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Savithri Vs. Vasudevan Nambudiri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Misc. Appeal No. 147 of 1958
Judge
Reported inAIR1959Ker387
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rules 3 and 12
AppellantSavithri
RespondentVasudevan Nambudiri
Appellant Advocate D.N. Nambudripad,; P.R. Nambiar and; M.K. Nambudripad
Respondent Advocate T. Karnuakaram Nambiar, Adv. for No. 1,; K. Kuttikrishna Menon, Adv. for No. 2 and D.A. Krishna Warri
DispositionAppeal dismissed
Cases ReferredSanyasi v. Yerran Naidu
Excerpt:
- - according to them they had a good defence not alone in respect of the right of the 2nd plaintiff to a share as raised in the written statement filed by the 5th defendant but also on the availability of more properties for purpose of division. the application was resisted by the plaintiffs on the ground that it was filed in collusion with the 2nd defendant and was lacking in substance and also in good faith......pursue their contest. it appeared also from the statement of the 1st defendant that though the notice of partition issued by defendants 2, 3 and 5 to 9 was given on the same day as the 1st plaintiff's marriage with the 2nd plaintiff, viz. on 19-8-1949 still the defendants 2, 3 and 5 to 9 did not thereby intend to separate from the illom and actually the 2nd defendant accepted mukthiyar from the 1st defendant on later date 11-7-1950 for managing the illom affairs on behalf of all.the preliminary decree was accordingly passed on 31-5-1951 granting 2/11 shares to the plaintiffs 1 and 2, also 2/11 shares to defendants 1 and 4 and balance 7/11 to defendants 2, 3 and 5 to 9.3. this application under order 9, rule 13 was filed long later on 23-12-1955 by the defendants 6 to 8 alleging that.....
Judgment:

Varadaraja Iyengar, J.

1. This C. M. Appeal is by the defendants 6 to 8 against an order of the court below refusing their application to set aside the preliminary decree for partition passed ex parte as against them.

2. The suit was for partition among the members of a Nambudiri Illom comprising the plaintiffs 1 and 2 and the defendants 1 to 9 of which the 1st defendant was the karnavan. The 4th defendant is the wife of the 1st plaintiff. The 5th defendant is the wife of the 2nd defendant and defendants 3 to 9 are their children. The suit was laid on 20-9-1950 for partition by metes and bounds of the 2/11 share of the plaintiffs 1 and 2. The 1st defendant filed written statement admitting the plaintiffs' claim and agreeing to the division.

The contentions of the other defendants though raised separately by the defendants 2 and 3 on the one hand and defendants 5 to 9 on the other were more or less the same, that is to say in denial of the 2nd plaintiff's share because she had been married after notice calling for partition issued to the 1st defendant by the defendants 2, 3 and 5 to 9. The defendants 6 to 9 who were all minors at date of suit were represented by the 5th defendant, their mother.

The defendants 2 to 9 did not however pursue their contest. It appeared also from the statement of the 1st defendant that though the notice of partition issued by defendants 2, 3 and 5 to 9 was given on the same day as the 1st plaintiff's marriage with the 2nd plaintiff, viz. on 19-8-1949 still the defendants 2, 3 and 5 to 9 did not thereby intend to separate from the illom and actually the 2nd defendant accepted mukthiyar from the 1st defendant on later date 11-7-1950 for managing the illom affairs on behalf of all.

The preliminary decree was accordingly passed on 31-5-1951 granting 2/11 shares to the plaintiffs 1 and 2, also 2/11 shares to defendants 1 and 4 and balance 7/11 to defendants 2, 3 and 5 to 9.

3. This application under Order 9, Rule 13 was filed long later on 23-12-1955 by the defendants 6 to 8 alleging that they had knowledge of the decree only within 15 days previously. The main grounds raised in the petition were that the mother 5th defendant should not have been appointed their guardian ad-litem while the father 2nd defendant was there and that proper contest was not either raised or pursued on their behalf by the 5th defendant.

According to them they had a good defence not alone in respect of the right of the 2nd plaintiff to a share as raised in the written statement filed by the 5th defendant but also on the availability of more properties for purpose of division. It was claimed that the 5th defendant's appointment as guardian ad-litem was void in any event as regards the 6th defendant because he attained majority on the day next after the institution of the suit, viz. before the order of Court appointing guardian was passed.

The application was resisted by the plaintiffs on the ground that it was filed in collusion with the 2nd defendant and was lacking in substance and also in good faith. The contention was also raised that the application was barred by limitation. The Court below after taking evidence on the application found that there was no illegality in the appointment of the 5th defendant and further that there was no question of any available contention having gone by default. The petition was according to the court also barred by limitation.

4. Learned counsel for the appellants strongly urged that the appointment of the 5th defendant mother as guardian while the father was there was void under Order 32, Rule 3 (4). Apart from the aspect that it is a mere irregularity if at all it appears that the plaintiff applied for appointment of both 4th and 5th defendants and the 5th defendant was actually appointed because the notice of guardianship issued to the 4th defendant returned refused, while the 5th defendant accepted it,

Learned counsel then said that the order for guardianship must be held to be void because it was passed on a date when the 6th defendant had ceased to be a minor. But the order appointing guardian has reference only to the date of the application when admittedly the 6th defendant was a minor. It was no fault of the plaintiffs that the order was passed after the 6th defendant became major. The matter should, if at all, have been intimated to the Court, by the 5th defendant proposed as guardian or the 6th defendant himself. As held in Sanyasi v. Yerran Naidu, AIR 1928 Mad 294:

'No provisions have been made in the Civil Procedure Code, in respect of a minor defendant attaining majority. Therefore the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. If, however, he does not do so and allows the case to proceed as though he was still a minor without bringing to the notice of the Court, the fact of his having attained majority, then he must be deemed to have selected to abide by the judgment or adjudication by the Court with respect to the matters in controversy on the basis of the suit at the time.'

5. There has been also no prejudice caused to the minors by the 5th defendant giving up the contest, she had first raised. For the only question of the 2nd plaintiff's right to a share ceased to be of importance once the notice of partition stood withdrawn. And if the notice stood in the 2nd plaintiff's way it would equally have debarred the 9th defendant, subsequently born child of the appellants' a group As regards the contention based on omission of property, there is absolutely no substance seeing that no prima facie case even was attempted to be shown.

6. Finally, there was the bar of limitation held against the appellants which learned counsel has not been able to get over.

7. The appeal fails in the result and is dismissed with costs.


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