# KAUSHALYA DEVI AND OTHERS v. BAIJNATH SAYAL AND OTHERS

- **Citation:** [1961] 3 S.C.R. 769
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 216of1956
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kaushalya-devi-and-others-v-baijnath-sayal-and-others-2091
- **Pages:** 10

## Headnote

Suit against Minor-Preliminary decree on consent by guardian
without leave of court-If a nullity-If can be set aside in appeal
against final decree-Code of Civil Procedure, r908 (Act V of r908),
s. 97, 0. 32, r. 7.
Order 32, r. 7(2) of the Code of Civil Procedure, which is
intended to protect the interest of the minor, really means that
an agreement or compromise entered into on behalf of the minor
in contravention of 0. 32, r. 7(1) is voidable only at the instance
of the minor and not at the instance of any other party to it.
Such contravention does not render the agreement or decree a
nullity and the same has to be avoided in an appropriate
proceeding.
Manohar Lal v. Jadu Nath Singh (19o6) L.R. 33 I.A. 128,
referred to.
Chhabba Lal v. Kallu Lal (1946) L.R. 73 I.A. 52, Jamna Bai
v. Vasanta Rao (1916) L.R: 43 I.A. 99 and Khiarajmal v. Daim
(1904) L.R. 32 I.A. 23, held inapplicable.
Where a preliminary decree is passed in non-compliance
with the provision of 0. 32, r. 7(1), the remedy of the minor is by
way of an appeal against that decree and not against the final
decree since s. 97 of the Code is a bar to the challenging of the
preliminary decree in an appeal against the final decree.
Consequently, in a suit for the partition where preliminary
decree by consent was passed against the minor in contravention
o't.O. 32, r .. 7(1) and that decree having been sought to be set
aside in an appeal from the final decree the High Court held that
s. 97 of the Code precluded the appellant from doing so.
Held, that the decision of the High Court was correct and
inust be affirmed.
·
Februaf'y 9.
r96r
Ka ushalya Devi
v.
Baijnath S ayal
770
SUPREME COURT REPORTS
[1961]
Held, further, that the objects. 97 of the Code was intended
to achieve would be wholly frustrated if it were to be held that
the section merely prohibited a challenge to the factual correctness of the decree and not its legal validity.

## Text

3 S.C.R.
SUPREME COURT REPORTS
769
extension of time.
We, accordingly, set aside the
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dismissal of the appeal and the suit, and grant the
-
appellant two months' time from today for payment Mahanth Ram Das
of the defi_cit court fee.
We only hope that,. after the
Gan;~ Das
lesson whrnh the appellant has learnt, he will not ask
the Court perhaps vainly, to show him any more Hidayatullah J.
indulgence. · There will be no order about costs in this
Court as the appeal was heard ex parte.
Appeal allowed.
KAUSHALYA DEVI AND OTHERS
v.
BAIJNATH SAYAL AND OTHERS.
(P. B. GAJENDRAGADKAR and K. N. WANCHOO JJ.)
Suit against Minor-Preliminary decree on consent by guardian
without leave of court-If a nullity-If can be set aside in appeal
against final decree-Code of Civil Procedure, r908 (Act V of r908),
s. 97, 0. 32, r. 7.
Order 32, r. 7(2) of the Code of Civil Procedure, which is
intended to protect the interest of the minor, really means that
an agreement or compromise entered into on behalf of the minor
in contravention of 0. 32, r. 7(1) is voidable only at the instance
of the minor and not at the instance of any other party to it.
Such contravention does not render the agreement or decree a
nullity and the same has to be avoided in an appropriate
proceeding.
Manohar Lal v. Jadu Nath Singh (19o6) L.R. 33 I.A. 128,
referred to.
Chhabba Lal v. Kallu Lal (1946) L.R. 73 I.A. 52, Jamna Bai
v. Vasanta Rao (1916) L.R: 43 I.A. 99 and Khiarajmal v. Daim
(1904) L.R. 32 I.A. 23, held inapplicable.
Where a preliminary decree is passed in non-compliance
with the provision of 0. 32, r. 7(1), the remedy of the minor is by
way of an appeal against that decree and not against the final
decree since s. 97 of the Code is a bar to the challenging of the
preliminary decree in an appeal against the final decree.
Consequently, in a suit for the partition where preliminary
decree by consent was passed against the minor in contravention
o't.O. 32, r .. 7(1) and that decree having been sought to be set
aside in an appeal from the final decree the High Court held that
s. 97 of the Code precluded the appellant from doing so.
Held, that the decision of the High Court was correct and
inust be affirmed.
·
Februaf'y 9.
r96r
Ka ushalya Devi
v.
Baijnath S ayal
770
SUPREME COURT REPORTS
[1961]
Held, further, that the objects. 97 of the Code was intended
to achieve would be wholly frustrated if it were to be held that
the section merely prohibited a challenge to the factual correctness of the decree and not its legal validity.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
216of1956.
Appeal by special leave from the judgment and
decree dated August 28, 1950, of the Punjab High
Court in Civil Regular First Appeal No. 343 of 1944.
L. K. Jha, K. P. Bhandari and Harbans Singh, for
the appellants.
Darya Datt Chawla for respondent Nos. l(iJ to (iii).
1961. February 9. The Judgment of the Court was
delivered by
Gaj•ndragadkar J.
GAJENDRAGADKAR, J.-This appeal by special leave
arises from a partition suit filed by Baij Na th against
his other coparceners. Baij Na th 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 the time of the suit, and his branch was represented by his five sons Ghansham Lal, Shri Ram, Hari
Ram, Tira.th Ram and Murari Lal, who were impleaded
as defendants 1 to 5 respectively. On the death of
Ghansham Lal pending the suit his two minoi: sons
Jai Pal and Chandar Mohan were brought on the
record as his legal representatives and their mother
Mst. Kaushalya 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 HariKishan the two sons of Jagan Nath
were defendants 7 and 8, and Badri Nath was defendant 9. Baij Nath's 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. The suit was
instituted on June 11, 1941.
3 S.C.R.
SUPREME COURT REPORTS
771
It appears that by consent of parties a preliminary
1961
decree was drawn by the trial court on October 30, K aushalya Davi
1941, but the validity of this decree was successfully
v.
challenged by an appeal to the Lahore High Court. It Baifnaeh Sayal
was held by the High Court that all parties had not
--
joined in the compromise and so the preliminary Gafendragadkar ].
decree could not be sustained. In the result the said
decree was set aside and the case was remanded for
trial.
It further appears that after remand parties ag11.in
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 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. Tira.th 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 ti.nd a final decree was
drawn on June 21, 1944.
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 the Code of Civil
Procedure. The High Court did not allow the &ppella.nts to raise this point because it held that their
99
772
SUPREME COURT REPORTS
[1961]
I961
failure to make an appeal against the preliminary
Kaushalya Devi decree precluded them from ~hallenging its correctness
v.
or validity under s. 97 of the Code.
Certain other
Baijnath Sayal minor objections were raised by the appellants on the
merits but they were also rejected. In the result the
Gajendragadkar J. 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; and the only point which has been urged by
Mr. Jba on their behalf is that the High Court was in
error in disallowing the appellants to challenge the
validity of the preliminary decree in their appeal
before it.
Mr. Jha contends that in dealing with the question
about the competence of the plea raised by the appellants
the High Court has misjudged the effect of the provisions of O. 32, r. 7. It is common ground that at the
time when the preliminary decree was passed by consent
and the appellants' guardian Kaushalya Devi agreed
to the passing of such a preliminary decree and to the
appointment of Ch uni Lal as Commissioner the appellants were minors and that leave had not been obtained
as required by 0. 32, r. 7. Order 32, r. 7(1) provides that
no next friend or guardian for the suit shall without the
leave of the court expressly recorded in the proceedings enter into any agreement or compromise on behalf
of the minor with reference to the suit in. which he acts
as next friend or guardian. It is also not disputed that
the agreement which resulted in the drawing up of the
preliminary decree and the appointment of Chuni Lal
as Commissioner fell within the scope of this rule and
that sanction required by the rule had not been
recorded in the proceedings. The argument is that the
failure to comply with this mandatory provision of the
rule makes the agreement and the preliminary decree
void and if that is so s. 97 of the Code of Civil Procedu~e would be no bar in the ~ay of the appellants
challenging the validity of the decree at the appellate
stage.
The effect of the failure to comply with 0. 32, r. 7(1)
is specifically provided by 0. 32, r. 7(2) which says
3 S.C.R.
SUPREME COURT REPORTS
773
that any such agreement or compromise entered into
'96 1
without the leave of the court so recorded shall be Ka11shalya Devi
voidable against all parties other than the minor.
v.
Mr. Jha reads this provision as meaning that the
Baijnath Sayal
impugned agreement is voidable against the parties to
it who are major and is void in respect of the minor; Gajendragadkar J.
in other words, he contends that the effect of this
provision is that the major parties to it can avoid it
and the minor need not avoid it at all because it is a
nullity so far as he is concerned. In our opinion this
contention is clearly inconsistent with the plain meaning of the rule. \Vhat 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 a\~,,ided 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 0. 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 arises 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 non-observance 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 0. 32, r. 7(1) and (2).
The question as to the procedure which the minor
should adopt in avoiding such an agreement or decree
has been the subject-matter of several decisions, and
774
SUPREME COURT REPOR'rS
[1961]
r96r
it has been held that a compromise decree may be
avoided by the minor either by a regular suit or by an
Kaushalya Devi
v.
application for review by the court which passed the
Baijnath sayal said decree. The decision in Manohar Lal v. Jadu Nath
Singh('), is an illustration of a suit filed by the minor
Gajendragadkar J. for declaration that the impugned decree did not bind
him. It is, however, not necessary for us to deal with
this aspect of the matter in the present appeal any
further.
In support of his argument that the failure to
comply with the requirements of O. 32, r. 7(1) makes
the decree a nullity Mr. Jha has very strongly relied
on the decision of the Privy Council in Ohhabba Lal
v. Kallu Lal('). In that case an objection to the
validity of a reference to arbitration was taken by a
party in an appeal against the decree passed on a.n
award; and one of the points raised for the decision
before the Privy Council was .whether a.n appeal lay
against the decree in question. Under Schedule 2,
paragraph 16(2) of the Code which was then in force
it was provided that upon the judgment pronounced
according to the award a decree shall follow and no
appeal shall lie from such decree except in so far as it
is in excess of or not in accordance with the a.ward.
The argument urged against the competence of the
appeal was that the objection against the validity of
the reference and the a.ward could and should have
been raised under para.graph 15(l)(c) of the said Schedule, and since such an objection had not been so
raised and a. decree was drawn in accordance with the
a.ward under para.graph 16, T. 1 no contention could
be raised against the validity of the decree outside
the terms of paragraph 16(2). This argument waa
repelled by the Privy Council. It was held that the
obtection against the validity of the reference based
on the ground that the requirements of 0. 32, r. 7(1)
had not been complied with did not fall within the
purview of paragraph 15(l)(c). The said paragraph
specified the grounds on which an award could be
challenged. It provided that the award could be set
a.side if it was made after the issue of an order by the
(1·) (1906) L.R. 33 LA. u8.
(2) (1946) L.R. 73 I.A. 52.
I
3 s.c.R.
SUPREME COURT HEPOR1'S
775
court superseding arbitration and proceeding with the
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suit or if it was made after the expiration of the l\aushalya D••i
period allowed by the court, or if it was otherwise
v.
invalid. It is on the last clause in paragraph 15(l)(c)
Baij,.alh Sayal
that reliance was placed in support of the contention
-
that the challenge to the validity of the reference Gajendragadkar J.
should have been made under the said clause. The
Privy Council did not uphold this argument. "In
their opinion,"' observed 8ir John Beaumont, who
spoke for the Board, "all the powers conferred on the
court in relation to an award on a reference made in
a suit presuppose a valid reference on which an a.ward
has been made which may be open to question. If
there is no valid reference the purported award is a
nullity, and can be challenged in any appropriate
proceeding." It is on this last observation that Mr.
Jha has naturally relied; but, in our opinion, the
observa.tion in question does not purport to be a
decision on the interpretation of 0. 32, r. 7(2).
The
context sh iws 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(l)(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 0. 32, r. 7. It is significant that while describing the award as a nullity the
Privy Cou:icil has also added that it can be challenged
in any appropriate proceeding which postulates the
adoption of necessary proceedings to avoid the award.
The point for consideration by the Privy Council was
whether a proceeding under paragraph 15(l)(c) was
indicated or whether au 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 a ward could be challenged by an
appeal because it could not have been challenged
under paragraph 15(l)(c). Since it could not be challenged under paragraph 15(l)(c), according to the
Privy Council paragraph 16(2) could not be invoked
against the competence of the appeal. It is unnecessary
776
SUPREME COURT REPORTS
[1961]
1961
for us to examine the merits of the said decision
in the present appeal. All that we are concerned to
K"usllalya Devi
v.
point out is that the observation in the judgment on
Baijnath Sayal which Mr. Jha relies cannot be treated ns a decision
--
on the interpretation of 0. 32, r. 7(2).
Th~t question
Gajendr•gadk•r J. did not directly arise before the Privy Council and
should not be treated as concluded by tb.e ob~ervation
in question. As we have already pointed out, the
words used in 0. 32, r. 7(2) a.re plain and unambiguous
and they do not lend any support to the argument
that non-compliance with 0. 32, r. 7( l) would make the
impugned decree a nullity.
Mr. Jha. has also relied upon another decision of
the Privy Council in Jamna Bai v. Va.santa Rao('). In
that case two defendants of whom one was a. minor
compromised a suit pending against them, and in
doing so entered into a bond by which they jointly
agreed to pay a. certain sum to the plaintiff at a.
future date. The leave of the court was not obtained on
behalf of the minor as required by s. 462 of the ()ode
of Civil Procedure, 1882, which was then in force.
When a claim was made on the said bond it was held
that the bond was not enforceable against the minor
but it was enforceable for the•full amount against the
joint contractor. We do not see how this case assists
the appellants. It appears that Ja.mna Bai who was
the joint contractor on the bond advanced the plea.
that one of the two promisors can plead the minority
and consequent immunity of the other as a bar to the
promisee's claim against him. This plea. was rejected
by the Privy Council, and. that would show that the
bond which was executed in pursuance of a compromise agreement was not trea.ted as null and void but
as being unenforceable against the minor alone. In
that connection the Privy Council observed that the
minor's liability could not be enforced in view of the
fact that the requirements of s. 462 of the Code had
not been complied with. Indeed, in the judgment an
observation has been made that the Privy Council
was not expressing any opinion as to whether the bond
could be enforceable against a minor even ifs. 462 had
( 1) (1916) L.R. 43 I.A. 99.
•
1
•
•
• •
I
'
3 S.C.R.
SUPREME COURT REPORTS
7i7
been complied with. Thus this decision is of no assist.
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ance to the appellants.
J(aushalya Devi
Similarly, the decision of the Privy Council in
v.
Khiarajmal v. Daim ('), can also he of no help to the
Ba•fnath Sayal
appellants, because in that case all that the Privy
--
Council decided was that a court has no jurisdiction Gajend>atadkar J.
to sell an equity of redemption unless the mortgagors
are parties to the decree or the proceedings which lead
to it, or are properly represented on the record, In
other words, if a minor is not properly represented on
the record no order passed in the proceedings can bind
him. We are unable to see how this proposition has
any relevance to the point which we are called upon to
decide in the present appeal.
If the preliminary decree passed in the present
proceedings without complying with the provisions of
0. 32, r. 7(1) is not a nullity bnt is only voidable at the
instance of the appellants, the question is: can they
seek to avoid it.by preferring an appeal against the
final decree? It is in dealing with this point that the
bar of s. 97 of the Code is urged against the appeJ.
]ants. Section 97, which has been added in the Code
of Civil Procedure, 1908, for the first time provides
that where any party aggrieved by a preliminary
decree passed after the commencement of the Code
does not appeal from such decree he shall be precluded
from disputing its correctness in any appeal which
may be preferred from the final decree.
It is urged for the appellants that an appeal is a
continuation of the suit and so the appellants would
be entitled to challenge the impugned preliminary
decree as much by an application made in the suit
itself as by an appeal preferred against the final decree
passed in the said suit. It 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
(I) (1904) L.R. 32 I.A. 23.
778
SUPREME COURT REPORTS
[1961]
1961
feeling aggrieved by a preliminary decree must appeal
against that decree; if he fails to appeal against snch
Kaushalya Devi a decree the correctness of such a decree cannot be
v.
Baijnath Sayal challenged by way of an appeal against the final
decree, which means that the preliminary decr<'e would
Gajendragadkar J. be taken to have been correctly passed. \\Then s. 97
provides that the correctness of the preliminary
decree cannot be challenged if no appeal is preferred
airainst 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 be limited to the points
arising from 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
0. 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 hy appeal.
The whole object which s. 97 intends to achieve would
be frustrated if it is held that only the factual correct.
ness 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 ch'1lienge the validity of the preliminary decree in
the appeal which they had preferred against the final
decree before the said High Court.
The result is the appeal fails and is dismissed with
rosts.
Appeal disrni8sed.