Bhubaneswar Mishra and Another Vs Smt. Ujalamani Devi and Another

R.N. Misra, J.@mdashPlaintiffs are in appeal against the reversing judgment and decree of the learned District Judge of Puri in a suit for a declaration that the compromise decree in T.M.S. No. 25 of 1968 was illegal, void, inoperative and did not bind them. They had also asked for confirmation of possession.

2. Plaintiffs who are the minor sons of one Satyabadi Mishra alleged that they lost their parents when they were quite young. Satyabadi, Chandrasekhar and Basudeb were brothers but Satyabadi had been adopted to Balabhadra and he had succeeded to the properties left by Balabhadra as his heir. The disputed property appertaining to holding No. 180 was Satyabadi''s ancestral property and he was in possession of the same. After his death, plaintiffs have come into possession. Plaintiffs'' father lacked average intelligence and was very credulous. Taking advantage of his simplicity and lack of intelligence sale deeds in respect of various items of property had been taken from him without payment of consideration. Defendant No. 1''s husband had given an impression to Satyabadi that he would obtain cancellation of these deeds and for the said purpose he obtained a mortgage deed by conditional sale from him in the name of defendant No. 1. The document remained in the custody of Satyabadi as it had not been acted upon. After Satyabadi''s death, until plaintiffs'' mother died, the document remained with her. During plaintiffs'' mother''s sudhi ceremony, Chandrasekhar came to their house, looked after the obsequies and during that period took away the document, in a surreptitious manner. A few years after, defendant No. 1 in collusion with the second defendant who is plaintiffs'' elder sister brought a suit for foreclosure against the plaintiffs on the basis of the mortgage deed, Defendant No. 2 was impleaded as the next friend of the minor plaintiffs though she was already in collusion with the present defendant No. 1 who was plaintiff. Defendant No. 2 under the influence of defendant No. 1 did not take any steps on behalf of the minors to protect their interests. The lawyer appointed to act as the minors'' advocate on behalf of their guardian was gained over by defendant No, 1 and as a result of collusion, a compromise petition was filed in the suit stipulating declaration of right, title and interest of defendant No. 1. No certificate to the effect that the compromise was for the benefit of the minors had been appended nor did the court record such satisfaction. No permission had been granted by the court to the guardian for entering into such compromise. The property was valued at much more than Rs. 3,000 and the entire loan then subsisting could have been wiped out with less than Rs. 3,000. Yet, as a result of the compromise so entered, title to the property was permanently lost. In January, 1971, when the defendant No. 1 forcibly plucked fruits from trees standing on the disputed property and resistance was offered on behalf of the plaintiffs, defendant No. 1''s title in terms of the compromise was disclosed and that led to the suit.

3. Defendant No. 1 denied the allegations of fraud and collusion and maintained that plaintiffs'' father had incurred a loan of Rs. 500 for legal necessity and had executed a mortgage by conditional sale on 17-11-1953 and had stipulated to pay back the loan with interest within throe years. When he failed to do so, the suit had been filed and a valid compromise was placed before the court.

The second defendant in her written statement denied collusion with defendant No. 1 and maintained that the husband of defendant No. 1 being the youngest natural brother, she had full reliance and confidence in him. Chandrasekhar taking advantage of the simplicity of her father Satyabadi had obtained a ''Kanta Kabala'' on the basis of which T.S. No. 25 of 1968 had been filed. Chandrasekhar instructed defendant No. 2 to compromise the said suit and there was compromise.

4. The trial court came to find that the compromise had been reached on account of gross negligence of the guardian ad litem and the same was not beneficial to the minors. They were thus not bound by the compromise decree. Accordingly the suit was decreed.

5. The lower appellate court formulated four questions for examination in para 6 of its judgment, namely:--

(i) Whether the compromise decree was beneficial to the minor plaintiffs?

(ii) Whether the said compromise decree was vitiated by gross negligence by guardian ad litem?

(iii) Whether the suit was maintainable by the plaintiffs through next friend? and

(iv) Whether the suit had been properly valued and appropriate court-fee had been paid?

The lower appellate court has taken the view that the suit land was quite valuable and it could not have been sold at rupees one thousand as the sale deed purports to be for. The guardian ad litem was grossly negligent in entering into the compromise on behalf of the minors and the transaction was thus a voidable one.

6. Before the lower appellate court a Bench decision of the Kerala High Court was placed for consideration being the case of Narayanan Nambooripad and Others Vs. Gopalan Nair and Another, in support of the stand that the suit by the minor plaintiffs was maintainable for declaration that the earlier compromise decree did not bind them. Though the learned Appellate Judge accepted that the plantiffs had a substantive right, he took into account two decisions of this Court for reaching his ultimate conclusion that the plaintiffs during their minority were not entitled to avoid the decree. In the case of Sunamani Dei Vs. Babaji Das and Others, this question did not directly arise for consideration nor is there a positive statement anywhere in the judgment that a suit by the plaintiff during his minority for avoiding a transaction did not lie. The learned Appellate Judge intended to refer to another decision of this Court but failed to indicate the year of the Cuttack Weekly Reporter and as such it has become difficult to verify the facts of that case for finding out whether the ratio applied. The view of the Kerala High Court has been followed by a Bench of the Delhi High Court in the case of Sant Bhushan Lal y. Brij Bhushan Lal AIR 1967, Del 137 and the ratio is in accord with the decision of the Supreme Court in the case of Bishundeo Narain y. Seogeni Rai AIR 1951 SC 280 In these decisions it has been held that on the ground of negligence of the guardian, a minor was entitled to avoid the decree and the suit could be filed during minority. In these circumstances, the learned Appellate Judge clearly went wrong in holding that the plaintiffs during minority could not exercise their option for setting aside the compromise decree.

7. At the hearing, long arguments had been advanced about the suit having been abated on account of the requisite notification under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. Parties have ultimately agreed that the forum constituted under the said Orissa Act has no jurisdiction to give the declaratory relief prayed for in the suit. So far as the suit relates to a decree that the earlier compromise decree was not binding and was bad, no relief under the Consolidation Act can be obtained. Parties have agreed that so far as that aspect is concerned, the suit does not abate. There was an objection raised that in the absence of any claim for consequential reliefs, the suit abates. Mrs. Padhi for the respondents has, however, ultimately agreed that such a relief was not available in view of the notification under the Consolidation Act. Plaintiffs ultimately could only be entitled to a declaration that the decree was not binding and no other relief could be given in the suit on account of the notification. I would accordingly hold that the suit does not abate so far as it relate, to the declaratory relief that the compromise decree does not bind the plaintiffs.

8. I allow the appeal, set aside the judgment and decree of the lower appellate court and hold that the plaintiffs are entitled to a declaration that the compromise decree does not bind them. The rest of the reliefs claimed in the suit, if any, can be asked, for before the competent forum under the Orissa Act as and when proceedings are taken. Parties are directed to bear their own costs throughout.