Bishundeo Narain & ANR Vs. Seogeni
Rai and Jagernath  INSC 30 (4 May 1951)
BOSE, VIVIAN KANIA, HIRALAL J. (CJ) SASTRI,
M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN
CITATION: 1951 AIR 280 1951 SCR 548
CITATOR INFO :
R 1963 SC1279 (21) F 1976 SC 1 (17) R 1977 SC
Civil Procedure Code (Act V of 1908), O. 32,
r. 7--Suit for partition to which minor is party--Compromise by guardian Sanction
of court not obtained before entering into agreement--Validity of decree--Suit
by minor to set aside decree--Mere unfairness of division, effect of.
Where a Court has sanctioned an agreement or
compromise in a suit to which a minor is a party after satisfying itself that
it is for the minor's benefit, the decree based on the agreement or compromise
cannot be held to be invalid or not binding on the minor merely because the
sanction of the Court was not obtained by the next friend or guardian before he
began to negotiate for the agreement or compromise.
(1) 37 I.A. 136. (2) 39 I.A. 133.
549 Awadesh Prasad Missir v. Widow of Tribeni
Prasad Missir (I.L.R. 19 Pat. 343) disapproved.
The rule that in the case of a partition
between members of a joint Hindu family one of whom is a minor, if the minor,
on obtaining majority, is able to show that the division was unfair and unjust,
the court will set it aside, does not apply to decrees in partition suits in
which the minor was properly represented before the court. The decree is as
binding on him as on the adult parties unless the minor can show fraud or
negligence on the part of his friend or guardian ad litem.
CIVIL APPELLATE JURISDICTION. Civil Appeal
No. 78 of 1950.
Appeal against the Judgment and decree dated
the 1st December, 1942, of the High Court of Judicature at Patna (Manohar Lal
and Shearer JJ.) in F.A. No. 188 of 1939 arising out of a Decree dated the 23rd
December, 1937, of the Subordinate Judge at Saron ,Chapra, in Suit No. 48 of
H.J. Umrigar for the Appellant.
S.P. Sinha (S. N. Mukherjee, with him) for
the Respondent No. 1.
1951. May 4. The Judgment of the Court was
delivered by BOSEJ.--This is a plaintiffs' appeal from a judgment and decree of
the High Court of Judicature at Patna. Their Lordships of the Privy Council had
granted special leave and the matter has been transferred to this Court.
The suit out of which the appeal arises was
for a declaration in compromise decree, made in a previous suit for partition,
does not bind the plaintiffs. The learned counsel for the plaintiffs-appellants
also contends that he asked for partition in the present case. But that is a
matter of doubt.
The facts in brief are as follows:
The parties are members of a family whose
common ancestor was one Moti Rai. A long genealogical tree was attached to the
plaint but it is not necessary to reproduce more than the following:
/---------------------------------------| | Bhajan Rai Hazari Rai | |
/-------------------\ Ghughuli Rai | | | | Firangi Rai | Charichhan Rai Bikram
/-----------| | | Rai | | Seogeni Rai | Sons Bisundeo Rai Girishinkar Rai Draft
No 1 | Drafts No3, Plff.No. 1 Plff.No.2 | 4 & 5.
| Sons Drafts 11&12 Moti Rai had two
sons, Bhanjan Rai and Hazari Rai. The defendants are descended from the former
and the plaintiffs from the latter. The contesting defendant is Seogem Rai, son
of Firangi Rai. The plaintiffs did not disclose that Moti Rai's two sons were
by different wives, as that was not their case, but that has now been found to
be the fact and was not disputed here.
The plaintiffs' case is that the family was
joint at all material times until their father Ghughuli Rai was forced into a
partition in the year 1924. They state that this partition does not bind them
for a variety of reasons which, so far as they affect the present appeal, will
be detailed later.
According to the plaintiffs, the
circumstances of that partition were as follows. The plaintiffs' father
Ghughuli Rai and the first plaintiff instituted partition suit No. 51 of 1924
against Firangi Rai and his brothers and their descendants, that is to say,
against all the members of Bhanjan Rai's branch who were then in existence. The
second plaintiff was not then born and the first plaintiff was a minor. There
were also minors among the defendants. Firangi Rai, who was the, karta of the
family, through the exercise of undue influence, and by coercion, forced the
plaintiffs' father to compromise. The compromise was grossly unfair and unequal
but nevertheless a decree for partition followed.
This is the decree which the plaintiffs seek
to challenge here.
551 It is admitted on both sides that decree
left certain properties undivided. The extent of those properties is in dispute
but the fact that some properties were left undivided is admitted.
In the year 1936 the first defendant
instituted partition suit No. 29 of 1936 for partition by metes and bounds of
that portion of the estate which was not divided in 1924.
The plaintiffs' case is that the previous
partition does not bind them and so the whole of the family estate must be
brought into hotch-pot and divided and not merely the properties which were
left undivided in 1924; also that their share in these properties is greater
than the share allotted to their father under the compromise decree. The
plaintiffs state that so long as the compromise decree in partition suit No. 51
of 1924 stands, such a defence is not open to them in suit No. 29 of 1936.
Accordingly, they have brought the present suit.
The first defendant alone contested and as we
are not concerned with any of the others except indirectly, it will be
convenient to refer to him throughout as the defendant.
He stands by the compromise and denies that
the partition effected by it was either unequal or unfair. On the contrary, he
asserts that the plaintiffs got much more than they were entitled to. He also
denies the allegation about undue influence and coercion.
The defendant's case about the compromise is
this. He admits that the family was once joint but says that there was a
separation long ago in the lifetime of Moti Rai himself. Moti Rai's two wives
could not pull on, so the defendant's grandfather Bhanjan Rai separated from
his father Moti Rai and his step-brother Hazari Rai. This was some twenty years
before the suit. Ever since the two branches have had nothing in common.
The defendant states that there were further
partitions among the defendant's branch and that from time to time members of
the defendant's branch, as also those on the plaintiffs' side, have been
acquiring 552 property for themselves with which the others have no concern.
Thus, at the date of the plaintiffs' suit (No. 51 of 1924) a number of
properties stood in the separate names of various members of the family and
were the separate properties. The plaintiffs thus had no right of suit at all.
But in order to avoid a long litigation and to settle this family dispute
amicably, the defendant's father Firangi Rai agreed to give the plaintiffs a
four annas share in many of the properties acquired by the defendant's branch
after the first partition in Moti Rai's lifetime to which the plaintiffs'
branch had no claim at all. The defendant claims that this is a family
arrangement which binds all sides.
The first Court decided in the plaintiffs'
favour and decreed their claim not only for a declaration but also for
partition. It is a matter of doubt whether the plaintiffs ever claimed
partition, but there is no doubt that the properties which the learned trial
judge has directed to be partitioned were not admitted by the defendant to be
subject to partition even on the assumption that the plaintiffs are right in
all their other allegations. Thus, the defendant stated that some of the
properties were non-existent, others sell-acquired and so forth. But the
learned Judge, without trying any of these issues (the dispute is covered by
Issue No. 9) and without any evidence being led on the point, directed that
they be partitioned. That, of course, cannot be upheld on any view of the case.
The defendant appealed to the High Court and
The learned High Court Judges reversed the
decree of the trial Court and dismissed the plaintiffs claim.
The appeal here lies in a very narrow compass
and can be disposed of quite simply. In substance 'only five points were raised
before us. The first concerns Order 32, rule 7, of the Code of Civil Procedure.
As minors were parties on both sides in the previous suit, the sanction of the
Court was necessary for the compromise. On 17th November, 1924, the trial Court
made the following entry in its order sheet :-553 "Solehnarna filed with
petitions on behalf of minor defendant for permission to compromise. Put up on
the date fixed for order." On the following day, viz., 18th November,
1924, we have this-"Petition of compromise put up. The proposed guardian
of minor plaintiff and defendants have filed ' petitions for permission to
compromise. Permission granted as the compromise was for the minor's
benefit." It is contended that this is insufficient to show that the
learned Judge applied his mind to the matter and satisfied himself that the
compromise was for the minors' benefit.
We cannot agree. There is no set form in
which the certificate which the Court is required to record need be made. It is
evident that the Judge had the provisions of Order 32, rule 7, in view. He
adjourned the case on 17th November, 1924. He realised that he had to give
permission and he realised that the compromise had to be for the benefit of the
minors. The portion of the order reproduced above shows that he did give
permission and that he was satisfied about the minors' benefit. In our opinion,
there was not only a technical but also a clear compliance with the law.
This objection fails.
The next point also concerns Order 32, rule
7. The argument here is based on a ruling of the Patna High Court and a full
Bench decision of the Allahabad High Court. It is to this effect. Unless the
next friend or guardian ad litera obtains the sanction of the Court before
beginning to negotiate with the other side, and certainly before committing
himself to any agreement, any subsequent sanction is invalid and the agreement
and the decree, if any, following on it is without force.
We do not think the Allahabad decision helps
the appellants. It is reported in Hariam Bibi v. Arena Bibi (1). The question
there was about arbitration. A suit had been filed in which a minor was
involved. The guardian ad litem of the minor agreed to refer the (1) I.L.R.
1937 All. 317.
554 dispute to arbitration. He did not seek
the permission of the Court to enter into the agreement but did place the
matter before the Court in another way. He said that the parties had agreed to
refer the dispute to arbitration and asked the Court to sanction the reference.
The Court did so, an award followed, and a decree was passed in terms of the
Now it will be seen that the learned Judge,
who sanctioned the reference, never applied his mind to the question whether a
reference to arbitration would be for the minor's benefit under the
circumstances of the case. His whole attitude was that as the parties had
agreed, that was enough. This did not comply with the provisions of Order 32,
rule 7. The learned Judge did not even certify that the compromise was for the
minor's benefit. The Full Bench held that Order 32, rule 7, had not been
complied with and that in a case of that kind the permission of the Court to
enter into an agreement for reference must precede the reference.
But they also held that the omission to
obtain the necessary sanction would not make the reference and the award and
the decree nullities. It only made them voidable at the minor's option. That,
in our opinion, is no authority for the contention urged on behalf of the
appellants before us.
The Patna case reported in Awadhesh Prasad
Missir v. Widow of Tribeni Prasad Missir (1) is more in point. There, the
parties compromised in the High Court without obtaining the sanction of the
Court. They then placed the concluded agreement (concluded, that is to say, so
far as they were concerned) before the Court, apparently for its approval, and
the Court made the following order :-"We are satisfied that the terms
settled between the parties are for the benefit of the minor defendants respondents
concerned." The Court then passed a decree in terms of the compromise.
When the minors attained majority, they sued for a declaration that the decree
did not bind them (1) I.L.R. 19 Pat. 343 at 348.
555 on the ground that there was no proper
compliance with the provisions of Order 32, rule 7. The learned Judges of the
Patna High Court upheld the contention and decided that unless the guardian ad
litem obtained permission to enter into an agreement or compromise before
reaching agreement with the other side, any subsequent sanction of the Court to
a completed compromise (completed, that is to say, so far as the parties were
concerned) was not binding on the minors and the proceedings which followed
consequent on that sanction were therefore of no avail. They accordingly
granted the minors the declaration they sought.
In our opinion, Order 32, rule 7, must be
read as a whole. Sub-rule (2) contemplates a position where the mandatory
provisions of sub-rule (1) have been ignored. In such a case, the resultant
agreement or compromise is not to be held a nullity. It is only voidable.
Therefore, it is good unless the minor chooses to avoid it. It follows that a
decree or order based on the agreement is also good unless the minor chooses to
challenge it. That is the position where there is no sanction of the Court. Reading
the two provisions together, the rule merely means this. No next friend or
guardian for the suit can enter into an agreement or compromise which will bind
the minor unless the court sanctions it. If the Patna decision is meant to
convey that before the guardian even begins negotiations for compromise with
the other side, he must obtain the sanction of the Court, we are unable to
agree with that view.
The next point was put in the form of a
question. Can a minor have a compromise which effects a partition set aside on
the single ground of unfairness to him? It was argued that he can, and reliance
was placed on Balkishen Das v. Ram Narain Sahu(1) and on Mulla's Hindu Law,
10th Edition, page 394, section 308(2).
The rule laid down in Mulla's book is expressly
stated to be in cases where the partition is not effected by a decree of a
competent Court. In our opinion, that is correct. It does not matter whether
the decree was by (1) 30 I.A. 139 at 150 556 consent or otherwise, for a
decree, unless and until it is set aside or avoided in one or other of the ways
in which alone a decree may be attacked, holds its force and binds all
It is well established that a minor can sue
for partition and obtain a decree if his next friend can show that is for the
minor's benefit. It is also beyond dispute that an adult coparcener can enforce
a partition by suit even when there are minors. Even without a suit, there can
be a partition between members of a joint family when one of the members is a
minor. In the case of such lastly mentioned partitions, where a minor can never
be able to consent to the same in law, if a minor on attaining majority is able
to show that the division was unfair and unjust, the Court will certainly set
it aside. The rule, however, does not apply to decrees if the minor is properly
represented before the Court and the decree is as binding on him as on the
adult parties, unless the minor can show fraud or negligence on the part of his
next friend or guardian ad litera. This contention also therefore fails.
We turn next to the questions of undue
influence and coercion. Now it is to be observed that these have not been
separately pleaded. It is true they may overlap in part in some cases but they
are separate and separable categories in law and must be separately pleaded.
It is also to be observed that no proper
particulars have been furnished. Now if there is one rule which is better
established than any other, it is that in cases of fraud, undue influence and
coercion, the parties pleading it must set forth full particulars and the case
can only be decided on the particulars as laid. There can be no departure from
them in evidence. General allegations are insufficient even to amount to an
averment of fraud of which any court ought to take notice however strong the
language in which they are couched may be, and the same applies to undue
influence and coercion. See Order 6, rule 4, Civil Procedure Code, 557 The
allegations in the plaint regarding this part of the case are as follows. In
paragraph 13 the plaintiffs say "That the said Firangi Rai being
infuriated by _ the filing of the said suit, put such a pressure upon the
father of the plaintiffs that the father of the plaintiffs under fear of his
threatened death filed a compromise in the said suit before any written
statement was filed by Firangi Rai and other defendants." In paragraph 15
they say"That the said compromise was nothing but a dictated mandate of
Firangi Rai which the father of plaintiffs, out of sheer fear of Firangi Rai
submitted against his own free will and signed under compulsion and coercion
and undue influence of the said Firangi Rai" Then, in paragraph 17 and 18
the plaintiffs state-"17. That plaintiffs, father being a man of week
intellect and finding no help and succour from the people of residential
village or neighbourhood and being also unaware of the details of properties of
the family could not but submit meekly and quietly to the dictates of Firangi
Rai who taking advantage of his fearful supremacy wanted to have everything
according to his own sweet wish.
"18. That even after the compromise
plaintiffs' father could not get any income of the family properties and Firangi
Rai remained the sole master of the family appropriating every pice to himself."
We will deal with the case of coercion first. It will be seen that the
plaintiffs' case regarding that is grounded on the single allegation that their
father was threatened with death. When all the verbiage is cleared away, that
remains as the only foundation. The rest, and in particular the facts set out
in paragraphs 8 to 12 about the ferocious appearance of Firangi Rai and his
allegedly high-handed and criminal activities and his character, are only there
558 to lend colour to the genuineness of the belief said to have been
engendered in Ghughuli Rai's mind that the threat of death administered to him
was real and imminent. But as regards the threat itself, there is not a single
We do not know the nature of the threat. We
do not know the date, time and place in which it was administered. We do not
know the circumstances. We do not even know who did the threatening. Now, when
a court is asked to find that a person was threatened with death, it is
necessary to know these particulars, otherwise it is impossible to reach a
It was argued that it is not necessary for a
plaintiff to give particulars and if the other side is not satisfied, there are
provisions in the Code which entitle him to ask for them. That is a grave misapprehension.
But all that, apart, what is the evidence
here ? There are only three witnesses who need be considered as the others had
no personal knowledge. They are, No. 6 Seokumar Dube, No. 9 Bodhu Rai and No.
10 Sheonandan Prasad. Of these, only Bodhu Rai suggests that Firangi ever made
any threat. He is not supported by the other two and we cannot believe him. All
that the others say is that Ghughuli Rai said his life would be in danger
without however explaining how or why. That is insufficient to sustain pleas of
undue influence and coercion, particularly when we have the following facts
which negative these pleas: (1) Two pleaders were engaged by Ghughuli Rai; (2)
the first draft was torn up by one of the pleaders as it was unfavourable to
his client and the draft embodying the compromise ultimately accepted was
substituted; (3) Ghughuli Rai refused to sign this second draft until it was
read out to him; (4) this draft was read over by the pleader who had
disapproved of the first and was signed by him after Ghughuli Rai 'had signed;
(5) Ghughuli Rai relied on the compromise on several occasions and filed suits
to enforce its terms; (6) he twice sued Firangi Rai himself: (7) though he
lived eleven years after the compromise and filed several suits to enforce it,
he never suggested that it 559 had been brought about by coercion or undue
influence; (8) he took no steps to set it aside or question it even after
Firangi Rai's death which was two and a half years before this suit; and (9) he
did not join as a plaintiff in this suit though he was the real person who knew
the truth. There is nothing in the evidence to indicate when the undue influence
ceased and we find it impossible to believe that it could have lasted eleven
years and even two and a half years after Firangi Rai's death.
There is also another point. The basis of the
claim is the inequality of the partition. Under the compromise, the first
plaintiff and his father got those properties which stood in their names and a
four annas share in certain other properties. No evidence has been adduced to
show the values of these various properties in 1924. For all we know, their
value and the four annas share in the other properties may have been equal to
eight annas of the entire joint properties. We agree with the learned High
Court Judges that coercion is not proved.
The case of undue influence suffers the same
fate. It was not separately pleaded and the evidence is the same.
The last contention is that even if the
plaintiffs fail in all else, their case cannot be wholly dismissed because,
admittedly, certain properties are still undivided and the plaintiffs are
entitled to have them partitioned and to be given separate possession of their
As we remarked at the outset, it is a matter
of some doubt whether the plaintiffs sought partition in this suit or whether
they merely wanted a declaration here that the compromise decree in the suit of
1924 does not bind them and consequently is no bar to their demanding partition
of the whole estate in the first defendant's suit No. 29 of 1936.
We need not consider whether the present suit
is for partition and separate possession or not, because there is pending a
previously instituted suit between 560 the same parties for the same relief. It
will be more convenient and proper to have these matters decided there.
Accordingly, we dismiss the plaintiffs' suit
with costs throughout, but make it plain that in doing so we do not adjudicate
upon their right to seek partition of such properties as they contend are
omitted to be partitioned under the compromise decree in the pending suit.
Agent for the appellants: R. C. Prasad.
Agent lot respondent No. 1: P.K. Chatterjee.