Judgment :- 1. The Second appeal is presented from the judgment and decree of the District Judge of Anjikaimal in A.S. No. 311 of 1121. The appellants before this Court are the legal representatives of the deceased first defendant. The suit which was filed in the court of the District Munsiff of Irinjalakuda was for a declaration that a mortgage executed by the mother of the plaintiff which was the subject matter of O.S. No. 1142 of 1111 on the file of the Irinjalakuda District Munsiff 's Court is not binding on the plant schedule properties or the plaintiffs' thavazhi as the mortgage was not executed for tarwad necessity. The mortgage became merged in the decree in O.S. No. 1142 of 1111 which was a suit on the mortgage. It appears from the judgments of the courts below that the mortgage was executed by the plaintiff's deceased mother, Lakshmi Amma, in favour of the second defendant. The mortgagor acted in her personal capacity and also as guardian of her minor children, including the present plaintiffs. Subsequently, the mortgagee assigned her rights to the first defendant who is now dead and it was the first defendant who brought O.S. No. 1142 of 1111. On the date of that suit, the plaintiffs were minors. The 4th defendant who is their eldest brother had attained the age of majority on the date of the prior suit and he had filed a written statement raising various contentions. When, however, his name was suggested as guardian of the minor plaintiffs in the prior suit, he refused to act in that capacity. The result was a court guardian had to be appointed. The person so appointed happened to be the Nazir of the District Munsiff 's Court. The suit came on for hearing, but at the trial the present 4th defendant who was the main contesting defendant did not appear. The suit was, therefore, decreed exparte. There upon, he filed an application for setting aside the exparte decree. That was dismissed. He then appealed from that order. The suit came on for hearing, but at the trial the present 4th defendant who was the main contesting defendant did not appear. The suit was, therefore, decreed exparte. There upon, he filed an application for setting aside the exparte decree. That was dismissed. He then appealed from that order. But when that appeal came up for hearing, he failed to appear, and the learned District Judge disposed of the appeal both for default of appearance of the appellant and on the merits taking the view that he was not satisfied that there was any ground so far as merits are concerned which would warrant interference with the order of the court of first instance. In the suit, the plaintiffs were, as already stated, represented by the court guardian who was the Nazir of the Munsiff's Court. He did not file any written statement. He was evidently depending upon the contents raised in the written statement filed by the 4th defendant who was fully acquainted with the facts of the case and who was in a better position than an outsider to call evidence in support of the pleas raised by him in his written statement. The case put forward in the plaint in the suit from which this second appeal arises was that the decree which was based on the mortgage deed was vitiated by fraud and collusion. Evidently the plaintiffs were acting on the assumption that those conditions which are mentioned in S. 44 of the Evidence Act should be satisfied before they could succeed in getting the direction that the decree should be set aside. At the trial, however, they seem to have concentrated on the alleged gross negligence of the court guardian. The learned District Munsiff who heard the evidence, came to the conclusion that fraud was not established and that there was no positive evidence to show that there was gross negligence. From the facts that were placed before the learned Munsiff, he came to the conclusion that negligence could not be inferred. On appeal, however, the learned District Judge has taken the view that gross negligence can legitimately be inferred from the conduct of the court guardian at the trial of the suit. 2. Interesting arguments have been addressed on behalf of both the sides with regard to questions of law which are indirectly from this appellate decision. On appeal, however, the learned District Judge has taken the view that gross negligence can legitimately be inferred from the conduct of the court guardian at the trial of the suit. 2. Interesting arguments have been addressed on behalf of both the sides with regard to questions of law which are indirectly from this appellate decision. It is contended on behalf of the appellants that the case would come within the scope of the decision of the Madras High Court reported in A.I.R. 1946 Madras 243 (Krishnamurthi v. Chidambaram Chettiar.) That was a case where a Hindu father in his capacity as manager of the joint family filed a suit and the question was whether the decree in that suit was binding upon the junior members of the family. The court (Leach, C.J. and Lakshmana Rao, J.) held that the principle of the decision in 29 A.I.R. 1942 Madras 384 (Egappa v. Ramanathan) did not apply to such a case and that the junior member's suit to have the decree set aside on the ground of gross negligence on the part of the guardian (father) in conducting the suit was not maintainable. According to the learned judges, the principle of the earlier decision would apply only to a suit which concerns property held by the minor in his own right in which a decree is passed against the minor. It would not apply to a case in which the father who in his capacity as manager of a joint Hindu family, represented all the coparcerners and brought a suit on the basis that the property belonged to the family. This contention is met by the respondent's Advocate pointing out that according to the Cochin Nayar Act, XIII/1095 since there are provisions in the Act to the effect that every member of a tarwad has a proprietory interest in the property belonging to the tarwad and that a suit should be brought against every member of the tarwad if the decree is sought to be made enforceable against tarwad properties, the rule laid down in the Madras case cannot apply to the present case. We feel, however, that for the disposal to this second appeal it is not necessary to give a ruling as to whether in view of the provisions of the Nayar Act relied on by the respondent's counsel, at the instance of a minor member of a tarwad a decree can be set aside merely on the ground of gross or culpable negligence of the guardian ad litem. Conceding for the sake of argument that culpable negligence alone would be sufficient to entitle a minor member of a Nayar tarwad to avoid a decree like the one passed in the earlier suit, the question that arises is whether the view taken by the learned District Judge that gross negligence can be inferred in the present case can be supported. The trial court has given cogent reasons for holding that there was no culpable negligence at all on the part of the court guardian. Towards the end of the judgment, the learned District Munsiff states as follows: The learned District Judge, on the other hand, in a brief paragraph towards the end of his judgment, merely states that since he has found in his judgment that the mortgage was not executed for tarwad necessity, negligence on the part of the guardian must be presumed, because he did not put forward the contention that the transaction was not binding upon the tarwad. We are not prepared to agree with the view taken by the learned Judge. As pointed out by the trial court, there was no positive evidence to show negligence at all. The plaintiffs were relying upon the circumstances of the case to ask the court to infer negligence. The circumstances far from proving negligence show that the guardian was perfectly justified in adopting the attitude which he adopted in conducting the litigation. There was the elder brother of the minors, the contesting 4th defendant, who was vigorously contesting the suit. He had raised in his written statement all possible defences which, if made out, would have had the effect of avoiding the mortgage deed. He was in full possession of the facts of the case. The mortgage was executed by his mother and his father was an attesting witness to the document. He had raised in his written statement all possible defences which, if made out, would have had the effect of avoiding the mortgage deed. He was in full possession of the facts of the case. The mortgage was executed by his mother and his father was an attesting witness to the document. The father was alive on the date of that suit and if the present 4th defendant who was the main contesting defendant in the earlier suit, had not ultimately failed to appear when the case came up for hearing, the guardian ad litem would not have had any special duty to discharge in the interest of the minors. They were all properly looked after by their elder brother, the present 4th defendant and therefore, the conduct of the guardian ad litem in not having filed a written statement or in not having tried to adduce evidence of which he was not in possession, cannot be said to lead to the inference of gross or culpable negligence on his part. We are in complete agreement with the view expressed in the judgment of the trial court that the circumstances do not warrant any such inference of gross negligence on the part of the guardian ad litem and we feel that the view taken by the lower appellate court is evidently the result of the strong opinion expressed by the judge in the earlier part of his judgment regarding absence of tarwad necessity for the mortgage. The mortgage right having ripened into a decree and having become merged in the decree passed in the earlier suit, the primary question that ought to have been considered by the lower appellate court was whether there was any ground for avoiding the decree. 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. The plaintiffs had to take their first hurdle in getting over the decree and it is only if they succeeded in establishing that the decree was vitiated by circumstances which can be pleaded for avoiding it that the appellate court could have considered the question as to whether there was family necessity for the mortgage. The plaintiffs had to take their first hurdle in getting over the decree and it is only if they succeeded in establishing that the decree was vitiated by circumstances which can be pleaded for avoiding it that the appellate court could have considered the question as to whether there was family necessity for the mortgage. Instead of dealing with that as the primary point for determination, the learned judge seems to have devoted the greater part of his judgment to the subsidiary question which would not arise until the decree is set aside namely as to whether the document can be said to have been executed for family necessity. The strong views expressed by him in connection with this discussion led him to adopt the view that negligence must be presumed when there was no valid ground for any such presumption. We, therefore, have no hesitation in setting aside the decree of the lower appellate court which is based upon this incorrect finding that gross or culpable negligence ought to be inferred from the evidence adduced in the case and in allowing this second appeal with costs. The result is the decision of the District Munsiff will be restored. Appeal allowed.