JUDGMENT Rachhpal Singh, J.
1. These are two connected appeals arising out of two suits instituted by the plaintiff for recovery of rent. The facts briefly stated are these: In 1925, the plaintiff-respondent instituted four suits, namely 827, 833,933 and 1266 for enhancement of rent in respect of the four holdings which were held jointly by Mehtab Singh, Jadunath Singh, Phul Singh, Lakhan Singh and Partab Singh. In those suits decrees for enhancement of rent were passed on the basis of compromise. The plaintiff on the strength of the compromise decrees instituted four suits for the recovery of rent at enhanced rates. In the two appeals before us, we are only concerned with the two of those' four suits, namely Nos. 7 of 1930 and 591 of 1932, and have no concern with the other two suits. In defence the defendants of these two suits pleaded that the decrees for the enhancement of rent passed on the basis of a compromise in the year 1925, are not binding upon them as at the time when the compromise was made they were minors and the compromise sought to be enforced was arrived at without obtaining the sanction of the Court in which the suits were pending.
2. The trial Judge held that the plaintiff was not entitled to get rent at an enhanced rate and therefore decrees were passed against the defendants with reference to the rates of rent that prevailed before the compromise decrees were obtained by the plaintiff. The plaintiff preferred appeals to the Court of the learned District Judge who came to the conclusion that the compromise decrees obtained by the plaintiff were binding upon the defendants. The appeals were therefore allowed and the plaintiff was given a decree with reference to the enhanced rate of rent in accordance with the terms of the compromise decrees. The defendants have now come up in second appeal before this Court. It may be mentioned here that it is conceded that the defendant-appellants in these two appeals are still minors. Learned Counsel appearing for the appellants has pointed out that before the trial Court the counsel appearing for the plaintiff had admitted that in the cases in which compromise-decrees were passed, the minor defendants had not been properly represented. The learned Judge of the lower appellate Court, however, went into this question and did' not treat the statement of the counsel for the plaintiff before the trial Court as an admission. It has been found that the compromise was arrived at on behalf of the minor defendants by one Partab Singh who acted as their guardian ad litem. It has further been found that sanction of the Court in which the suits were pending was not obtained for compromising the suit as laid down by the provisions of Rule 7, Order 32, Civil P.C. Rule 7, Order 32, Civil P.C. provides:
(1) 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 a minor with reference to the suit in which he acts as next friend or guardian; (2) any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minors.
3. It has been argued by learned Counsel appearing for the defendant-appellants that as the compromise was arrived at without complying with the provisions of Rule 7, Order 32, Civil P.C., it is void and not merely voidable so far as minors are concerned. On this point the view that has prevailed in the various High Courts in India is that a compromise arrived at in disregard of the provisions of Rule 7, Order 32, is not void but only voidable at the instance of the minors. The ruling cases on this point are collected and noted in Chitaley's Civil Procedure Code, Vol. 3, p. 2318, Edn. 2. In Phulwanti Kunwar v. Janeshar Das 1924 46 All 575 a Bench of two learned Judges of this Court has expressed the view that a compromise entered into without the leave of the Court is not void and a nullity but is voidable only: see p. 589. In this connection I may refer to two cases decided by their Lordships of the Privy Council. They are Subramanian Chettiar v. Raja Rajeswara Dorai 1915 39 Mad 115 and Partab Singh v. Bhabuti Singh (1913) 35 All 487. In Subramanian Chettiar v. Raja Rajeswara Dorai 1915 39 Mad 115 their Lordships of the Privy Council made the following observations:
If on the other grounds the deed of compromise could be supported, it is invalid in not complying with the conditions imposed by Section 462, Civil P.C., applicable when the compromise was made. One of the parties to the suit was a minor, the Raja's son, the present appellant, and the trustee of the voluntary settlement, was appointed his guardian ad litem. Section 462, Civil P. C , enacts that no next friend or guardian for the suit, shall, without the order of the Court, 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. In the present case the leave of the Court was not obtained and in the absence of such leave the compromise cannot be supported.
4. In Partab Singh v. Bhabuti Singh (1913) 35 All 487, their Lordships of the Privy Council, at pp. 496 and 497, observed as follows:
This Board has held in Manohar Lal v. Jadunath Singh (1906) 28 All 585 that in cases to which Section 462, Civil P.C. 1882, applies 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, by an order on petition, or in some way not open to doubt, that the leave of the Court was obtained, and that it is not sufficient proof that the exigencies of Section 462 were complied with to show that the minor was described in the title of the suit as a minor, as in that case, suing "under the guardianship of his mother," and that the terms of the compromise were before the Court. The agreement of compromise, in pursuance of which Hari Prasad obtained the dismissal of the suit of Partab Singh and Abbaran Singh, was void as against them and on that ground, if there were no other, they are entitled to have the decree dismissing the suit of 27th July 1899, set aside.
5. It will be noticed that in Subramanian Chettiar v. Raja Rajeswara Dorai 1915 39 Mad 115, their Lordships of the Privy Council described the compromise as invalid, while in Partab Singh v. Bhabuti Singh (1913) 35 All 487 they described it as void. In connexion with this matter I may be permitted to refer to the case in Gulab Deb v. Vaish Motor Co., Etawah 1925 47 All 782. In this case it was remarked that "any compromise without the leave of the Court is a nullity." This case was decided in April 1922, sometime earlier than the case in Phulwanti Kunwar v. Janeshar Das 1924 46 All 575. It however appears that it was not brought to the notice of the learned Judges who decided the case in Phulwanti Kunwar v. Janeshar Das 1924 46 All 575. In Jita Singh v. Man Singh 1922 2 Lah 164, the ruling of their Lordships of the Privy Council in Partab Singh v. Bhabuti Singh (1913) 35 All 487 was distinguished on the ground that it was a case in which no guardian ad litem had been appointed for the minor defendants. With the utmost possible respect I find myself unable to agree with this view. It is true that in that case there was no proper guardian, but it appears to me that the ground on which their Lordships of the Privy Council held the compromise to be void was that there had been no compliance with the provisions of Section 462, Civil P.C. 1882. Their Lordships at p. 496, made the following observations:
This Board has held in Manohar Lal v. Jadunath Singh (1906) 28 All 585 that in cases to which Section 462, Civil P.C. 1882, applies 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, by an order on petition, or in some way not open to doubt, that the leave of the Court was obtained, and that it is not sufficient proof that the exigencies of Section 462 were complied with to show that the minor was described in the title of the suit as a minor, as in that case, suing " under the guardianship of his mother" and that the terms of the compromise were before the Court. The agreement of compromise in pursuance of which Hari Prasad obtained the dismissal of the suit of Partab Singh and Abbaran Singh was void as against them and on that ground, if there were no other, they are entitled to have the decree dismissing the suit of 27th July 1899 set aside.
6. These remarks, in my opinion, go to show that the decision was given in favour of the minor defendant on the sole ground that sanction of the Court had not been obtained. The facts were these: Bhabuti Singh was the de facto manager of the estate of Partab Singh and Abbaran Singh who were minors. He instituted a suit for pre-emption in respect of certain properties. It appears that Partab Singh and Abbaran Singh had also a right of pre-emption which was superior to the right of Bhabuti Singh. Bbabuti Singh got one Hari Prasad to look after the defence of Partab Singh and Abbaran Singh in that suit as they were also defendants in the case. Bhabuti Singh also caused a suit for pre-emption to be instituted in the names of Partab Singh and Abbaran Singh and in this case Hari Prasad acted as their next friend. Later on Hari Prasad got the suit of the minors dismissed without obtaining the sanction of the Court in accordance with the provisions of Section 462 (Rule 7, Order 32, Civil P.C.). When Partab Singh and Abbaran Singh sued for setting aside the dismissal of their suit, their Lordships of the Privy Council decreed the same and the main ground for the decision was that the compromise was void because no sanction had been obtained from the Court in accordance with the provisions of Section 462, Civil P.C. 1882.
7. Thus we find that their Lordships of the Privy Council in one case described the compromise as invalid and in the other case as void. I am, therefore, of opinion that it must be held that a compromise arrived at by a guardian ad litem and next friend without complying with the provisions of Rule 7, Order 32, Civil P.C., is not only voidable but is void altogether. Clause 2, Rule 7, Order 32, says that any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.' My interpretation of this clause is that it enacts that a compromise made in total disregard of the provisions of Rule 7, Order 32, Civil P.C., is voidable against all parties who are majors and not void, but it does not bind the minor in any manner. As it is not binding on the minor, it is void against him. If such a compromise is void as against the minor, the decree passed on it is also void. In Ganga Nand Singh v. Rameshwar Singh Bahadur 1927 Pat 271, it was held that:
A consent decree does not stand on a higher footing than a contract between the parties and the Court has jurisdiction to set aside a consent decree upon any ground which would invalidate an agreement between the parties and as it is essential to the validity of a contract that all contracting parties should be competent to contract and as a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of the Contract Act, it follows that a compromise entered into with the minor is entirely void and cannot be given effect to in a Court of law.
8. In my opinion the same principle applies to a case in which a guardian enters into an agreement on behalf of a minor. If owing to some provisions of law, a guardian is incompetent to enter into a contract, the same would be void as against the minor on the ground that owing to some mandatory provisions of law, he (the guardian) was incompetent to enter into a contract Without the leave of the Court, he is incompetent to enter into a contract, so his contract stands on no higher footing than a contract between a minor and a third party. As their Lordships of the Privy Council have in Subramanian Chettiar v. Raja Rajeswara Dorai 1915 39 Mad 115 held such a compromise to be 'invalid,' and further have held in Partab Singh v. Bhabuti Singh (1913) 35 All 487 it is 'void,' I must hold that the compromise in the present case was void as against the minor and consequently the decree passed thereon was also void. Now, let us suppose, for the sake of argument, that such a compromise is not void but is only voidable at the instance of the minor. The question that arises is what is the course which the minor has to adopt when such a compromise is sought to be enforced against him. The contention raised on behalf of the minor appellants is that it is open to them to plead in defence that the compromise decree having been passed on a compromise made without complying with the provisions of Rule 7, Order 32, Civil P.C., is not binding upon them. The plaintiff-respondent, on the other hand, contends that a minor cannot take up a plea in defence that a compromise decree is not binding upon him so long as that decree is not set aside.
9. It is suggested that the only course open to the minor is that he should get the decree set aside either by instituting a suit or by making an application for a review of the judgment in which the decrees were passed. After a consideration of this question, I have arrived at the conclusion that when a contract made under the terms of a compromise made without complying with the provisions of Rule 7, O, 32, is sought to be enforced against a minor, it is open to the minor to plead in defence that the compromise decree is not binding on him. Learned Counsel appearing for the plaintiff respondent has cited certain cases in support of his contention. The first case is Virupakshappa v. Shidappa (1904) 26 Bom 109. In my opinion this ruling does not help the contention raised by learned Counsel for the plaintiff-respondent. All that this case decides is that a compromise a8 against all parties other than the minors is voidable. The next case on which reliance is placed is Chhotabbai Motibhai v. Dadabhai Narandas 1935 Bom 54). There are observations in this case at p. 60 to the effect that a compromise of this nature is voidable, but I find nothing in this case which would go to show that the Court decided that such a compromise was binding upon the minor so long as it was not set aside and that the minor could not take a plea in defence that the compromise was not binding upon him as it had been arrived at without the sanction of the Court. The same remarks apply to the case in Banwari Jogi v. Jamna Kasaudhan 1931 A L J 76. Another case relied upon by learned Counsel for the plaintiff-respondent was Phulwanti Kunwar v. Janeshar Das 1924 46 All 575. A perusal of this case shows that what the learned Judges held was that a compromise without the sanction of the Court was not void and a nullity. This, however, does not help the respondent. There are observations in the judgment which go against the plaintiff. At p. 589, the learned Judge in his judgment says:
It is binding upon all the parties except the minor, and the only person who can call it in question is the minor himself If the minor does not elect to avoid the decree, it will be binding all round...the decree being voidable only, must be treated as binding until it has been got rid of, and the period for that having passed, the plaintiff must now be bound by the decree....
10. The facts in that case were different. A decree on the basis of a compromise had been passed. The Court found that the minor on attaining majority had not attempted to have the decree set aside and after the period of limitation had expired, some one after the death of the minor instituted a suit in order to avoid the decree. The Court held that he could not do so In none of the rulings cited on behalf of the respondent was it held that a minor cannot take up a plea in defence that the compromise is not binding on him when the opposite party instituted a suit to enforce an agreement arrived at in disregard of the provisions of Rule 7, Order 32, Civil P.C.
11. In Mulla's Civil Procedure Code, 10th Edition, at p. 954, it is stated that a compromise decree may be set aside either in a regular suit or upon an application for review to the Court that passed the decree but that it cannot be called in question by way of objection to any proceeding taken in execution of it. This however is a different matter. When a decree passed on the basis of a compromise is sought to be enforced, the Court executing the decree may not permit the minor to raise a plea that it is not binding upon him as it was voidable at his instance. The Court executing the decree would be justified in saying that a question of this type cannot be raised in execution department and that the proper course for the minor was to have the decree set aside. The case in Ishan Chandra Kundu v. Nilratan Adhikari 1923 2 Pat 538 was of this description. In that case a decree had been passed on the basis of a compromise in which sanction of the Court by the next friend of the minor had not been obtained and that decree was put in execution. The minor objected that it was not binding upon him. The Court held that a decree passed against a minor on a compromise for which the leave of the Court was not expressly recorded is not void, but is voidable at the option of the minor. So long as such a decree was not set aside in a proper proceeding, no objection to its validity could be taken in execution proceedings. That however is a different matter.
12. The position in the case before me is this: An agreement was arrived at between the plaintiff on one side and the defendant-appellants through their guardian ad litem and next friend on the other under which rent of the holding of the defendant-appellants was enhanced. The compromise was arrived at without obtaining the leave of the Court as directed by the provisions of Rule 7, Order 32, Civil P.C. The plaintiff has now filed a suit to enforce the terms of that agreement. The defendant-appellants who are minors contend that the decree passed on the basis of the compromise in the former suit is not binding as the sanction of the Court in that suit was not obtained. The question which I have to determine is whether there is anything in the law which prevents the defendants from taking such a plea in defence and I have no hesitation in holding that they can take such a plea. In my opinion the provisions of Clause 2, Rule 7, Order 32, Civil P.C., clearly recognize that right. Rule 7, Order 32, Civil P.C., declares that an agreement of this description will not bind the minors. If we hold otherwise, then it would mean that we are not permitting the minors to show that they are not bound by the agreement. This will be quite contrary to the provisions of Rule 7, Order 32, Civil P.C.
13. Now there are several ways in which a minor can avoid such an agreement. The first is by making an application for review of the decree. The second method is to prefer an appeal against the decree which was passed in the case. In Rakhal Moni Dassi v. Adwyta Prosad Roy (1903) 30 Cal 613 and Srimati Golenur Bibi v. Sheikh Abdua Samad 1931 58 Cal 628 the Calcutta High Court held that an appeal was not permissible. In Gulab Deb v. Vaish Motor Co., Etawah 1925 47 All 782 an appeal was however entertained. Another method is to institute a suit at once to set aside the decree through a guardian ad litem and next friend or on attaining majority and yet another way of avoiding the compromise is to take a plea to that effect in defence when a suit is instituted to endorse the terms of a compromise. I am not aware of any rule of law under which in a suit instituted on an agreement arrived at in total disregard of the provisions of Rule 7, Order 32, Civil P.C., a minor cannot in defence plead that the agreement and the decree passed on the basis of that agreement are not binding upon him. To me it appears that he can always take such a plea so long as he does not allow his right to do so to become barred by limitation. If a minor after attaining majority does not get the agreement set aside within three years of the date of his attaining majority, the compromise decree may be held to be binding upon him, but so long as that stage has not arrived, it is always open to him to plead in defence that it is not binding whenever an attempt is made in any subsequent suit to enforce the terms of the compromise decree.
14. In Sethuram Sahib v. Vasanta Rao Ananda Rao Dhybar (1911) 12 I C 499, there are observations which go to show that the plea of the invalidity of the compromise can be taken in defence. It appears that in that case an agreement by way of a compromise was arrived at between the plaintiff and the minor through the next friend of the minor in a former suit. The compromise had not been made with the sanction of the Court. When a suit was instituted to enforce the compromise, the minor took the plea that it was not binding upon him. The learned Judges who decided the case observed at p. 500 as follows:
Here the minor relies on the invalidity of the compromise as a defence to a suit on the compromise. There in Aman Singh v. Narain Singh (1897) 20 All 98 the ground on which the minors sought to set aside the decree on the compromise was fraud. Here the minor resisted the claim on the compromise on the ground that the requirements of Section 462 of the Code had not been complied with.
15. According to my view it is always open to the minor, having regard to the provisions of Rule 7, Order 32, Civil P.C., to plead in defence the invalidity of the compromise arrived at by his guardian or next friend in a previous suit when sanction required in the abovementioned rule was not taken from the Court. That right can be lost to the minor only if he loses it by not challenging it within a period of three years after attaining majority. The result is that in either view of the case the defendant-appellants must succeed. According to the view by their Lordships of the Privy Council in Partab Singh v. Bhabuti Singh (1913) 35 All 487 such an agreement is void. On the other hand if it be assumed that the agreement is merely voidable and not void, the minor can resist the claim successfully by setting up a defence that as the agreement, having regard to the provisions of Rule 7, Order 32, Civil P.C., was not binding on him, a suit brought on the basis of a decree obtained on the strength of that compromise is not binding upon him. According to my view there is nothing to prevent him from taking such a plea in defence.
16. For the reasons given above, I allow these two appeals, set aside the decrees passed by the Court below and restore that of the trial Court. The parties will pay and receive costs in all Courts in proportion to success and failure. Permission to file a Letters Patent appeal is granted.