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PETITIONER: KAUSHALYA DEVI AND OTHERS

       Vs.

RESPONDENT: BAIJNATH SAYAL AND OTHERS.

DATE OF JUDGMENT: 09/02/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1961 AIR  790            1961 SCR  (3) 769

ACT: Suit   against  Minor--Preliminary  decree  on  consent   by guardian without leave of court--If a nullity--If can be set aside   in  appeal  against  final  decree--Code  of   Civil Procedure, 1908 (Act V of 1908), s.     97, 0. 32, r. 7.

HEADNOTE: Order  32, r. 7(2) of the Code of Civil Procedure, which  is intended to protect the interest of the minor, really  means that  an agreement or compromise entered into on  behalf  of the  minor  in contravention of 0. 32, r. 7(1)  is  voidable only at the instance of the minor and not at the instance of any  other party to it.  Such contravention does not  render the  agreement  or decree a nullity and the same has  to  be avoided in an appropriate proceeding. Manohar  Lal  v. jadu Nath Singh (1906) L.R.  33  I.A.  128, referred to. Chhabba  Lal v. Kallu Lal (1946) L.R. 73 I.A. 52, jamna  Bai v. Vasanta Rao (1916) L.R. 43 I.A. 99 and Khiarajmal v. Daim (1904) L.R. 32 I.A. 23, held inapplicable. Where a preliminary decree is passed in non-compliance  with the provision of 0. 32, r. 7(1), the remedy of the minor  is by way of an appeal against that decree and not against  the final  decree  since  s.  97 of the Code is  a  bar  to  the challenging  of the preliminary decree in an appeal  against the final decree. Consequently, in a suit for the partition where  preliminary decree   by  consent  was  passed  against  the   minor   in contravention of 0. 32, r. 7(i) and that decree having  been sought  to be set aside in an appeal from the  final  decree the High Court held that S.   97  of the Code precluded  the appellant from doing so. Held,  that the decision of the High Court was  correct  and must be ashamed, 770 Held,  further,  that  the  object s. 97  of  the  Code  was intended to achieve would be wholly frustrated if it were to be  held that the section merely prohibited a  challenge  to the  factual  correctness of the decree and  not  its  legal validity.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 216 of 1956. Appeal  by special leave from the judgment and decree  dated August  28, 1950, of the Punjab High Court in Civil  Regular First Appeal No. 343 of 1944. L.K.  Jha,  K.  P.  Bhandari  and  Harbans  Singh,  for  the appellants. Darya Datt Chawla for respondent Nos. 1(i) to (iii). 1961.   February 9. The Judgment of the Court was  delivered by GAJENDRAGADKAR, J.-This appeal by special leave arises  from a  partition  suit  filed by Baij  Nath  against  his  other coparceners.  Baij Nath is the son of Behari Lal and he  had four  brothers Kidar Nath, Raghunath Sahai, Jagan  Nath  and Badri  Nath.  Kidar Nath was dead at the time of  the  suit, and  his  branch was represented by his five  sons  Ghansham Lal, Shri Ram, Hari Ram, Tirath Ram and Murari Lal, who were impleaded  as defendants 1 to 5 respectively.  On the  death of Ghansham Lal pending the Suit his two minor sons Jai  Pal and  Chandar Mohan were brought on the record as  his  legal representatives   and  their  mother  Mst.   Kaushalya   was appointed  guardian  ad  item.   The  two  minors  are   the appellants before us.  Chuni Lal, the son of Raghunath Sahai was defendant 6, Bal Kishan and Hari Kishan the two sons  of Jagan  Nath  were  defendants 7 and 8, and  Badri  Nath  was defend.  ant  9. Baij Nath’s case was that  the  family  was undivided  and  he wanted a partition of his  share  in  the family   properties,  and  so  in  his  plaint  he   claimed appropriate reliefs in that behalf.  The several  defendants made  out pleas in respect of the claims made by Baij  Nath, but  for  the purpose of this appeal it  is  unnecessary  to refer  to the said pleas.  The suit wail instituted on  Juno 11, 1941, 771 It  appears that by consent of parties a preliminary  decree was  drawn by the trial court on October 30, 1941,  but  the validity  of this decree was successfully challenged  by  an appeal  to the Lahore High Court.  It was held by  the  High Court that all parties had not joined in the compromise  and so  the preliminary  decree could not be sustained.   In the result  the  said  decree was set aside  and  the  case  was remanded for trial. It  further  appears that after remand  parties  again  came together  and  by  consent requested the  court  to  pass  a preliminary decree once again.  This was done on October 15, 1943.   This preliminary decree specified the shares of  the respective  parties and left three outstanding issues to  be determined  by  Chuni Lal, defendant 6, who  it  was  agreed should  be appointed Commissioner in that behalf.   Pursuant to  this preliminary decree the Commissioner  submitted  his interim report on November 19,1943, and his final report  on November  29,  1943.  On receipt of the  reports  the  trial court  gave time to the parties to consider the said  report which  had been explained to them.  Parties wanted time  and so  the case was adjourned.  Since the property  in  dispute was  valuable and the parties were unable to make  up  their minds  about  the said reports further time was  granted  to them by the court to consider the matter.  Ultimately,  when parties  did not appear to come to any settlement about  the reports  the  case was adjourned to December 17,  1943,  for objections to be filed by the parties.  Tirath Ram,  defend- ant  4  alone filed objections; nobody else did.   The  said objections were considered by the court in the light of  the evidence which had been led and a final decree was drawn  on

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June 21, 1944. Against   this  decree  an  appeal  was  preferred  by   the appellants before the High Court of Punjab, and it was urged on  their behalf that the preliminary decree was invalid  in that  at the time of passing the said decree the  court  had failed to comply with the mandatory provisions of 0. 32,  r. 7  of the Code of Civil Procedure.  The High Court  did  not allow  the appellants to raise, this point because  it  held that their 99 772 failure  to  make an appeal against the  preliminary  decree precluded them from challenging its correctness or  validity under  s.  97 of the Code.  Certain other  minor  objections were  raised by the appellants on the merits but  they  were also  rejected.   In the result the appeal  failed  and  was dismissed, but in view of the circumstances of the case  the parties  were directed to bear their own costs.  It is  this decree that is challenged by the appellants in their present appeal  by special leave; and the only point which has  been urged by Mr. Jha on their behalf is that the High Court  was in  error  in disallowing the appellants  to  challenge  the validity  of the preliminary decree in their  appeal  before it. Mr. Jha contends that in dealing with the question about the competence  of  the plea raised by the appellants  the  High Court  has misjudged the effect of the provisions of 0.  32, r.  7.  It  is  common ground that  at  the  time  when  the preliminary decree was passed by consent and the appellants’ guardian  Kaushalya  Devi agreed to the passing  of  such  a preliminary  decree and to the appointment of Chuni  Lal  as Commissioner  the appellants were minors and that leave  had not  been obtained as required by 0. 32, r. 7. Order 32,  r. 7(1)  provides that 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 the minor with reference to the suit in which  he acts  as next friend or guardian.  It is also  not  disputed that  the agreement which resulted in the drawing up of  the preliminary  decree  and  the appointment of  Chuni  Lal  as Commissioner  fell  within the scope of this rule  and  that sanction  required by the rule had not been recorded in  the proceedings.   The  argument is that the failure  to  comply with  this  mandatory  provision  of  the  rule  makes   the agreement and the preliminary decree void, and if that is so s. 97 of the Code of Civil Procedure would be no bar in  the way of the appellants challenging the validity of the decree at the appellate stage. The  effect of the failure to comply with 0. 32, r. 7(1)  is specifically provided by 0, 32, r. 7(2) which says 773 that  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.   Mr.  Jha  reads  this provision as meaning that the impugned agreement is voidable against  the  parties  to it who are major and  is  void  in respect  of the minor; in other words, he contends that  the effect of this provision is that the major parties to it can avoid  it and the minor need not avoid it at all because  it is a nullity so far as he is concerned.  In our opinion this contention is clearly inconsistent with the plain meaning of the  rule.  What the rule really means is that the  impugned agreement  can be avoided by the minor against  the  parties who are major, and that it cannot be avoided by the  parties who  are  major against the minor.  It is voidable  and  not

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void.   It is voidable at the instance of the minor and  not at the instance of any other party.  It is voidable  against the  parties  that are major but not against a  minor.  This provision has been made for the protection of minors, and it means nothing more than this that the failure to comply with the  requirements of 0. 32, r. 7(1) will entitle a minor  to avoid the agreement and its consequences.  If he avoids  the said agreement it would be set aside but in no case can  the infirmity in the agreement be used by other parties for  the purpose   of  avoiding  it  in  their  own  interest.    The protection  of the minors’ interest requires that he  should be given liberty to avoid it.  No such consideration  arises in  respect of the other parties to the agreement  and  they can make no grievance or complaint against the agreement  on the  ground  that it has not complied with 0. 32,  r.  7(1). The  non-observance of the condition laid down by r. 1  does not make the agreement or decree void for it does not affect the jurisdiction of the court at all.  The non-observance of the  said  condition  makes the  agreement  or  decree  only voidable  at  the  instance  of the  minor.   That,  in  our opinion,  is the effect of the provision of 0. 32,  r.  7(1) and (2). The  question  as to the procedure which  the  minor  should adopt  in avoiding such an agreement or decree has been  the subject-matter of several decisions, and 774 it has been held that a compromise decree may be avoided  by the minor either by a regular suit or by an application  for review  by  the  court which passed the  said  decree.   The decision  in  Manohar  Lal v. Jadu Nath  Singh  (1),  is  an illustration  of a suit filed by the minor  for  declaration that the impugned decree did not bind him.  It is,  however, not necessary for us to deal with this aspect of the  matter in the present appeal any further. In  support of his argument that the failure to comply  with the  requirements  of  0. 32, r. 7(1)  makes  the  decree  a nullity Mr. Jha has very strongly relied on the decision  of the Privy Council in Chhabba Lal v. Kallu Lal (2).  In  that case  an  objection  to  the  validity  of  a  reference  to arbitration  was taken by a party in an appeal  against  the decree passed on an award; and one of the points raised  for the decision before the Privy Council was whether an  appeal lay  against  the  decree in question.   Under  Schedule  2, paragraph  16(2) of the Code which was then in force it  was provided that upon the judgment pronounced according to  the award  a  decree shall follow and no appeal shall  lie  from such decree except in so far as it is in excess of or not in accordance  with the award.  The argument urged against  the competence of the appeal was that the objection against  the validity  of  the reference and the award could  and  should have been raised under paragraph 15(1)(c) of the said  Sche- dule, and since such an objection had not been so raised and a  decree  was  drawn in accordance  with  the  award  under paragraph 16, r. 1 no contention could be raised against the validity of the decree outside the terms of paragraph 16(2). This  argument  was repelled by the Privy Council.   It  was held  that  the  objection  against  the  validity  of   the reference  based on the ground that the requirements  of  0. 32,  r. 7(1) had not been complied with did not fall  within the  purview  of  paragraph 15(1)(c).   The  said  paragraph specified the grounds on which an award could be challenged. It provided that the award could be set aside if it was made after the issue of an order by the (1) (1906) L.R. 33 I A. 128.    (2) (1946) L.R. 73 I.A. 52. 775

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court  superseding arbitration and proceeding with the  suit or if it was made after the expiration of the period allowed by the court, or if it was otherwise invalid.  It is on  the last  clause in paragraph 15(1)(c) that reliance was  placed in  support  of  the contention that the  challenge  to  the validity  of the reference should have been made  under  the said  clause.   The  Privy  Council  did  not  uphold   this argument.  " In their opinion," observed Sir John  Beaumont, who  spoke for the Board, " all the powers conferred on  the court in relation to an award on a reference made in a  suit presuppose a valid reference on which an award has been made which  may  be  open  to question.  If  there  is  no  valid reference  the  purported  award is a nullity,  and  can  be challenged  in  any appropriate proceeding." It is  on  this last observation that Mr. Jha has naturally relied; but,  in our opinion, the observation in question does not purport to be a decision on the interpretation of 0. 32, r. 7(2).   The context shows that the said observation was made in  support of  the decision that the challenge to the validity  of  the arbitration  and  the award could not have been  made  under paragraph 15(1)(c) and nothing more.  We are not prepared to extend this observation to cases like the present where  the point  in dispute is in regard to the interpretation  of  0. 32, r. 7. It is significant that while describing the  award as a nullity the Privy Council has also added that it can be challenged  in any appropriate proceeding  which  postulates the  adoption of necessary proceedings to avoid  the  award. The point for consideration by the Privy Council was whether a  proceeding  under  paragraph 15(1)(c)  was  indicated  or whether  an  appeal  could be  regarded  as  an  appropriate proceeding;  but it was assumed that a proceeding had to  be adopted  to challenge the award.  The decision of the  Privy Council  was  that  the  validity  of  the  award  could  be challenged  by  an  appeal because it could  not  have  been challenged under paragraph 15(1)(c).  Since it could not  be challenged under paragraph 15(1)(c), according to the  Privy Council  paragraph  16(2) could not be invoked  against  the competence of the appeal.  It is unnecessary 776 for  us  to examine the merits of the said decision  in  the present  appeal.  All that we are concerned to point out  is that the observation in the judgment on which Mr. Jha relies cannot be treated as a decision on the interpretation of  0. 32,  r. 7(2).  That question did not directly  arise  before the Privy Council and should not be treated as concluded  by the  observation  in question.  As we have  already  pointed out,  the  words  used  in 0. 32,  r.  7(2)  are  plain  and unambiguous and they do not lend any support to the argument that  non-compliance  with  0. 32, r. 7(1)  would  make  the impugned decree a nullity. Mr.  Jha has also relied upon another decision of the  Privy Council  in Jamna Bai v. Vasanta Rao (1).  In that case  two defendants  of  whom  one was a  minor  compromised  a  suit pending against them, and in doing so entered into a bond by which  they  jointly  agreed to pay a  certain  sum  to  the plaintiff at a future date.  The leave of the court was  Dot obtained on behalf of the minor as required by s. 462 of the Code  of  Civil Procedure, 1882, which was  then  in  force. When a claim was made on the said bond it was held that  the bond  was  not  enforceable against the  minor  but  it  was enforceable   for   the  full  amount  against   the   joint contractor.   We  do  not  see how  this  case  assists  the appellants.   It  appears that Jamna Bai who was  the  joint contractor on the bond advanced the plea that one of the two promisers can plead the minority and consequent immunity  of

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the other as a bar to the promise’s claim against him.  This plea was rejected by the Privy Council, and that would  show that  the bond which was executed in pursuance of a  compro- mise agreement was not treated as null and void but as being unenforceable against the minor’ alone.  In ,that connection the Privy Council observed that the minor’s liability  could not be enforced in view of the fact that the requirements of s.  462 of the Code had not been complied with.  Indeed,  in the  judgment  an observation has been made that  the  Privy Council  was  not expressing any opinion as to  whether  the bond could be enforceable against a minor even if s. 462 had (1) (1916) L.R.43 I.A.99. 777 been complied with.  Thus this decision is of no  assistance to the appellants. Similarly,  the decision of the Privy Council in  Khiarajmal v.  Daim  (1),  can also be of no help  to  the  appellants, because in that case all that the Privy Council decided  was that  a  court  has no jurisdiction to  sell  an  equity  of redemption  unless the mortgagors are parties to the  decree or  the  proceedings  which  lead to  it,  or  are  properly represented  on the record.  In other words, if a  minor  is not  properly represented on the record no order  passed  in the proceedings can bind him.  We are unable to see how this proposition  has  any relevance to the point  which  we  are called upon to decide in the present appeal. If the preliminary decree passed in the present  proceedings without  Complying with the provisions of 0.32, r.  7(1)  is not  a nullity but is only voidable at the instance  of  the appellants,  the question is: can they seek to avoid  it  by preferring  an  appeal against the final decree ? It  is  in dealing with this point that the bar of s. 97 of the Code is urged  against the appellants.  Section 97, which  has  been added  in the Code of Civil Procedure, 1908, for  the  first time   provides  that  where  any  party  aggrieved   by   a preliminary decree passed after the commencement of the Code does not appeal from such decree he shall be precluded  from disputing  its  correctness  in  any  appeal  which  may  be preferred from the final decree. It  is  urged  for  the  appellants  that  an  appeal  is  a continuation  of  the suit and so the  appellants  would  be entitled  to  challenge the impugned preliminary  decree  as much  by  an application made in the suit itself  as  by  an appeal preferred against the final decree passed in the said suit.   It  is true that the proceedings in  appeal  can  be regarded  as a continuation of the proceedings in suit;  but the  decision of the question as to whether  the  appellants can  challenge the said preliminary decree in  their  appeal against  the  final  decree  must in  the  present  case  be governed by the provisions of s. 97 of the Code.  The  whole object of enacting s. 97 was to make it clear that any party (1)  (1904) L.R. 32 I.A. 23. 778 feeling  aggrieved  by  a  preliminary  decree  must  appeal against  that decree; if he fails to appeal against  such  a decree the correctness of such a decree cannot be challenged by  way of an appeal against the final decree,  which  means that  the  preliminary decree would be taken  to  have  been correctly passed.  When s. 97 provides that the  correctness of the preliminary decree cannot be challenged if no  appeal is  preferred against it, it clearly provides that if it  is not challenged in appeal it would be treated as correct  and binding  on the parties.  In such a case an  appeal  against the  final decree would inevitably be limited to the  points arising from proceedings taken subsequent to the preliminary

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decree  and the same would be dealt with on the  basis  that the preliminary decree was correct and is beyond  challenge. It  would  be idle to contend that what is prohibited  is  a challenge  to the factual correctness of the decree  on  the merits,  because if the said decree is voidable, as  in  the present case, the very point as to its voidable character is a  part  of the merits of the dispute between  the  parties. Whether  or  not 0. 32, r. 7(1) applies to  the  case  would certainly  be  a matter of dispute in such a  case  and  the object  of s. 97 is precisely to disallow any  such  dispute being raised if the preliminary decree is not challenged  by appeal.   The  whole object which s. 97 intends  to  achieve would  be  frustrated if it is held that  only  the  factual correctness of the decree cannot be challenged but its legal validity   can  be  even  though  an  appeal   against   the preliminary  decree has not been filed.  Therefore,  in  our opinion,  the  High  Court  was  right  in  coming  to   the conclusion  that  it  was  not open  to  the  appellants  to challenge  the  validity of the preliminary  decree  in  the appeal  which  they had preferred against the  final  decree before the said High Court. The result is the appeal fails and is dismissed with costs,                                     Appeal dismissed, 779