Case: Kaushalya Devi And Others Vs. Baijnath Sayal And Others

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 t he 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. Kaushalay was appointed guardian ad litem. 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 defendant 9, Baij Naths 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. This suit was instituted on June 11, 19413. 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 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, defendant 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, 19444. 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 O. 32, R. 7 of theCode of Civil. The High Court did not allow the appellants to raise this point because it held that their 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;

Reasoning: 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 O. 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 arised 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 O. 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 nonobservance 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 O. 32, R. 7(1) and (2)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 O. 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 O. 32,R. 7. It issignificant 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 proceeding 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 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 O. 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 O. 32, R. 7(2) are plain and unambiguous and they do not lend any support to the argument that non-compliance with O. 32, R. 7(1) would make the impugned decree a nullityThus this decision is of no assistance to the appellantsIt 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 feeling aggrieved by a preliminary decree must appeal against the 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 by limited to the points arising form 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 challenge. 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 O. 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 High Court.