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PETITIONER: BISHUNDEO NARAIN AND ANOTHER

       Vs.

RESPONDENT: SEOGENI RAI AND JAGERNATH

DATE OF JUDGMENT: 04/05/1951

BENCH: BOSE, VIVIAN BENCH: 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 615  (9)

ACT:     Civil Procedure Code (Act V of 1908), O. 32, r.  7--Suit for partition to which minor is party--Compromise by  guard- ian-  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.

HEADNOTE:     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  compro- mise. (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.

JUDGMENT: CIVIL APPELLATE JURISDICTION.  Civil  Appeal No. 78 of 1950.    Appeal  against  the Judgment and decree dated  the  1st

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December,  1942,  of the High Court of Judicature  at  Patna (Manohar Lal and Shearer JJ.) in F.A. No. 188 of 1939  aris- ing  out of a Decree dated the 23rd December, 1937,  of  the Subordinate Judge at Saron ,Chapra, in Suit No. 48 of 1936. H.J. Umrigar for the Appellant.     S.P. Sinha (S. N. Mukherjee, with him) for the  Respond- ent No. 1.     1951. May 4. The Judgment of the Court was delivered by     BOSE- J.--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 decla- ration  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  ances- tor was one Moti Rai. A long genealogical tree was  attached to the plaint but it is not necessary to reproduce more than the following:                    Moti Rai            /----------------------------------------       |                                     |        Bhajan Rai                               Hazari Rai          |                                        |        /-------------------\              Ghughuli Rai        |        |          |                   | Firangi Rai     | Charichhan Rai  Bikram  /------------     |           |       |         Ra i         |            | 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.

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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 undivid- ed is admitted.     In  the year 1936 the first defendant instituted  parti- tion  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  con- trary,  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  him- self. Moti Rai’s two wives could not pull on, so the defend- ant’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  con- cern.  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  proper- ties.  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  plain- tiffs’ 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  de- creed  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.

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 The  defendant appealed to the High Court  and  succeeded. 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  compro- mise 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  bene- fit 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  commit- ting  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  appel- lants. 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 award.     Now  it will be seen that the learned Judge,  who  sanc- tioned 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

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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  compro- mise.   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  sanc- tion  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  cor- rect. 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

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alone  a decree may be attacked, holds its force  and  binds all concerned.     It  is well established that a minor can sue for  parti- tion  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  depar- ture from them in evidence.  General allegations are  insuf- ficient 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  Fi- rangi Rai remained the sole master of the family appropriat- ing 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

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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 particular. 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 proper conclusion.   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  fol- lowing  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 influ- ence  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  proper- ties.   We  agree with the learned High  Court  Judges  that coercion is not proved.     The  case of undue influence suffers the same  fate.  It

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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 share.     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. Appeal dismissed. Agent for the appellants: R. C. Prasad. Agent lot respondent No. 1: P.K. Chatterjee.