1. Plaintiffs in O. S. No. 94 of 1954 on the file of the Sub-Court at Attingal have preferred this appeal against the decree dismissing the suit. Originally there were 41 plaintiffs of whom the 41st plaintiff died and her heirs were impleaded as additional plaintiffs 42 and 43. These plaintiffs and the defendants in the suit are members of one and the same tarwad consisting of 4 thavazhies. These parties are Ezhavas and are governed by the Travancore Ezhava Act, Act III of 1100. Plaintiffs' suit is for partition of the common tarwad properties on a per capita basis and for recovery of the share due to the plaintiffs' branch.
The majority of the members in the plaintiffs' branch have figured as plaintiffs' and the remaining members are included in the party array among defendants. On the date of the suit the total number of members in the tarwad is stated to be 105, of which 71 members belonged to the plaintiffs' branch. On this basis, plaintiffs have claimed for their branch 71/105 share out of the scheduled properties. There was an earlier suit, O. S. 467/ 1114, by the members of this branch for partition of the tarwad properties and recovery of the share due to the plaintiffs' branch.
That suit was resisted by the members of the other branch, mainly on the ground that the 4 branches of the tarwad had become divided in interest by virtue of the Udampadi, Ext. A dated 25-2-1095, to which the representatives of all the branches were parties. The Question for decision in that suit was whether the arrangement under Ext. A was only a maintenance arrangement, or whether it amounted to an outright partition. That question was ultimately decided By the Travancore High Court in the second appeals which arose from the said suit.
Ext, I is copy of the common judgment of the High Court in those appeals. In that judgment it was definitely decided that the Udampadi, Ext. A, had the effect of an outright partition of the tarwad into 4 thavazhies or branches. As a consequence of that finding, the partition suit O. S. 467/1114 was dismissed. Since all the members of the tarwad were parties to that suit, the decision in Ext. I judgment must bind all of them and the present suit for reopening the question concluded by that decision is clearly unsustainable.
Plaintiffs in the present suit tried to get over the effect of the decision in the prior suit by contending that most of the plaintiffs in the present suit who were minors at that time, were not properly represented by competent guardians validly appointed by court and that therefore the present plaintiffs are not bound by the decree in the earlier suit.
The contesting defendants, on the other hand, maintained that all the minors in the earlier suit were properly represented by their duly appointed guardians and that the decree in that suit is binding on all the parties including the minors. The lower court accepted this position and overruled the contentions raised by the plaintiffs and held that the present plaintiffs are also concluded by the decision in Ext. I judgment which operates as res judicata as against the present plaintiff. Plaintiff's suit was dismissed for that reason.
2. The majority of the plaintiffs in the present suit were parties to the earlier suit O. S. 467 of 1114. If the decision in that suit is binding on all the members of the tarwad who were in existence at the time of the earlier suit and who were parties to it, it is obvious that the subsequently born members in the different thavazhies of the tarwad cannot claim any independent right as members of an undivided tarwad. These subsequently born children can only claim to be members of the particular thavazhi to which they belong and which had become divided from the common tarwad.
They could therefore claim only their shares out of the properties which fell to the share of their own branch. Out of the present plaintiffs, some are seen to have been adults even at the time of the earlier suit. Plaintiffs 1, 2 and 41 come under this category. They were defendants 22, 23 and 29 in the earlier suit. Present plaintiffs 3, 4, 7, 8, 10, 12, 18, 23, 26, 27, 28, 29, 30, 33, 35 and 36 were respectively defendants 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 and 48 as is seen from Ext. IV which is copy of the summons issued to these defendants. The rest of the plaintiffs in the present suit are persons born subsequent to the prior litigation.
In the earlier suit, the 25th defendant, the mother of defendants 30 to 37, had been proposed find appointed as their guardian. Similarly, the 26th defendant was appointed as the guardian of her minor children who were defendants 38 to 44 in that suit and the 27th defendant was appointed as the guardian of her minor children who were defendants 45 to 48. Of these guardians the 27th defendant appears to have filed a petition in the High Court for a re-hearing of the second appeals which were disposed of by the judgment Ext. I. The copy of the petition together with the order thereon, has been marked as Ext. II in the present suit.
On the strength of that petition an inquiry was conducted by the High Court and Ext. III is copy of the findings recorded at that inquiry. After considering those findings, the High Court came to the conclusion that no case was made out by the 27th defendant for a re-hearing of the appeal and accordingly her petition was dismissed. All the same, it is clear that the 27th defendant had actively functioned as the guardian of her minor children. Defendants 25 and 26, who had represented the other two groups of minors, defendants 80 to 37 and 38 to 44, do not appear to have contested the earlier suit. They chose to remain ex parte.
3. The contentions urged on behalf of the present plaintiffs have to be examined in the light of the above mentioned facts and circumstances. Ext. F is copy of the progress diary in the earlier suit. The entries in that diary supported by the endorsements on the summons contained in Ext. IV clearly go to show that defendants 25, 26 and 27 of that suit had duly accepted the notices issued to them regarding their proposed appointment as the respective guardians of their minor children and also that these guardians signed and accepted those notices as also the summons issued to the minor defendants.
The first point urged on behalf of the appellants is that these mothers were incompetent to be appointed as the guardians of their minor children. We do not see any force in this contention.
There is nothing in the Travancore Ezhava Act to indicate that the mother is in any way disqualified from functioning as the guardian of her minor children. Section 13 of me Act states that the husband shall be the legal guardian of his minor wife and the father the legal guardian of his minor children, in respect of their person and property.
But the proviso to the section makes it clear that the guardianship of the husband or father, as the case may be, does not extend to the right and interest of the wife or children in their tarwad property. On the strength of this proviso, an argument is advanced on behalf of the appellant that the Karanavan or manager of the tarwad alone is competent to function as guardian in respect of the right and interest of the minor members of the tarwad in the properties of the tarwad.
We are not impressed with this argument. There is no warrant for thus restricting the guardianship of the minor members of a tarwad. A mother along with her children form a thavazhi in tarwad. It cannot also be doubted that the mother is a natural guardian of her minor children. Under Section 13 of the Ezhava Act, the father who is the other natural guardian of the minor children is made the legal guardian in respect of their person and also of their separate property. It is obviously for the reason that the father cannot have anything to do with the tarwad properties of his minor children that his guardianship is not extended to their right and interest in their tarwad property.
But the position of the mother is entirely different. She has as much right and interest just as her minor children in the properties of their tarwad. She being also a natural guardian of her minor children, there can be no legal impediment or even impropriety in her functioning as the guardian of her minor children when the question of such guardianship arises in relation to their right and interest in the properties of their tarwad. It has also to be remembered in this connection that the general provision contained in Rule 3 of Order 32 of C. P. C., clearly indicates that the father or other natural guardian of a minor has a preferential right to be appointed as the guardian of such a minor.
As already stated, the mother is also a natural guardian like the father of the minor concerned. Clause (4) of Rule 3 states that without notice to the natural guardian and hearing such person's objection, nobody else can be appointed as the guardian of the minor. This provision also strengthens the legal competency of the mother to function as the guardian of her minor children. Viewed in all these aspects, we are definitely of opinion that the appellant's contention that the mother of the minor members of a tarwad is incompetent to be appointed as their guardian in a suit relating to their tarwad properties, is untenable and cannot be allowed to prevail.
4. The second ground on which the validity of the appointment of defendants 25, 26 and 27 as the guardian of their minor children in O. S. 467/1114 is attacked, is that no summons on behalf of these minor defendants had been issued to these guardians subsequent to the passing of the formal order of the court appointing them as guardians. However, it is not the case of the appellants that there was no service of summons on behalf of the minors on their guardians. What really happened was that such summons had also been issued to the guardians along with the notice regarding the proposal of appointing them as guardians of the minor children.
The Progress Diary Ext. F shows that the notices and the summons thus simultaneously issued to these guardians were duly accepted by them. There is no rule of law prohibiting the simultaneous issue of the guardian notice and also the summons on behalf of the minors. It is always open to the guardian to refuse the notice and the summons or to accept them both. Similarly, it is open to the guardian to accept the notice and to postpone the acceptance of the summons to a later! stage after the formal order of appointment of guardian is passed by the order of court. If along with the notice the summons is also accepted by the guardian in anticipation of the guardianship order, such an acceptance cannot be said to be illegal or improper.
The acceptance of both at the same time will only be a welcome feature calculated to avoid unnecessary delay in the proceedings in the suit and it will also be clear evidence of willingness or consent on the part of the proper guardian to accept the guardianship and thus to represent the minor, in the suit. Of course, if for any reason, the court chooses not to appoint the particular person as the guardian of the minor, then his anticipatory acceptance of the summons on behalf of the minor will be of no avail, and fresh summons may have to be issued to the other person appointed as guardian.
No such contingency happened in the prior litigation which terminated in the final judgment Ext. I. Defendants 25, 26 and 27 had really accepted the guardian notices and the summons issued to their minor children. Subsequently the court had also passed formal orders appointing these three defendants as the guardians of their minor children before the commencement of the trial. Thus it cannot be said that there was any illegality in the appointment of these persons us guardians of their minor children or in the prior or subsequent proceedings in the suit.
5. The third and the last point urged on behalf of the appellants is that the appointment of defendants 25, 26 and 27 as the guardians of their minor children in the present suit, was illegal for the reason that they had not given their express consent to act as the guardians of the minors. The failure to give express consent to act as guardian cannot tantamount to a refusal to act as guardian. The appointment of a person as guardian of a minor inspite of such person's positive refusal to act as guardian, cannot be a valid appointment, and the result will be that the minor will remain unrepresented in the suit.
The decree passed in such a suit will be null and void so far as such minor is concerned. This position has been fully explained in Mathan v. Ismail, 1943 ILR 444, where the case law on the question has been exhaustively reviewed. No such result will follow from the appointment of a guardian who has not expressed his unwillingness to act as guardian and who has not also expressly stated that he is willing to act as guardian. Silence in such a situation wilt very often be an indication of consent
The provision regarding the consent of the puardian is contained in Clause (3) of Rule 4 of Order 32, C. P. C. That clause merely states that 'No person shall, without his consent, be appointed guardian for the suit'. The negative form in which this clause is drafted must have been deliberately done and it must have its special significance. If the legislature thought that only a person who has expressed his willingness to act as guardian, shall be appointed as guardian, then an entirely different phraseology would have been adopted in the clause.
Instead of the word 'consent' in its wide and general sense, the expression 'written' or 'express' consent would certainly have found a place in Clause (3) of Rule 4. As the clause now stands, the consent contemplated by it may be express or implied and there, is no justification for construing the clause as referring to or contemplating express or written consent only. This question was considered by a Full Bench of the Madras High Court in V. Sriramulu v. P. Lekshminarayana, AIR 1925 Mad 30. The answer of the Full Bench was given by Coutts-Trotter G. J., as follows:
'The words of the statute are contained in Order 32, Rule 4, Clause 3 -- 'No person shall without his consent, be appointed guardian for the suit', and we are asked to say whether that consent can be implied or whether it must be express. There are cases that have been cited to us in which the learned Judges speak of express consent, but I do not think that before this reference arose the learned Judges who used the language which has been cited were really deliberately applying their minds to the question as to whether consent must under the statute be express. The statute does not contain the word 'express', and I fail to see how Courts have a right to put into the statute a word which is not there. Consent is a question of fact. A person may have consented and there may be no direct evidence of it. The evidence may be inferential, indirect and circumstantial and as my brother Wallace put it, it is purely a question of evidence. We are unaware of any rule of evidence which says that this simple-question of fact -- aye or nay, did this person consent to act? -- is to be decided by any different law of evidence from those which guide Courts, in arriving at the determination of all questions of fact.'
Even though a particular, guardian, on receipt of notice proposing to appoint him as guardian of the minor defendants, has not expressly stated his unwillingness to act as guardian, his appointment will nevertheless be legal and valid, if the facts and circumstances of the case lead to the inference that he was really willing to function as guardian. Such was really the position in the prior suit O. S. 467/1114 in which defendants 25, 26 and 27 had been appointed as the guardians of their minor children. These guardians had all the qualifications prescribed by Rule 4 of Order 32, C. P. C.
They were all adults at that time and were also of sound mind. Their interests were in no way adverse to those of the minors. In fact, the interests of the minors and of their guardians were identical. As already pointed out, these guardians readily accepted the guardianship notices issued to them from Court and at the same lime accepted the summons issued in the suit to the respective minors. By the prompt acceptance of such summons, the guardians clearly indicated their consent or willingness to act as guardians of the minors.
The failure of these guardians to contest that suit is relied on by the appellants as a circumstance in support of their contention that there was no consent by the guardians to represent the minors. In the nature and circumstances of that particular case, it is practically impossible to draw such an inference. These guardians and minors represented by them were not interested in contesting or opposing the suit instituted by the other members of their own thavazhi who had figured as plaintiffs in that suit.
On the other hand, all of them had the same interest in getting a decision that the Udampadi Ext. A was only a maintenance arrangement and the claim for partition urged in that suit was sustainable. Such being the position, all that defendants 25, 26 and 27 and the minors represented by them could have done was merely to file written statements supporting the plaintiffs' claim in the suit. The same is the effect of these defendants having remained ex parte without opposing the plaint claim.
It cannot be said that in every case the guardian representing the minor defendant is bound to enter appearance and to contest the suit by filing written statement. The guardian has a discretion to act in a manner which will best serve the interests of the minor. The guardian can certainly refrain from contesting the suit where it is clear that there is no valid defence to be raised on behalf of the minor. To contest the suit merely for the sake of contest, will not be to advance the interests of the minor.
As pointed out in T. Thommankunji v. K.K. Nayana, AIR 1953 Trav-Co. 450, the validity of a decree obtained against minor defendants cannot be challenged merely on the ground that the guardian remained ex parte and did not care to contest the suit where, as a matter of fact, it is found that in the nature of the suit there was nothing to be contested on behalf of the minors. So far as the suit O. S. 467/1114 is concerned, it is seen that all the members belonging to the 4 thavazhies in the tarwad were parties to that suit. The minor defendants were properly represented by their natural guardians who had been legally and validly appointed as their guardians in that suit. It follows therefore that the final decree passed in that suit is equally binding on all the members of the tarwad -- majors as well as minors.
The present plaintiffs could avoid that decree only by making out that it is vitiated by fraud and collusion. Even though such an allegation was made in the present suit, it was not pressed at the time of hearing. It may also be stated that the plaintiffs have not been able to adduce any evidence to show that the decree in the earlier suit is vitiated by any fraud or collusion. Under these circumstances, the lower court was perfectly right in holding that the final decision in the earlier suit evidenced by Ext. I, operates as res judicata against the claim in the present suit. The dismissal of the suit on that ground was proper and such dismissal docs not call for any interference in this appeal.
6. In the result this appeal fails and it is dismissed with costs.