IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08.09.2011 CORAM The Hon'ble Mr.Justice R.S.Ramanathan S.A.No.980 of 2011 1.Maimun Bi @ Maimunnissa 2.Maruthazha ...Appellants/Plaintiffs Versus 1.Ammaji 2.Zaibunnisa 3.Gudubi 4.Abdul Ravoof 5.Ammu 6.Habibunnisa 7.Shajathi Bibi 8.Mohammed Farookh 9.Humayun 10.Mohammed Shanu 11.Zakir Hussain 12.Mohammed Kaza 13.Dhayira 14.Farida @ Farida 15.Hasina ... Respondents/Defendants Second Appeal filed under Section 100 of the Code of the Civil Procedure against the judgment and decree dated 25.2.2011, passed in A.S.No.113 of 2005, on the file of the Additional District Judge, Fast Track Court No.III, Coimbatore, confirming the judgment and decree dated 15.9.2003, passed in O.S.No.1118 of 1996 on the file of the III Additional District Munsif Court, Coimbatore. For Appellants : Mr.P.Saravana Sowmiyan JUDGEMENT The unsuccessful plaintiffs are the appellants herein. The appellants/plaintiffs filed the suit for partition and to set aside the final decree dated 24.12.1986, passed in I.A.No.262 of 1982 in O.S.No.732 of 1976, on the file of the District Munsif, Coimbatore. 2. The case of the appellants/plaintiffs was that the suit property originally belonged to one Moideen Sheriff and he died https://hcservices.ecourts.gov.in/hcservices/ intestate in the year 1972, leaving behind his second wife Gudu Bi, and children through her and also the children through the first wife Rukia Bi, who predeceased her. The case of the appellants/plaintiffs was that they are the son and daughter of Moideen Sheriff, through his second wife, viz., the third defendant, and defendants 1 and 2, are the children of Rukia Bi, the first wife and defendants 4 to 6, are the children of Gudu Bi, the second wife i.e., the third defendant. Therefore, the appellants/plaintiffs are entitled to 21/72 shares in the property, as per the Muslim Law. It was further stated that the suit in O.S.No.732 of 1976, was filed by their mother in collusion with other legal heirs and in that suit, the appellants/plaintiffs were represented by her and the interests of the appellants/plaintiffs were not properly represented and the mother has no right to represent the appellants/plaintiffs and therefore, the compromise entered into between the parties, by which, the final decree was passed in I.A.No.262 of 1982 in O.S.No.732 of 1976, is not binding on the appellants/plaintiffs. Hence, the final decree passed in I.A.No.262 of 1982 in O.S.No.732 of 1976, is liable to be set aside and the appellants/plaintiffs may be allotted 21/72 share in the suit property. 3. The respondents/defendants contested the suit stating that already the suit properties were partitioned in the suit in O.S.No.732 of 1976 and the appellants/plaintiffs were parties to the suit, represented by proper guardian and the appellants/plaintiffs also filed the suit in O.S.No.2097 of 1982, to set aside the preliminary decree passed in O.S.No.732 of 1976 and that was allowed to be dismissed for default. Evenafter that, no steps were taken by them to remove the guardian and they prosecuted the case in O.S.No.732 of 1976, evenafter attaining majority. Therefore, appellants/plaintiffs are bound by the final decree passed in O.S.No.732 of 1976. Hence, appellants/plaintiffs are not entitled to claim any share. 4. Both the Courts below dismissed the suit holding that the decree passed in O.S.No.732 of 1976 is binding on the appellants/plaintiffs and no steps were taken to set aside the preliminary decree passed in O.S.No.732 of 1976 and in the absence of challenging the preliminary decree, it is not open to the appellants to challenge the final decree dated 24.12.1986, passed in O.S.No.732 of 1976. Moreover, the appellants/plaintiffs have also filed another suit in O.S.No.2097 of 1982, after attaining majority and that was allowed to be dismissed for default and even thereafter, they have not taken any steps to challenge the final decree passed in O.S.No.732 of 1976, when the final decree proceedings were pending. Therefore, it is not open to the appellants/plaintiffs, to challenge the final decree at a belated stage, as they were properly represented by their natural guardian, the mother and hence, they are bound by the final decree passed and they cannot challenge the same. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned counsel appearing for the appellants submitted that admittedly, when the final decree proceedings were pending, the appellants/plaintiffs become majors and no steps were taken by them to remove the guardian and the final decree proceedings continued and the appellants/plaintiffs were not properly represented and the compromise entered into between the parties in the final decree proceedings was not with the leave of the Court and therefore, the plaintiffs are not bound by the final decree proceedings. 6. It was further contended by the learned counsel for the appellants that admittedly in the suit in O.S.No.732 of 1976, the plaintiffs were mentioned as minors represented by the guardian and mother and even after attaining majority, no steps were taken by the guardian-mother to discharge herself and no notice was given to the appellants/plaintiffs to prosecute the case and therefore, they are not bound by the final decree. Hence, the appellants/plaintiffs were entitled to the decree as prayed for. 7. The following substantial questions of law are framed for consideration in this Second Appeal:- i)Whether the final decree dated 24.12.1986 passed in I.A.No.262 of 1982, in O.S.No.732 of 1976, on the file of the District Munsif Court, Coimbatore, is vitiated under Order 32, Rule 7 of C.P.C.? iii)Whether the final decree obtained on the strength of joint memo of compromise without expressing consent of the appellants would vitiate it ? v)Whether the final decree is liable to be set aside under Order 32, Rule 3 (a) of C.P.C., as it is prejudice to the interests of the minor? vii)Whether it is mandatory on the part of the guardian of the suit to obtain leave of the Court before entering into compromise on behalf of the minor? 8. Admittedly, the case of the appellants/plaintiffs was that the suit property originally belonged to one Moideen Sheriff, the appellants/plaintiffs and the respondents 1 to 6, are the legal heirs and as per Mohamaden Law, the appellants/plaintiffs are entitled to 27/72 shares. It is also not in dispute that the suit in O.S.No.732 of 1976, was filed for partition in respect of the property belonging to Moideen Sheriff and in that suit, the appellants/plaintiffs were represented by their mother, the natural guardian and the suit was contested and the preliminary decree was passed and thereafter, a compromise was entered into between the parties and that was recorded during the final decree proceedings and on the basis of the compromise https://hcservices.ecourts.gov.in/hcservices/ memo, the final decree was passed in I.A.No.262 of 1982 in O.S.No.732 of 1976. As per the provisions of Order 32, Rule 3-A of Civil Procedure Code ( in short C.P.C.) no decree passed against a minor shall be set aside, merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit, adverse to that of the minors, unless, prejudice has been caused to the interests of the minors. 9. In the plaint, it has not been stated that by reason of the appointment of the mother viz., third defendant in the suit as friend of the minor, prejudice has been caused to the interests of the minor and the minor was not given their due share. In the plaint, in paragrah No.6 (a) nothing has been stated about the prejudice caused to interests of the minor by reason of the conduct of the natural guardian in O.S.No.732 of 1976. It was only stated that the third defendant cannot act as guardian under the Mohamedan Law. Therefore, as per the provisions of Order 32, Rule 3 (a) of C.P.C., in the absence of any prejudice caused to the minors, by reason of the conduct of the third defendant, the natural guardian, the minors cannot plead for setting aside the decree passed against them. Therefore, the third substantial question of law is answered against the appellants and I hold that the final decree passed is not liable to be set aside in the absence of any proof of prejudice caused to the appellants. 10. Admittedly, the final decree was passed on the basis of compromise memo filed in I.A.No.262 of 1982 in O.S.No.732 of 1976, and after obtaining the leave of the Court, the final decree was passed on 24.2.1986 and as per Order 32, Rule 7 of C.P.C., any agreement or compromise entered into, without the leave of the Court, shall be voidable against all the parties, other than the minor. In this case, as seen from the final decree proceedings, the compromise memo was filed and after getting the leave of the Court, that was accepted and the final decree was passed on the basis of the compromise memo. Hence, it cannot be contended that compromise was entered into without the leave of the Court and therefore, it is not binding on the appellants and the substantial question of law No.2 is also answered against the appellants. Further, there is no necessity to get permission of the Court to enter into a compromise and it is suffice, if the compromise decree was approved by the Court and in this case, the compromise memo was filed and the Court has granted leave to the parties to enter into a compromise and passed a final decree. Hence, the substantial question of law No.4 is also answered against the appellants. 11. Admittedly, after the appellants become majors, the appellants filed the suit in O.S.2097 of 1982, to set aside the preliminary decree passed in O.S.No.732 of 1976 and that was allowed to be dismissed for non-prosecution and thereafter, the final decree was passed in O.S.No.732 of 1976 on 24.12.1986 and after a decade, the https://hcservices.ecourts.gov.in/hcservices/ present suit was filed for partition to set aside the final decree. As per Order 32, Rule 12 of C.P.C., a minor plaintiff shall, on attaining majority, is entitled to proceed with the suit or shall abandon the suit or application and if he repudiates the suit, he shall have to apply his name to be strucked off and the Court on being satisfied that he is not a necessary party, shall dismiss him from the suit. In case if the minor elects to proceed with the suit, he shall apply for discharge of the next friend, and after getting the leave from the Court, he is entitled to proceed with the suit. 12. In this case, admittedly, the appellants/plaintiffs became majors in the year 1982 and they have also filed an application to set aside the preliminary decree passed in O.S.No.732 of 1976 and that was allowed to be dismissed for default and after a long peiord of 14 years, they have filed the suit. Hence, the present suit is barred by limitation and having accepted the final decree passed in O.S.No.732 of 1976, it is not open to the appellants to challenge the same, after a period of 14 years, after attaining majority. Further, the compromise memo was approved by the Court and the final decree was passed, based on the compromise memo. 13. Further, as per Order 23, Rule 3-A of C.P.C. no suit shall lie to set aside a decree, on the ground that the compromise on which the decree is passed was not lawful. Considering all these aspects, both the Courts below have rightly dismissed the suits filed by the appellants/plaintiffs and therefore, the substantial question of law No.1, is also answered against the appellants. 14. In the result, the Second Appeal is dismissed, confirming the judgment and decree of the Courts below. In the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sd https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District Judge, (Fast Track Court No.III) Coimbatore. 2.The III Additional District Munsif, Coimbatore. +1cc to Mr.P.Saravana Sowmiyan, Advocate Sr 55600 CK(CO) km/20.10. S.A.No.980 of 2011 https://hcservices.ecourts.gov.in/hcservices/