B. D. Agarwal, J. - (1.) RESPONDENT no. 1 brought a suit for specific performance of an agreement to sell certain immovable property. Applicant no. 3 besides applicant nos. 1 and 2 and respondents nos. 2 and 3 were defendants to the suit. Applicant nos. 1 and 2 and respondent nos. 2 and 3 are the sons of applicant no. 3. Applicant nos. 1 and 2 are minors. An application had been made for the plaintiff to appoint a guardian-ad-litem for applicant nos. 1 and 2. Notice was issued to the minors as well as to the proposed guardian, namely, their mother. The notice was served by the endorsement of refusal. On March 31, 1982, a compromise was entered into between the parties whereby it was stipulated that the sale was to be executed as per terms of the agreement of transfer. On the same date the court below made an order appointing applicant no. 3. as the guardian-ad-litem for applicant nos. 1 and 2. This was followed by leave granted to applicant no. 3 to enter into the compromise on behalf of the said minors. The compromise was recorded and a decree passed in terms thereof including against the minors. An objection was taken later for the applicant nos. 1 and 2 to avoid the compromise on ground that there had been no compliance duly made to the requirements under Order 32, Rule 7 of the Code of Civil Procedure. The objection was rejected by the court below on 24-11-1982 and aggrieved against the same the applicants have preferred this revision.
(2.) LEARNED counsel for the applicants contended that in making the impugned order dated March 31, 1982, the court below has not made compliance with the requirements under Rule 7 of Order 32, Civil Procedure Code. Rule 7 reads as under :- "Agreement or Compromise by next friend or Guardian for the suit-(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 he acts as next friend or guardian. (1-A) Any application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor; Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preculde the Court from examining whether the agreement or compromise proposed is for the benefit of the minor. (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". Sub-rule (1-A) to Rule 7 has been introduced by the Central Amendment Act 104 of 1976. Upon a perusal of the order dated 31st March, 1982, it would appear that having appointed applicant no. 3 as the guardian for the minors the court below directed on the application made for the plaintiff as under; "29-C2 is an application by the plaintiffs praying that defendant no. 5 be permitted to verify the compromise on behalf of the minor defendants 3 and 4. Allowed. 26-A. Compromise filed and verified by the parties in open court today. Order. The suit is decreed in terms of the compromise Paper 26-A shall form part of the decree." Sub-rule (1) or Rule 7 of Order 32 requires that there be leave granted by the court and the same be expressly recorded in the proceedings where the compromise be said to be entered into for and on behalf of the minors. The contention for the respondents is that there is leave granted in this case. To my mind it is not enough for the purpose of this sub-rule that the Court records an order to the effect that the guardian-ad-litem was being permitted to enter into compromise for the minors. There has to be some indication from the order that the court below has taken into consideration the relevant aspects before the leave is granted. The suit was for specific performance of an agreement to sell; the minors admittedly had interest in the property proposed to be sold; it is well settled that relief of specific performance is discretionary. The Court could have considered upon the facts and in the light of the material placed before it whether it would be to the ultimate benefit of the minors that the agreement be incorporated into a deed of sale in terms thereof. Grant of leave implies a consideration of the factor whether the leave thus granted would be for the ultimate benefit of the minors. Courts act as the guardian for the minors in relation to whom the Code has taken care to create a special protection. The provision is intended to safeguard the interest of the minors and in order that there may be no avoidable damage caused to their interest by an act or omission on the part of the guardian-ad-litem. The mere fact that the person acting as the guardian-ad-litem for the minors in this case is their mother cannot necessarily lead the court to the conclusion that the compromise sought to be entered into was for their benefit as well specially when the mother is an illiterate woman from the village side. Sub-rule (1A) then insists upon an affidavit from the guardian of the minor besides a certificate by the counsel where the minors are represented by such counsel. There is no denial that on the date when the compromise was filed in the court below there was also a vakalatnama put in by certain counsel representing the minors. Admittedly, there is neither an affidavit from the mother, the guardian-ad-litem, nor a certificate from the counsel to the effect that the compromise proposed was for the benefit of the minors. This provision is intended evidently to assist the court in the matter of forming its opinion as to whether the compromise sought to be arrived at would benefit the minors. Certificate from the counsel is assumed to be given from a responsible person who is conversent with the facts of the case on the basis of the evidence brought to his notice and an affidavit from the guardian is also insisted upon from the point of view. Taking into consideration the object underlying this provision and the consequence that may flow in the event of the disregard thereof, it does appear to me that the provision is mandatory. In Bishundeo Narain v. Seageni Rai, AIR 1951 SC 281 cited for the respondents also there is an observation to effect that the provision contained in sub-rule (1) of Rule 7 is mandatory. That provision, as I mentioned above, is with respect to the grant of leave for entering into a compromise for and on behalf of the minors. The same would flow from sub-rule (1A) which is ancilliary to what is contained in-sub-rule (1). In the instant case sub-rule (1A) has been observed in breach only.
(3.) THE question next arising is as to what is the effect of this provision not being complied with. In that connection reliance for the respondents is placed on sub-rule (2) which provides that such a compromise entered into without the leave of the Court duly granted shall be voidable at the instance of the minors. This was also the view taken by the Supreme Court in Bishundeo Narain v. Seogeni Rai (supra) and as well in Kaushalya Devi v. Baij Nath Sayal, AIR 1961 SC 790. THE compromise thus entered into does not result into an order which may be said to be a nullity ; it is not void but voidable at the instance of the minors. It is not open to the other parties, who are majors to the compromise, to seek to avoid it. Despite there being no proof of fraud or misrepresentation, the minors can seek to avoid the compromise where it is shown that there is no leave granted by the court in the manner and upon consideration of the factors relevant in this behalf. For the minors, as mentioned above, there was objection raised in this case to the effect that the compromise decree be set aside and treated as inoperative against them on the basis mentioned above. THErefore, in this proceeding it was open to the courts below to have set aside the compromise decree in so far as the minor applicants nos. 1 and 2 alone are concerned. On this account it may be made clear that the decree will not cease to be operative in so far as applicant no. 3 and respondent nos. 2 and 3 are concerned since they are majors and nothing has been said against the compromise entered into in so far as they are concerned. Regard being had to the above the revision is allowed in part. The decree based on compromise dated March 31, 1982 shall stand set aside in so far as the share of applicant nos. 1 and 2 in the property sought to be transferred is concerned. Applicant nos. 1 and 2 shall be entitled to withdraw, out of the deposit of Rs. 11000/- including interest, such amount as is in proportion to the share of applicant nos. 1 and 2 in the land in dispute. The rest of the amount shall be liable to be withdrawn by the plaintiff respondent no. 1. Costs on parties. Revision partly allowed.;