P L D 1965 (W (PLP)

Respondent No. 2 absent. 1965 Dates of hearing: 18th, 25th January and 1st February This application under section 151 of the Code of Civil Procedure has arisen in the following circumstances. On 11‑1‑1958, a suit was filed in the Court of the Deputy Commissioner of Kalat by Mst. Rehmat Khatoon, widow of the late Sardar Gul Muhammad Magsi, acting on her own behalf as well as the next friend of her minor children, for the partition and possession of the ancestral property left by the late Nawab Qaisar Khan Magsi. Acting under section 11 of the Dasturul Amal Diwani applicable to the Kalat State, the Deputy Commissioner, with the permission of the High Court, referred the case to the Sardari Jirga. The Jirga met on the 21st September 1960, and it was stated that a compromise was being negotiated between the parties. The case was thereupon adjourned to the 6th of October 1960 on which date the compromise was presented to the Jirga and was accepted, and the Jirga gave an award in terms of the compromise. An application Was then made to the Deputy Commissioner, Kalat on the same date for accepting the compromise, and he passed a one‑word order on this application saying "accepted." The Deputy Commissioner then referred the case to the High Court as required by section 11 of the Dasturul Amal Diwani, and on the 17th of November 1960 an order was made by Mr. Justice A. R. Khan of this Court confirming the award and passing a decree in terms thereof. Then execution proceedings started in pursuance of this decree, and during the course of execution several objections were raised by the plaintiff and six applications came up for disposal before Muhammad Daud Khan, J., on the 24th of April 1962. All these objections were dismissed. A Letters Patent Appeal was then filed against the orders of Muhammad Daud Khan, J., but the same was dismissed on 15‑7‑1963 by a Division Bench consisting of Manzur Qadir, C: J. and Ortcheson, J., but a direction was given by the learned Judges that the matter be referred back to the Jirga for clarification about the manner of distribution of certain sums of money which were to be paid under the compromise, decree. In pursuance of this direction of the High Court, the Deputy Commissioner placed the matter before the Jirga on 15‑11‑63, and the Jirga gave the necessary clarification. On this occasion, for the first time, an objection was raised on behalf of one of the minor plaintiffs, namely, Mir Attaullah, who had attained majority by that time, that the award was not acceptable to him. However, the Jirga confined itself to the limited point referred to it for clarification and did not express any opinion on the objection raised on behalf of Mir Attaullah. An application was then made on behalf of Mir Attaullah to the Deputy Commissioner, Kalat, challenging the legality of the compromise, but by his order dated the 15th of June 1964, the Deputy Commissioner refused to entertain the application of Mir Attaullah Khan Magsi on the ground that the award of the Jirga had already been accepted by the High Court, and even its clarification had been made under the orders of that Court. The Deputy Commissioner then submitted the application to the High Court for such action its may be deemed necessary. In the meantime, the present application was also filed on behalf of Mir Ataullah, praying that the compromise award be set aside, the Deputy Commissioner, Kalat be directed to proceed with the original suit for the partition and possession of the ancestral property.

2. The main grounds urged in the application are that the compromise was against the interest of the minor plaintiffs and that the plaintiffs' mother as a de facto guardian had no authority to enter into a settlement affecting the immovable property of the minors. During the course of arguments, a third ground has also been pressed into service to the effect that the Deputy Commissioner did not comply with the requirements of Order XXXII, rule 7 of the Civil Procedure Code at the time of granting leave to the parties to compromise the suit, inasmuch as he did not apply his mind to the question whether the compromise was for the benefit of the minors.

3. On behalf of the respondents a preliminary objection has been raised to the effect that the present application under section 151, C. P. C. is not maintainable, and that the proper course for the minor plaintiffs was to file a suit for setting aside the decree in question. Several authorities have been cited at the Bar by the learned counsel for the parties in support of their respective contentions in this behalf, and these may be briefly noticed. In Mohanlal Tejumal v. Sh. Khushalibai and others (A I R 1937 Sind 101) it was held that "the fact that the minor has a remedy to have the order set aside by a suit, does not exclude the remedy which the Court possesses under section 151, if the Court thinks that it is essential in the interests of justice that this power under section 151 should be exercised. It is of course easy in the quiet atmosphere of the Court to say that this and that should be done, another suit should be brought, but anyone who has any experience of the difficulties of litigation in India, particularly where a widow or a minor is concerned, can realize that where two courses are open, one in which the Court can take immediate action in a suit that is before it and the other in which the Court can merely say that another suit should be filed, the Court is bound in the exercise of its duty and in answer to its own conscience to direct that course should be taken which would lesson the difficulties and remove obstructions in the way of widows and orphans." A similar view was expressed in Talib Ali Shah v. Piarey Lal and another (A I R 1930 All. 644), in which it was observed that: "Subsequent to the discovery that the minor has not been properly represented by a duly appointed guardian it is open to the Court in the exercise of its inherent power under section 151, to restore the case to its original number on the file and proceed with it after duly appointing a guardian. The restoration of the case and the appointment of a new guardian cannot be held to be tantamount to the addition of a new party to the suit . . . . ." Lal Babu v. Rang Bahadur Singh (A I R 1936 Pat. 506) and Ram Parkash v. People. Bank of Northern India Ltd. (A I R 1937 Lah. 72) are also practically to the same effect.

3. The learned counsel for the respondents, however, drew my attention to Sheopujan Singh and another v. Chandi Singh and others (A I R 1951 Pat. 283) and Hamira Sibua v. Lalu Ganga (AIR 1954 M B 81), in which it has been laid down that "where one of the parties alleges not a fraud upon the Court but only that his consent to compromise was procured by fraud, the Court cannot investigate the matter either in review or in exercise of its inherent power, and the only remedy of the party is to institute a suit to set aside the decree on the ground of fraud."

4. The two cases relied upon by the learned counsel for the respondents do not, however, relate to minors. I find myself in respectful agreement with the very weighty observations made by the learned Judges in A I R 1937 Sind 101, and consider that in the case of minors a special duty is cast upon the Court and if there has been any material irregularity in the conduct of the suit in so far as the protection B of their interests is concerned the Court must act in the exercise of its inherent powers under section 151 of the Civil Procedure Code. I would, therefore, proceed to examine the contentions raised by the learned counsel for the applicant on their merits.

5. The first contention raised by Qazi Issa is that the mother as a de facto guardian of the minor children had no authority under the Muhammadan Law to enter into a compromise which had the effect of alienating immovable property of the minors. In support of this contention the learned counsel has placed reliance on a large number of authorities, including text‑books on Muhammadan Law. It seems to me, however, that it is not necessary to refer to these authorities for the reason that the contention is somewhat misconceived, if I may say so, with respect to the learned counsel. The mother in this case has acted as the next friend of the minor plaintiffs in the suit, and she has entered into the compromise in that capacity, and not as a de facto guardian of the minor plaintiffs. The compromise by itself does not, in my view amount to alienation of immovable property by the mother At. the time of the actual alienation, the Court will have to see that the alienation takes place according to law, that is, by means of a duly appointed guardian on behalf of the minors. That stage, however, has not yet been reached, and we have only to consider the validity of the compromise itself. Not a single authority has been cited to show that the mother as the next friend of the minors, or for the matter of that any other person acting as such, cannot enter into a compromise in the suit on behalf of the minors.

6. The real question which calls for determination in this case is whether the provisions of Order XXXII, rule 7, C. P. C., were properly complied with by the Court when permission to compromise the suit was granted; and, if not, whether justification is made out for setting aside the compromise on the ground that it is not in the interest of the minor plaintiffs. It has already been stated that when the application for permission to compromise the suit was presented before the learned Deputy Commissioner, Kalat, he merely recorded one word, namely, "accepted." There is no lack of authority for the proposition that the provisions of Order XXXII, rule 7 of the Civil Procedure Code are not properly complied with if it is found that the Court did not apply its judicial mind to the question whether the compromise would be for the benefit of the minor plaintiffs or not. One may refer to A I R 1942 All. 85; A I R" 1940 Pat. 663; A I R 1935 Sind 95; A I R 1951 S C 280 and A I R 1937 P C

35. In the last‑mentioned case, the compromise was submitted before their Lordships of the Privy Council who remitted it to the lower Court for certifying whether the compromise was or not in the interest of the minors. This clearly illustrates the importance that their Lordships attached to the fact that there must be a conscious application by the Court to the question whether the compromise is for the benefit of the minors or not.

7. Now, in the present case the word "accepted", recorded by the learned Deputy Commissioner, Kalat, does not given any indication at all as to whether he applied his judicial mind to the question whether the compromise was for the benefit of the minors or not. It seems to me, therefore, that there has been no proper compliance with the provisions of Order XXXII, rule 7 of the Civil Procedure Code, as interpreted by judicial authorities.

8. It was, however, rightly pointed out on behalf of the respondents, that even if there has been an omission on the part of the trial Court to expressly record its opinion that the compromise is for the benefit of the minors, this Court should not interfere if it finds that the compromise is in fact beneficial to the minors. In support of this view, reliance was placed on an Indian case, namely, Koshy George v. Sara Maria and others (A I R 1957 Trav. Co. 91), in which it was observed that:‑-- "Where in a suit by a minor to set aside a compromise decree on the ground that the compromise was prejudicial to his interest the sanction of the Court for the compromise is proved then the contention that the order of the Court granting sanction does not show that the compromise was for his benefit or that it does not satisfy the requirements of Order XXXII, rule 7, is of no avail. The real question for consideration in such cases is whether the compromise was in the interests of the minor and entered into with bona fides by his guardian or next friend. If there is nothing to show that the compromise was not in the interests of the minor the Court will refuse to give any relief to the minor."

9. It was stated at the Bar by Mr. Qazi Issa the learned counsel for the applicant, that the ancestral property involved was very valuable indeed, carrying an annual income of nearly 40 lacs, and the share of one of the plaintiffs, namely Mir Attaullah Khan alone in the annual income, would be equal to the cash amount awarded to all the plaintiffs as compensation for their share in this property. It was further submitted that whether the matter is judged according to Sha'riat or according to Custom, the minor plaintiffs were entitled to a far greater share than allowed to them under the compromise. It was submitted by the learned counsel that under the compromise, shares have been allowed to certain females who were not at all entitled under custom. Finally, it was also stated that the compromise deprived Attaullah Khan from laying any claim to the Sardari, although under the Custom he may become eligible to do so at some stage or the other. These are considerations which cannot be gone into by this Court in view of absence of relevant data on the record. The facts stated by Qazi Issa were however not controverted by the learned counsel for the respondents. In these circumstances, I have formed the impression that it is difficult to say that the compromise is for the benefit of the minor plaintiffs; on the other hand, there are indications to the effect that the compromise may not indeed be beneficial to them at all. However, I am not expressing any considered opinion on this point. These are questions which should have been examined in the first instance by the learned Deputy Commissioner at the time of permitting the compromise. It is only just and proper that this should be done now.

10. The result, therefore, is that in the exercise of the inherent powers of the Court under section 151 of the Code of Civil Procedure, I would accept this application and set aside the decree and the award of the Jirga based on the compromise, for the reason that in my view the compromise has not been properly effected inasmuch as the learned Deputy Commissioner, Kalat, did not apply his mind to the question whether the compromise was in the interest of the minor plaintiffs or not, as was required of him by the provisions of Order XXXII, rule 7 of the Code of Civil Procedure. The case shall go back to the learned Deputy Commissioner, Kalat, for this purpose, and if he comes to the conclusion, after hearing the parties and examining all the relevant circumstances, that the compromise is in the interest of the minors, he shall forward the case to the High Court as required by section 11 of the Dasturul Amal Diwani, Kalat. In case however the learned Deputy Commissioner comes to the conclusion that the compromise is not in the interest of the minors, he shall refuse to accord permission for the compromise, and the suit shall then proceed in accordance with law. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. K.B.A. Application accepted.