JAYASINGH Vs. GANGADHARAN

JUDGEMENT

(1.) A. S. No. 622 of 1971 is an appeal against the decree in O. S. 34 of 1969. That is the main appeal and we will state the facts in that appeal before we come to A. S. 73 of 1972. The appellant in the appeal is the plaintiff in the suit. The suit was one for declaring a decree void as against the leasehold right claimed to be that of plaintiff and defendants 16 and 17 over the plaint schedule properties and also for an injunction restraining the passing of a final decree in the suit O. S. 21 of 1946 in so far as it concerns the rights of the plaintiff claimed in the suit. Plaintiff claims to be the manager of his branch consisting of himself and defendants 16 and 17. They are children of one deceased Madhavan, Defendants 2 to 6 in the suit, their father one Kesavan and his father one Unippalan jointly filed a suit O. S. 21 of 1946. That suit was for partition of the properties of a joint family known as Vallipparambil. At the time of institution of that suit plaintiffs as wall as defendants 16 and 17 who are members of that family were minors. It is not disputed that the family was a Joint Hindu family governed by Hindu Mitakshara Law. Plaintiffs and defendants 16 and 17 were defendants 17 to 19 in O. S. 21 of 1946 and the father of the plaintiff deceased Madhavan was the 15th defendant therein. The first defendant in this suit who is the brother of the deceased Madhavan was the 16th defendant in the earlier suit. At the time of the institution of the suit Madhavan, the father of the plaintiff was sought to be appointed as guardian of the plaintiff and defendants 16 and 17. Madhavan died before filing written statement in the earlier suit and thereupon the plaintiffs there applied for appointing the first defendant in this suit as guardian of the plaintiffs and his brothers. The first defendant is purported to have acted as such guardian and filed a written statement as guardian in that suit. A preliminary decree for partition was passed on 30-6-1948 and the plaintiff in that suit applied for passing the final decree pursuant to which a commission was issued for effecting division. According to the plaintiff, his father, Madhavan, had, in his individual capacity, obtained a lease for the plaint properties from Krishnan, the common manager of the family under a lease deed of 1944 and pursuant to that lease Madhavan is said to have been in possession until his death. Plaintiff and defendants 16 and 17 claim that they obtained the rights of Madhavan and therefore they are entitled to claim that the leasehold right enured to them. In view of the provisions of Act 1 of 1964 they claim fixity of tenure in regard to these properties. They seek to avoid the decree in O. S. 21 of 1946 in so far as it concerns their claim in regard to the suit property. The first defendant herein who was the 16th defendant in that suit was not qualified to be a guardian of the plaintiff and his brothers, but nevertheless he was so appointed and he did not seek to set up contentions namely, the availability of the lease to Madhavan as a special right in regard to the plaint schedule properties, It is contended that the interests of the plaintiff were not safe in the bands of Madhavan as he was having adverse interest against the plaintiff, and so plaintiff must be deemed to have been not represented at all in that suit with the result the decree would be a nullity as against the plaintiff. It is also contended that as guardian the first defendant did not act as he should have .from which, at the hearing, a plea of gross negligence on the part of the guardian is attempted to be spelt cut. It is therefore contended that when the plaintiff came to know of the existence of a leasehold right in 196S he had to file the suit claiming the relief of declaration as well as injunction which has been made in the suit. The suit was contested by the first defendant as well as defendants 12 and 13. It was also contested by defendants 14 and 15. Defendants 8 to 11 also filed a statement adopting the contentions of defendants 14 and 15. The case of the contesting defendants was that Madhavan bad no lease in regard to plaint schedule properties, the properties were held under a maintenance arrangement and the case that there was an execution of lease deed was not true. According to them there was only a maintenance arrangement and the maintenance arrangement was in favour of the branch family and therefore first defendant had no adverse interest as against the plaintiff and he bad no contention available as defence to the suit which could have been successfully set up. The court below found that Ext. P1 which is contended to be a lease deed obtained by Madhavan was really a document intended to provide for the maintenance of the branch of Madhavan and that was executed by Madhavan as manager and not in his individual capacity, found that though Ext. P1 took the form of a lease deed, it is really an arrangement for the maintenance of the members of the branch tarwad, and therefore no special right is obtained by the plaintiff under Madhavan as claimed. It also found that the suit challenging the decree at this distance of time would be barred by limitation. In that view the suit was dismissed.

(2.) In these appeals several contentions are raised and several questions argued by counsel of both sides. It is the appellant's case that though the first defendant was a party to the earlier suit and the first defendant claimed to have filed a written statement as manager of his branch, in so far as he did not set up a plea available to the plaintiff at that time which he was bound to do as guardian of the plaintiff, it must be found that the conduct of the first defendant was bad for gross negligence. If is also contended that the guardian appointed in the suit had interest adverse to the minor since it would not have been to the advantage of the first defendant here to have set up a contention that Madhavan obtained leasehold right for himself as that would have reduced the share of the first defendant.. It is therefore the appellant's case that adverse interest must be found in the guardian and that would be sufficient to bold that the decree was void as against the minor. Though a preliminary decree is passed in O. S. 21 of 1946 final decree is yet to be passed and the matter is pending. In fact it is seen that the special claims set up in the suit was not adjudicated m the preliminary decree but was left to be considered at the time of final decree.

(3.) The appeal A. S. 73 of 1972 is by the 17th defendant in O. S. 21 of 1946 who is the plaintiff in the other suit. That arises in the course of proceedings for passing final decree in O. S. 21 of 1946. On the attainment of majority the 17th defendant is said to have become aware of the leasehold right which was available as defence to the suit but which defence bad not been set up. Though this was raised in the suit that was negatived. But subsequently Kerala Land Reforms Act 1 of 1964 was amended by Act 35 of 1969 and thereupon the 17th defendant filed an application praying for reopening the preliminary decree and for disposal of the final decree proceedings after considering the right of defendants under Act 1 of 1964, as amended. In the meanwhile the Sub Judge had given a direction to the commissioner to effect partition and to conduct the sale of the Hem over which appellant claims tenancy right. One of the items is residential compound in which the appellant is living. The court below found that the appellant is not entitled to the reliefs claimed and dismissed the application. It is against that order that AS 73 of 1972 has been filed by the 17th defendant in that suit who is the plaintiff in the other suit.