P L D 1966 (W (PLP)

(5) Has the suit been brought at the instance of defendant No. 1 and what is its `effect? (6) Cannot the suit proceed in view of the Shariat Application Acts of 1948 and 1951 ? (7) Is the custom stated opposed to public policy and what is its effect? (8) Has the community bond of Mauza Kot Gulla broken and what is its effect? (9) Is the suit against the Constitution of Pakistan and what is its effect? (10) Has the plaintiff locus standi to sue? (11) Relief.

6. After recording the evidence produced by the parties, the learned trial Judge found issues Nos. 2, 3, 5, 6, 7, 8, 9 and 10 in the affirmative and found issues Nos. 1 and 4 against the plaintiff and in view of his above‑mentioned finding, he dismissed the plaintiff's suit, with costs, by his order dated 5‑2‑1959. The appeal preferred by Niaz Ali appellant was also dismissed by the Additional District Judge, Campbellpur, by his order dated 8‑6‑1959. Niaz Ali has now come up in Regular Second Appeal to this Court.

7. The learned counsel for the appellant while attacking the findings of the two Courts below urged that the previous decree was not binding on the plaintiff and it was not enough that permission to decide the case on oath was granted by the trial Judge unless it is shown that the Court had applied its mind and had come to the conclusion that it was in the interest of the minor that the permission was granted. He contends that there is no material on the record to show that the Court had applied its mind. In support of his contention, he referred to the application (certified copy Exh. D. 2 on the file) by Gulab, next friend of the plaintiff. The application does not show as to on what point the oath was to be taken, and therefore, it is obvious that the trial Judge without applying his mind to the case as to whether or not the compromise was in the interest of the minor had accorded sanction, which was not binding on the minor. Order XXXII, rule 7, C. P. C. lays down that : (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. (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." In support of his contention that the compromise was not binding on the minor, the learned counsel relied upon Barodaprosed Sukul v. Sahanlall Boid and others (A I R 1937 Cal. 658). Briefly, the facts of that case are that in a case against a minor, a pleader was appointed as guardian. Some months after the case continued, the uncle of the minor applied to the Court to appoint himself as the guardian and the Court to appointed him. On the very day he was appointed, he filed a petition on behalf of the minor asking that the suit might be compromised. The order of the Court under which the compromise was accepted was "the guardian of the minor defendant 2 is permitted to compromise the suit on behalf of the said minor defendant as prayed for". It was held "that the order of the Judge was not sufficient to show that he applied his mind judicially to the question as to whether or not the compromise was really for the benefit of the minor and as such there was not sufficient compliance with the principles underlying Order XXXII, rule 7, C. P. C. This authority is not applicable, because the Court while granting the permission, did not record its finding that the compromise was for the benefit of the minor. Learned counsel referred to Sat Narain Goenka v. Kanti Lai and another (A I R 1943 Lah. 313) where it was held as under :‑ "The provision in Order XXXII, rule 7 that the leave of the Court must be expressly recorded in the proceedings is mandatory and must be strictly complied with. It cannot be presumed that the Court had applied its mind to the matter and granted the leave by the mere circumstances that the com promise had in fact been sanctioned by the Court." This authority is also not applicable because neither an applica tion by the next friend to enter into a compromise on behalf of the minor had been made nor the leave of the Court had been accorded in the proceedings as required by Order XXXII, rule 7,' C. P. C. The procedure which has been laid down by various authorities is that it is the duty of the Court to see that interest of minors are adequately protected. When a compromise is effected, to which a minor is a party, it is of considerable importance that the conscience of the Court should be satisfied that the compromise is really in the interest of the minor. I'll ordinary circumstances, when the Court records an order to the effect that a compromise has been allowed it may be assumed, unless there are clear indications to the contrary, that the Court has exercised its judicial discretion in dealing with the matter. In the instant case, the next friend of the minor, in his application (certified copy Exh. D. 2 on the file) had stated that the compro mise was for the benefit of the minor. The learned trial Judge before granting the permission, recorded the statement of the next friend of the minor who stated that if Rahman defendant took an oath as to the consideration paid, the plaintiff would be entitled to the possession of the land on payment of that amount. After recording the above‑mentioned statement (certified copy Exh. D. 6) the trial Judge granted permission for decision of the case on oath, from which it follows that the learned trial Judge had applied his mind to the case and had come to the conclusion that the decision of the case on oath was in the interest of the minor. Learned counsel for the appellant next urged that it was due to the negligence of Gulab, next friend of the minor that the case was decided on oath and thus the appellant was entitled to the avoidance of the proceedings undertaking against him.

8. The learned counsel urged that no consideration or cash had been paid at the time of the sale mutation and the next friend of the minor appellant while deciding the case on oath left it to the discretion of the defendant to take oath regarding the amount paid by him, which amounts to negligence. In support of his contention, lie relied upon Kali Charan Singh arid others v. Hirdai Narain and others (A I R 1935 Pat. 24) where it was held as under :‑-- "Gross negligence which may be interpreted as culpable neglect of the interest of a minor defendant on the part of his guardian ad litem will entitle the minor to the avoidance of proceedings undertaken against him." Learned counsel also referred to Ghulam Ahmad and another v. Nand Lal and others (A I R 1938 Lah. 218). It was held: "A guardian of a minor, who neglects to put forward a defence which saves a valuable property of the minor from alienation, is guilty of gross negli gence." The authorities relied upon by the learned counsel for the appellant are not applicable, because there is no material on the record to suggest that Gulab, next friend of the minor, was guilty of negligence or fraud.

9. It was lastly contended that there is no cogent evidence on the record to show that the disputed property was sold for consideration and legal necessity. He contends that the question of legal necessity is essentially a question of law and can be questioned in a second appeal. In support of his contention he relied upon Abdul Majid and others v. Khalil Ahmed (P L D 1955 F C 38). At page 41, their Lordships observed as under: "The High Court was of course right in considering the question whether a payment of Rs. 1,200 to the village Bank by the vendor amounted to legal necessity or not because what constitutes legal necessity is essentially a question of law."

10. It is conceded by the learned counsel for the respondents that the question of legal necessity is a question of law, but he contends that the two Courts below have come to the conclusion that the disputed property was sold for a legal necessity and for consideration and this concurrent finding of fact cannot be disturbed in second appeal. The evidence was led to show that the disputed property was mortgaged for Rs. 3,000 which amount was paid to the vendor by the vendees. Rs. 3,000 was spent by the vendor on the dowry of his daughter Mst. Anar Begum, after selling the land although the marriage had taken place in 1948. The plaintiff-appellant urged that the land was sold in 1951 and therefore, it cannot be assumed that Rs. 3,000 was spent by the vendor on the marriage of Mst. Anar Begum which had taken place three years before. The evidence examined by the defendant in the lower Court clearly shows that Mst. Anar Begum along with her husband lived in the house of the vendor after their marriage and it was after the sale of the property that Mst. Anar Begum along with her husband left the house of the vendor. The next friend of the minor also admitted that the husband of Mst. Anar Begum resided with his wife in the house of the vendor and so it was in 1951 after the sale of the suit property that the vendor needed Rs. 3,000 in order to send Mst. Anar Begum to the house of her husband as found by the two Courts below.

11. The last item which relates to the passing of sale consideration and legal necessity is sinking of a well by the vendor in his land which was barani and which is in his possession. In the previous suit a Commissioner was appointed for assessing the amount spent by the vendor on the sinking of the well, who found it to be Rs. 2,

400. Before the Commissioner, the vendor and the next friend of the minor admitted that the well had been sunk in the year in which the land was sold. The evidence examined by the vendees shows that out of the sale consideration amounting to Rs. 8,000 the vendor had paid Rs. 3,000 to the mortgagees, had spent Rs. 3 000 of the dowry of his daughter Mst. Anar Begum while sending her from his house to the house of her husband and more than Rs. 2,000 on sinking of the well. The evidence examined by the defendant shows that the disputed property was sold for consideration and legal necessity. Basing their findings on the evidence examined by the parties, the twos Courts below came to the conclusion that the disputed property had been sold for consideration and legal necessity. No doubt the question of legal necessity is essentially a question of law, but the fact whether such legal necessity did actually exist or not, is a question of fact. The two Courts below have come to the conclusion that the property had been sold for consideration and legal necessity, and in these circumstances, I decline to interfere with the concurrent findings of fact arrived at by the two Courts below.

12. It may be pointed out here that the offer of oath in they previous suit was not, strictly speaking, a compromise, but a special mode of proof. The next friend of the minor had only suggested a particular mode of evidence, which could satisfy him regarding the passing of consideration and the valid necessity. In a case reported as Muhammad Mahmud Choudhry and others v. Behary Lal Saha and others (A I R 1930 Cal. 463), it was held as under :‑

"The offer of the guardian of a minor defendant on behalf of the minor to abide by the deposition to be given by a plaintiff on a special oath stands on a very different ground from an agreement or compromise contemplated by Order XXXII, rule 7, and in such a case the minor is bound by the consent of his guardian although given without the leave of the Court provided there is no fraud or gross negligence on the part of the guardian." In another case reported as Deoraj Misra v. Mst. Abhai Raji (A I R 1927 All. 584) it was held as under: "An agreement by the guardian on behalf of the minor to be bound by the statement of a certain witness does not amount to a compromise requiring sanction of the Court for its validity and is binding upon the minor without such sanction." In a case, Sultan Muhammad and others v. Mehr Khan and others (A I R 1936 Lah. 235), the same view was taken, where it was held as under :‑‑ "If the next friend of a minor expresses his willingness to relinquish the claim of the minor, should the opposite‑party take a certain oath, it is only a special method of proof adopted by the next friend and is not at all a compromise, and if the interests of the next friend are identical with the minor then sanction under Order XXXII, rule 7, Civil P. C. is not necessary for adopting special oath as a form of proof." From the authorities cited above, it is obvious that in the previous suit, Gulab, next friend of the appellant had expressed willingness to be bound by the oath of Rahman as to the amount of consideration paid, which was not in the nature of compromise, but was a method of proof, adopted by the next friend and no illegality is attached to that matter.

13. As a result of the foregoing discussion, I maintain the concurrent findings of fact arrived at by the two Courts below, and dismiss this appeal, with costs. K. B. A. Appeal dismissed.