RAMAN GANGADHARAN Vs. RAMAN NARAYANAN

JUDGEMENT

(1.) PLAINTIFFS in O. S. No. 94 of 1954 on the file of the Sub-Court at Attingal have preferred this appeal against the decree dismissing the suit. Originally there were 41 plaintiffs of whom the 41st plaintiff died and her heirs were impleaded as additional plaintiffs 42 and 43. These plaintiffs and the defendants in the suit are members of one and the same tarwad consisting of 4 thavazhies. These parties are Ezhavas and are governed by the Travancore Ezhava Act, Act III of 1100. Plaintiffs' suit is for partition of the common tarwad properties on a per capita basis and for recovery of the share due to the plaintiffs' branch. The majority of the members in the plaintiffs' branch have figured as plaintiffs' and the remaining members are included in the party array among defendants. On the date of the suit the total number of members in the tarwad is stated to be 105, of which 71 members belonged to the plaintiffs' branch. On this basis, plaintiffs have claimed for their branch 71/105 share out of the scheduled properties. There was an earlier suit, O. S. 467/ 1114, by the members of this branch for partition of the tarwad properties and recovery of the share due to the plaintiffs' branch. That suit was resisted by the members of the other branch, mainly on the ground that the 4 branches of the tarwad had become divided in interest by virtue of the udampadi, Ext. A dated 25-2-1095, to which the representatives of all the branches were parties. The Question for decision in that suit was whether the arrangement under Ext. A was only a maintenance arrangement, or whether it amounted to an outright partition. That question was ultimately decided By the travancore High Court in the second appeals which arose from the said suit. Ext, I is copy of the common judgment of the High Court in those appeals. In that judgment it was definitely decided that the Udampadi, Ext. A, had the effect of an outright partition of the tarwad into 4 thavazhies or branches. As a consequence of that finding, the partition suit O. S. 467/1114 was dismissed. Since all the members of the tarwad were parties to that suit, the decision in Ext. I judgment must bind all of them and the present suit for reopening the question concluded by that decision is clearly unsustainable. Plaintiffs in the present suit tried to get over the effect of the decision in the prior suit by contending that most of the plaintiffs in the present suit who were minors at that time, were not properly represented by competent guardians validly appointed by court and that therefore the present plaintiffs are not bound by the decree in the earlier suit. The contesting defendants, on the other hand, maintained that all the minors in the earlier suit were properly represented by their duly appointed guardians and that the decree in that suit is binding on all the parties including the minors. The lower court accepted this position and overruled the contentions raised by the plaintiffs and held that the present plaintiffs are also concluded by the decision in ext. I judgment which operates as res judicata as against the present plaintiff. Plaintiff's suit was dismissed for that reason.

(2.) THE majority of the plaintiffs in the present suit were parties to the earlier suit o. S. 467 of 1114. If the decision in that suit is binding on all the members of the tarwad who were in existence at the time of the earlier suit and who were parties to it, it is obvious that the subsequently born members in the different thavazhies of the tarwad cannot claim any independent right as members of an undivided tarwad. These subsequently born children can only claim to be members of the particular thavazhi to which they belong and which had become divided from the common tarwad. They could therefore claim only their shares out of the properties which fell to the share of their own branch. Out of the present plaintiffs, some are seen to have been adults even at the time of the earlier suit. Plaintiffs 1, 2 and 41 come under this category. They were defendants 22, 23 and 29 in the earlier suit. Present plaintiffs 3, 4, 7, 8, 10, 12, 18, 23, 26, 27, 28, 29, 30, 33, 35 and 36 were respectively defendants 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 and 48 as is seen from Ext. IV which is copy of the summons issued to these defendants. The rest of the plaintiffs in the present suit are persons born subsequent to the prior litigation. In the earlier suit, the 25th defendant, the mother of defendants 30 to 37, had been proposed find appointed as their guardian. Similarly, the 26th defendant was appointed as the guardian of her minor children who were defendants 38 to 44 in that suit and the 27th defendant was appointed as the guardian of her minor children who were defendants 45 to 48. Of these guardians the 27th defendant appears to have filed a petition in the High Court for a re-hearing of the second appeals which were disposed of by the judgment Ext. I. The copy of the petition together with the order thereon, has been marked as Ext. II in the present suit. On the strength of that petition an inquiry was conducted by the High Court and ext. III is copy of the findings recorded at that inquiry. After considering those findings, the High Court came to the conclusion that no case was made out by the 27th defendant for a re-hearing of the appeal and accordingly her petition was dismissed. All the same, it is clear that the 27th defendant had actively functioned as the guardian of her minor children. Defendants 25 and 26, who had represented the other two groups of minors, defendants 80 to 37 and 38 to 44, do not appear to have contested the earlier suit. They chose to remain ex parte.

(3.) THE contentions urged on behalf of the present plaintiffs have to be examined in the light of the above mentioned facts and circumstances. Ext. F is copy of the progress diary in the earlier suit. The entries in that diary supported by the endorsements on the summons contained in Ext. IV clearly go to show that defendants 25, 26 and 27 of that suit had duly accepted the notices issued to them regarding their proposed appointment as the respective guardians of their minor children and also that these guardians signed and accepted those notices as also the summons issued to the minor defendants. The first point urged on behalf of the appellants is that these mothers were incompetent to be appointed as the guardians of their minor children. We do not see any force in this contention. There is nothing in the Travancore Ezhava Act to indicate that the mother is in any way disqualified from functioning as the guardian of her minor children. Section 13 of me Act states that the husband shall be the legal guardian of his minor wife and the father the legal guardian of his minor children, in respect of their person and property. But the proviso to the section makes it clear that the guardianship of the husband or father, as the case may be, does not extend to the right and interest of the wife or children in their tarwad property. On the strength of this proviso, an argument is advanced on behalf of the appellant that the Karanavan or manager of the tarwad alone is competent to function as guardian in respect of the right and interest of the minor members of the tarwad in the properties of the tarwad. We are not impressed with this argument. There is no warrant for thus restricting the guardianship of the minor members of a tarwad. A mother along with her children form a thavazhi in tarwad. It cannot also be doubted that the mother is a natural guardian of her minor children. Under Section 13 of the Ezhava Act, the father who is the other natural guardian of the minor children is made the legal guardian in respect of their person and also of their separate property. It is obviously for the reason that the father cannot have anything to do with the tarwad properties of his minor children that his guardianship is not extended to their right and interest in their tarwad property. But the position of the mother is entirely different. She has as much right and interest just as her minor children in the properties of their tarwad. She being also a natural guardian of her minor children, there can be no legal impediment or even impropriety in her functioning as the guardian of her minor children when the question of such guardianship arises in relation to their right and interest in the properties of their tarwad. It has also to be remembered in this connection that the general provision contained in Rule 3 of Order 32 of C. P. C. , clearly indicates that the father or other natural guardian of a minor has a preferential right to be appointed as the guardian of such a minor. As already stated, the mother is also a natural guardian like the father of the minor concerned. Clause (4) of Rule 3 states that without notice to the natural guardian and hearing such person's objection, nobody else can be appointed as the guardian of the minor. This provision also strengthens the legal competency of the mother to function as the guardian of her minor children. Viewed in all these aspects, we are definitely of opinion that the appellant's contention that the mother of the minor members of a tarwad is incompetent to be appointed as their guardian in a suit relating to their tarwad properties, is untenable and cannot be allowed to prevail.