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Akbar Husain Khan And Anr. vs Budhu And Anr.

High Court Of Judicature at Allahabad|22 July, 1941


ORDER Braund, J.
1. This is an application made under Order 82, Rule 7 of Schedule 1, Civil P.C. The proceedings out of which the application arises were taken under the Encumbered Estates Act and, so far as we are now concerned, the dispute was whether the appellants or the respondents were the owners of a certain piece of land. In the lower Court it has been decided that the respondents were the owners of that land. The appellants are uncle and nephew, the latter of whom is a minor, his co-appellant being his guardian ad litem.
2. It appears to be considered that it will be to the advantage of the appellant if this appeal is compromised and a proposal is put forward that, in consideration of a payment of Rs. 500 to be made by the appellants to the respondents, the respondents shall relinquish all their rights, title and interest to or in the property in question in favour of the appellants. The present application is therefore-or rather should be - an application under Order 32, Rule 7 asking that Akbar Husain Khan, the guardian of the appellant, Mohd. Faruq may be given the leave of the Court to enter into an agreement or compromise to that effect on behalf of the said Mohd. Faruq, and that such leave shall be recorded in the proceedings.
3. I have noticed that applications for compromises on behalf of the minors are very often brought before the Court in a very casual way. The Court, when considering a compromise on behalf of a minor, has a very serious function to perform, namely to guard the interest of the minor. Unfortunately there are many cases in this country in which minors stand in great need of protection in this respect and this duty which is imposed upon the Court to watch the interests of minors is not one which ought to be performed in a perfunctory way. Yet, I find, in case after case, that compromises are brought before the Court for sanction on behalf of minors without at the same time any materials being afforded to the Court upon which to make up its mind whether the interests of the minors are being served or not. It is obviously difficult for the Court itself to go into every matter meticulously and to assess the value and so forth. In simple cases there are however at least two things which the Court ought to have before it - the first is an affidavit from the guardian himself that he, at any rate, has considered the matter carefully from the minor's point of view and has formed a considered opinion that the proposed transaction is for the minor's benefit. That, in my view, should be indispensable, in every case such as this. When a guardian comes to the Court asking for its sanction to his entering into a compromise on a minor's behalf, the very least he ought to do is to take the responsibility of stating upon oath to the Court that he has considered the matter from the minor's point of view and conscientiously and honestly believes that transaction to be one from which the minor will derive benefit. The second item of assistance to which, in my judgment, the Court is always entitled is a statement at the bar from the advocate or other professional gentleman who represents the minor that he in his professional capacity has examined the matter and has formed an opinion that it is one from which the infant will benefit. As their Lordships of the Judicial Committee pointed out in Sakinabibi v. Shirinibai ('20) 7 A.I.R. 1920 P.C. 60, it is the practice in India as a rule to accept a statement of counsel to that effect.
4. In this case such a statement has been made by counsel appearing on behalf of the minor and I, of course, accept it. But I think that there still should be filed an affidavit by the guardian himself stating that he too has considered the matter on behalf of the minor and considers the proposed compromise to be for his benefit. Let this case stand out for a fortnight for filing an affidavit.
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Akbar Husain Khan And Anr. vs Budhu And Anr.


High Court Of Judicature at Allahabad

22 July, 1941