SAVITHRI Vs. VASUDEVAN NAMBUDIRI

JUDGEMENT

(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 and 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 plaintiffs 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 plaintiffs 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

(3.) This application under O.9, R.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 defendants 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 oft 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.