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Reserved
Writ Petition No.335 (Cons.) of 2001
Shri Ram ...Petitioner
Versus
Deputy Director of Consolidation,
Gonda and others ...Opp.parties.
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Hon'ble Shri Narayan Shukla,J.
Heard Mr. B.R.Tripathi, learned counsel for the petitioner
and Mr.Nazim Ali Siddiqui, learned counsel for opposite party
No.4.
The petitioner is aggrieved with the order dated 5th of May,
2001, passed by the Deputy Director of Consolidation, Gonda
whereby the revision has been allowed on the basis of the
compromise entered into between the parties. The compromise is
also under challenge before this court.
Against the order dated 24th of October, 1997, passed by the
Settlement Officer Consolidation, Bahraich the petitioner as well
as opposite party No.4 both filed revisions before the Deputy
Director of Consolidation, Gonda. The petitioner filed revision on
the ground that once the court below has arrived at conclusion that
the petitioner is son of Sant Ram, then there is no occasion for a
fresh trial to determine his status. Further the compromise as
shown entered into between the parties is absolutely against the
interest of the petitioner as the same has been entered into
between his mother Smt. Savitri Devi and opposite party No.4.
The terms of compromise itself show that it is absolutely against
the interest of the petitioner (minor) by his guardian (Savitri
Devi). So far as the opposite party No.4 is concerned, he is
claiming his right over the land in dispute being the son of Ram
Lakhan, who has been brother of Sant Ram. He claimed that Smt.
Savitri Devi was wife of Radhey Shyam son of Ram Milan and
the petitioner born from the wedlock of Shri Radhey Shyam and
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Savitri Devi, therefore, he is not son of Sant Ram and therefore,
opposite party No.4 is nearest legal heir of Sant Ram to inherit his
property after his death.
Upon perusal of the order impugned I find that the
revisional court has held that the compromise was entered into
before the Prescribed Officer, who has certified the same,
therefore, it cannot be doubted nor can it be said as a fraudulent
document. However, the learned counsel for the petitioner
submits that under Order 23 Rule 3 of the Code of Civil
Procedure, 1908, it is provided that the agreement or compromise
should be lawful and an agreement or compromise which is void
or voidable under the Indian Contract Act, 1872 shall not be
deemed to be lawful within the meaning of this rule. Order 23
Rule 3 of the Code of Civil Procedure, 1908 is reads as under:-
“3. Compromise of suit.-Where it is proved
to the satisfaction of the Court that a suit has
been adjusted wholly or in part by any lawful
agreement or compromise, (in writing and
signed by the parties) or where the defendant
satisfies the plaintiff in respect of the whole
or any part of the subject-matter of the suit,
the Court shall order such agreement,
compromise or satisfaction to be recorded,
and shall pass a decree in accordance
wherewith (so far as it relates to the parties to
the suit, whether or not the subject-matter of
the agreement, compromise or satisfaction is
the same as the subject-matter of the suit):
Provided that where it is alleged by
one party and denied by the other that an
adjustment or satisfaction has been arrived at,
the Court shall decide the question; but no
adjournment shall be granted for the purpose
3of deciding the question, unless the court, for
reasons to be recorded, thinks fit to grant
such adjournment.)
Explanation.-An agreement or
compromise which is void or voidable under
the Indian Contract Act, 1872, shall not be
deemed to be lawful within the meaning of
this rule.”
He further submits that under Order 32 Rule 7 it is
provided that 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. The Order 32 Rule 7 reads as under:-
“7.Agreement or Compromise by next
friend or guardian for the suit.-
(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.
(1-A) An application for leave under sub-rule
(1) shall be accompanied by an affidavit of
the next friend or the guardian for the suit, as
the case may be, and also, if the minor is
represented by a pleader, by the certificate of
the pleader, to the effect that the agreement or
compromise proposed is, in his opinion, for
the benefit of the minor:
Provided that the opinion so expressed,
whether in the affidavit or in the certificate
4shall not preclude the Court form examining
whether the agreement or compromise
proposed is for the benefit of the minor.
(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.”
He further submits that the compromise which is brought
on record or order on the basis of the compromise does not reveal
that it was entered into with the leave of the court. Accordingly it
is voidable. He further invited the attention of this court towards
the Hindu Minority and Guardianship Act, 1956. Section 8 of
which speaks regarding powers of natural guardian and reads as
under:-
“8.Powers of natural guardian.- (1) The
natural guardian of a Hindu minor has power,
subject to the provisions of this section, to do
all acts which are necessary or reasonable
and proper for the benefit of the minor or for
the realisation, protection or benefit of the
minor’s estate; but the guardian can in no
case bind the minor by a personal covenant.
(2) The natural guardian shall not, without
the previous permission of the court,-
(a) mortgage or charge, or transfer by sale,
gift, exchange or otherwise, any part of the
immovable property of the minor; or
(b) lease any part of such property for a
term exceeding five years or for a term
extending more than one year beyond the
date on which the minor will attain majority.
(3) Any disposal of immovable property
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by a natural guardian, in contravention of
sub-section (1) or sub-section (2), is voidable
at the instance of the minor or by any person
claiming under him.
(4) No court shall grant permission to the
natural guardian to do any of the acts
mentioned in sub-section (2) except in the
case of necessity or for an evident advantage
to the minor.
(5) The Guardians and Wards Act, 1890 (8
of 1890), shall apply to and in respect of an
application for obtaining permission of the
court under sub-section (2) in all respects as
if it were an application for obtaining the
permission of the court under section 29 of
the Act, and in particular-
(a) proceedings in connection with the
application shall be deemed to be
proceedings under that Act within the
meaning of section 4A thereof;
(b) the court shall observe the procedure
and have the powers specified in sub-sections
(2), (3) and (4) of section 31 of that Act; and
(c) an appeal shall lie from an order of
the court refusing permission to the natural
guardian to do any of the acts mentioned in
sub-section (2) of this section to the court to
which appeals ordinarily lie from the
decisions of that court.
(6) In this section “court” means the city civil
court or a district court or a court empowered
under section 4A of the Guardian and Wards
Act, 1890 (8 of 1890), within the local limits
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of whose jurisdiction the immovable property
in respect of which the application is made is
situate, and where the immovable property is
situate within the jurisdiction of more than
one such court, means the court within the
local limits of whose jurisdiction any portion
of the property is situate.”
He further submits that as is evident from the aforesaid
provision the previous permission of the court is necessary. Since
the compromise in question is completely disadvantageous to the
petitioner, no court could grant permission to the natural guardian
for such a compromise. He further submits that sub-section (3) of
Section 8 speaks that any disposal of immovable property by a
natural guardian in such a manner is voidable.
In support of his submissions he cited the following
decisions:-
(1) Viswanathi versus Deputy Director of
Consolidation, Mirzapur and others
reported in 1983 R.D. Page 267.
(2) Chandrapal versus Umrai, reported in 1981
(2) R.D. Page 298.
In the aforesaid cases this court held that where the
compromise affects the interest of a minor or disabled person,
such as a lady, blind man etc. a heavy burden lies upon the courts
to accept the compromise cautiously and perform its duty quite in
consonance with the provisions of law.
He also cited the provisions of Section 25 of the Indian
Contract Act, which reads as under:-
“25. Agreement without consideration,
void, unless it is in writing and registered
or is a promise to compensate for
something done or is a promise to pay a
7debt barred by limitation law.- An
agreement made without consideration is
void, unless-
(1) it is expressed in writing and registered
under the law for the time being in force for
the registration of (documents), and is made
on account of natural love and affection
between parties standing in a near relation to
each other; or unless
(2) it is a promise to compensate, wholly or
in part, a person who has already voluntarily
done something for the promisor, or
something which the promisor was legally
compellable to do; or unless.
(3) It is a promise, made in writing and
signed by the person to be charged therewith,
or by his agent generally or specially
authorized in that behalf, to pay wholly or in
part a debt of which the creditor might have
enforced payment but for the law for the
limitation of suits.
In any of these cases, such an agreement is a
contract.
Explanation 1.- Nothing in this section shall
affect the validity, as between the donor and
donee, of any gift actually made.
Explanation 2. An agreement to which the
consent of the promisor is freely given is not
void merely because the consideration is
inadequate; but the inadequacy of the
consideration may be taken into account by
the Court in determining the question
whether the consent of the promisor was
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freely given.”
On the other hand the learned counsel for the opposite parties
submitted that obtaining of permission of the District Judge is not
necessary and in support of his contentions he cited two decisions,
namely, (1) Maya Shanker and another versus Deputy
Director of Consolidation and others, reported in 1984 RD
page 1 & (2) Sobaran Singh and others versus Deputy
Director of Consolidation, Agra and others reported in 1993
(11) LCD page 157. Upon perusal of which I find that in the case
of Maya Shanker (Supra) this court has held that the provision of
Section 8 of Hindu Minority and Guardianship Act was not to be
applied to the agricultural property and no permission of the
District Judge was required. Thus the sale-deed in question cannot
be held to be void on the ground that no permission was taken
while transferring the land in question to the opposite party No.3.
However, I find that the provisions of Section 32 Rule 7 the
Code of Civil Procedure have not been dealt with, which requires
leave of the court, before entering into any agreement or
compromise on behalf of the minor. It is not in dispute that the
procedure of provisions of Civil Procedure Code applies in the
proceedings under U.P.C.H.Act.
Smt.Savitri Devi guardian of the petitioner, who has entered
into compromise through the affidavit filed before the revisional
court has also stated that the compromise is fraudulent one as the
said compromise was not disclosed to her and it was asked by her
counsel to impress the thumb thereon, but it was never disclosed
to her. The opposite parties have brought on record an affidavit of
her counsel, who has tried to certify the same.
Upon perusal of the terms of compromise, I find that the
same are absolutely disadvantageous to the petitioner as from the
compromise the petitioner has gained nothing. There is no
permission of the court, thus it cannot be said that it was a lawful
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agreement entered into between the parties.
After going through the aforesaid provisions of the Act in the
light of the facts of the present case, I arrive at conclusion that
compromise entered into between the parties is not a lawful
compromise, therefore, the same is hereby quashed. So far as the
determination of legal heirship of deceased Sant Ram is
concerned, since on this point no clear finding has been given by
the Settlement Officer Consolidation and for the said purpose he
has remanded the case for a fresh trial, in which I do not find
error, therefore, I hereby quash the order dated 5th of May, 2001,
passed by the Deputy Director of Consolidation, Gonda by
upholding the order dated 24th of October, 2000, passed by the
Settlement Officer Consolidation, Bahraich.
In the result the writ petition is allowed.
Dated:19.1.2010
Banswar