RSA No. 1550 of 1988 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 1550 of 1988 Date of decision: April 26,2011 Sube Singh and others ......Appellants Versus Kitabo .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.A.P.S.Sandhu, Advocate for the appellants Mr.Mukesh Mittal, Advocate for the respondent. **** SABINA, J. Plaintiff-Kitabo had filed a suit for declaration to the effect that she was owner in joint possession of the suit land to the extent of 1/4th share. The case of the plaintiff, in brief, was that she was the widow of Man Singh, who had died on 4.8.1981. Plaintiff was the only legal heir of Man Singh. Defendants had, allegedly, got a Will executed in their favour from Man Singh. The said Will was a forged and fabricated document. Defendants, in their written statement, averred that the plaintiff was the wife of Man Singh but she had deserted him. As per custom prevalent between the parties, the marriage of the plaintiff and Man Singh stood dissolved. Man Singh had executed a Will in RSA No. 1550 of 1988 2 favour of the defendants qua his property. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the land in dispute is ancestral property of Man Singh deceased, if so to what effect?OPP 2.Whether the Will dated 25.7.77 was validly executed by Man Singh deceased in favour of defendants, if so to what effect?OPD 3.Whether the suit is not maintainable in the present form?OPD 4.Whether the suit has no cause of action?OPD 5.Whether the plaintiff has no locus-standi to sue?OPP 6.Whether the plaintiff is estopped by her own act and conduct from filing the suit?OPD 7.Whether the suit is barred by limitation?OPD 8.Whether the suit is not properly valued for the purposes of court-fees and jurisdiction. If so, to what effect?OPD 9.Relief” The trial Court vide judgment and decree dated 9.8.1985 decreed the suit of the plaintiff as prayed for. Defendants preferred an appeal against the said judgment and decree. During the pendency of the appeal, it was alleged that a compromise has been effected between the parties. However, thereafter, defendant no.1 made a statement on 16.10.1987 that his brother was not prepared to compromise the case. Learned First Appellate on 9.11.1987 framed the following issues on the application filed by the appellant challenging the compromise dated 16.10.1987 :- RSA No. 1550 of 1988 3 “1.Whether the compromise recorded in the appeal on 16.10.87 is illegal and invalid for the reasons mentioned in the application? 2.Relief” The appellate Court vide judgment and decree dated 15.2.1988 disposed of the appeal in terms of the compromise and dismissed the application for setting aside the compromise. Hence, the present appeal by the defendants. Learned counsel for the appellants has submitted that the minor brothers of defendant no.1 had become major and, hence, the compromise effected by defendant No.1 on behalf of his minor brothers who had attained majority was not binding on them. Hence, the appeal was liable to be decided on merits. In support of his arguments, learned counsel has placed reliance Daulat Ram v, Surinder Kumar and others AIR 1966 Punjab 471 wherein it was held as under:- “I am in respectful agreement with the aforesaid statement of the law. I am not prepared to hold that merely because proceedings could be lawfully carried on by the quondam guardian in a litigation in which the minor is involved would confer on the quondam guardian power to enter into a contract on behalf of a minor who had ceased to be a minor when the contract was entered into. It is not disputed before us that a decree by consent is a decree passed on the basis of a contract. I am,therefore, clearly of the view that the learned Single Judge was right in his view that the consent decree, in the circumstances of the present case, RSA No. 1550 of 1988 4 will not bind the minor. The consent decree has to be set aside so far as the minor is concerned. The question as to what repercussion this order will have on the consent decree, so far as the other parties to are concerned, is left open as that was not the matter which was canvassed before the learned Single Judge.” Learned counsel has further placed reliance on Lanka Sanyasi vs. Lanka Yerran Naidu and others AIR 1928 Madras 294 wherein it was held as under:- “But when the law says that such a compromise is binding on a minor when the Court sanctions it, what the law has reference to is a contract made only for or on behalf of the minor and there could be no legal principle or reason for holding that when there is a major capable of entering into a contract apart from any question of agency any contract entered into or purported to be entered into on his behalf by some other person can be regarded as binding on him. If, therefore, plaintiff 1 in this suit has become major by the time the compromise agreement was entered into, it follows that the mere circumstance that defendant 2 here was his guardian-ad-litem or had been previously acting as his guardian-ad-litem, would not clothe him with the required legal right to enter into a binding contract. There is no provision or principle of the law of contracts which would make such a contract entered into by a previous guardian- ad-litem binding on a party defendant who had become a major. It, therefore, follows that, so far as the plaintiff in this RSA No. 1550 of 1988 5 case is concerned who has been found by the lower appellate Court to have attained majority on the date of the compromise and decree, the lower appellate Court was right in the conclusion arrived at that the decree was not binding on him, though the grounds on which it came to that conclusion were different.” Learned counsel has also placed reliance on K.Venkatachala Bhat and another vs. Krishna Nayak (D) by Lrs. and others 2005(3) JT 161 wherein it has been held as under:- “The effect of the inserted portion as noted above is that the compromise if not signed by the parties cannot be recorded by the Court. In Bryam Perstonji Gariwala v. Union Bank of India and Ors. (AIR 1991 SC 2234): 1991(2) RCR(Rent) 659, it was held that the compromise can be signed by the parties, their counsel or even their agents. The view was reiterated in Jineshwardas(D) Lrs. and others v. Jagrani (Smt.) and another, 2003(11) SCC 372:2003(4) RCR(Civil) 606” Learned counsel for the respondents, on the other hand, has submitted that the minor brothers of defendant No.1 had not sought to proceed with the appeal on their own behalf after attaining the age of majority and had allowed their brother-defendant No.1 to proceed with the appeal. In these circumstances , the compromise effected between the parties by defendant No.1 on his behalf and on behalf of his brother was liable to be upheld. After hearing the learned counsel for the parties,I am of the RSA No. 1550 of 1988 6 opinion that the present appeal deserves dismissal. A perusal of the record of the First Appellate Court reveals that on 16.10.1987, statements of the appellant, respondents and their counsel were recorded as the case was compromised. The case was then adjourned to enable the appellants to give the specific khasras which would be held in possession by them separately till partition. However, thereafter, an application was filed by the appellants, alleging, that the compromise was not for the benefit of the minors and the appeal be heard on merits. AW1 J.P.Jain, Advocate, deposed that he had filed the appeal on behalf of the appellants. Talks regarding compromise between the parties were held inside the Court. However, the terms of the compromise were not put into writing. Sube Singh had been explained implications of the compromise. However, Sube Singh told him outside the Court that he would not effect a compromise in this case. After his statement had been recorded in the Court, he had brought the said fact to the notice of the Presiding Officer. He had no instructions to effect a compromise on behalf of the remaining respondents. AW2 Sube Singh along with his counsel deposed that his statement recorded before the Court was not read over to him. He had not discussed the terms of the compromise with the members of his family or his brothers. He had immediately told the Court that he did not agree with the terms of the compromise. AW3 Kuldip Singh along with his counsel deposed that he had not authorized Sube Singh to effect a compromise on his behalf. His brother Gayan Singh has also not authorized Sube Singh to RSA No. 1550 of 1988 7 effect compromise on his behalf. The said witness, in his cross- examination, deposed that he had been attending the Court for the last 2-3 years along with Sube Singh and his brother. He had informed the counsel that he had attained the age of majority but had not filed any application in the Court that he would himself proceed with the case. RW2 Kashmiri Lal along with his counsel deposed that he had recorded the statements of Sube Siingh, Kitabo and their counsel on 16.10.1987. As per the compromise settled between the parties, the statements were read over to the witnesses and, thereafter, they had signed/thumb marked the same. On 16.10.1987 J.P.Jain, counsel for the appellants made a statement that a compromise had been effected by the appellants with Kitabo and as per the same, four acres of land would come to the ownership of the appellant and Kitabo would get four acres 1 kanal and 15 marlas of land. Kitabo along with her counsel has stated that the compromise was acceptable to her. In the present case, during the pendency of the appeal, a compromise was effected between the parties in the Court. The minor brothers of defendant No. 1, who had attained the age of majority, did not choose to proceed with the appeal themselves but allowed their brother to proceed with the appeal. In these circumstances, the minor brothers of defendant no.1 Sube Singh were bound by the compromise effected by Sube Singh on their behalf. The judgments relied upon by the counsel for the appellant fail to advance the case of the appellant as they are based on different facts. Learned First Appellate Court rightly RSA No. 1550 of 1988 8 dismissed the application filed by the appellant challenging the compromise. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge April 26,2011 arya