Achuthan v. Obi — 1959 DIGILAW 388 (KER)

Judgment :- 1. Though the point that actually arises for decision in this second appeal by the defendant is only as to whether the award of maintenance made as against him by the courts below, is to be sustained or not, the scope of the controversy has been very much enlarged by the invitation extended to me by the learned counsel for the defendant-appellant, Mr. P. V. Jacob. What would have been otherwise a simple dismissal of the second appeal, has necessitated my considering the relevant provisions of the Cochin Thiyya Act, Act VIII of 1107 as also the Cochin Makkathayam Thiyya Act, Act XVII of 1115. One of the points that has been urged and that I have to consider in this second appeal, is as to the provisions of which Act governs the rights of parties in this litigation. 2. The suit was by the divorced wife of the defendant, as next friend for maintenance for a child born of their union prior to their divorce. The suit was filed on behalf of the child, by the mother as guardian. 3. There appears to have been some proceedings in the criminal court for getting maintenance for the child of the appellant. In this suit a sum of Rs. 12 per month was claimed as maintenance for the minor plaintiff represented by her mother as guardian, and the suit itself was a claim for arrears at the said rate from Chingom 1126 to the end of Dhanu 1130. 4. A contention was raised on behalf of the defendant appellant that the mother, who had instituted the suit as the guardian of the minor plaintiff, is not the guardian in law or the legal guardian of the minor plaintiff and, therefore, the suit is not maintainable at her instance. On the other hand, he claimed to be the legal guardian of the child and he also stated that he has always expressed his readiness and willingness to maintain the minor child and that has been rejected by the mother of the plaintiff and as such no arrears could be decreed as against him. There was also a plea that the arrears up to the end of 1126 have been paid and that the minor is being maintained by the father, namely, the defendant. There was also a plea that the arrears up to the end of 1126 have been paid and that the minor is being maintained by the father, namely, the defendant. There was also a defence taken as to the rate of maintenance claimed on behalf of the minor plaintiff, 5. One of the issues, namely, issue No. 1, that was raised in the suit related to the question as to whether the mother who has instituted the suit on behalf of the minor plaintiff is the guardian and as to whether she is entitled to represent the minor. Then there are other questions regarding the rate of maintenance and the other defences raised by the defendant. 6. So far as the question as to whether the parties are governed by the Marumakkathayam system or by Makkathayam system, the learned District Munsiff has not given due consideration to this aspect. Even after referring to S.20 of the Cochin Makkathayam Thiyya Act, Act XVII of 1115, under which the father is the legal guardian, and also referring to S.15 of the Cochin Thiyya Act, Act VIII of 1107, under which the wife will be the legal guardian in certain circumstances, that court has not really given any finding as to whether the mother in this case is entitled to claim to be the legal guardian of the minor plaintiff so as to justify the institution of the suit by her. So far as the further questions in controversy between the parties were concerned, the learned District Munsiff has stated that the defendant admits that no amounts by way of maintenance were paid for the minor plaintiff after 1126. But he seems to have taken up the plea that certain amounts were sent in Chingom or so of 1126 which have been returned to him. But nevertheless the trial court was of the view, that the minor, who is being-looked after by her mother is entitled to be awarded maintenance as against the defendant. The trial court also put it on the ground that the fact that a money order has been refused by the mother or that she has informed somebody that she does not want to receive any maintenance from the defendant for the child, will not in any way absolve the legal liability, under which the defendant is to maintain his minor child. 7. 7. The learned District Munsiff having recorded a finding that the minor plaintiff was entitled to get maintenance from the father, the defendant, considered the question of the rate of maintenance to be awarded. In considering this question, the learned District Munsiff has considered the age of the minor as also the education that she was receiving at the material time, and taking into account the salary that was being received by the defendant appellant, fixed the maintenance in the sum of Rs. 6 per month as against the claim of Rs. 12 per month. On these findings, the learned District Munsiff, ultimately granted a decree in favour of the plaintiff in the sum of Rs. 318 and also awarded half costs in favour of the minor plaintiff. 8. The defendant carried the matter in appeal before the learned District Judge of Ernakulam against the main decree awarding maintenance as against him and it is also seen that the plaintiff filed a memorandum of cross objections asking for enhanced maintenance at the rate of Rs. 8 per month. The learned District Judge has gone into the question as to the Act that applies to the parties, namely, The Cochin Thiyya Act, Act VIII of 1107, or the Cochin Makkathayam Thiyya Act, Act XVII of 1115. According to the learned judge, in view of the materials available before him, there is sufficient justification for coming to the conclusion that the parties are followers of Marumakkathayam law and as such the provisions of the Cochin Thiyya Act, VIII of 1107, applies to this case. In this view, the learned judge came to the conclusion that after the minor plaintiff's mother had been divorced by the defendant, the father, the next friend, namely, the mother of the plaintiff, is the legal guardian under S.15 of the Act of 1107. Therefore, the learned judge held that the defendant cannot resist the suit instituted by the next friend on the ground that she is not entitled to represent the minor plaintiff as legal guardian. Therefore, the learned judge held that the defendant cannot resist the suit instituted by the next friend on the ground that she is not entitled to represent the minor plaintiff as legal guardian. The learned judge has in this connection also referred to certain answers stated to have been given by the defendant and also to his statements made in certain prior proceedings and ultimately his conclusion is to the effect "I have no doubt in my mind therefore that the parties to this case belong to that section of Thiyyas governed by the Act of 1107 & as such the mother is the legal guardian of the minor respondent". 9. After recording this finding, the learned judge has also expressed his view that even if the father is the legal guardian, in view of the fact that he has re-married and he has got also children by his second wife, it is not desirable to allow the child to go back to the father. Therefore, the learned judge held that it is to the welfare of the child that she is allowed to remain with her mother namely, the next friend, and made the defendant liable to pay the arrears of maintenance claimed. 10. Regarding the quantum of maintenance, the learned judge has considered the financial resources of the defendant appellant and has come to the conclusion that the rate of maintenance awarded by the trial court, cannot be interfered with at the instance of the defendant. But regarding the memorandum of cross objections filed by the plaintiff, the learned judge, having regard to the evidence regarding the income of the defendant, came to the conclusion that the rate awarded by the trial court in the sum of Rs. 6 per mensem has to be raised to at least Rs. 7.8.0 per month. He accordingly allowed the memorandum of cross-objections filed by the plaintiff to that extent and dismissed the appeal filed by the defendant. 11. It is against the decrees and judgments of both the subordinate courts, that this second appeal has been filed by the defendant 12. On behalf of the defendant his learned counsel Mr. P.V. Jacob has raised in the main two contentions namely, that both the subordinate courts erred in applying the provisions of the earlier Act, namely, the Cochin Thiyya Act, Act VIII of 1107. On behalf of the defendant his learned counsel Mr. P.V. Jacob has raised in the main two contentions namely, that both the subordinate courts erred in applying the provisions of the earlier Act, namely, the Cochin Thiyya Act, Act VIII of 1107. According to the learned counsel the provisions applicable are those contained in the Cochin Makkathayam Thiyya Act, Act XVII of 1115. Even on the basis that the provisions of the Cochin Thiyya Act, Act VIII of 1107, applied to the case, according to the learned counsel, nevertheless, the views expressed by both the courts that the next friend, the mother is the legal guardian is not warranted by the provisions of this Act. The learned counsel developed the argument based upon these provisions of the two Acts, which I will deal with when considering his arguments later on this judgment. The second contention of Mr. Jacob is to the effect that there is absolutely no material placed by the minor plaintiff, through the next friend, to show that the parties are governed by the Marumakkathayam law so as to warrant the application of the provisions of the Cochin Thiyya Act, VIII of 1107. There is no pleading, no issue framed on the point, and the defendant, especially, had no opportunity to place his defence regarding this point on which a finding against the defendant has been given by the learned Judge. The trial court, especially, has proceeded on the basis that the parties are governed by the Makkathayam Thiyya Act and a reading of the plaint itself will show clearly that the plaintiff also proceeded on the basis that the parties are governed by the Makkathayam Thiyya Act. 13. On the other hand, Mr. Sreedhara Menon, learned counsel appearing for the plaintiff, has contended that it is really the provisions of the Cochin Thiyya Act, Act VIII of 1107, that applies to the present case and that the later Act, namely, Cochin Act XVII of 1115, has absolutely no application. By no stretch can it be stated that the later Act XVII of 1115 has repealed the earlier Act namely, the Cochin Thiyya Act, VIII of 1107. By no stretch can it be stated that the later Act XVII of 1115 has repealed the earlier Act namely, the Cochin Thiyya Act, VIII of 1107. The learned counsel has also drawn my attention to certain sections in the earlier Act to show that the contention of the learned counsel for the appellant that under those provisions the father is still the legal guardian notwithstanding the divorce cannot be accepted. 14. So far as the second contention of Mr. Jacob is concerned, Mr. Sreedhara Menon, has contended that even at the outset the plaintiff stated in her plaint that the mother as the next friend is the legal guardian. This was controverted by the defendant to the effect that the mother is not the legal guardian and no law recognised her right to be the guardian. But on the other hand he also set up a specific case that he was the legal guardian of the minor plaintiff-It was because of this controversy that issue No.1 was framed regarding the right of the next friend to represent the plaintiff, as the legal guardian, in this proceeding. The learned counsel also invited my attention, in particular, to the steps taken by the defendant himself to obtain a divorce from the next friend of the minor plaintiff. That application filed by him has been marked as Ext. IV in this case and I will have to deal with it a little more in detail when I have to consider the second contention of Mr. Jacob. 15. These are the broad contentions raised before me by the learned counsel on both sides As I mentioned at the beginning of this judgment, the dispute was mainly as regards the payment of maintenance without in any way involving an elaborate consideration of the other major points now raised & in controversy before me. Admittedly, the divorce was effected in the year 1122, and the defendant does not appear, from the evidence on record, to have taken any steps to enforce so far his rights of legal guardianship, if any. Therefore I felt even at the opening of the case by Mr. Admittedly, the divorce was effected in the year 1122, and the defendant does not appear, from the evidence on record, to have taken any steps to enforce so far his rights of legal guardianship, if any. Therefore I felt even at the opening of the case by Mr. Jacob, that it would be rather unnecessary to go into the various other points that he was now raising, namely, the right of the next friend to represent the minor plaintiff as the legal guardian and also as to whether it was really necessary to go into the various questions as to the provisions of which Act applied to the parties. Notwithstanding this indication given by me, Mr. Jacob raised all the contentions mentioned above and was prepared to take a decision; and so I hereby proceed to give my decision on the various points raised by him. 16. In order to appreciate the contentions of the learned counsel on both sides, it is necessary to refer to certain provisions of the two enactments. The first one is the Cochin Thiyya Act, VIII of 1107. The preamble to the said enactment runs as follows: "Whereas it is expedient to define, regulate and amend the law of marriage, succession and partition of the Thiyyas; It is hereby enacted as follows:" After that, S.1 states that the Act may be called the Cochin Thiyya Act, VIII of 1107 and it is to come into force at once. S.2 of the said Act states: "It shall apply to all Thiyyas domiciled in Cochin other than those who follow Makkathayam, and to such Thiyyas or others, whether so domiciled or not, as have or shall have marital relation with them". S. 2 therefore is clear that it is to apply to all Thiyyas domiciled in Cochin "other than those who follow Makkathayam" and also to the other type of Thiyyas mentioned in the latter part of that section. 17. The other relevant provisions of the Act are S.13,14 and 15. They come under Chapter III under the heading 'Maintenance and Guardianship'. S.13 states: "The wife and minor children except married daughters under the guardianship of the husbands, shall be entitled to be maintained by the husband or the father as the case may be: Provided that the wife shall not he entitled to maintenance if she refuses to live with the husband without just cause". S.13 states: "The wife and minor children except married daughters under the guardianship of the husbands, shall be entitled to be maintained by the husband or the father as the case may be: Provided that the wife shall not he entitled to maintenance if she refuses to live with the husband without just cause". S.14 is to the effect. "The husband shall be the legal guardian of his minor wife and father of his minor children including widowed minor daughters, in respect of their person and property". Section 15 is to the effect: "Where the wife has minor children by a former husband, deceased or divorced, she shall be the legal guardian in respect of their person and property". The other enactment that has to be considered is the Cochin Makkathayam Thiyya Act, Act XVII of 1115. The preamble to that enactment is to the effect "Whereas it is expedient to define, regulate and amend the law of marriage, maintenance, guardianship, inheritance and succession of the Makkathayam Thiyyas; It is hereby enacted as follows:" Section 1 is to the effect "This Act may be called the Cochin Makkathayam Thiyya Act, XVII of 1115, and it shall come into force at once". Section 2 provides "It shall apply to all Thiyyas domiciled in Cochin except the Chittur Taluk who follow Makkathayam and to such Thiyyas, whether so domiciled or not, as have or shall have marital relations with them". Passing over the other sections which are not material, the three other sections which have to be noted are S.19,20 and 21 occurring in Chapter III under the heading 'Maintenance and Guardianship'. S.19 states: "The wife and minor children, except married minor daughters under the guardianship of their husbands, shall be entitled to be maintained by the husband or the father as the case may be". "Provided that the wife shall not be entitled to maintenance if she refuses to live with the husband without just cause". Section 20 provides: "The husband shall be the legal guardian of his minor wife and the father of his minor children other than married daughters under the guardianship of their husbands and of his grandchildren by his widowed minor daughters in respect of their person and property". Section 20 provides: "The husband shall be the legal guardian of his minor wife and the father of his minor children other than married daughters under the guardianship of their husbands and of his grandchildren by his widowed minor daughters in respect of their person and property". Section 21 is to the effect "Where the wife has minor children by a former husband, deceased, she shall be the legal guardian in respect of their person and property". 18. Before I consider which of the provisions of the two Acts apply to the parties in question, it is desirable that I dispose of the second contention of Mr. Jacob because that relates to the question that there was opportunity given to his client to plead that the parties are not governed by the Marumakkathayam system and as such the earlier enactment cannot be made applicable to them. So far as this contention is concerned, Mr. Jacob urges that the plaintiff itself proceeded on the basis that the parties are Makkathayees, or at any rate it gave no indication whatsoever that the parties are Marumakkathayees. No doubt, the next friend of the minor plaintiff stated that she is the legal guardian but that has been controverted by the defendant on the ground that she is not the legal guardian. 19. According to the learned counsel, a specific issue should have been raised on the question as to whether the parties are governed by Marumakkathayam system or by Makkathayam system; because a decision on that question will have a large bearing on the applicability or otherwise of the enactments in question. 20. The learned counsel also urged that a casual statement contained in Ext IV, the application filed by the defendant for obtaining a divorce, cannot certainly be put against him without a fuller investigation of this point. Equally the learned counsel also urged that the copy of his client's deposition given in certain other proceedings and marked as Ext. A by the plaintiff herself, clearly shows that he has mentioned long before any dispute arose between the parties, that the members of the wife's family had become Makkathayees long ago and even prior to 1107. Therefore, the Act of 1107 cannot apply. A by the plaintiff herself, clearly shows that he has mentioned long before any dispute arose between the parties, that the members of the wife's family had become Makkathayees long ago and even prior to 1107. Therefore, the Act of 1107 cannot apply. The learned counsel also urged that there is nothing in the evidence of the defendant himself which would show that he has in any way admitted that he was a Marumakkathayee at the relevant time. This in brief is the contention of the learned counsel on the ground that no evidence has been let in by the plaintiff to establish the system which applies to the parties. 21. On the other hand, Mr. Sreedhara Menon relied upon the presumption applicable in the case of Thiyyas domiciled in Cochin Kanayannoor Taluk and referred me to the decision of a Full Bench of the Cochin High Court reported in Damodaran v. Madhavan (39 Cochin Law Reports 121). The learned judges have stated at page 122, Para.4, that according to the provisions of S.2 of the Cochin Thiyya Act, VIII of 1107, the Act applies to all Thiyyas domiciled in Cochin other than those who follow Makkathayam and to such Thiyyas or others whether so domiciled or not as have or shall have marital relations with them. The learned judges further state at the end of page 122: "In other words, the Act applies only to members of the Thiyya community governed by the "Marumakkathayam Law." Later on at page 123 the learned judges observe: "The admission of the plaintiff apart, it has to be presumed that the parties to the suit are Marumakkathayees." Then the learned judges refer to some leading text books written by Shri C. Achutha Menon, Shri L. K. Ananthakrishna Iyer and Shri K. P. Padmanabha Menon and the learned judges are prepared to proceed on the basis that the books written by them on the respective subjects are more or less classics. 22. I am aware of the contention of Mr. Jacob that the learned judges in that case had before them an allegation in the plaint which was not only not controverted by the defendants but even accepted by the defendants, that the Ezhuvas in that suit are governed by the Marumakkathayam law of inheritance and so governed by the Cochin Thiyya Act, VIII of 1107. Jacob that the learned judges in that case had before them an allegation in the plaint which was not only not controverted by the defendants but even accepted by the defendants, that the Ezhuvas in that suit are governed by the Marumakkathayam law of inheritance and so governed by the Cochin Thiyya Act, VIII of 1107. The learned counsel naturally placed reliance on the statement of the learned judges that these allegations in the plaint have not been controverted by the contesting defendants in that litigation. But I do not understand the learned judges to rest their decision only on this admission made by the defendants themselves, because if that is so, it was totally unnecessary for the learned judges to have considered the presumption applicable in such a case. They have made very elaborate reference to several passages in two various text books written by these three learned authors. I cannot even say that it was unnecessary, because the learned judges were prepared to proceed on the alternative basis, namely, the admission about the nature of the law of inheritance applicable to the parties, and the alternative basis, namely, that even without the admission, the presumption applicable in such cases. With great respect to the learned Judges, I am in entire agreement with the reasons given for drawing such presumptions in similar cases. 23. No doubt, it is really a case of presumption. But the question then arises whether that presumption has been in any way controverted or rebutted by the evidence of the defendant. I cannot accept the contention of Mr. Jacob that it is not his client's duty to place any evidence to show that he is not a marumakkathayee. He is faced with the decision of the Cochin High Court referred to above whereby there is a presumption that Ezhuvas domiciled in Cochin Kanayannor Taluk are governed by the Marumakkathayam system of inheritance. But I do not think it is necessary for me to consider the various objections raised by Mr. Jacob to the findings recorded as against the client, because there is at least one material on record from which it can be safely concluded that even the defendant himself proceeded on the basis that the parties are governed by the Marumakkathayam system of inheritance and that is Ext. IV. Jacob to the findings recorded as against the client, because there is at least one material on record from which it can be safely concluded that even the defendant himself proceeded on the basis that the parties are governed by the Marumakkathayam system of inheritance and that is Ext. IV. I will disregard for the present the oral evidence adduced in this case, which may not very much assist the court to decide one way or other. I do not express any opinion because in view of the statements in Ext. IV, it is not necessary for me to consider the other evidence on record. 24. Ext. IV admittedly is the application filed by the defendant on 21st Kanni 1122 asking for divorce from the next friend who is the mother of the minor plaintiff in this suit. Mr. Jacob attempted to get over this document which is prima facie against his client on the ground that there is no reference to any statutes in this application. All that his client was interested in getting was a divorce and it did not matter whether he got a divorce under the provisions of the Act of 1107 or under the provisions of the Act of 1115. I cannot accept this contention. Ext. IV cannot be brushed in the manner in which the learned counsel wants to be Crushed aside. Ext. IV, it must be remembered comes into existence when there are two enactments, one governing the Marumakkathayees, namely, the earlier Act of 1107, and the other dealing with Makkathayees namely, the latter Act of 1115. The appellant had before him these two enactments. Long before any controversy between the parties arose, he has chosen to file the application under Act VIII of 1107 which applies to Marumakkathayees. It cannot be stated that there is no reference to any enactment in the application, Ext. IV There is specific-reference made to S.7 (3) of the Act. S.7 (3) under which he wanted divorce, can only be the provisions of S.7 (3) of the earlier legislation, namely, Act VIII of 1107, because, the corresponding provision in the Cochin Makkathayam Thiyya Act, Act XVII of 1115, is S.13. It is really that section which deals with the circumstances under which a dissolution of marriage can be obtained. S.7 (3) under which he wanted divorce, can only be the provisions of S.7 (3) of the earlier legislation, namely, Act VIII of 1107, because, the corresponding provision in the Cochin Makkathayam Thiyya Act, Act XVII of 1115, is S.13. It is really that section which deals with the circumstances under which a dissolution of marriage can be obtained. Therefore, in view of the definite statement that relief is asked for on the basis of S.7 (3) in Ext. IV, that can have reference only to the provisions of the Act of 1107, which admittedly in my opinion applies only to Marumakkathayees, and not to Makkathayees. That disposes of the second contention of Mr. Jacob. Therefore, it follows that the parties in this case are governed only by the provisions of the 1107 enactment (viz.) Cochin Act VIII of 1107. 25. Before I deal with the first contention of Mr. Jacob, I can also dispose of one of the minor contentions raised before me that the 1107 enactment must be considered to have been impliedly, at any rate, repealed by the 1115 Act. Apart from the fact that there is nothing to indicate in the Act of 1115 to show that the earlier Act of 1107 has been repealed, admittedly there is no provision in the said Act repealing in so many terms the earlier enactment. In fact, the repeal of the earlier enactment was absolutely unnecessary because the earlier enactment deals with Thiyyas who are not governed by the Makkathayam system; whereas the later enactment, namely the Act of 1115, deals specifically with Thiyyas governed by the Makkathayam system. 26. Having held that the parties to this ligation are governed by Marumakkathayam system and not by Makkathayam system, the applicability of the Cochin Thiyya Act, VIII of 1107, or the Cochin- Makkathayam Thiyya Act Act XV11 of 1115, becomes comparatively easy. It is not possible for me to accept the contention of Mr. Jacob that the Cochin Makkathayam Thiyya Act, XVII/1115] repeals the earlier Cochin Thiyya [Act, VIII of 1107. This aspect I have dealt with in the earlier portion of the judgment. Nor can I accept the other contention of Mr. Jacob that the later Act, namely, Act XVII of 1115, is wider in scope than the Cochin Thiyya Act, VI11 of 1107. Regarding this aspect of the matter, Mr. This aspect I have dealt with in the earlier portion of the judgment. Nor can I accept the other contention of Mr. Jacob that the later Act, namely, Act XVII of 1115, is wider in scope than the Cochin Thiyya Act, VI11 of 1107. Regarding this aspect of the matter, Mr. Jacob referred me to S.2 of Act XVII of 1115 in support of his contention that this Act is more general in its application and that it will apply to all Thiyyas domiciled in Cochin State irrespective of the fact whether they are Makkathayees or Marumakkathayees.This contention need not detain me any further because the title of Act XVII of 1115 is the Cochin Makkathayam Thiyya Act. The preamble itself is also to the effect that the Act is passed because it is expedient to define, regulate and amend the law relating to marriage, maintenance, guardianship, inheritance and succession of the Makkathayam Thiyyas. Again S. (1) is quite clear that the Act is to be called the Cochin Makkathayam Thiyya Act, XVII of 1115. In the face of the title, the preamble and also S.1 of the Act it is idle for Mr. Jacob to contend that the Cochin Makkathayam Thiyya Act, XVII of 1115 takes in all the Thiyyas domiciled in Cochin, whether they are Makkathayees or Marumakkathayees. The learned counsel also attempted to get some support from the exception provided in S.2 to the effect "except the Chittur Taluk who follow Makkathayam" to show that the Act applies to all Thiyyas domiciled in Cochin except to the Thiyyas of the Chittur Taluk who follow Makkathayam and even here it is not possible for me to accept the learned counsel's contention. On the other hand, Act XVII of 1115 applies to Makkathayam Thiyyas domiciled in Cochin and it makes it very clear that the provisions of this Act will not apply to the Thiyyas in Chittur Taluk notwithstanding the fact that they may be followers of Makkathayam system. On the other hand, Act VI11 of 1107, is very clear to this effect, namely that it applies only to persons other than those who follow Makkathayam Though S.1 says that the Act is to be called The Cochin Thiyya Act, Act VIII of 1107, S.2 defines its application and it says "It shall apply to all Thiyyas domiciled in Cochin other than those who follow Makkathayam". I am leaving out the rest of S.2 as it is not necessary for the purpose of the point under discussion before me. Even otherwise, I have already referred to the decision of a Full Bench of the Cochin High Court reported in Damodaran v. Madhavan (39 Cochin 121) to the effect that the presumption in respect of Thiyyas domiciled in Cochin Kanayannur Taluk is that they are governed by the Marumakkathayam system of inheritance, & the learned judges have also made it clear that the Cochin Thiyya. Act, VIII of 1107, applies only to Thiyyas who are followers of the Marumakkathayam system. 27. Therefore, in my opinion, on the finding that the parties in this case are followers of Marumakkathayam, the applicability of the Cochin Makkathayam Thiyya Act, XVII of 1115, stands clearly excluded and the provisions of the Cochin Thiyya Act, VIII of 1107, which apply to people other than those who follow Makkathayam system, will apply to the parties before me. It is only if the Cochin Makkathayam Thiyya Act, XVII of 1115, applies that S.21 provides. "Where the wife has minor children by a former husband, deceased, she shall be the legal guardian in respect of their person and property." The corresponding section in Act VIII of 1107 is S.15. That section provides also that "Where the wife has minor children by a former husband, deceased or divorced, she shall be the legal guardian in respect of their person and property". There is no corresponding provision in S.21 of the Act of 1115 to cases of divorce. 28. Then the question is whether Mr. Jacob is correct in his contention that even on the basis that the provisions of the Cochin Thiyya Act, VIII of 1107 apply to the parties, in this case, under S.14 and 15 the father, namely, the appellant, will be the guardian of his minor daughter. The learned counsel placed reliance on S.14 and 15 of Act VIII of 1107. I have already extracted the various relevant provisions of both the Acts in the earlier portion of my judgment. Under S.14 of Act VIII of 1107 the husband is declared to be the legal guardian of his minor wife and the father, of his minor children including widowed minor daughters in respect of their person and property. Mr. I have already extracted the various relevant provisions of both the Acts in the earlier portion of my judgment. Under S.14 of Act VIII of 1107 the husband is declared to be the legal guardian of his minor wife and the father, of his minor children including widowed minor daughters in respect of their person and property. Mr. Jacob contends that S.14 is very unambiguous and clear to the effect that the father will be the legal guardian of his minor children including widowed minor daughters in respect of their person and property. Therefore, the learned counsel contends that in this case the appellant being admittedly father of the minor plaintiff, he will be the legal guardian. To accept this argument will be to ignore the provisions of S.15. S.15 of the Act of 1107 clearly says that "Where the wife has minor children by a former husband, deceased or divorced, she shall be the legal guardian in respect of their person and property". Here again, Mr. Jacob's contention was that S.15 will apply only to the case of a lady, who after the death of her husband, or having been divorced remarries and has got another husband and that it is only in such a case that lady will become the guardian of the children of her former husband, either deceased or divorced. It is not possible for me to accept this contention either. S.14, in my opinion, proceeds on the basis that the husband and wife are living together and they are in lawful wedlock or at any rate have not divorced and in those circumstances the section states that the husband shall be the legal guardian of his minor wife and the father will be the legal guardian of his minor children, including widowed minor daughters. The fact that the expression "former husband" has been used in S.15 does not, in my opinion, make it applicable only to the case of a wife who has got children by a former husband deceased or divorced and has remarried and has got another husband To test the argument of the learned counsel let me state one example. Supposing the wife, after the death of her husband, does not at all remarry. Supposing the wife, after the death of her husband, does not at all remarry. Does it mean that under S.15, she will not be the legal guardian of her minor children and does it also mean that these children will have no legal guardian whatsoever? To test the argument further, does it mean that the former husband will be the legal guardian, of his children till his divorced wife remarries and that after the latter remarries the guardianship will be transferred from the former husband to his divorced wife who had remarried? When I put this question straight to Mr. Jacob he found considerable difficulty in giving an answer. The only answer that the learned counsel could give was that; the general law, under which after the death of the husband the wife becomes the guardian should be applied. I cannot, appreciate this contention because the Act is quite self-sufficient and in particular Chap.111 of Act VIII of 1107 deals with maintenance and guardianship. In my opinion, a more reasonable construction on S.15 will have to be placed. As remarriage, after either the death of the former husband or after divorce, appears to be common in that community, the section must be understood to mean that notwithstanding remarriage either after death of her former husband or after divorce the lady who has got minor children by her former husband will nevertheless be the legal guardian in respect of their person and property and that her second husband will not be entitled to have any rights of guardianship over these children. If S.15 is to be applied - and in my opinion it directly applies to the case because the appellant has divorced his wife, who acts as next friend of the minor daughter the plaintiff, under S.15 the plaintiff's next friend and her mother will be entitled to be the legal guardian in respect of the person and property of the plaintiff. Therefore, the objection that the appellant is the legal guardian & that his divorced wife has no right to have the custody or guardianship of his minor daughter cannot avail the appellant in the face of the provisions of S.15 of Act VIII of 1107. Therefore, the objection that the appellant is the legal guardian & that his divorced wife has no right to have the custody or guardianship of his minor daughter cannot avail the appellant in the face of the provisions of S.15 of Act VIII of 1107. As I have mentioned at the beginning of the judgment, though the parties have divorced each other as early as 1122 there is nothing on record to show that the appellant has evinced any interest in this minor plaintiff, his daughter and it is in evidence that the minor plaintiff has always been under the care and protection of the mother. For all these reasons the second appeal fails and is dismissed with costs. 29. I may also make it clear that the appellant has not challenged either the rate of maintenance awarded by the trial court or the rate as slightly increased by the lower appellate court also. Nor has any argument been advanced by learned counsel on either side on the applicability or otherwise of the Hindu Minority and Guardianship Act, (Central Act 32 of 1956) and as such I am not considering the provisions of that Act. Learned counsel on both sides have proceeded on the basis that the question in this case will have to be decided on the applicability or otherwise of one of the two Acts, namely, Act VIII of 1107, or Act XVII of 1115. No leave. Dismissed.