Bhimaji Narayanrao Lokur, J. - (1.) Khata No. 171 originally belonged to the two brothers Hari Singh and Raghubir jointly. In 1935, Hari Singh sold his proprietary rights in the lands to one Brahma Singh. Hari Singh latter died about the year 1947. His son Asa Ram, who is opposite party No. 3 to the petition, filed a civil suit against petitioner Mam Chand, son of Raghubir Singh for partition of the lands in khata No. 171. Mam Chand and Asa Ram entered into a compromise on the 1st November 1958 whereby one land in the khata was given over to Asa Ram and the remaining lands to Mam Chand. A decree was passed in terms of the compromise on the 2nd December, 1958. When the consolidation proceedings started, the land stood in the records in the name of Mam Chand. Asa Ram filed objections contending that he had a half share in the Khata. This contention was negatived by the Consolidation Officer as well as the Settlement Officer, Consolidation on the grounds that the lands were shown as khudkasht of Raghubir Singh ever since 1350 Fasli (i.e. 1942) and that the compromise decree was binding upon the parties. The case of Asa Ram was that he was in actual possession of the lands and the compromise decree did not bind him as he was a minor at the time of the compromise. In revision, however, the Dy. Director allowed the claim of Asa Ram holding that the ex -proprietary tenancy in the lands devolved upon Asa Ram after the death of Hari Singh and it was not shown by Mam Chand how that interest was lost. He declined to rely upon the compromise decree in the civil suit on the ground that Asa Ram was a minor at the time of the compromise and it was likely that the compromise was executed as a result of influence on the part of Mam Chand. This petition is presented by Mam Chand for quashing the order of the Deputy Director. The learned counsel for the petitioner attacked the two grounds on which the Deputy Director admitted the claim of Asa Ram. He contended that the Dy. Director could not brush aside the compromise decree which was binding on Asa Ram and further that whatever rights Asa Ram had inherited from his father, had extinguished.
(2.) As regards the compromise decree, the learned counsel for Asa Ram defendant the view taken by the Dy. Director on the argument that since Asa Ram was a minor at the time of the compromise, the decree based upon compromise was null and void and could not be looked into. Reliance was placed by him on a decision of the Patna High Court in Ganganand Singh v/s. Rameshwar Singh Bahadur ( : AIR 1927 Pat 271) in which it has been observed: - - It is not open to doubt that a consent decree does not stand on a higher footing than a contract between the parties and that the court has jurisdiction to set aside a consent decree upon any ground which would invalidate an agreement between the parties. The Indian Contract Act makes it essential that all contracting parties should be competent to contract and expressly provides that a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of this Act. It follows therefore, that the contract between Ganganand and the Maharaja, as contained in the petition of compromise is entirely void and cannot be given effect to in a court of law. (page 279 -280).
(3.) The learned counsel for the petitioner, on the other hand, submitted that even though the compromise between Mam Chand and Asa Ram was void on the ground that Asa Ram was then a minor & incompetent to contract, the compromise was superimposed by a seal of the court and was converted into a decree and the compromise decree so passed would not be void and would remain binding upon Asa Ram until it is set aside by a competent court. A reference may be made to the case of Hashem Hawldar v/s. Sreenath Mistri ( : AIR 1946 Cal 438) which arose out of a suit for specific performance of an agreement in a compromise decree, to which minors were parties but apparently no leave of the court was obtained by their guardians ad litem.;