chona Varied had a sister Sosamma, the mother of the Plaintiff. On 5 -2 -1101 Mariamma executed a deed covering her husband's properties (Ext I).releasing her rights in favour of Varied Oommen, her husband's father's "brother.
The properties were in the possession of Oommen. The 4th Defendant who is tire lather of the Plaintiff filed O.S. No. 46 of 1116 as his guardian against Varied Oommen and others for recovery of A to D schedule properties claiming that on Chona Varied's death his assets vested in Plaintiff's mother Sosamma and after her death in 1108 the same had devolved on the Plaintiff. The said suit ended in a compromise decree under which plaint B schedule properties were allotted to the Plaintiff and the remaining items to Varied Oommen. Varied Omen's rights passed to Defendants 1 to 3 The Plaintiff claimed that the compromise decree in O.S. 46 of 1116 was Plaintiff to his interests and sought lo set it aside in thil1 suit. The lower court held that the said dearer was binding on him and hence dismissed.
(2.) EXT . M is the copy of the judgment, in Order 46 yr 1116 and Ext. N the compromise decrement only states that the suit was decreed rrns of the compromise between the parties, contended on behalf of the Appellant is that the sort did not properly apply its mind to the question whether the compromise was in the.' interests of the minor, that its terms were highly prejudicial to him and that the guardian acted without bona fides and hence the decree is to be set aside. The relevant provision in the Indian Code of Civil Procedure is contained in Order 32, Rule 7, being similar to the provision in the Travancore Code of Civil Procedure applicable to the instant case. It is as follows:
7. (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 ho acts as p 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 minor.
Hero the fact that sanction was applied for and accorded is proved by Ext. L. What is urged is that there is nothing to show that the court properly applied its rand as to whether the compromise was beneficial to the minor, the order in Ext. L being only "Allowed''. Ext. K is the copy of the compromise petition. In the guardian's affidavit in Ext.L it is stated that the compromise was beneficial to the minor. All these were before the Judge who passed the order. There is no ground to think that he did not apply his mind to the nature of the compromise and as to its effect on the minor's interest when he passed the order in question. When the statute only says that sanction is to be obtained before a compromise decree on behalf of the minor is passed and when such sanction is proved, the contention that the nature of the order does not satisfy the requirements of the provision is of no avail. This is what is laid down in Madaswami Pillai v. Mathevan Pillai, 1951 Ker LT 93 (A) where a similar question arose for consideration. The following observations begin -: at p. 100 may be referred to:
We would however consider it apposite to refer to a recent Allahabad decision dealing with the duties and powers of the Court granting leave to the guardian or the next friend of a minor to enter into a compromise of a suit before it. The case is reported in Chittan Singh v. Sahib Davai and Sukhraji : 1950 All LJ 673 : AIR 1950 All 617) (B). The conclusions Malik, C. J. arrived at (Wanchoo, J. concurring) are correctly set out in the head -note to the decision and for our present purpose it would suffice to quote it:
It is no doubt desirable that an order under Order XXXII, Rule 7, Code of Civil Procedure should be passed by the courts after carefully considering the facts and the interest of the minor and the order, as far as possible, should show that the court had applied its mind to the question whether the compromise was or was not for the benefit of the minor. But it cannot be laid down that where all these facts are not mentioned in the order, the order itself must be deemed to have been vitiated.
Where the guardian of a minor applied under Order XXXII, Rule 7 , Code of Civil Procedure setting out the facts sued the grounds on which he sought the permission of the court for entering into a compromise as it was for the benefit of the minor, and the court merely passed an order ''Allowed'' and a compromise was entered into and a decree passed in terms of it but no evidence was produced before the lower court that the application was not given a judicial consideration and the court passed the order without looking into the facts of the case, held, that the decision of the lower court was right.
So the real question for consideration is whether the compromise was in the interest of the minor and entered into with bona fides by the guardian. Before O.S. No. 46 of 1116 was filed the 'plaint schedule properties had passed into die possession of Varied Oommen. He had Ext. I to support his claims. Plaintiff when examined as P. W. 1 deposes that after Chona Varied's death his mother Sosamma was in possession of the properties two or three years but after that on account of the difficulties met with in looking after them they were entrusted to Varied Oommen. As Chona Varied passed away in 1098 it follows that admittedly the properties had passed to Varied Oommen by 1101 or SO. The Plaintiff's contention is that there were no debts at all binding on the properties. The evidence clearly shows that Chona Varied had debts. In Ext. I that consideration mentioned is Us. 828 paid in cash being mainly amounts due to her as dowry item. Exts. ITI, IV, VII and IX prove discharge of Chona Varied's debt by Varied Oommen, Ext. A and other deeds go to support the defence contention that the debts were real.
There is no evidence on the Plaintiff's side to challenge this. As against the discharge of these debts Varied Oommen had received amounts as per Ext. P release and from the chitty mentioned in plaint C schedule. Thus at the time of O.S. 46 of 1116, the position was that the properties were in the possession of Oommen for more than 12 years and he had discharged a series of debts of Chona Varied and received some amounts due to him. It is clear that the Plaintiff could not have obtained plaint schedule properties without accounting for the amounts due to Varied Oommen. Possession having really passed to him, whether it be from Chona Vailed himself as contended by the defence" or by entrustment by Sosamma as alleged by the Plaintiff, fortified by Ext. I "he was clearly entitled to claim reimbursement of amounts due to him before being divested of the properties.
(3.) When such was the position if the guardian considered that it was beneficial to the minor if the matter was compromised by the minor getting B schedule properties clear of any debt while leaving the rest of the assets to Varied Oommen and those claiming under him it is not possible to hold that there was want of bona fides or prejudice to the minor. The value of properties set apart to the parties as shown by the commissioner whose report is Ext. Z also does not support the case that there was prejudice. The guardian who entered into the compromise, namely, the 4th Defendant is Plaintiffs own father, examined as D. W. 4. Nothing, has been brought out to show why he should act in a way prejudicial to his son's interest. As long as it is not, shown that he got any secret gain by such a Cora promise the argument that because he married a.,1 second time he had no interest in the minor is of ' no force. Thus nothing has been brought out to, show that the lower court's finding that the compromise was in the interests of the present Plaintiff who was then a minor is in any way erroneous. So there is no reason to interfere with the lower court's finding.;
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