Kaushalya Devi & Ors Vs. Baijnath
Sayal & Ors  INSC 40 (9 February 1961)
CITATION: 1961 AIR 790 1961 SCR (3) 769
Suit against Minor--Preliminary decree on
consent by guardian without leave of court--If a nullity--If can be set aside
in appeal against final decree--Code of Civil Procedure, 1908 (Act V of 1908),
s. 97, 0. 32, r. 7.
Order 32, r. 7(2) of the Code of Civil
Procedure, which is intended to protect the interest of the minor, really means
that an agreement or compromise entered into on behalf of the minor in
contravention of 0. 32, r. 7(1) is voidable only at the instance of the minor
and not at the instance of any other party to it. Such contravention does not
render the agreement or decree a nullity and the same has to be avoided in an
Manohar Lal v. jadu Nath Singh (1906) L.R. 33
I.A. 128, referred to.
Chhabba Lal v. Kallu Lal (1946) L.R. 73 I.A.
52, jamna Bai v. Vasanta Rao (1916) L.R. 43 I.A. 99 and Khiarajmal v. Daim
(1904) L.R. 32 I.A. 23, held inapplicable.
Where a preliminary decree is passed in
non-compliance with the provision of 0. 32, r. 7(1), the remedy of the minor is
by way of an appeal against that decree and not against the final decree since
s. 97 of the Code is a bar to the challenging of the preliminary decree in an
appeal against the final decree.
Consequently, in a suit for the partition
where preliminary decree by consent was passed against the minor in contravention
of 0. 32, r. 7(i) and that decree having been sought to be set aside in an
appeal from the final decree the High Court held that S. 97 of the Code
precluded the appellant from doing so.
Held, that the decision of the High Court was
correct and must be ashamed, 770 Held, further, that the object s. 97 of the
Code was intended to achieve would be wholly frustrated if it were to be held
that the section merely prohibited a challenge to the factual correctness of
the decree and not its legal validity.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 216 of 1956.
Appeal by special leave from the judgment and
decree dated August 28, 1950, of the Punjab High Court in Civil Regular First
Appeal No. 343 of 1944.
L.K. Jha, K. P. Bhandari and Harbans Singh, for
Darya Datt Chawla for respondent Nos. 1(i) to
1961. February 9. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-This appeal by special leave arises from a
partition suit filed by Baij Nath against his other coparceners. Baij Nath is
the son of Behari Lal and he had four brothers Kidar Nath, Raghunath Sahai,
Jagan Nath and Badri Nath. Kidar Nath was dead at the time of the suit, and his
branch was represented by his five sons Ghansham Lal, Shri Ram, Hari Ram, Tirath
Ram and Murari Lal, who were impleaded as defendants 1 to 5 respectively. On
the death of Ghansham Lal pending the Suit his two minor sons Jai Pal and
Chandar Mohan were brought on the record as his legal representatives and their
mother Mst. Kaushalya was appointed guardian ad item. The two minors are the
appellants before us. Chuni Lal, the son of Raghunath Sahai was defendant 6,
Bal Kishan and Hari Kishan the two sons of Jagan Nath were defendants 7 and 8,
and Badri Nath was defend. ant 9. Baij Nath's case was that the family was
undivided and he wanted a partition of his share in the family properties, and
so in his plaint he claimed appropriate reliefs in that behalf. The several
defendants made out pleas in respect of the claims made by Baij Nath, but for
the purpose of this appeal it is unnecessary to refer to the said pleas. The
suit wail instituted on Juno 11, 1941, 771 It appears that by consent of
parties a preliminary decree was drawn by the trial court on October 30, 1941,
but the validity of this decree was successfully challenged by an appeal to the
Lahore High Court. It was held by the High Court that all parties had not
joined in the compromise and so the preliminary decree could not be sustained.
In the result the said decree was set aside and the case was remanded for
It further appears that after remand parties
again came together and by consent requested the court to pass a preliminary
decree once again. This was done on October 15, 1943. This preliminary decree
specified the shares of the respective parties and left three outstanding
issues to be determined by Chuni Lal, defendant 6, who it was agreed should be
appointed Commissioner in that behalf. Pursuant to this preliminary decree the
Commissioner submitted his interim report on November 19,1943, and his final
report on November 29, 1943. On receipt of the reports the trial court gave
time to the parties to consider the said report which had been explained to
them. Parties wanted time and so the case was adjourned. Since the property in
dispute was valuable and the parties were unable to make up their minds about
the said reports further time was granted to them by the court to consider the
matter. Ultimately, when parties did not appear to come to any settlement about
the reports the case was adjourned to December 17, 1943, for objections to be
filed by the parties. Tirath Ram, defend- ant 4 alone filed objections; nobody
else did. The said objections were considered by the court in the light of the
evidence which had been led and a final decree was drawn on June 21, 1944.
Against this decree an appeal was preferred
by the appellants before the High Court of Punjab, and it was urged on their
behalf that the preliminary decree was invalid in that at the time of passing
the said decree the court had failed to comply with the mandatory provisions of
0. 32, r.
7 of the Code of Civil Procedure. The High
Court did not allow the appellants to raise, this point because it held that
their 99 772 failure to make an appeal against the preliminary decree precluded
them from challenging its correctness or validity under s. 97 of the Code.
Certain other minor objections were raised by the appellants on the merits but
they were also rejected. In the result the appeal failed and was dismissed, but
in view of the circumstances of the case the parties were directed to bear
their own costs. It is this decree that is challenged by the appellants in
their present appeal by special leave; and the only point which has been urged
by Mr. Jha on their behalf is that the High Court was in error in disallowing
the appellants to challenge the validity of the preliminary decree in their
appeal before it.
Mr. Jha contends that in dealing with the
question about the competence of the plea raised by the appellants the High
Court has misjudged the effect of the provisions of 0. 32, r. 7. It is common
ground that at the time when the preliminary decree was passed by consent and
the appellants' guardian Kaushalya Devi agreed to the passing of such a
preliminary decree and to the appointment of Chuni Lal as Commissioner the
appellants were minors and that leave had not been obtained as required by 0.
32, r. 7. Order 32, r.
7(1) provides 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 the minor with
reference to the suit in which he acts as next friend or guardian. It is also
not disputed that the agreement which resulted in the drawing up of the preliminary
decree and the appointment of Chuni Lal as Commissioner fell within the scope
of this rule and that sanction required by the rule had not been recorded in
the proceedings. The argument is that the failure to comply with this mandatory
provision of the rule makes the agreement and the preliminary decree void, and
if that is so s. 97 of the Code of Civil Procedure would be no bar in the way
of the appellants challenging the validity of the decree at the appellate
The effect of the failure to comply with 0.
32, r. 7(1) is specifically provided by 0, 32, r. 7(2) which says 773 that 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. Mr. Jha
reads this provision as meaning that the impugned agreement is voidable against
the parties to it who are major and is void in respect of the minor; in other
words, he contends that the effect of this provision is that the major parties
to it can avoid it and the minor need not avoid it at all because it is a
nullity so far as he is concerned. In our opinion this contention is clearly
inconsistent with the plain meaning of the rule. What the rule really means is
that the impugned agreement can be avoided by the minor against the parties who
are major, and that it cannot be avoided by the parties who are major against
the minor. It is voidable and not void. It is voidable at the instance of the
minor and not at the instance of any other party. It is voidable against the
parties that are major but not against a minor. This provision has been made
for the protection of minors, and it means nothing more than this that the
failure to comply with the requirements of 0. 32, r. 7(1) will entitle a minor
to avoid the agreement and its consequences. If he avoids the said agreement it
would be set aside but in no case can the infirmity in the agreement be used by
other parties for the purpose of avoiding it in their own interest. The
protection of the minors' interest requires that he should be given liberty to
avoid it. No such consideration arises in respect of the other parties to the
agreement and they can make no grievance or complaint against the agreement on
the ground that it has not complied with 0. 32, r. 7(1).
The non-observance of the condition laid down
by r. 1 does not make the agreement or decree void for it does not affect the
jurisdiction of the court at all. The non-observance of the said condition
makes the agreement or decree only voidable at the instance of the minor. That,
in our opinion, is the effect of the provision of 0. 32, r. 7(1) and (2).
The question as to the procedure which the
minor should adopt in avoiding such an agreement or decree has been the
subject-matter of several decisions, and 774 it has been held that a compromise
decree may be avoided by the minor either by a regular suit or by an
application for review by the court which passed the said decree. The decision
in Manohar Lal v. Jadu Nath Singh (1), is an illustration of a suit filed by the
minor for declaration that the impugned decree did not bind him. It is,
however, not necessary for us to deal with this aspect of the matter in the
present appeal any further.
In support of his argument that the failure
to comply with the requirements of 0. 32, r. 7(1) makes the decree a nullity
Mr. Jha has very strongly relied on the decision of the Privy Council in
Chhabba Lal v. Kallu Lal (2). In that case an objection to the validity of a
reference to arbitration was taken by a party in an appeal against the decree
passed on an award; and one of the points raised for the decision before the
Privy Council was whether an appeal lay against the decree in question. Under
Schedule 2, paragraph 16(2) of the Code which was then in force it was provided
that upon the judgment pronounced according to the award a decree shall follow
and no appeal shall lie from such decree except in so far as it is in excess of
or not in accordance with the award. The argument urged against the competence
of the appeal was that the objection against the validity of the reference and
the award could and should have been raised under paragraph 15(1)(c) of the
said Sche- dule, and since such an objection had not been so raised and a
decree was drawn in accordance with the award under paragraph 16, r. 1 no
contention could be raised against the validity of the decree outside the terms
of paragraph 16(2).
This argument was repelled by the Privy
Council. It was held that the objection against the validity of the reference
based on the ground that the requirements of 0.
32, r. 7(1) had not been complied with did
not fall within the purview of paragraph 15(1)(c). The said paragraph specified
the grounds on which an award could be challenged.
It provided that the award could be set aside
if it was made after the issue of an order by the (1) (1906) L.R. 33 I A. 128.
(2) (1946) L.R. 73 I.A. 52.
775 court superseding arbitration and
proceeding with the suit or if it was made after the expiration of the period
allowed by the court, or if it was otherwise invalid. It is on the last clause
in paragraph 15(1)(c) that reliance was placed in support of the contention
that the challenge to the validity of the reference should have been made under
the said clause. The Privy Council did not uphold this argument. " In
their opinion," observed Sir John Beaumont, who spoke for the Board,
" all the powers conferred on the court in relation to an award on a
reference made in a suit presuppose a valid reference on which an award has
been made which may be open to question. If there is no valid reference the
purported award is a nullity, and can be challenged in any appropriate
proceeding." It is on this last observation that Mr. Jha has naturally
relied; but, in our opinion, the observation in question does not purport to be
a decision on the interpretation of 0. 32, r. 7(2). The context shows that the
said observation was made in support of the decision that the challenge to the
validity of the arbitration and the award could not have been made under paragraph
15(1)(c) and nothing more. We are not prepared to extend this observation to
cases like the present where the point in dispute is in regard to the
interpretation of 0.
32, r. 7. It is significant that while
describing the award as a nullity the Privy Council has also added that it can
be challenged in any appropriate proceeding which postulates the adoption of
necessary proceedings to avoid the award.
The point for consideration by the Privy
Council was whether a proceeding under paragraph 15(1)(c) was indicated or
whether an appeal could be regarded as an appropriate proceeding; but it was
assumed that a proceeding had to be adopted to challenge the award. The
decision of the Privy Council was that the validity of the award could be
challenged by an appeal because it could not have been challenged under
paragraph 15(1)(c). Since it could not be challenged under paragraph 15(1)(c),
according to the Privy Council paragraph 16(2) could not be invoked against the
competence of the appeal. It is unnecessary 776 for us to examine the merits of
the said decision in the present appeal. All that we are concerned to point out
is that the observation in the judgment on which Mr. Jha relies cannot be
treated as a decision on the interpretation of 0.
32, r. 7(2). That question did not directly
arise before the Privy Council and should not be treated as concluded by the
observation in question. As we have already pointed out, the words used in 0.
32, r. 7(2) are plain and unambiguous and they do not lend any support to the
argument that non-compliance with 0. 32, r. 7(1) would make the impugned decree
Mr. Jha has also relied upon another decision
of the Privy Council in Jamna Bai v. Vasanta Rao (1). In that case two
defendants of whom one was a minor compromised a suit pending against them, and
in doing so entered into a bond by which they jointly agreed to pay a certain
sum to the plaintiff at a future date. The leave of the court was Dot obtained
on behalf of the minor as required by s. 462 of the Code of Civil Procedure,
1882, which was then in force.
When a claim was made on the said bond it was
held that the bond was not enforceable against the minor but it was enforceable
for the full amount against the joint contractor. We do not see how this case
assists the appellants. It appears that Jamna Bai who was the joint contractor
on the bond advanced the plea that one of the two promisers can plead the
minority and consequent immunity of the other as a bar to the promise's claim
against him. This plea was rejected by the Privy Council, and that would show
that the bond which was executed in pursuance of a compro- mise agreement was
not treated as null and void but as being unenforceable against the minor'
alone. In, that connection the Privy Council observed that the minor's
liability could not be enforced in view of the fact that the requirements of s.
462 of the Code had not been complied with. Indeed, in the judgment an
observation has been made that the Privy Council was not expressing any opinion
as to whether the bond could be enforceable against a minor even if s. 462 had
(1) (1916) L.R.43 I.A.99.
777 been complied with. Thus this decision is
of no assistance to the appellants.
Similarly, the decision of the Privy Council
in Khiarajmal v. Daim (1), can also be of no help to the appellants, because in
that case all that the Privy Council decided was that a court has no
jurisdiction to sell an equity of redemption unless the mortgagors are parties
to the decree or the proceedings which lead to it, or are properly represented
on the record. In other words, if a minor is not properly represented on the
record no order passed in the proceedings can bind him. We are unable to see
how this proposition has any relevance to the point which we are called upon to
decide in the present appeal.
If the preliminary decree passed in the
present proceedings without Complying with the provisions of 0.32, r. 7(1) is
not a nullity but is only voidable at the instance of the appellants, the
question is: can they seek to avoid it by preferring an appeal against the
final decree ? It is in dealing with this point that the bar of s. 97 of the
Code is urged against the appellants. Section 97, which has been added in the
Code of Civil Procedure, 1908, for the first time provides that where any party
aggrieved by a preliminary decree passed after the commencement of the Code
does not appeal from such decree he shall be precluded from disputing its
correctness in any appeal which may be preferred from the final decree.
It is urged for the appellants that an appeal
is a continuation of the suit and so the appellants would be entitled to
challenge the impugned preliminary decree as much by an application made in the
suit itself as by an appeal preferred against the final decree passed in the
said suit. It is true that the proceedings in appeal can be regarded as a
continuation of the proceedings in suit; but the decision of the question as to
whether the appellants can challenge the said preliminary decree in their
appeal against the final decree must in the present case be governed by the
provisions of s. 97 of the Code. The whole object of enacting s. 97 was to make
it clear that any party (1) (1904) L.R. 32 I.A. 23.
778 feeling aggrieved by a preliminary decree
must appeal against that decree; if he fails to appeal against such a decree
the correctness of such a decree cannot be challenged by way of an appeal
against the final decree, which means that the preliminary decree would be
taken to have been correctly passed. When s. 97 provides that the correctness
of the preliminary decree cannot be challenged if no appeal is preferred
against it, it clearly provides that if it is not challenged in appeal it would
be treated as correct and binding on the parties. In such a case an appeal against
the final decree would inevitably be limited to the points arising from
proceedings taken subsequent to the preliminary decree and the same would be
dealt with on the basis that the preliminary decree was correct and is beyond
It would be idle to contend that what is
prohibited is a challenge to the factual correctness of the decree on the
merits, because if the said decree is voidable, as in the present case, the
very point as to its voidable character is a part of the merits of the dispute
between the parties.
Whether or not 0. 32, r. 7(1) applies to the
case would certainly be a matter of dispute in such a case and the object of s.
97 is precisely to disallow any such dispute being raised if the preliminary
decree is not challenged by appeal. The whole object which s. 97 intends to
achieve would be frustrated if it is held that only the factual correctness of
the decree cannot be challenged but its legal validity can be even though an
appeal against the preliminary decree has not been filed. Therefore, in our
opinion, the High Court was right in coming to the conclusion that it was not
open to the appellants to challenge the validity of the preliminary decree in
the appeal which they had preferred against the final decree before the said