JUDGMENT
1. These appeals are by the minor plaintiff in two suits which he brought through his mother and guardian for a declaration that neither he nor his ancestral properties were bound by two decrees passed against his father and himself on the 30th June, 1904, on the basis of a compromise which he alleges was collusive and fraudulent and was inoperative as against him he being a minor at the time and the decree having been passed without any judicial enquiry or finding as to whether the compromise was for his benefit, although a formal order of sanction to file the compromise petitions was given to an official of the Court who acted as his guardian ad litem.
2. It appears that the grandfather of the plaintiff, one Hara Prosad Roy, executed a mortgage bond charging the ancestral property with a debt for the discharge of certain previous debts secured by decrees under which the mortgaged property was liable to sale. This was on the 30th May, 1890, before the plaintiff’s birth and was for Rs. 5,200.
3. On the 10th September, 1890, the said Hara Prosad Roy and the plaintiff’s father Ram Prosad Roy gave a mortgage of the ancestral property for a sum of Rs. 18,500. Upon these two mortgages the defendants brought two suits Nos. 35 and 33 of 1903 against the plaintiff.
4. In suit No. 35 the father of the plaintiff who had neglected to look after his son’s case and finally refused to represent him as guardian ad litem filed a rafanamah on the 21th June, 1904, admitting the claim. The Nazir of the District Judge’s Court, Babu Ananda Chandra Das, who had been appointed guardian ail litem for the plaintiff upon his father’s repudiation of the guardianship applied for and obtained leave to file a petition in Court that suit be decreed as claimed.
5. In suit No. 38 he filed a petition to be allowed to enter into a compromise on behalf of the minor and obtained leave to do so.
6. By this compromise a sum of Rs. 28,000 due for interest on both mortgages was remitted.
7. Suit No. 35 was decreed according to confession of judgment against defendants Nos. 1 and 2, that is, the father of the plaintiff and the plaintiff himself but the only order made was against the mortgaged properties. This was for nearly Rs. 15,000. Suit No. 36 was decreed for Rs. 66,770 against the mortgaged properties and it was also declared that if the whole decretal amount was not paid off by the sale of the mortgaged properties the remainder will be realised by the sale of the other properties of the defendants Nos. 1 to 12.
8. In both decrees it was clearly set out that under the customs obtaining in the family of the defendants Nos. 1 to 12, that is, under their family usages, the eldest son is the malik and entitled to all the zamindari, etc., properties.
9. This custom is admittedly common ground on the pleadings of both parties in these appeals but the plaintiff maintains that there is, a further custom of inalienability of the ancestral property while the defendants maintain that in the absence of any evidence of such further custom the principle of law laid down by the Judicial Committee in Sri Raja Rao Venkata Surja Mahipati Rama Krishna Rao v. Court of Wards 26 I.A. 83; 22 M. 383; 3 C.W.N. 415, viz. that where there is a custom of primogeniture there is no restriction on alienation by the incumbent for the time being unless a special custom is proved to the contrary must prevail. Upon this point, therefore, we must at once find against the plaintiff’s contention and hold that neither at the time of the mortgages nor at the time of the decrees had he any right or interest in respect of the mortgaged properties so as to be able to avoid their sale in execution of a mortgage-decree obtained against the then incumbent. This would be enough to conclude his case on both these appeals were it not for the fact, that in suit No. 35 it is still possible that proceedings under Section 90 may be taken against him and that in suit No. 36 a personal decree has been passed against him.
10. It is necessary, therefore, owing to these outstanding claims against him to consider the point of law on which alone these appeals are based, viz., that the attention of the Court in suits Nos. 35 and 35 was not drawn to the terms of the compromise and that no judicial finding was come to whether the compromise was for his benefit or prejudicial to his interests.
11. The Subordinate Judge in the Court below has altogether dismissed plaintiff’s suits on the ground that he has failed to show that he was not benefited by the compromise decree. This is, in our opinion, not sufficient. It is perfectly clear from the Nazir’s evidence and from the decrees that the question of the benefit to the minor was not adequately considered either by his guardian or by the Court. The guardian says he knew Ram Prosad Roy the plaintiff’s father was a drunkard and yet he did not make any enquiry when the plaintiff’s father and the pleader assured him that the plaintiff was benefited by the solenamahs. The Court did not ask him anything regarding them. A pleader for the creditors told him that the plaintiff was getting a large remission and on his assurance he signed the petition.
12. Two illegalities in the decree are shown to the prejudice of the minor, one is that interest at 12 per cent. has been allowed up to the date of realisation, the other is that certain debutter properties which the plaintiff’s father and grandfather had no power to mortgage were included in the decree and the plaintiff has succeeded in a third suit tried along with the two now before us in getting this debutter released from the decree and no appeal has been preferred against this relief.
13. The only order in suit No. 35 regarding the sanction necessary under Section 463, C.P.C., is as follows: “Babu Ananda Chandra Das is permitted to file petition admitting the plaintiff’s claim on behalf of minor defendant No. 2” and in suit No. 36. “On application Ananda Chandra Das is permitted to file solenamah on behalf of the minor defendant No. 2.” Now it has been laid down in a long series of rulings of this Court commencing with Ram Churn Raha Bukshee v. Mungal Sirkar 16 W.R. 232 and the case of Sharat Chander Ghose v. Kartik Chander Mitter 9 C. 810; 12 C.L.R. 455 and ending with an unreported case in Spl. App. No. 977 of 1905 decided on 15th May, 1907, to which one of us was a party, following the case of Lala Majlis Sahai v. Musammat Narain Bibi 7 C.W.N. 90 that in order that a compromise may be binding upon a minor the leave of the Court must be express and further in the later case that it must be arrived at upon the exercise of judicial discretion as to the propriety of the compromise in the interest of the minor. The same view has been taken by the Bombay Court in Virupakshappa v. Shidappa 26 B. 109; where Jenkins, C.J. laid down that the general law was even more favourable to a minor than Section 462, C.P.C.; by the Allahabad Court in Kalavati v. Chedi Lal 17 A. 531 where it was held that in order to make an agreement of compromise, to which Section 462 applies, lawful it is necessary that the next friend or guardian should ask the Court to consider the proposed terms of the agreement or compromise and before making the agreement or entering into the compromise should obtain permission from the Court., The Court should record the fact that such application was made to it; that the terms of the proposed agreement of compromise were considered by the Court, and that having, regard to the interest of the minor, the Court granted leave. A similar view was taken in the Madras Court in Govindasami Naidu v. Alagirisami Naidu 29 M. 104 following the English case of Wilson v. Brichall (1830) 16 Ch. D. 41; 44 L.T. 113; 29 W.R. 27; where Jessel, M.R., stated that the practice he followed and that followed by Lord Romilly before him had been to require not only that the compromise should be assented to by the next friend or guardian but that his solicitor should make an affidavit and that his Counsel should give an opinion that he believes the compromise to be for the benefit of the minor.
14. Against this long established and weighty body of authority it is urged that in none of these cases had leave been obtained and in none of them was the decree set aside on the ground that the Court had not sufficiently considered the question of the minor’s interest and a recent decision of this Court in the case of Midnapur Zemindari Co. Ld. v. Gobinda Mahto 8 C.L.J. 31 is cited in which it was held that it must be assumed in the absence of any evidence to the contrary, that the Court did its duty in the matter and was satisfied before giving permission that the compromise was for the benefit of the minor concerned.
15. Now as to this we may observe in the first place that none of the above rulings were apparently considered or cited at the bar, that permission was given to compromise and not merely to file a petition and that we entirely agree with the principle that when the Court permits a compromise it must be presumed, in the absence of evidence to the contrary, that it gave due consideration to the matter.
16. But in this case, as we have shown, the record clearly shows that the guardian neglected the minor’s interest and that the Court without making an enquiry passed an order prejudicial to the minor and not an express sanction to the compromise. When the question of setting aside such a decree arises the true rule is laid down in Aman Singh v. Narain Singh 20 A. 98 where it was held that although in appeal such a decree would be held to be invalid as against a minor it could not after it had become final and been acted upon be set aside unless it were shown to be prejudicial to the minor.
17. Here it is clear that the decree so far as it binds the plaintiff personally and his property other than that mortgaged was prejudicial to the minor and that there was no valid sanction to the compromise.
18. The learned Vakil for the respondents frankly concedes that if we are against him on this point he has no objection to the plaintiff obtaining a declaration that the decrees so far as they effect him personally and his properties movable and immovable other than the properties mortgaged are in operative and such is the order we propose to pass.
19. There can be no question of setting aside the decrees as regards the mortgaged properties. Even apart from the clear right of alienation vested in the incumbent for the time being under the rule of primogeniture above referred to, the mortgages were clearly entered into for ancestral debts which would have been equally binding on the plaintiff even if he had a joint interest on the ancestral properties. We, therefore, direct that the appeals be decreed in part and that the decrees of the Court below be modified and that in lieu thereof it be declared that the decrees in suits Nos. 35 and 36 of 1905 are not binding on the plaintiff so far as his person and properties movable and immovable other than the mortgaged properties are concerned with 1/4 costs to the appellant from the respondents in both Courts and that his suit as regards the mortgaged properties be dismissed with 3/4 costs to respondents, the result being that appellant will pay half the costs of the respondents in both Courts.
