Das, J.

1. This was a suit for partition. The material defense was that there was a previous suit for partition by Gaya Pershad, the father of the plaintiffs, on his own behalf and on behalf of the plaintiffs which was compromised on certain terms which are binding on the plaintiffs. To this the plaintiffs replied that they were not parties to the compromise decree at all and that, in fact, the previous suit was compromised in contravention of the express provision of Order XXXII, rule 7, of the Code, that is to say, it was compromised without the leave of the Court having been obtained and that, accordingly, they are entitled to ignore the consent-decree and to ask to be placed in the same position which they occupied before that decree was passed.

2. In order to determine the point which has been argued before us at great length, it is necessary to deal with the antecedent events and to see how those events affect the plaintiffs.

3. In 1902 there was a suit by Gaya Pershad against Ramgulam Sahu and others for partition of joint family properties. That suit was compromised and a decree was passed in accordance with the petition of compromise. The petition of compromise ran as follows:--

"In the above suit a compromise has been made between the plaintiff and the defendants. Whatever property has been mentioned in the plaint is correct. The plaintiff has one-ninth share therein and he is in possession of his one ninth share jointly with the defendants. At present there is no necessity to have partition of his share under the amicable settlement arrived at, rather, possession will be held jointly, Hence your petitioners file this petition and pray that the plaintiff's possession over all the properties mentioned in the plaint to the extent of one ninth share may be declared. There is no necessity of partition. The plaintiff and the defendants will get the properties partitioned or will have partition made through the Court whenever they will like to do so afterwards. The parties will bear their own costs. Your petitioners pray that the suit may be decided in terms of thin sulehnama and all the contents thereof may be entered in the decree. Be it known that this plaintiff shall have one-math of the ornaments, dues, cash money and zamindari that will be found tinder bahi khata at the time of partition and the defendants shall have no objection thereto."

4. This decree, it is conceded, did not effect a partition of the joint family properties; it determined the share of the plaintiffs and their father, Gaya Pershad, in the joint family properties, and its effect was to destroy the joint tenancy between the parties and to make them tenants in common. The plaintiffs and their father, Gaya Pershad, were entitled on the foot of this decree to institute a suit for partition and this suit they actually brought in 1905. At the time of this suit, the plaintiffs were minors and the suit was actually brought by Gaya Pershad on his behalf and on behalf of his minor sons, the plaintiffs in the present action. This suit again resulted in a consent decree and we are in this appeal concerned with the validity of this consent decree so far as it affected the interests of the minors. The compromise petition was as follows:--

"Hail Cherisher of the Poor"

"In the above suit a compromise has been made between the plaintiffs and defendant No. 1. Details of the immoveable properties belonging to the plaintiff and the defendants and which are joint are given below. They are the joint properties of the family and are in possession of the plaintiffs and the defendants. The plaintiff's share therein is one ninth, so long they will remain joint, the plaintiffs shall have possession over the same to the extent of one-ninth share. When there will be partition, the plaintiffs will get a share of one ninth after partition. In the remaining moveable properties belonging to the plaintiffs and the defendants the plaintiffs' share has been declared to be one-ninth, equivalent to Rs. 7,002 in sash, gold ornaments 41 rupees, 4 annas in weight, and silver and rupa (alloyed silver) 602 rupees in weight, Out of the same plaintiff No. 1 received Rs. 3,501 in cash, gold ornaments, weighing 20 rupees 10 annas, and silver and rupa ornaments weighing 301 rupees from the defendants. The remaining sash money Rs. 3,501, gold ornaments 20 rupees 10 annas in weight and silver and rupa 301 rupees in weight due to plaintiffs Nos. 2 and 3 are deposited with defendants Nos. 1 and 4, under a sharkhati, signed by defendant No. 4. Defendants Nos. 1 and 4 will support and look after plaintiffs Nos. 2 and 3 in lieu of the interest of the money deposited. When plaintiff No. 2 will attain majority defendants Nos. 1 and 4 will give Rs. 1,750-8-0 gold ornaments 10 rupees 5 annas in weight and silver and rupa ornaments 150 rupees 8 annas in weight to him and they will give to plaintiff No. 3 Rs. 1,750-8-0 gold ornaments 10 rupees 8 annas in weight, and silver and rupa ornament 150 rupees 8 annas in weight when he will attain his majority. In case plaintiffs Nos. 2 and 3 do not live, plaintiff No. 1 shall have right to receive the money, gold and silver ornaments mentioned in the said sharkhat. Now the plaintiffs have no right remaining in any portion of other moveable properties excepting with Rs. 3,501 gold ornaments 20 rupees 10 annas in weight and silver and rupa (alloyed silver) 301 rupees in weight, deposited with defendants Nos. 1 and 4 under the sharkhat. Now there is no contention of any sort between the plaintiffs and defendants Nos. 1 and 4, Hence your petitioners pray that a partition decree may be passed in terms of the sulehnama and the parties will bear their own costs."

5. It will be noticed that the effect of this consent decree was to determine the actual value of the plaintiffs' share in the moveables; the immoveable properties were again left undivided. The Court passed a decree in accordance with the terms of settlement and it is now argued on behalf of the appellants that that decree must operate in bar of the plaintiffs' right to maintain the present nation.

6. Order XXXII, rule 7, of the Code provides as follows:--

"No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceeding, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. Any each agreement or compromise entered into without the leave of the Court be recorded shall be voidable against all parties other than the minor."

7. It is not pretended in thin case that the leave of the Court was expressly recorded in these proceedings. But it is argued that we must assume that the Court did its duty and impliedly granted leave to the adult plaintiff, Gaya Pershad, to settle the case on behalf of the minor plaintiffs especially as the petition of compromise, on the face of it, dealt with the interests of the plaintiffs. Even if this argument is admissible in view of the express provision of the law in Order XXXII, rule 7, there is, in my opinion, evidence in the record suggesting an inference that the Court never intended to exercise its judgment on the question whether the settlement was for the benefit of the minors. There is nothing in the petition to suggest that the minors were parties to the compromise. No doubt, the compromise affected the interest of the minors in so far as it declared that the minor plaintiffs in that suit would get a certain proportion out of the share allotted to plaintiff No. 1. But if they were not parties to the compromise petition they would be wholly unaffected by the compromise and the Court would not be called upon to exercise its judgment on the question whether the compromise was for their benefit. There was no power in the Court to refuse to pass a decree in accordance with the settlement arrived at between Gaya Pershad and his father, Ramgulam Sahu; they were both sui uris, and it was competent to them to settle their disputes in any way they liked. It is only when leave is asked to settle the case on behalf of the minors that the vigilance of the Court is attracted and the Court is called upon to examine the terms of the settlement for the purpose of protecting the interests of the minors.

8. Now, in this case the petition was signed by Gaya Pershad and not by him on his own behalf and on behalf of the minors; in other words, the petition was the petition of plaintiff No. 1 in that, case and was not the petition of plaintiffs Nos. 2 and 3, who are the plaintiffs in the present case. The order-sheet of the learned Subordinate Judge suggests the inference that the compromise was between the plaintiff No. 1, Gaya Pershad, and defendant No. 1. On the 6th August 1906 the learned Subordinate Judge recorded the following order in the order-sheet: "Plaintiff and defendant No. 1 file compromise put up to-morrow for orders." The next day, that is to say, the 7th August the following order was recorded by the Subordinate Judge--"Petition of compromise filed yesterday by plaintiff No. 1 and defendant No. 1 taken up. Pleaders heard, the suit is decreed in terms of compromise (torn in original) defendant No. 1 only. The plaintiffs called upon to file non judicial stamp for drawing up decree within a week from this day, failing which the decree shall not be drawn up." It is unfortunate that the original document was torn at a very critical point but we are, of course, not entitled to draw any inference adverse to the appellant. But the order sheet both of the 6th August and 7th August 1906 certainly suggests the inference that the compromise was between the plaintiff No. 1 and defendant No. 1, and that the Court was dealing with the matter as a compromise between the plaintiff No. 1 and defendant No. 1. Mr. Kulwant Sahai relied on the fact that Pleaders were heard but in my view no argument can be built on so lender a foundation. Pleaders are beard whenever any compromise petition is filed, even though no minors are concerned in the compromise. In my view, it must follow, from a careful perusal of the petition of compromise and the order sheet in the case, that the Court did not think that it was called upon to exercise its judgment on the question whether the compromise was for the benefit of the minors. It must also be remembered that there was no petition by Gaya Pershad asking for the leave of the Court to compromise the case on behalf of the minors. In my view, it is impossible to hold, on these materials, that the learned Subordinate Judge was sailed upon or that he thought that he was sailed upon to protest the interests of the minors.

9. Order XXXII, rule 7, rests on the principle that a suit relating to the estate of an infant and for his benefit has the effect of making him a ward of Court and that no act can be done affecting the property of the minor unless under the express direction of the Court itself.

10. It was held by the Judicial Committee, so far back as 1871, that "where a compromise of a suit is made, it ought to be carried out by proper deeds and filed in Court, particularly where infants are concerned, so as to have the assent of the Court at the time instead of its being totally concealed from them;" see the case of Moulvie Abdool Ali v. Mozuffer Hossein Chowdhry 16 W.R.P.C. 22 : 2 Suth. P.C.J. 462. It will be noticed that this decision was given before the Code of 1882 and it has been suggested that the Code of 1882 framed a section dealing with this point as a result of the decision of the Judicial Committee in the case sited.

11. In the case of Sharat Chunder Ghose v. Kartik Chunder Mitter 9 C. 810 : 12 C.L.R. 463 : 4 Ind. Dec. (N.S.) 1188, it was held by Mr. Justice Prinsep and Mr. Justice O'Kinealy, that, "where a compromise of a suit is entered into on behalf of an infant defendant, the approval of the Court to such compromise must be express, and will not be inferred from the subsequent passing of a decree in terms of each compromise. Without such approval, the compromise will not bind the infant, and will be set aside at his instance." In this case the Court recorded no finding that the compromise was prejudicial to the interests of the minor, but merely on the finding that there was no express approval of the Court, it same to the conclusion that the consent-decree was not binding upon the minor and that he was entitled to be restored to the position which he occupied previous to the consent-decree.

12. In the case of Manohar Lal v. Jadunath Singh 28 A. 585 : 8 Bom. L.R. 489 : 4 C.L.J. 8 (P.C.) : 10 C.W.N. 898 : 9 O.C. 219 : 1 M.L.T. 210 : 16 M.L.J. 291 : 8 A.L.J. 710 : 33 I.A. 128, the question was argued before the Judicial Committee; and it was contended that, as the compromise petition gave full notice to the Court that the interests of the minors were intended to be affected by the compromise, the compromise decree must be taken to have been made with the leave of the Court within the meaning of section 462, Civil Procedure Code. The Judicial Committee held that, "in order to show that the exigencies of the provisions of the section had been complied with there ought to be evidence that the attention of the Court was directly called to the fact that a minor was a party to the compromise; and it ought to be shown on petition, or in some way not open to doubt, that the leave of the Court was obtained. The mere facts that the minor was so described, and as appearing by a guardian, and that the compromise was before the Court were not sufficient." In my view these decisions establish the proposition that the sanction of the Court cannot be inferred merely from the facts that the petition of compromise gave notice to the Court that the interests of the minors were intended to be affected by the compromise and that the Court passed a decree in accordance with the compromise.

13. The last case of the Judicial Committee, the case of Ganesha Row v. Tulia Ram Row 19 Ind. Cas 515 : 17 C.W.N. 765 : 11 A.L.J. 589 : 36 M. 295 : 18 C.L.J. 1 : 15 Bom. L.R. 626 : 14 M.L.T. 1 : (1913) M.W.N. 575 : 25 M.L.J. 150 : 40 I.A. 132 (P.C.), supports this proposition. It must follow, therefore, that the plaintiffs are entitled to avoid a consent-decree.

14. Mr. Kulwant Sahai argues that this is not a suit to avoid the consent-decree but in my view the argument is unsubstantial. The plaintiffs state in the 7th paragraph of the plaint that no compromise was filed on behalf of the plaintiffs, and they submit that the decree is not binding on them. It is quite true that they have not asked for a relief that the consent decree is not binding on them but in my view the question of relief is for the Court. Provided the material allegations are there, it is for the Court, and the Court alone; to give the plaintiffs appropriate relief in the circumstances of the case. All the allegations are in the plaint entitling the Court to say that the decree is not binding upon the plaintiffs. I am of opinion that the plaintiffs have established their case that the consent decree, so far as it affected their interests, does not bind them and that they are entitled to a partition of the joint family properties both moveable and immoveable as they existed on the date of the suit.

15. Now, I ought to mention that one of the plaintiffs, Kalika Prasad, baa compromised his claim with the defendants. We are, therefore, only concerned with the plaintiff No. 2 whose share in the joint family properties is one-twenty seventh both in the moveables and immoveables.

16. The Court below has found, on what principle we do not know, that the share of plaintiff No. 2 in the moveables is one-ninth. The decree of 1902 undoubtedly effected a separation between the parties and expressly stated that the share of Gaya Pershad and his sons, both in the moveables and immoveables, was one-ninth. That decree must stand, and is wholly unaffected by any change that may have taken place in the constitution of the family subsequent to the date of that decree. The plaintiff is undoubtedly entitled to a partition by metes and bounds, but be can only sue on the basis of that decree. In accordance with that decree he is only entitled to one third of one-ninth, that is to say, to one-twenty-seventh, both in the moveables and in the immoveables.

17. We vary the decree of the lower Court to this extent that we award him one twenty-seventh both in the moveables and in the immoveables. Subject to this variation, we dismiss the appeal with costs.

Robert Lindsay Ross, J.

I agree.