Thressia Laly and Others v. District Collector, Thrissur; The Thasildar, Mukundapuram; The Village Officer, Pullur; The Sub Registrar, Irinjalakuda; The Addl. Member Secretary, Kerala Legal Services Authority (R5)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943** ## **WP(C).No.4612 OF 2021(B)** ## **PETITIONERS:** |**1**|**THRESSIA LALY**| |---|---| ||**AGED 31 YEARS**| ||**W/O. JOHNSON (LATE),**| ||**POZHATHUPARAMBIL HOUSE,**| ||**IRINJALAKUDA VILLAGE AND DESOM,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT,**| ||**PIN - 680 121.**| |**2**|**MINOR JOMITH JOHNSON,**| ||**AGED 12 YEARS**| ||**S/O. JOHNSON (LATE),**| ||**POZHATHUPARAMBIL HOUSE,**| ||**IRINJALAKUDA VILLAGE AND DESOM,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT,**| ||**PIN - 680 121.**| ||**REPRESENTED BY MOTHER THRESSIA LALY (1ST PETITIONER).**| |**3**|**MINOR JOYAL JOHNSON,**| ||**AGED 9 YEARS**| ||**S/O. JOHNSON (LATE),**| ||**POZHATHUPARAMBIL HOUSE,**| ||**IRINJALAKUDA VILLAGE AND DESOM,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT,**| ||**PIN - 680 121.**| ||**REPRESENTED BY MOTHER THRESSIA LALY (1ST PETITIONER).**| |**4**|**ROSSY**| ||**AGED 76 YEARS**| ||**W/O. JOSEPH,**| ||**POZHATHUPARAMBIL HOUSE,**| ||**IRINJALAKUDA VILLAGE AND DESOM,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT,**| ||**PIN - 680 121.**| ||**BY ADV. SRI. RAJESH CHAKYAT**| WP(C).No.4612 OF 2021 2 ## **RESPONDENTS:** |**DENTS**<br>**:**|| |---|---| |**1**|**THE DISTRICT COLLECTOR**| ||**THRISSUR, CIVIL STATION,**| ||**AYYANTHOLE,**| ||**THRISSUR DISTRICT,**| ||**PIN - 680 003.**| |**2**|**THE THASILDAR,**| ||**MUKUNDAPURAM, CIVIL STATION,**| ||**IRINJALAKUDA,**| ||**THRISSUR DISTRICT, PIN - 680 121.**| |**3**|**THE VILLAGE OFFICER,**| ||**PULLUR VILLAGE OFFICE,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT, PIN - 680 683.**| |**4**|**THE SUB REGISTRAR,**| ||**IRINJALAKUDA,**| ||**THRISSUR DISTRICT, PIN - 680 121.**| |***ADDL.**|**THE MEMBER SECRETARY,**| |**R5**|**KERALA LEGAL SERVICES AUTHORITY,**| ||**NIYAMA SAHAYA BHAVAN,**| ||**HIGH COURT COMPOUND,**| ||**KOCHI – 682031.**| ||***ADDL.R5 IS SUO MOTU IMPLEADED AS PER ORDER DATED**| ||**08.03.2021 IN WP(C) NO. 4612/2021**| ||**R5 – SRI.D.AJITHKUMAR**| ||**SRI. M.R DHANIL - GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.4612 OF 2021 3 ## **JUDGMENT** The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P6 communication dated 09.02.2021 issued by the 4[th] respondent Sub Registrar, whereby the 1[st] petitioner was informed that registration of Ext.P5 sale deed can be made only on obtaining an order from the District Court declaring the 1[st] petitioner as the guardian of the 2[nd] and 3[rd] petitioners, who are her minor children aged 12 years and 9 years respectively. The petitioners have also sought for a writ of mandamus commanding the 4[th] respondent Sub Registrar to register Ext.P5 sale deed dated 09.02.2021 and to effect mutation. The 4[th] petitioner is the mother-in-law of the 1[st] petitioner. 2. The husband of the 1[st] petitioner died on 24.02.2019. He owned 1.19 Ares of property (2.94 Cents) in Survey No.683 of Pullur Village of Mukundapuram Taluk. After his death, the said property devolved upon petitioners 1 to 3, who are his legal heirs. The 1[st] petitioner decided to sell the said property and one Binu Vazhakkala agreed to purchase the same for a total consideration of Rs.8,50,000/-. The petitioners approached the Lok Adalath, WP(C).No.4612 OF 2021 4 Irinjalakuda in PLP No.673 of 2020, in which the proposed buyer was arrayed as the respondent. In that petition, the Lok Adalath, Irinjalakuda passed Ext.P1 award dated 27.11.2020, which reads thus:- “Leave granted to the petitioner to compromise the matter involving rights of Minors on the basis of the averments in the petition and affidavit. Matter settled between parties joint statement filed by the parties. Joint statement recorded. Hence award passed on the basis of the joint statement. The joint statement shall form part of award.” (underline supplied) A copy of the settlement agreement dated 25.11.2020 forms part of Ext.P1 award. The document marked as Exts.P2 and P3 are fixed deposit receipts in the name of the minor children, i.e., 2[nd] and 3[rd] petitioners, for a sum of Rs.2,84,000/- each, deposited in Union Bank, Irinjalakuda Branch, with maturity value of Rs.4,72,738/and Rs.3,91,822/- respectively. After Ext.P1 award, the 1[st] petitioner executed Ext.P5 sale deed dated 09.02.2021, in favour of the buyer, Binu Vazhakkala, in her individual capacity and also as the guardian of petitioners 2 and 3, who are minors. The 4[th] respondent Sub Registrar refused to register Ext.P5 sale deed and the 1[st] petitioner is informed, vide Ext.P6 communication dated WP(C).No.4612 OF 2021 5 09.02.2021, that registration of the sale deed can be made only on obtaining an order from the District Court declaring the 1[st] petitioner as the guardian of the 2[nd] and 3[rd] petitioners, who are minors. Feeling aggrieved by Ext.P6, the petitioners are before this Court in this writ petition seeking the aforesaid reliefs. 3. On 23.02.2021, when this writ petition came up for admission, this Court has passed a detailed order taking note of the law laid down by the Division Bench of this Court in **Merlin and** **another v. Yesudas and others [2007 (2) KHC 482]** and Registry was directed to give a copy of that order to the Secretary, Kerala State Legal Services Authority. Thereafter, on 08.03.2021, the Member Secretary of the Kerala State Legal Services Authority was _suo motu_ impleaded as additional 5[th] respondent. The learned counsel, who entered appearance for the additional 5[th] respondent, sought time to get instructions. 4. Heard the learned counsel for the petitioners, the learned Government Pleader for respondents 1 to 4 and also the learned counsel for the additional 5[th] respondent. 5. Order XXXII of the Code of Civil Procedure, 1908 deals with suits by or against minors or persons of unsound mind. Rule 7 WP(C).No.4612 OF 2021 6 deals with agreement or compromise by next friend or guardian for the suit. As per sub-rule (1) of Rule 7, 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. As per sub-rule (1A) of Rule 7, inserted by Section 79 of Act 104 of 1976, with effect from 01.02.1977, an application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian of the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor. As per the proviso to sub-rule (1A), the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the court from examining whether the agreement or compromise proposed is for the benefit of the minor. As per subrule (2) of Rule 7, 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. 6. In **Merlin and another v. Yesudas and others [2007** WP(C).No.4612 OF 2021 7 **(2) KHC 482]** this Court held that, when parties to a case pending before the Lok Adalat arrive at a settlement between them in the nature of a compromise, the provisions contained in Order XXIII Rule 3 and Order XXXII Rule 7 of the Code of Civil Procedure, 1908 could be the reasonable guideline, since sub-section (4) of Section 20 of the Legal Services Authorities Act, 1987 requires every Lok Adalat, while determining any reference before it to arrive at a compromise or settlement between the parties, to be guided by the principles of justice, equity, fair play and other legal principles. The rigor of Order XXXII Rule 7 need not, by itself, deter a Lok Adalat from arriving at a compromise in a matter in which the interest of a minor is involved. In the circumstances of the situation in which a minor is placed, it will be appropriate for the Adalat to ensure that a compromise is entered and recorded on behalf of a minor with the leave of the Adalat which could be granted on a proper application in that regard, again having in mind the duty of the Lok Adalat to be guided by principles of justice, equity, fair play and other legal principles. In a matter where a minor is involved, a compromise or settlement between the parties could well be accepted and acted upon by the Lok Adalat, if it is satisfied on such WP(C).No.4612 OF 2021 8 materials as may be produced or called for by it, that the settlement is in the interest of the minor also and that such settlement does not, in any manner, impair the interest of the minor and has not been made to defeat any interest of the minor. If such yardsticks are applied and a settlement or a compromise involving a minor is recorded and let to fructify into an award in terms of the Act, such deemed decree is sufficient enough to take care of the interest of the minor and also to bind the minor, in which event, recourse to provisions and procedures before the Court of Wards would be unnecessary. Paragraphs 7 to 10 of the said decision read thus; “7. Article 39A of the Constitution provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The provision for legal aid under Article 39A may, at times, become glossed by the fundamental right to life under Article 21 and it could be treated as part of the right created under Article 21 in suitable cases. The Committee for implementing Legal Aid Schemes (CILAS) was appointed to monitor and implement legal aid programmes on a uniform basis. Lok Adalats were WP(C).No.4612 OF 2021 9 being constituted at various places in the country for settlement of disputes between the parties expeditiously and with lesser costs. In view of the fact that that the institutions of Lok Adalats, with the passage of time, become very popular, it became necessary to provide statutory backing to those institutions and awards given by the Lok Adalats. It was felt that such a statutory support would not only reduce the burden of arrears of work in regular Courts, but would also take justice to the door steps of the poor and the needy and make justice quicker and less expensive. This led to the Act. 8. Under Section 19(5)(ii) of the Act, a Lok Adalat shall have the jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of any matter which is not brought before any Court for which the Lok Adalat is organised, but is falling within the jurisdiction thereof. Section 20(2) provides that on receipt of an application from any one of the parties to any matter referred to in clause (ii) of sub-section (5) if Section 19, by the Authority or Committee organising the Lok Adalat, the same can be referred to the Lok Adalat, for determination. This is notwithstanding anything contained in any other law for the time being in force. When such a reference is made, the Lok Adalat, in terms of Section 20(3), shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. This shall result in an award and such award shall be deemed to be a decree of a Civil Court n terms of Section 21 of the Act. By sub-section (2) of Section 22, every Lok Adalat has the requisite power to WP(C).No.4612 OF 2021 10 specify its own procedure for the determination of any dispute coming before it. 9. By virtue of Section 19(2) of the Act, when a Lok Adalat is organised for any Court, any matter falling within the jurisdiction of that Court, but is not brought before it, can be determined by such Lok Adalat, to arrive at a compromise or settlement between the parties to such a dispute. The only exception to that situation is that embodied in the proviso occurring after sub-section (5) of Section 19 which provides that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law. Therefore, except in cases where it is a case or matter relating to an offence not compoundable under any law, a Lok Adalat shall have the jurisdiction to determine and to arrive at a compromise or settlement in respect of such matters which fall within its jurisdiction. Different types of litigations can be entertained by the Civil Courts. All such matters are, therefore, amenable to the jurisdiction of the Lok Adalat also, without any restriction being imposed. This principles is further fortified by the non obstante clause in sub-section (2) of Section 20 which enjoins the Authority or Committee organising the Lok Adalat to refer the matter to the Lok Adalat for determination. 10. Ext.P4 was an application filed by the petitioners seeking partition, maintenance and for right to take the immovables belonging to them. Such reliefs are those which could have been granted by the Sub Court, if it were trying a suit for such reliefs. Even if a minor is a party to that suit, such court could have granted a decree binding the minor in accordance WP(C).No.4612 OF 2021 11 with law. It also includes the authority of the court to dispose of the case on the basis of compromise, subject to the provisions in Order XXXII Rule 7 of the Code of Civil Procedure, 1908 which enjoins that a compromise on behalf of the minor ought to be entered into only with the leave of the Court, expressly recorded in the proceedings. The provisions in Order XXIII Rule 3 of the Code of Civil Procedure relating to compromise of suits are not at variance with the power of the Lok Adalat to record a settlement between the parties. In the matter of entering into an agreement or compromise on behalf of a minor, Order XXIII Rule 3 and Order XXXII Rule 7 work in unison. While the strict rules of procedure provided in Order XXXII Rule 7 relating to prior sanction by the court to record a compromise on behalf of the minor would govern the parties before the civil court, such provision is not mutatis mutandis applicable to Lok Adalats. So much so, when parties to a case pending before the Lok Adalat arrive at a settlement between them in the nature of a compromise, the provisions contained in Order XXIII Rule 3 and Order XXXII Rule 7 could be the reasonable guideline, since sub-section (4) of Section 20 of the Legal Services Authorities Act, 1987 requires every Lok Adalat, while determining any reference before it to arrive at a compromise or settlement between the parties, to be guided by the principles of justice, equity, fair play and other legal principles. This includes good conscience. By virtue of Section 21, award of the Lok Adalat shall be deemed to be a decree of a Civil Court and shall be final and binding to all the parties to the dispute. So much so, the rigor of Order XXXII WP(C).No.4612 OF 2021 12 Rule 7 need not, by itself, deter a Lok Adalat from arriving at a compromise in a matter in which the interest of a minor is involved. In the circumstances of the situation in which a minor is placed, it will be appropriate for the Adalat to ensure that a compromise is entered and recorded on behalf of a minor with the leave of the Adalat which could be granted on a proper application in that regard, again having in mind the duty of the Lok Adalat to be guided by principles of justice, equity, fair play and other legal principles. So much so, if the next friend or guardian of a minor applies to the Lok Adalat for leave to enter into any agreement or compromise on behalf of the minor with reference to the subject matter of the reference before the Lok Adalat, it would be well within the jurisdiction and authority of the Lok Adalat to grant such leave on being satisfied that the agreement or compromise is for the benefit of the minor. In granting such leave, it would be open to the Adalat to take stock of the entire fact situation and also insist on an affidavit being filed by the guardian to the effect that the agreement or compromise proposed, is for the benefit of the minor. Hence, in a matter where a minor is involved, a compromise or settlement between the parties could well be accepted and acted upon by the Lok Adalat, if it is satisfied on such materials as may be produced or called for by it, that the settlement is in the interest of the minor also and that such settlement does not, in any manner, impair the interest of the minor and has not been made to defeat any interest of the minor. It can also be ensured that the person acting on behalf of the minor to arrive at the settlement, does not have any interest contrary to that of the WP(C).No.4612 OF 2021 13 minor in the case in question. If such yardsticks are applied and a settlement or a compromise involving a minor is recorded and let to fructify into an award in terms of the Act, such deemed decree is sufficient enough to take care of the interest of the minor and also to bind the minor, in which event, recourse to provisions and procedures before the Court of Wards would be unnecessary. If the Lok Adalat treats the cases in which the interests of minors are involved, in the light of what is stated above and the parties place such materials as are required for the Lok Adalat to be satisfied that the settlement is in the interest of the minor concerned, it will be well within its jurisdiction and bounds to pass an award accepting the settlement. In such cases, the Lok Adalats would be acting in the interest of the minor, by securing its legitimate rights.” (underline supplied) 7. In **Rajagopala Rao V. State Police Chief [2016 (3) KLT 358]** , a Division Bench of this Court held that Lok Adalats are intended to amicably, fully and finally settle the disputes between the parties. Needless to say, care should have been taken to see that no future dispute arose between the parties in respect of matters covered by the settlement. If the settlements in Lok Adalat turn out to be ineffective or counter productive, then the faith in the system itself will be eroded. Paragraph 9 of that decision reads thus; "9. It is disheartening to note that subsequent to Exts.P1 and WP(C).No.4612 OF 2021 14 P2 settlements and consequent awards passed by the Lok Adalat, the parties are still fighting various litigations. Ext.P1 is dated 08.11.2008 wherein O.S.No.585 of 2008 before the Sub Court, Kottarakkara was purported to be settled. Ext.P2 is also of the same date, whereby O.S.No.584 of 2008 before the same court was said to have been settled. The ineffectiveness of settlements in the suits arrived at before the Lok Adalat is revealed from the fact that the 5[th] respondent had filed another suit in respect of the same subject matter, as O.S.No.221 of 2009 before the Munsiff's Court, Punalur, against the 1[st] petitioner and even in the execution proceedings, consequent to the settlement, the parties are not able to agree on many things. The pertinent fact to be noted is that the Lok Adalat was presided over by a Judicial Officer and a Member, who is an Advocate. We have carefully gone through the terms of settlement in Exts.P1 and P2. We are constrained to observe that the terms of settlement are so unclear, out of focus and murky that they failed to convey a sensible adjustment of the rights between the parties. Interpretation of the statements contained in Exts.P1 and P2 are left to imagination of the parties. In otherwords, reasons are aplenty for a mischievous mind to interpret the terms of settlement in a manner suiting his convenience. We are damn sure that this is not what is intended to be achieved by passing an award under the Act. Who is to be blamed for the chaotic results of such awards? Lack of commitment and inability to understand the legal consequences by persons handling the Lok Adalats are the main reasons for this mishap. Lok Adalats are intended to WP(C).No.4612 OF 2021 15 amicably, fully and finally settle the disputes between the parties. Needless to say, care should have been taken to see that no future dispute arose between the parties in respect of matters covered by the settlement. If the settlements in Lok Adalat turn out to be ineffective or counter productive, then the faith in the system itself will be eroded. In order to appreciate the responsibility of the persons manning Lok Adalats, we may point out the relevant legal provisions." 8. In the instant case, in Ext.P1 award in PLP No.673/2020 of the Taluk Legal Service Committee, Mukundapuram, the Lok Adalath, Irinjalakuda has not recorded its satisfaction that the settlement is in the interest of the minors, namely, petitioners 2 and 3 herein, and that such settlement does not, in any manner, impair the interest of the minors and has not been made to defeat their interest and that the 1[st] petitioner mother does not have any interest contrary to that of the minors. Since the Lok Adalath, Irinjalakuda in Ext.P1 award failed to apply such yardsticks while recording the settlement and passing Ext.P1 award, which is essential to treat it as a decree sufficient enough to take care the interest of the minors and also to bind them, in order to avoid recourse to the provisions and procedures before the Court of Wards, the petitioners are not entitled for registration of Ext.P5 WP(C).No.4612 OF 2021 16 sale deed in terms of Ext.P1 award. Therefore, the Lok Adalath, Irinjalakuda is directed to reconsider PLP No.673/2020 of the Taluk Legal Service Committee, Mukundapuram and pass a fresh award in compliance of the statutory requirements referred to hereinbefore and also the law laid down by this Court in **Merlin [2007 (2) KHC 482]** , with notice to both sides. For that purpose, Ext.P1 award passed in PLP No.673 of 2020 is aset aside. In case a fresh award is passed, on recording satisfaction of the Lok Adalath under Order XXXII Rule 7 of the Code of Civil Procedure, the 4[th] respondent Sub Registrar shall register the sale deed, without insisting the orders of the District Court appointing the 1[st] petitioner as the Guardian of the 2[nd] and 3[rd] petitioners, who are her minor children. Ext.P6 communication issued by the 4[th] respondent to that extent is set aside. The writ petition is disposed of as above. Sd/- **ANIL K. NARENDRAN, JUDGE** SPR WP(C).No.4612 OF 2021 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE AWARD PASSED BY THE TALUK LOK ADALATH, IRINJALAKUDA IN PLP 673 OF TLSC MUKUNDAPURAM, DATED 27.11.2020.** **EXHIBIT P2 A TRUE COPY OF THE FIXED DEPOSIT RECEIPT IN FAVOR OF 2ND PETITIONER DATED 25.11.2020 OF UNION BANK OF INDIA, IRINJALAKUDA BRANCH.** - **EXHIBIT P3 A TRUE COPY OF THE FIXED DEPOSIT RECEIPT IN FAVOR OF 3RD PETITIONER DATED 25.11.2020 OF UNION BANK OF INDIA, IRINJALAKUDA BRANCH.** **EXHIBIT P4 A TRUE COPY OF THE DECISION REPORTED IN 2007 (2) KHC 482.** **EXHIBIT P5 A TRUE COPY OF THE SALE DEED PREPARED DATED 09.02.2021.** **EXHIBIT P6 A TRUE COPY OF THE LETTER/COMMUNICATION DATED 09.02.2021 BY THE 4TH RESPONDENT.** **RESPONDENT'S/S EXHIBITS: NIL.**