dedol-hf/india-case-legal-rag huggingface dataset:
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
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
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
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
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.
PETITIONER:
JANARDAN REDDY AND OTHERS
        Vs.
RESPONDENT:
THE STATE OF HYDERABAD AND OTHERS.KULLURI YELLADU AND OTHERS
DATE OF JUDGMENT:
16/03/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  217            1951 SCR  344
 CITATOR INFO :
 R          1955 SC 633  (25)
 R          1957 SC 540  (53)
 E&D        1958 SC  86  (8,10,16)
R          1960 SC1186  (10)
 RF         1961 SC1457  (13)
 R          1962 SC1737  (14)
 RF         1963 SC1120  (5)
 D          1968 SC1313  (5)
 RF         1979 SC 478  (63)
 RF         1983 SC 624  (8)
 R          1990 SC 485  (3)
ACT:
    Constitution of India, Art. 32--Special Tribunals  Regu-
lation (Hyderabad), ss. 2, 7__Conviction and death sentence;
by Special Tribunal--Confirmation by High Court before  26th
January, 1950 Application under Art. 32 for writs of  prohi-
bition,           certiorari           and            habeas
corpus--Maintainability--Detention   under  conviction    by
criminal court--Application for habeas  corpus--Jurisdiction
of  convicting  court, whether can be gone  into--Effect  of
confirmation   of   conviction  on   appeal--Misjoinder   of
charges--Omission to provide counsel for  accused---Validity
of conviction--Interference  under Art. 32.
HEADNOTE:
   There is a basic difference between want of jurisdiction
and  an illegal or irregular exercise of  jurisdiction,  and
mere noncompliance with rules of procedure (e.g., misjoinder
of  charges)  cannot be made a ground for  granting  a  writ
under Art. 32 of the Constitution. The defect, if any,  can,
according to the procedure established by law, be  corrected
only by a court of appeal or revision, and if the  appellate
court  which was competent to deal with the matter has  con-
sidered the matter and pronounced its judgment, it cannot be
reopened in a proceeding under Art. 32 of the Constitution.
    Where,  some time after the pronouncement of a  sentence
of  death by hanging by a Special Tribunal of the  Hyderabad
State  and pending confirmation of the sentence by the  High
Court  of Hyderabad, a Regulation was passed to  the  effect
that  notwithstanding anything contained in any law for  the
time  being in force any sentence of death passed by a  Spe-
cial  Tribunal shall. be carried into execution by  hanging:
Held, that the Regulation
345
must  be taken to have retrospective effect, as the mode  of
execution  of a sentence cannot be regarded as a  matter  of
substantive law, and the sentence for hanging cannot be held
to be illegal even assuming that under the law which was  in
force  in Hyderabad at the time the sentence was  passed  by
the  Special Tribunal, sentences to death could  be  carried
out  only by decapitation. In any event, as the  High  Court
which  upheld  the conviction had the power  to  impose  the
sentence of death by hanging under the Regulation, no relief
could be granted to the accused under Art. 32 of the Consti-
tution.
Section 7(2) of the Special Tribunals Regulation  passed
by  the  Military Governor of Hyderabad  covered  all  those
cases  where manzuri and tashih were contemplated under  the
old law and sentences of death passed by a Special  Tribunal
could  therefore be executed without the assent or  approval
of H.E.H. the Nizam.
    The result of s. 271 of the Hyderabad Criminal Procedure
Code,  (which  corresponds to s.340 of the  Indian  Criminal
Procedure  Code)  read  along with the  Rules  and  Circular
Orders  issued by the Hyderabad High Court is: (i)  that  it
cannot be laid' down as a rule of law that in every  capital
sentence where the accused is unrepresented the trial should
be  held to be vitiated;and (ii) that a court of  appeal  or
revision  is not powerless to interfere if it is found  that
the  accused was so handicapped for want of legal  aid  that
the proceeding against him may be said to amount to negation
of a fair trial.
    The  writs  referred  to in Art. 32  must  obviously  be
correlated  to  one or more of the fundamental  rights  con-
ferred by Part III of the Constitution and can be made  only
for the enforcement of such rights.
    The petitioners who were convicted by a Special Tribunal
of  Hyderabad of murder and other offences and sentenced  to
death  by  hanging and whose convictions and  sentences  had
been  confirmed by the Hyderabad High Court before the  26th
January, 1950, applied to the Supreme Court under Art. 32 of
the  new Constitution for the following reliefs: (i) a  writ
in  the nature of certiorari calling upon the Government  of
Hyderabad  and the Special Judge to produce the  records  of
the  case and show cause why the convictions  and  sentences
should  not  be  quashed, (ii) for a  writ   of  prohibition
directing  the Government and  Special Judge not to  execute
the petitioners, and (ill) for a writ of habeas corpus:
    Held,  (i)that the writs of certiorari  and  prohibition
could  not  be granted as at the date when  the  High  Court
dealt  with the case and confirmed the conviction  and  sen-
tences  of  the petitioners, the Supreme Court  was  not  in
existence  and the Hyderabad Court could not by any  stretch
of reasoning be said to have been subordinate to the Supreme
Court:
45
346
    (ii)  the writ of habeas  corpus could not   be  granted
inasmuch  as  a return that the person is  in  detention  in
execution  of a sentence on indictment on a criminal  charge
is a sufficient answer to an application for such a writ;
    (iii)  assuming  that it is open even in such  cases  to
investigate  the jurisdiction of the court  which  convicted
the  petitioners,  the mere fact that the  trial  court  had
acted  without jurisdiction would not justify  interference,
if the conviction and sentence had been upheld on appeal  by
a court of competent jurisdiction; for, the appellate  court
in a case which properly comes before it on appeal, is fully
competent  to decide whether the trial was with  or  without
jurisdiction  and it has jurisdiction to decide  the  matter
rightly as well as wrongly; and as the High Court at Hydera-
bad  had  jurisdiction to hear and decide  the  appeal,  the
detention  of  the petitioners could not be held to  be  in-
valid;
    (iv)  as the judgment of the High Court  was  pronounced
before the 26th January, 1950, and it had acquired a finali-
ty  in the fullest sense of the term before that  date,  the
Supreme  Court had no power to re-open that  judgment  under
the provisions of the new Constitution;
(v)  the fact that the petitioners had lost their  right
of appeal to the Judicial Committee of Hyderabad by a sudden
change  in the law and by the delay on the part of the  High
Court  in  the disposal of their application  for  leave  to
appeal to the said Committee was a matter for the  executive
authorities to consider; it could not widen the scope of the
existing remedial laws beyond legitimate bounds.
    Quaere:  Whether an application under Art. 32  is  main-
tainable after a similar application under Art. 226 has been
dismissed by the High Court.
    In re Authers [(1889) 22 Q.B.D. 345], In re Bailey (3 E.
JUDGMENT:
re  Newton  (139 E.R. 692), In re Bonomally Gupta  (44  Cal.
723), Greene v. Secretary of State for Home Affairs  ([1942]
A.C. 284), Ex parte Lees [(1868) E.B. & E. 828, R. v.  Stud-
dis  [(1801)1 East 306], Carus Wilson's case [(1845) 7  Q.B.
984] referred to.
&
    ORIGINAL JURISDICTION :These were two sets of  petitions
by three groups of persons, one under Art. 32 of the Consti-
tution (Petitions Nos. 12, 13 and 14, of 1951) and the other
under Art. 136(1) of the Constitution (Criminal  Miscellane-
ous  Petitions Nos. 14, 15 and 16) against the judgment  and
order dated 19th December, 1950, of the High Court of  Judi-
cature  at  Hyderabad  (M.  Khaliluzzaman  Siddiqi  J.)   in
Miscel-. laneous Petitions Nos. 2297, 2298 and 2299 of 1950.
The facts are set out in detail in the judgment.
347
D.N. Pritt (Danial Latifi and Gopal Singh, with him) for
the petitioners.
    M.C.  Setalvad, Attorney-General for India, and  Rajaram
Aiyar,  Advocate-General  of Hyderabad, (G .N.  Joshi,  with
them) for the respondents.
    1951. March 16. The judgment of the Court was  delivered
by
    FAZL  ALI  J.--These are six petitions which  have  been
presented to this Court on behalf of three groups of persons
in the following circumstances.
    On  the  30th October, 1948, the  Military  Governor  of
Hyderabad  by  virtue   of the powers delegated  to  him  by
H.E.H.  the Nizam enacted the Special  Tribunals  Regulation
(No. 5 of 1358 F), which was amended by several later  Regu-
lations issued on the 22nd May, 1949, 10th July, 1949,  23rd
July  and 30th October, 1949. The Regulation provided  among
other  things  that the Military Governor may  constitute  a
Special  Tribunal  or Tribunals, each  consisting  of  three
members  appointed  by him, and that he may  by  general  or
special  order  direct that these Tribunals  shall  try  any
offence, whether committed before or after the  commencement
of  the Regulation, or any class of offences. Section  8  of
the Regulation empowered the Military Governor to direct, by
order, that in such circumstances and under such conditions,
if  any, as may be specified in the direction, any power  or
duty conferred or imposed upon him by the Regulation may  be
exercised  or discharged by any other authority. In  accord-
ance with the Regulation, certain Tribunals were  constitut-
ed,  and one of the Tribunals--Tribunal A for Nalgonda  dis-
trict--proceeded to try certain cases made over to it by the
Civil  Administrator of Nalgonda under the powers vested  in
him by the Military Governor. Among the cases tried by  this
Tribunal were also three cases in which the petitioners were