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Kankali Vava of Anchuthayyil Purayidom Vs. Velayudhan Soman of Rantuthayyil House - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 12 and 13 of 1959
Judge
Reported inAIR1961Ker208
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rules 9 and 4(2)
AppellantKankali Vava of Anchuthayyil Purayidom
RespondentVelayudhan Soman of Rantuthayyil House
Appellant Advocate S. Narayannan Poti and; P.R. Gopalan, Advs.
Respondent Advocate M. Abraham, Adv. for; K. Sankaranarayana Pillai, Adv.
DispositionRevision petitions allowed
Excerpt:
.....in the decree of the high court and that decree was binding on the minor as he was properly represented by his mother the 1st defendant as guardian who filed the appeal on her own behalf as well as on behalf of her minor son in both the courts and prosecuted them properly. to me it further appears that where the guardian-ad-litem did not care to contest the suit, or to appeal against the adverse decree, there is no bar against the mother of the minor appealing against the decree as his next friend without removing the former guardian and that by implication involves the discharge of the guardian-ad-litem in this case where the 1st defendant who is none other than the mother of the minor and whose interests are not in any way shown to be adverse to the interests of the minor in the..........him instead.in support of the latter application it is alleged that kunju thampi the guardian-ad-litem appointed by the trial court was the plaintiff's brother and was purposely appointed as the guardian of the minor. it was further alleged that the applicant is the uncle of the minor and is looking after his education. in the affidavit filed in support of the application to set aside the ex parte decree it was also alleged that the guardian on record had colluded with the plaintiff and was acting against the interests of the minor in the suit.it is stated that vast improvements were effected in the property by the ancestor of the minors and the minor was also entitled to the value of those improvements. both these applications were strongly opposed by the plaintiff on the ground that.....
Judgment:
ORDER

Anna Chandy, J.

1. The plaintiff in O.S. 107 of 1954 on the file of the Alleppey Munsiff's Court is the Revision Petitioner in both the C.R.Ps. The suit was for redemption of a mortgage and for recovery of the property. The mortgage was executed by the plaintiff's karnavan in favour of the ancestor of the defendants in the suit. The 1st defendant is the mother and defendants 2 to 5 are her children. The 5th defendant was a minor and is still one. The plaintiff applied for appointment of the 1st defendant as the guardian of her daughter the 5th defendant.

Since notice of that petition was returned with the endorsement that the 1st defendant refused to accept the notice one Kunju Thampi was appointed as the guardian. The affidavit in support of the application for appointment of Thampi as guardian does not indicate bow he was qualified to be the guardian of the minor or that he has any interest in the minor. While the suit was hotly contested by defendants 1 to 4 the guardian of the defendant remained ex parte.

After a full trial the plaintiff was given a decree for redemption in the year 1955. Defendants appealed against the decree to the District Court as well as the High Court and both the courts after due consideration confirmed the decree of the trial court and dismissed the appeal. In both the appeals the 5th defendant (minor) was represented by the mother the 1st defendant as the guardian. The, District Court decree was in the year 1958 and the High Court decree is dated 21-2-1958.

2. When the plaintiff applied for execution of the decree and the case was posted for delivery ot the property, the respondent in this appeal one P. K. Padmanabhan of Kaduvathuseril claiming to be the guardian of the 5th defendant filed two petitions before the trial court one for setting aside the ex parte decree passed against the minor 5th defendant and the other for removing Kunju Thampi from guardianship and to appoint him instead.

In support of the latter application it is alleged that Kunju Thampi the guardian-ad-litem appointed by the trial court was the plaintiff's brother and was purposely appointed as the guardian of the minor. It was further alleged that the applicant is the uncle of the minor and is looking after his education. In the affidavit filed in support of the application to set aside the ex parte decree it was also alleged that the guardian on record had colluded with the plaintiff and was acting against the interests of the minor in the suit.

It is stated that vast improvements were effected in the property by the ancestor of the minors and the minor was also entitled to the value of those improvements. Both these applications were strongly opposed by the plaintiff on the ground that the petitions were not maintainable as the trial court decree had ultimately merged in the decree of the High Court and that decree was binding on the minor as he was properly represented by his mother the 1st defendant as guardian who filed the appeal on her own behalf as well as on behalf of her minor son in both the courts and prosecuted them properly. The learned Munsiff upheld the objections and dismissed both the applications.

3. This order was taken in appeal and the Sub-Judge reversed the order holding that the trial court decree could be held to have been merged in the High Court decree only if a decree with proper representation of the minor was passed, and in this case the decree of both the appellate court are to he treated as void because there was no order removing the guardian-ad-litem appointed by the trial court and the 1st defendant had only voluntarily taken up the guardianship.

It was also held that the respondent was competent to apply to get himself appointed as guardian on appropriate grounds and to have the exparte decree set aside if the guardian-ad-litem had been negligent in the conduct of the case. As there was no evidence to find that the guardian-ad-litem Kunju Thampi was duly removed on the application of the 1st defendant and whether the 1st defendant got herself duly appointed as guardian and also on the question whether the guardian-ad-litem was negligent and has to be removed and the respondent is to be appointed guardian the proceedings were remanded for enquiry and fresh disposal.

4. The correctness of that order is challenged by the plaintiff in this revision. The points taken in revision are (i) that the trial court has no jurisdiction to entertain or dispose of the application under Order IX Rule 13 since the decree of that court had become merged in the decree of this court in Second Appeal and (ii) that the representation of the 5th defendant by the 1st defendant in the appeal and second appeal was legal and proper and those proceedings operate as an implied removal of the guardian appointed by the trial court. The competency of the petition under Order IX, Rule 13 was also challenged on the ground that the minor's interests were fully represented by defendants 1 to 4

5. I feel that the revision petitions have to be allowed. Kunju Thampi who was appointed guardian by the trial court did not enter his appearance and did not contest the suit. Further he did not do anything to challenge the correctness of the trial court decree by appealing against it. It is a case in which by his conduct the guardian-ad-litem had withdrawn or retired from the guardianship and as such there was no need to pass a formal order removing him from the guardianship.

To me it further appears that where the guardian-ad-litem did not care to contest the suit, or to appeal against the adverse decree, there is no bar against the mother of the minor appealing against the decree as his next friend without removing the former guardian and that by implication involves the discharge of the guardian-ad-litem

In this case where the 1st defendant who is none other than the mother of the minor and whose interests are not in any way shown to be adverse to the interests of the minor in the suit filed the appeal as guardian of the minor, both before the district Court and the High Court and duly prosecuted them, it can well betaken that there was both an implied removal of the former guardian and also an implied sanction for her to act as the guardian.

The learned Advocate for the respondent attempted to call to his aid Sub-rule (2) of Order 32 Rule 4 as a statutory bar to the mother representing the minor in the appellate court. Sub-rule 2 has no application here, as it relates to the procedure to be adopted by the court when appointing guardian-ad-litem in cases where there are certificated guardians.

6. It is also a case in which the minor's interests were fully represented by defendants 1 to 4 and absolutely no prejudice was caused to him. Defendants 1 to 4 raised all the available contentions in the suit questioning the plaintiff's competency to redeem, raising the plea of limitation and claiming value of improvements and the minor's contention is suggested to be only one regarding improvements,

7. As averred in the counter filed by the plaintiff it appears to be a belated attempt made at the instance of the 1st defendant through the respondent who was responsible for the conduct of the defence case up to the High Court, to thwart the execution of a decree obtained after hot contest in three courts.

8. These revision petitions are therefore allowed and while setting aside the Order of the learned Subordinate Judge the order of the Munsiff is restored. The cost of the petition (one set) will be paid by the respondent.


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