(1.) The sole question for adjudication in this second appeal is whether the appellant is entitled to have the decree in O.S,No.47 of 1954 set aside or the ground of gross negligence of the court guardian,who represented her in that suit.Both the lower courts held against the appellant and she has filed the second appeal.
(2.) The appellant is a member of a Malayala Brahmin illom consisting of the father,the 3rd defendant,the mother,the 11th defendant,and their children,defendants 4 to 10 and the plaintiff - appellant.In 1124,when the appellant was a minor,the,3rd defendant executed the hypothecation bond Ext.D2 in favour of the 1st defendant regarding some items of illom properties.The 1st defendant's father,the 2nd defendant,paid the consideration for the mortgage,which is recited in the document as having been paid before the Sub Registrar.O.S.No.47 of 1954 was filed on the mortgage and in that suit all the members of the illom,three majors and five minors including the plaintiff,were impleaded as defendants.The major members remained ex parte and the guardian proposed for the minors refused to act as guardian.Consequently a court guardian was appointed,who filed the written statement Ext.P.4.The suit went to trial and during the trial the court guardian did not cross examine the plaintiff's witnesses.Ultimately the decree came to be passed,which is now sought to be set aside in the present suit.The only ground raised,as already indicated,is that the court guardian of the plaintiff - appellant was grossly and culpably negligent in the conduct of the suit and for that reason the decree should be set aside.
(3.) In this connection,the appellant's learned advocate contends that the lower courts should not have gone into the binding nature of the mortgage as,according to him,that question arises only after the decree is set aside.He explains further that the immediate question before the lower courts was whether the guardian was grossly negligent and not whether the mortgage was supported by consideration and necessity of the illom.For this he relies on a passage from the judgment of Kunhi Raman C.J.in Kavukutty Amma v Thankam Amma,1951 KerLT 69.The learned Chief Justice in that case observes that since the mortgage right having ripened into a decree and having become merged in the decree,the primary question that ought to have been considered by the lower appellate court was whether there was any ground for avoiding the decree and it was only after the decree was avoided,that it would have been open to the parties to enter into the merits of the transaction.In that case the trial court held that there was no evidence for establishing negligence,much less gross negligence,on the part of the court guardian.The lower appellate court held that the mortgage was not executed for tarwad necessity and on that finding it held further that negligence on the part of the guardian must be presumed.It was that finding that was considered by the learned Chief Justice in the observation already referred to.As a matter of fact,in that case there was a major member who filed a written statement and the court guardian,depending upon the contest of the major member,did not even file a written statement.Finally,the major member did not prosecute the suit and a decree came to be passed.The High Court held that there was no gross negligence on the part of the court guardian,because,in the circumstances of the case,he did everything in his power in the conduct of the case.Therefore,that observation of Kunhi Raman C.J.will not be of any avail to the appellant in this case.