{"id":47047,"date":"2010-01-19T00:00:00","date_gmt":"2010-01-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-ram-vs-deputy-director-of-on-19-january-2010"},"modified":"2015-05-16T14:04:49","modified_gmt":"2015-05-16T08:34:49","slug":"shri-ram-vs-deputy-director-of-on-19-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-ram-vs-deputy-director-of-on-19-january-2010","title":{"rendered":"Shri Ram vs Deputy Director Of … on 19 January, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Shri Ram vs Deputy Director Of … on 19 January, 2010<\/div>\n
                                  1\n\n                                                             Reserved\n                Writ Petition No.335 (Cons.) of 2001\n\nShri Ram                                     ...Petitioner\n                               Versus\n\nDeputy Director of Consolidation,\nGonda and others                             ...Opp.parties.\n                              ***\n\nHon'ble Shri Narayan Shukla,J.\n<\/pre>\n
        Heard Mr. B.R.Tripathi, learned counsel for the petitioner
\nand Mr.Nazim Ali Siddiqui, learned counsel for opposite party
\nNo.4.\n<\/p>\n
        The petitioner is aggrieved with the order dated 5th of May,
\n2001, passed by the Deputy Director of Consolidation, Gonda
\nwhereby the revision has been allowed on the basis of the
\ncompromise entered into between the parties. The compromise is
\nalso under challenge before this court.\n<\/p>\n
        Against the order dated 24th of October, 1997, passed by the
\nSettlement Officer Consolidation, Bahraich the petitioner as well
\nas opposite party No.4 both filed revisions before the Deputy
\nDirector of Consolidation, Gonda. The petitioner filed revision on
\nthe ground that once the court below has arrived at conclusion that
\nthe petitioner is son of Sant Ram, then there is no occasion for a
\nfresh trial to determine his status. Further the compromise as
\nshown entered into between the parties is absolutely against the
\ninterest of the petitioner as the same has been entered into
\nbetween his mother Smt. Savitri Devi and opposite party No.4.
\nThe terms of compromise itself show that it is absolutely against
\nthe interest of the petitioner (minor) by his guardian (Savitri
\nDevi). So far as the opposite party No.4 is concerned, he is
\nclaiming his right over the land in dispute being the son of Ram
\nLakhan, who has been brother of Sant Ram. He claimed that Smt.
\nSavitri Devi was wife of Radhey Shyam son of Ram Milan and
\nthe petitioner born from the wedlock of Shri Radhey Shyam and
\n                                   2<\/span><\/p>\n
Savitri Devi, therefore, he is not son of Sant Ram and therefore,
\nopposite party No.4 is nearest legal heir of Sant Ram to inherit his
\nproperty after his death.\n<\/p>\n
      Upon perusal of the order impugned I find that the
\nrevisional court has held that the compromise was entered into
\nbefore the Prescribed Officer, who has certified the same,
\ntherefore, it cannot be doubted nor can it be said as a fraudulent
\ndocument.     However, the learned counsel for the petitioner
\nsubmits that under Order 23 Rule 3 of the Code of Civil
\nProcedure, 1908, it is provided that the agreement or compromise
\nshould be lawful and an agreement or compromise which is void
\nor voidable under the Indian Contract Act, 1872 shall not be
\ndeemed to be lawful within the meaning of this rule. Order 23
\nRule 3 of the Code of Civil Procedure, 1908 is reads as under:-\n<\/p>\n
             “3. Compromise of suit.-Where it is proved
\n             to the satisfaction of the Court that a suit has
\n             been adjusted wholly or in part by any lawful
\n             agreement or compromise, (in writing and
\n             signed by the parties) or where the defendant
\n             satisfies the plaintiff in respect of the whole
\n             or any part of the subject-matter of the suit,
\n             the Court shall order such agreement,
\n             compromise or satisfaction to be recorded,
\n             and shall pass a decree in accordance
\n             wherewith (so far as it relates to the parties to
\n             the suit, whether or not the subject-matter of
\n             the agreement, compromise or satisfaction is
\n             the same as the subject-matter of the suit):\n<\/p><\/blockquote>\n
                   Provided that where it is alleged by
\n             one party and denied by the other that an
\n             adjustment or satisfaction has been arrived at,
\n             the Court shall decide the question; but no
\n             adjournment shall be granted for the purpose
\n                                  3<\/span><\/p>\n
            of deciding the question, unless the court, for
\n            reasons to be recorded, thinks fit to grant
\n            such adjournment.)
\n                   Explanation.-An       agreement       or
\n            compromise which is void or voidable under
\n            the Indian Contract Act, 1872, shall not be
\n            deemed to be lawful within the meaning of
\n            this rule.”<\/p><\/blockquote>\n
      He further submits that under Order 32 Rule 7 it is
\nprovided that no next friend or guardian for the suit shall, without
\nthe leave of the Court, expressly recorded in the proceedings,
\nenter into any agreement or compromise on behalf of a minor
\nwith reference to the suit in which he acts as next friend or
\nguardian. The Order 32 Rule 7 reads as under:-\n<\/p>\n
            “7.Agreement or Compromise by next
\n            friend or guardian for the suit.-
\n            (1)    No next friend or guardian for the suit
\n            shall, without the leave of the Court,
\n            expressly recorded in the proceedings, enter
\n            into any agreement or compromise on behalf
\n            of a minor with reference to the suit in which
\n            he acts as next friend or guardian.
\n            (1-A) An application for leave under sub-rule
\n            (1) shall be accompanied by an affidavit of
\n            the next friend or the guardian for the suit, as
\n            the case may be, and also, if the minor is
\n            represented by a pleader, by the certificate of
\n            the pleader, to the effect that the agreement or
\n            compromise proposed is, in his opinion, for
\n            the benefit of the minor:\n<\/p><\/blockquote>\n
                  Provided that the opinion so expressed,
\n            whether in the affidavit or in the certificate
\n                                    4<\/span><\/p>\n
              shall not preclude the Court form examining
\n              whether     the   agreement   or   compromise
\n              proposed is for the benefit of the minor.\n<\/p><\/blockquote>\n
              (2)     Any such agreement or compromise
\n              entered into without the leave of the Court so
\n              recorded shall be voidable against all parties
\n              other than the minor.”<\/p><\/blockquote>\n
          He further submits that the compromise which is brought
\non record or order on the basis of the compromise does not reveal
\nthat it was entered into with the leave of the court. Accordingly it
\nis voidable. He further invited the attention of this court towards
\nthe Hindu Minority and Guardianship Act, 1956. Section 8 of
\nwhich speaks regarding powers of natural guardian and reads as
\nunder:-\n<\/p>\n
              “8.Powers of natural guardian.- (1) The
\n              natural guardian of a Hindu minor has power,
\n              subject to the provisions of this section, to do
\n              all acts which are necessary or reasonable
\n              and proper for the benefit of the minor or for
\n              the realisation, protection or benefit of the
\n              minor’s estate; but the guardian can in no
\n              case bind the minor by a personal covenant.
\n              (2) The natural guardian shall not, without
\n              the previous permission of the court,-\n<\/p><\/blockquote>\n
                 (a) mortgage or charge, or transfer by sale,
\n              gift, exchange or otherwise, any part of the
\n              immovable property of the minor; or\n<\/p><\/blockquote>\n
                    (b) lease any part of such property for a
\n              term exceeding five years or for a term
\n              extending more than one year beyond the
\n              date on which the minor will attain majority.<\/p><\/blockquote>\n
              (3)     Any disposal of immovable property
\n                         5<\/span><\/p>\n
by a natural guardian, in contravention of
\nsub-section (1) or sub-section (2), is voidable
\nat the instance of the minor or by any person
\nclaiming under him.\n<\/p>\n
(4)     No court shall grant permission to the
\nnatural guardian to do any of the acts
\nmentioned in sub-section (2) except in the
\ncase of necessity or for an evident advantage
\nto the minor.\n<\/p>\n
(5)     The Guardians and Wards Act, 1890 (8
\nof 1890), shall apply to and in respect of an
\napplication for obtaining permission of the
\ncourt under sub-section (2) in all respects as
\nif it were an application for obtaining the
\npermission of the court under section 29 of
\nthe Act, and in particular-\n<\/p>\n
      (a) proceedings in connection with the
\napplication     shall       be   deemed   to   be
\nproceedings under that Act within the
\nmeaning of section 4A thereof;\n<\/p>\n
      (b) the court shall observe the procedure
\nand have the powers specified in sub-sections
\n(2), (3) and (4) of section 31 of that Act; and\n<\/p>\n
       (c) an appeal shall lie from an order of
\nthe court refusing permission to the natural
\nguardian to do any of the acts mentioned in
\nsub-section (2) of this section to the court to
\nwhich appeals ordinarily lie from the
\ndecisions of that court.\n<\/p>\n
(6) In this section “court” means the city civil
\ncourt or a district court or a court empowered
\nunder section 4A of the Guardian and Wards
\nAct, 1890 (8 of 1890), within the local limits
\n                                    6<\/span><\/p>\n
              of whose jurisdiction the immovable property
\n              in respect of which the application is made is
\n              situate, and where the immovable property is
\n              situate within the jurisdiction of more than
\n              one such court, means the court within the
\n              local limits of whose jurisdiction any portion
\n              of the property is situate.”\n<\/p>\n
      He further submits that as is evident from the aforesaid
\nprovision the previous permission of the court is necessary. Since
\nthe compromise in question is completely disadvantageous to the
\npetitioner, no court could grant permission to the natural guardian
\nfor such a compromise. He further submits that sub-section (3) of
\nSection 8 speaks that any disposal of immovable property by a
\nnatural guardian in such a manner is voidable.\n<\/p>\n
      In support of his submissions he cited the following
\ndecisions:-\n<\/p>\n
        (1) Viswanathi versus Deputy Director of
\n              Consolidation,     Mirzapur     and    others
\n              reported in 1983 R.D. Page 267.\n<\/p><\/blockquote>\n
        (2) Chandrapal versus Umrai, reported in 1981
\n              (2) R.D. Page 298.<\/p><\/blockquote>\n
        In the aforesaid cases this court held that where the
\ncompromise affects the interest of a minor or disabled person,
\nsuch as a lady, blind man etc. a heavy burden lies upon the courts
\nto accept the compromise cautiously and perform its duty quite in
\nconsonance with the provisions of law.\n<\/p>\n
        He also cited the provisions of Section 25 of the Indian
\nContract Act, which reads as under:-\n<\/p>\n
              “25. Agreement without consideration,
\n              void, unless it is in writing and registered
\n              or is a promise to compensate for
\n              something done or is a promise to pay a
\n                        7<\/span><\/p>\n
debt   barred     by       limitation   law.- An
\nagreement made without consideration is
\nvoid, unless-\n<\/p><\/blockquote>\n
  (1) it is expressed in writing and registered
\nunder the law for the time being in force for
\nthe registration of (documents), and is made
\non account of natural love and affection
\nbetween parties standing in a near relation to
\neach other; or unless
\n  (2) it is a promise to compensate, wholly or
\nin part, a person who has already voluntarily
\ndone    something      for    the   promisor,   or
\nsomething which the promisor was legally
\ncompellable to do; or unless.\n<\/p>\n
  (3) It is a promise, made in writing and
\nsigned by the person to be charged therewith,
\nor by his agent generally or specially
\nauthorized in that behalf, to pay wholly or in
\npart a debt of which the creditor might have
\nenforced payment but for the law for the
\nlimitation of suits.\n<\/p>\n
In any of these cases, such an agreement is a
\ncontract.\n<\/p>\n
Explanation 1.- Nothing in this section shall
\naffect the validity, as between the donor and
\ndonee, of any gift actually made.\n<\/p>\n
Explanation 2. An agreement to which the
\nconsent of the promisor is freely given is not
\nvoid merely because the consideration is
\ninadequate; but the inadequacy of the
\nconsideration may be taken into account by
\nthe Court in determining the question
\nwhether the consent of the promisor was
\n                                  8<\/span><\/p>\n
            freely given.”\n<\/p>\n
     On the other hand the learned counsel for the opposite parties
\nsubmitted that obtaining of permission of the District Judge is not
\nnecessary and in support of his contentions he cited two decisions,
\nnamely, (1) Maya Shanker and another versus Deputy
\nDirector of Consolidation and others, reported in 1984 RD
\npage 1 & (2) Sobaran Singh and others versus Deputy
\nDirector of Consolidation, Agra and others reported in 1993
\n(11) LCD page 157. Upon perusal of which I find that in the case
\nof Maya Shanker (Supra) this court has held that the provision of
\nSection 8 of Hindu Minority and Guardianship Act was not to be
\napplied to the agricultural property and no permission of the
\nDistrict Judge was required. Thus the sale-deed in question cannot
\nbe held to be void on the ground that no permission was taken
\nwhile transferring the land in question to the opposite party No.3.\n<\/p>\n
      However, I find that the provisions of Section 32 Rule 7 the
\nCode of Civil Procedure have not been dealt with, which requires
\nleave of the court, before entering into any agreement or
\ncompromise on behalf of the minor. It is not in dispute that the
\nprocedure of provisions of Civil Procedure Code applies in the
\nproceedings under U.P.C.H.Act.\n<\/p>\n
     Smt.Savitri Devi guardian of the petitioner, who has entered
\ninto compromise through the affidavit filed before the revisional
\ncourt has also stated that the compromise is fraudulent one as the
\nsaid compromise was not disclosed to her and it was asked by her
\ncounsel to impress the thumb thereon, but it was never disclosed
\nto her. The opposite parties have brought on record an affidavit of
\nher counsel, who has tried to certify the same.\n<\/p>\n
       Upon perusal of the terms of compromise, I find that the
\nsame are absolutely disadvantageous to the petitioner as from the
\ncompromise the petitioner has gained nothing.         There is no
\npermission of the court, thus it cannot be said that it was a lawful
\n                                   9<\/span><\/p>\n
agreement entered into between the parties.\n<\/p>\n
     After going through the aforesaid provisions of the Act in the
\nlight of the facts of the present case, I arrive at conclusion that
\ncompromise entered into between the parties is not a lawful
\ncompromise, therefore, the same is hereby quashed. So far as the
\ndetermination of legal heirship of deceased Sant Ram is
\nconcerned, since on this point no clear finding has been given by
\nthe Settlement Officer Consolidation and for the said purpose he
\nhas remanded the case for a fresh trial, in which I do not find
\nerror, therefore, I hereby quash the order dated 5th of May, 2001,
\npassed by the Deputy Director of Consolidation, Gonda by
\nupholding the order dated 24th of October, 2000, passed by the
\nSettlement Officer Consolidation, Bahraich.
\n   In the result the writ petition is allowed.
\nDated:19.1.2010
\nBanswar\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Shri Ram vs Deputy Director Of … on 19 January, 2010 1 Reserved Writ Petition No.335 (Cons.) of 2001 Shri Ram …Petitioner Versus Deputy Director of Consolidation, Gonda and others …Opp.parties. *** 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-47047","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nShri Ram vs Deputy Director Of ... on 19 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-ram-vs-deputy-director-of-on-19-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Ram vs Deputy Director Of ... on 19 January, 2010 - 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