1. The first defendant in O. S. No. 107/1124 on the file of the Trivandrum District Court has preferred this appeal against the final decree in the case. The suit was instituted by the two plaintiffs for partition and recovery of their shares out. of the plaint schedule properties. These plaintiffs and defendants 1 to 7 are members of the same tarwad of which the first defendant was the kar-mavan in management until the disruption of the tarwad as a result of the partition decree passed in the case. The plaintiffs were minors at the time of the suit and their father represented them as their next friend in the suit. The 5th defendant is the mother of the defendants 1 to 4, 6 and 7. The plaintiffs are the children of deceased Sumathi Amma, who was a daughter of the 5th defendant.
The plaintiffs' suit for partition was resisted by defendants 1 and 3 on several grounds. The trial Court repelled all their contentions and passed a preliminary decree for partition in favour of the plaintiffs. The defendants did not file any appeal against that decree and hence it has become final and conclusive as between the parties to the suit. The Commissioner appointed to effect a division of the properties in terms of the decree, submitted his report suggesting allotment of specific properties to the share of the plaintiffs. This report was accepted by the Court and a final decree was passed on that basis. The appeal is directed against that final decree.
2. All the grounds raised in the memorandum of appeal as originally filed were directedagainst the allotment made in the final decree in terms of the Commissioner's report. The objection that the lower Court went wrong in accepting the Commissioner's report is untenable for the simple reason that the defendant-appellant had not raised any objection to the report at the appropriate stage. To get over this difficulty, it is contended on his behalf that sufficient opportunity was not afforded to him to file his objections to the Commissioner's report and to substantiate the same. But it is seen from the Progress Diary in the case that subsequent to the filing of the Commissioner's report the appellant-defendant had ample opportunities to file objections to the report and he has only to blame himself for not having availed of those opportunities.
3. Another ground urged on behalf of the appellant against the iinal decree in the case is that the lower Court should have directed that the properties set apart to the share of these plaintiffs as per the partition deed of the year 1124 should themselves be allotted to these plaintiffs, and making up the deficiency, if any, by allotting more properties. The partition deed relied on by the appellant was produced in the case at the trial stage and was marked as Ext. T., This partition deed was brought into existence on 26-4-1124, while the plaintiffs had instituted the suit for partition even as early as on 11-8-1123.
On the strength of the partition deed Ext. T, the appellant-defendant had raised a contention at the trial stage of the suit itself that the parti-tion should be held to be binding on the plaintiffs, That contention was repelled and it was expressly held in the preliminary judgment that the partition deed Ext. T which was brought into existence subsequent to the institution of the suit cannot in any way affect the plaintiffs' rights over the suit properties and that they are entitled to get.their legitimate share on a fresh partition after ignoring the division effected under Ext. T. If the defendant was aggrieved by such, a decision he should have agitated that matter by preferring an appeal against the preliminary decree. Having failed to do so, he is not entitled to agitate the same matter in the present appeal. which is directed against the final decree passed in terms of the preliminary decree. This positions is made clear by Section 97 of the Code of Civil Procedure wheYe it is stated :
'Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal trom any such decree, he shall be precluded from disputing its correctness-in any appeal which may be preferred from the final decree'.
4. The appellant's objection to the award of mesne profits in favour of the plaintiffs is also hit by this provision in the Code of Civil Procedure. It was by the preliminary decree passed in: the case that the plaintiffs were allowed to recover future mesne profits as also past mesne profits for three years prior to the date of the suit. The objection now raised is that iu any view of the case the lower Court should not have decreed past mesne profits in favour of the plaintiffs whose right to get separate shares should be deemed to have come into existence only on the date of the institution of the suit. In attacking the decree awarding past mesne profits, the appellant's learned counsel contended that the lower Court acted without jurisdiction in passing such a decree.
We are unable to accept this contention as sound. It cannot be said that the Court had nojurisdiction to pass such a decree for mesne profits. All that could be said is that the Court went wrong in passing a decree awarding past mesne fronts in a suit of this nature. It was open to the defendant to challenge the correctness of that decree by preferring an appeal against it at the appropriate stage. He did not care to do so. It follows, therefore, that he is precluded from agi-tating that matter in the present appeal which is directed only against the final decree in the suit.
5. By means of a separate application (C. M. P. No. 329/1957) the appellant has raised an additional ground in support of the appeal. That ground is to the effect, that the decree and all the proceeding's in the suit are ab initio void for want of jurisdiction for the Court to take cognisancc of the suit and to proceed to adjudicate upon the same. It is contended that the jurisdiction conferred on the Court by Section 9 of the Code of Civil. Procedure to try all suits of a civil nature is subject to the exceptions envisaged by the same section. That section states that the Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly baarred.
The argument advanced on behalf of the appellant is that the cognisance of the present suit is barred by Sections 34 to 37 of the Travancore Nayar Act (Act II of 1100). It is clear from a reading of these sections that they do not deal with the jurisdiction of the civil Court to entertain a suit for partition by one or more members of a Nayar tarwad. On the other hand, these sections have only imposed certain restrictions and limitations on the right of such members to claim compulsory partition from the rest of the members of the tarwad. If the claim for partition made by some members of the tarwad is against the provisions of Sections 34 to 37 of the Nayar Act, it is the right of the other members of the tarwad to oppose the claim on that ground.
It is open to them to exercise that right or to waive that right altogether. Such a waiver on their part would tantamount to their agreeing or consenting to a partition as claimed by the other members. The statute has not taken away the right of the members of a Nayar tarwad to effect a partition of their tarwad properties by mutual consent or agreement. In a partition suit instituted by some members of a Nayar tarwad the Court is called upon to examine the sustamability of the claim only if the other members of the tarwad choose to exercise the right available to them under Sections 34 to 37 and to oppose the plaintiff's claim on the ground that it is against any of the provisions contained in these sections. In the absence of any such objection, the Court is entitled to proceed with the suit and to adjudicate upon the points on which alone there is controversy between the parties.
There is no basis for the contention that there is any inherent want of jurisdiction for the Court o entertain a suit for partition of the properties of a Nayar tarwad where the plaintiff's claim for separation from the tarwad is not opposed by the other members of the tarwad. There is nothing in Sections 34 to 37 to show that the Court's jurisdiction in that matter is either expressly or impliedly barred. If a decree for partition has been passed ignoring the restrictions and limitations imposed by Sections 34 to 37- the utmost that could be said is that it is a wrong decree : but it cannot be said that it is a decree passed without any jurisdiction and that the decree and all other proceedings in the suit are void ab initio on theground that there was an inherent lack of jurisdiction in the Court to entertain the suit and to pass a decree.
6. So tar as the present suit is concerned, the plaintiffs represent the thavazhi of their mother Sumathi Amma who had died prior to the institution of the suit. Under Section 34 of the Nayar Act they couid claim separation from the tarwad with the consent of the 5th defendant who is the mother of Sumathi Amma and who is the lineal ascendant in the female line. This 5th defendant did not oppose the plaintiffs' suit for partition, and hence it has to be taken that she consented to the plaintiffs' separation from the tarwad. Apart from this aspect, there is the evidence furnished by the partition deed Ext. T that all the members of the tarwad were agreeable to a partition of the tarwad properties. Under that partition deed, the other members had set apart certain properties to the share of these minor plaintiffs also.
This means that all of them were agreeable to these minors getting divided from the tarwad. In the face of such willingness on their part as evidenced by Ext. T, they could not oppose the plaintiff's suit claiming separation and partition from the tarwad. No doubt Ext. T came into existence only some time after the institution of the suit and as such the plaintiffs were not bound to accept the allotment made under it. All the same, the plaintiffs could take full advantage of the agreement of all the members of the tarwad at evidenced by Ext. T and proceed on the basis that nobody has any objection to the plaintiffs getting their legitimate shares and thus getting separated from the tarwad.
The decree for partition passed in favour of the plaintiffs has only given effect to such a willingness or common agreement of all the members of the tarwad and hence also it cannot be said that the Court was acting without jurisdiction in passing such a decree or that the entire proceedings in the suit are ab initio void, As already pointed out, none of the members of the tarwad had opposed the suit on the ground that the plaintiffs are not entitled to claim separation from the tarwad even though the suit was resisted on several other grounds. It was in such a situation that the trial Court proceeded with the suit and passed a preliminary decree. No member of the tarwad challenged that preliminary decree by preferring an appeal against it. The belated objection now raised even after the stage of the final decree that the plaintiffs have no right to claim separation from the tarwad, has only to be overruled.
7. Another ground on which the entire proceedings in the suit are contended to be ab initio void is that the 6th defendant in the suit was of unsound mind even at the commencement of the suit and that no guardian had been appointed to protect her interests in the suit. The provision relating to appointment of guardian for a party who is of unsound mind, is that contained in Rule 15 of Order XXXII of the Code of Civil Procedure. If the 6th defendant had already been adjudged to be a person of unsound mind, the suit could not be proceeded with against her without a guardian being appointed to look after her interests. The appellant has no case that the 6th defendant had been adjudged as a person of unsound mind.
Even if the 6th defendant had not been so adjudged, the question of appointing a guardian for her could have arisen if the Court on inquiry was satisfied that the 6th defendant by reason of unsoundness of mind or mental infirmity was incapable of looking after her interests in. this suit. No such inquiry was necessitated in this suit because none of the parties to the suit hdd raised the contention that the 6th defendant was a person oi' unsound mind. This is a matter which had to be raised at the trial stage of the suit and since no objection had been raised by any of the parties at that stage, it cannot now be contended after the final decree stage that there was any defect in proceeding with the suit even as against the 6th defendant.
Any inquiry into the mental condition of the 6th defendant at this stage is uncalled for in the present appeal which, as already stated, is directed only against the final decree in the suit. It may also be pointed out in this connection that when the partition deed Ext. T was brought into existence some time after the institution of the present suit, the members of the tarwad had no case that the 6th defendant was a person of unsound mind. On the other hand, it ig seen that she too has taken part in that document and has signed it. It is therefore obvious that the theory that the 6th defendant was a person of unsound mind even at the commencement of this litigation, has now been put forward merely with the object of obstructing the plaintiffs from getting the benefit of the decree in their favour. We see no reason to uphold the appellant's contention that the decree and the proceedings in the suit are void. The final decree in the case has only to be upheld as valid.
8. On behalf of the plaintiffs-respondents, an objection memorandum has been filed and the only ground raised therein is that the lower Court should have awarded interest also on the mesne profits decreed in their favour. As already pointed out, the award of mesne profits was made by the preliminary decree. If the plaintiffs were aggrieved by the omission to provide for interest on such mesne profits, they should have agitated that matter by preferring an appeal against the preliminary decree itself. They have failed to do so and it is not open to them to raise that matter in the present appeal against the final decree passed in the case.
9. In the result the appeal as also the memorandum of objections are both dismissed with costs.