JUDGMENT
Mallappa, J.
1. The suit O. S. 74 of 45-46 on the file of the Second Munsiff, Mysore, out of which this appeal arises was filled by the plaintiffs-appellants for cancellation of a ‘rajinama’ decree obtained by their mother as their next friend, in O. S. 35 of 45-46 on the file of the Second Munsiff, Mysore, and for partition and possession of their 3/4th share in plaint schedule properties.
2. The case of the plaintiffs is that the plaint schedule properties are their ancestral properties and that the first defendant, their undivided father, who has been living separately from them leading a reckless life alienated for no legal necessity the joint family properties (plaint schedule items 1 & 2) to defts. 3 & 4. Their mother the second defendant filed the suit in O. S. 35 of 45-46 as their next friend in respect of these alienations but she effected a compromise under undue influence against the interest of the minors. Plaintiffs pray that the ‘rajinama’ decree in that _suit has to be set aside and they have to be_ given such relief as they are entitled to, in this suit, in view of the fact that the ‘rajinama’ is not binding on the first plaintiff in particular as he bad attained majority, when the compromise was entered into without his consent and is not binding on all the plaintiffs as it is against their interest.
3. Defendants 2 and 3 contended that the compromise in the previous suit was ‘bona fide’ and in the Interest of the minors and that the sales in their favour are binding on plaintiffs as they were effected for legal necessity though the plaint schedule properties were the ancestral properties of the family of the plaintiffs and their father. Both the courts have come to the conclusion that the first plaintiff had attained majority by the time the compromise was entered into, that the alienations in favour of defendants 3 and 4 were not for legal necessity, but that it was not under any undue influence that the mother of the plaintiffs entered into a compromise.
4. It is not disputed that the first plaintiff had attained majority by the time the compromise was entered into. Both the courts have discussed at length the evidence on the question of legal necessity and it was not shown that there is any reason to disturb the concurrent findings of the courts below on this point. The main point for consideration is the effect of these findings. The learned Munsiff found that, as the sale has to be set aside anyway in respect of the first plaintiff’s share in view of his having attained majority by the time of the compromise, it is desirable to set aside the entire compromise decree. He took into consideration also the fact that the alienations were not effected for any legal necessity and decreed the suit as prayed for.
The learned Subordinate Judge agreed with the learned Munsiff that the sale has to be set aside in respect of the first plaintiff’s share as he had attained majority by the time the ‘rajinama* decree was passed and as he was not a party to it. But it was held by him that it did not necessarily follow that the decree even against the other plaintiffs has to be set aside. Though he agreed that the alienations were not for legal, necessity, he found that the case of plaintiffs 2 and 3 that their next friend entered into a compromise under undue influence was not true, and as such he dismissed the suit in so far as it related to the share of plaintiffs 2 and 3. Plaintiffs have appealed against this decision. Defendants 3 and 4 have filed cross-objections.
5. The first point for consideration is whether a decree on the basis of a compromise entered into by the next friend of the minor plaintiffs is binding on one of the plaintiffs who had attained majority before the compromise. It has been laid down by Le Rossignol J. in –‘Ghulam Nabi v. Basheshar Mal’, AIR 1922 Lab, 407 that:
“A quondam minor cannot maintain a suit for. a declaration that a decree passed against him on a compromise accepted on his behalf by his guardian ‘ad litem’ with the consent of the Court, shall be of no effect, on the ground that at the time of compromise and decree the plaintiff had become ‘sui juris’, and consequently was not represented before the Court. A minor party who at the date of decree has attained majority may not impeach a decree passed against him by a separate suit on the ground of fraud or gross negligence of his guardian.”
The judgment is that of a single Judge and it must be stated that all that is stated is that the plaintiff must be regarded as having been an adult judgment-debtor who could have applied for a review of the decree and that he is not competent to maintain a suit to avoid that decree except on grounds of fraud. No reasons are given to show how a decree based on consent cannot be avoided by a suit by a person who was not a party to the consent. As against this decision there has been the judgment in – ‘Sanyasi v. Yerran Naidu’, 55 Mad L J 374 in which the question has been considered at some length. It has been observed in that case: “It stands to reason and principle that an adjudication by the court which, we may take it, in the absence of any fraud, collusion or gross negligence is an adjudication on the merits of the controversy, need not be set aside as vitiated merely because a certain defendant is found to have attained his majority without the matter being brought to the notice of the Court. But when the decree comes to be passed on a contract it becomes necessary to see whether the contract that was entered into was a contract valid and binding on the party now seeking to set aside the decree…..When the law says that such a compromise is binding on a minor when the Court sanctions it, what the law has reference to is a contract made only for or on behalf of a minor and there could be no legal principle or reason for holding that when there is a major capable of entering into a contract apart from any question of agency any contract entered into or purported to be entered into on his behalf by some other person can be regarded as binding on him……
There is no provision or principle of the law of contracts which would make such a contract entered into by a previous guardian ‘ad litem’ binding on a party defendant who had become a major.”
Then again we have the decision of this Court reported in — ‘8 Mys. L. J. 492. It has been observed in that decision as follows:
“The decree in O. S. No. 25 of 24-25 was no doubt passed on the consent of the adoptive mother and the subsequent mortgagee, and it is necessary to see whether the consent is valid and binding on the present opponent who seeks to set aside the decree. If the opponent was really a major on the date of the suit, then apart from the question of agency, there is no reason or principle for holding that when there is a major defendant in a suit, another person can by his consent to a decree, make it a valid decree binding on him. There is no allegation here that Hombalamma was the agent of the opponent, or that the opponent gave his consent to the decree and it cannot, therefore, be held that by the consent of Hombalamma, the plaintiff has got a valid decree against the opponent. The consent of Homalamma to a decree against the opponent cannot be deemed to be his consent and a decree passed on such consent is not a consent decree binding on the opponent.”
6. Whatever may be the effect of a decree obtained after adjudication on merits in a suit on a party who though a minor at the time of filing the suit had attained majority, was not brought on record as major before the decree was passed, it cannot be said that a decree based on the consent of a next friend or guardian ad litem is binding on him unless he was brought on record as major and he is a party to the consent. In this case though the first plaintiff was a minor at the time O. S. 35/45-46 was filed, he had attained majority by the time his mother purporting to act as his next friend consented to the compromise. His mother could not act as the next friend after he attained majority and she- was in no way his agent to bind him by her consent. The decree passed on such a compromise cannot be binding on the first plaintiff, and as such the decree as against him has to be set aside. In view of the fact that it has been found by both the courts below that the alienation effected by the father of the plaintiffs was not for legal necessity, the first plaintiff is entitled to a decree for partition and possession of his 1/4th share in the plaint schedule properties.
7. The next point for consideration is whether the decree can be set aside partially as against one of the parties, allowing it to be binding on the others. There is not much difficulty in cases where all the members who have entered into a compromise are majors. As observed in — ’16 Mys L J 92′, a compromise to which some of the parties to the suit alone are parties is not necessarily invalid, though on good cause being shown by any of the other parties the court has a discretion to reject such a compromise. The courts have a discretion to set aside the decree only as against the party on whom it is found to be not binding and to hold that the compromise decree is binding on others; but this depends upon the nature of the suit and the decree passed.
It was decided in — ‘Brojeswar Banerjee v. Syama Charan’, AIR 1919 Cal 727, relied on in — ’16 Mys L J 92′, case that inasmuch as in a rent suit, rent could not be decreed at different rates against different tenants, the court was justified in not giving effect to a compromise entered into by some of the defendants to pay rent at a higher rate than what the court would have decreed otherwise as against reasons not parties to the compromise. Sri Venkatasubbarao J. in — “Thiruvengada Mudaliar v. Thangavelu Mudaliar’, AIR 1928 Mad 594, also refer- red to in — ’16 Mys. L. J. 92′, gives some instances where it is difficult to give effect to a compromise entered into by some of the parties to the suit, and observes as follows:
“Suppose A, B and C are members of a joint family. If the compromise is entered into between A and B under which A gets a half, but as C is not a party to the compromise A gets against him only a third, it would be impossible to recognize such a compromise. Again, suppose B gives up to A under the compromise some specific valuable items of property. It would be open to C, not being a party to the compromise, to urge that he would not agree to those items being taken by A. In such a case it would be futile to ask the Court to enforce the partial compromise. Again, I may vary the illustration by supposing that B admits some items to be joint family properties and on that footing enters into a compromise with A, C who is not a party to the compromise contends that those items are his self-acquisitions. Surely no court would in such a case recognize and enforce the compromise”.
It may be said that generally speaking as, observed in — ’16 Mys. L. J. 92′, a suit for partition cannot be compromised by some of the parties to it alone. The question will get more complicated if some of the parties are minors. If it is found that the consent given by the guardian is not binding on the minors on any ground, nothing conies in the way of the court holding that the decree is binding on the majors, who were parties to the consent though the court has a discretion to set aside the decree as a whole; but this depends again on considerations referred to above.
However, it may be taken that usually when, the decree is not binding on the parties who are majors it will be equally found to be not binding on the minors. If for instance as in this case it is found that the consent decree is not binding on the first plaintiff who was a major at the lime of the compromise, it cannot be said that he could get any relief in this suit unless it is found that the alienations effected by his father during the minority of the plaintiff was not for legal necessity. Can it be said that the decree is binding on the minors in such a case merely because they were not majors and their mother who was their next friend was foolish enough to enter into a compromise prejudicial to their interest? The answer of the lower appellate court appears to be in the affirmative. If that were the law, it is clear that a minor is in a worse position than a major and has to suffer on account of the vagary of the next friend. It was observed by Vice-Chancellor Malins in — ‘Hoghton’s Estate: Hoghton v. Fidday’, (1874) 18 Eq. 573 at p. 576:
“The question which I have to decide is, whether this infant, on whose behalf a decree was taken by consent in 1867, is to suffer by any negligence or want of knowledge on the part of her then next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience…… The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her next friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and will protect her Interests”.
Considering the nature of the previous suit and other circumstances there is hardly any doubt that the learned Munsiff used his discretion well in setting aside the decree as a whole when he found that at any rate it had to be set aside against the first plaintiff.
8. The next point for consideration is what are the circumstances which have to be taken into consideration in a suit for setting aside a previous decree. It is no doubt true that in case it had been proved that the next friend of the minor had effected a compromise under undue influence the compromise decree could have been set aside on that ground. But no such undue influence has been proved in this case, as has been held by both the courts below. But as decided in — ‘Dimala Narasu v. Ingili Baitharu’, AIR 1938 Mad 13:
“A decree suffered by a next friend or guardian ad litem of the minors in a suit can be set aside on their attaining majority on the ground of fraud, collusion or gross negligence of the next friend or guardian ad litem. What is gross negligence depends on the facts of each case; but it must be such negligence as would lead to the loss of a right which would have been successfully asserted if the suit had been conducted or resisted with due care. Failure of a guardian to do his duty in getting all the available material and placing it before the Court would amount to gross negligence on the part of the guardian. A decree by consent stands on the same footing as other decrees. A consent decree obtained with the sanction of Court cannot be set aside except upon very strong grounds, such grounds as amount to fraud in the party claiming the benefit of the compromise decree.
An obligation is laid on both the parties to place all the materials in their possession where minors are concerned in order to enable the Court to judge the fairness of the compromise, and where a party seeking the benefit of the compromise against a minor has no honest belief in the claim he is making and the claim is absolutely without any foundation, the compromise will not be allowed to stand as the Court is not apprised of the real state of facts and the compromise sanctioned by the court must be deemed to have been passed on a misapprehension of material facts having been withheld by the party who had knowledge of the same. Such withholding will in law amount to fraud”.
In this case both the courts below have come to the conclusion that the alienation effected by the father of the minors was not for legal necessity. The defendants, in whose favour the alienations were effected must have known this. While the defendants kept the court from the knowledge of this aspect of the matter by contending that the alienations in their favour were for legal necessity, the next friend of the minors was grossly negligent and this led to the loss of plaintiffs’ right to the suit property which would have been successfully asserted if the suit had been conducted with due care. It would be noticed that she received only Rs. 75/- in full settlement of not only the claim of the minor plaintiffs. 2 and 3 but also in satisfaction of the claim of the major plaintiff.
Moreover, the minors could not evidently get the benefit of even a portion of this amount as under the terms of the compromise it was agreed that half the institution fee had to be paid by the plaintiffs and parties should bear their own costs. There is hardly any doubt that the next friend of the minor plaintiffs was grossly negligent and if the Court was induced to give its consent it did so because of the fact that necessary materials were not placed before it. In view of this also it has to be said that the learned Munsiff was right in setting aside the entire decree.
9. In the result the appeal of the plaintiffs in S. A. 542 is allowed with costs and the cross-objections dismissed with costs. The judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsiff restored.
Balakrishnaiya, J.
10. I agree.
11. Appeal allowed.