LexKAUSHALYA DEVI AND OTHERS versus BAIJNATH SAYAL AND OTHERS.
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3 S.C.R. SUPREME COURT REPORTS 769 extension of time. We, accordingly, set aside the r96r 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 correct- ness 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 repre- sented 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 defend- ant 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 defend- ants 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 decr
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