JUDGMENT T.C. Raghavan, J. 1. The sole question for adjudication in this second appeal is whether the appellant is entitled to have the decree in O. S, No. 47 of 1954 set aside or the ground of gross negligence of the court guardian, who represented her in that suit. Both the lower courts held against the appellant and she has filed the second appeal. 2. The appellant is a member of a Malayala Brahmin illom consisting of the father, the 3rd defendant, the mother, the 11th defendant, and their children, defendants 4 to 10 and the plaintiff - appellant. In 1124, when the appellant was a minor, the,3rd defendant executed the hypothecation bond Ext. D2 in favour of the 1st defendant regarding some items of illom properties. The 1st defendant's father, the 2nd defendant, paid the consideration for the mortgage, which is recited in the document as having been paid before the Sub Registrar. O. S. No. 47 of 1954 was filed on the mortgage and in that suit all the members of the illom, three majors and five minors including the plaintiff, were impleaded as defendants. The major members remained ex parte and the guardian proposed for the minors refused to act as guardian. Consequently a court guardian was appointed, who filed the written statement Ext. P. 4. The suit went to trial and during the trial the court guardian did not cross examine the plaintiff's witnesses. Ultimately the decree came to be passed, which is now sought to be set aside in the present suit. The only ground raised, as already indicated, is that the court guardian of the plaintiff - appellant was grossly and culpably negligent in the conduct of the suit and for that reason the decree should be set aside. 3. The learned advocate of the appellant urges that gross and culpable negligence on the part of the guardian is sufficient to set aside the decree. In support of that contention he relies on a decision of this Court in Narayanan Nambooripad v Gopalan Nair ( 1960 KLT 546 = 1960 K. L. J. 663). 3. The learned advocate of the appellant urges that gross and culpable negligence on the part of the guardian is sufficient to set aside the decree. In support of that contention he relies on a decision of this Court in Narayanan Nambooripad v Gopalan Nair ( 1960 KLT 546 = 1960 K. L. J. 663). In that case, a Division Bench of this Court, after considering several decisions on the point, has held that the right of a minor to avoid a decree against him on account of the gross negligence of his guardian ad litem is a substantive right, and the minor can avoid the decree on the ground of gross negligence, even if he has not succeeded in establishing fraud or collusion on the part of the guardian. The decision has also laid down that the failure on the part of the guardian to defend the suit, when there was a perfectly good defence available resulting in serious loss to the plaintiff, would amount to gross and culpable negligence. Therefore, the question for decision is whether, in the circumstances of the case, the conduct of the court guardian in not cross examining the plaintiff's witnesses was such gross and culpable negligence as would entitle the appellant to have the decree set aside. 4. In this connection, the appellant's learned advocate contends that the lower courts should not have gone into the binding nature of the mortgage as, according to him, that question arises only after the decree is set aside. He explains further that the immediate question before the lower courts was whether the guardian was grossly negligent and not whether the mortgage was supported by consideration and necessity of the illom. For this he relies on a passage from the judgment of Kunhi Raman C. J. in Kavukutty Amma v Thankam Amma ( 1951 KLT 69 ). The learned Chief Justice in that case observes that since the mortgage right having ripened into a decree and having become merged in the decree, the primary question that ought to have been considered by the lower appellate court was whether there was any ground for avoiding the decree and 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. In that case the trial court held that there was no evidence for establishing negligence, much less gross negligence, on the part of the court guardian. The lower appellate court held that the mortgage was not executed for tarwad necessity and on that finding it held further that negligence on the part of the guardian must be presumed. It was that finding that was considered by the learned Chief Justice in the observation already referred to. As a matter of fact, in that case there was a major member who filed a written statement and the court guardian, depending upon the contest of the major member, did not even file a written statement. Finally, the major member did not prosecute the suit and a decree came to be passed. The High Court held that there was no gross negligence on the part of the court guardian, because, in the circumstances of the case, he did everything in his power in the conduct of the case. Therefore, that observation of Kunhi Raman C. J. will not be of any avail to the appellant in this case. 5. "It is not every kind of negligence nor any amount of negligence which would rendee proceedings otherwise regular and proper liable to be opened up. It must be such negligence as leads to the loss of a suit, which, if it had been conducted with due care, must have been successful. The mere omission to defend a suit is not a ground for setting aside a decree." So observes Trevelyan in his book The Law Relating to Minors, 6th Edition, at p. 284 (foot notes). That the same is the principle laid down by the Division Bench of this Court already referred to is apparent from the observation that the failure on the part of the guardian to defend the suit, when there was a perfectly good defence available, resulting in serious loss to the plaintiff, would amount to gross and culpable negligence. That means that the court has to find out whether there was a good defence available and as a result of the non-prosecution of that defence whether serious loss to the plaintiff has occurred. This passage, according to me, does not mean anything different from the passage of Trevelyan already referred to. 6. There is another aspect which is also material in this case. This passage, according to me, does not mean anything different from the passage of Trevelyan already referred to. 6. There is another aspect which is also material in this case. The Division Bench decision of this Court already referred to was under the Cochin Nambudiri Act of 1114. Section 12 of that Act provides that no decree shall bind the illom unless it be obtained against all the members thereof. That shows that in a suit under that Act every member of the illom has to be made a party; and thus a minor like the appellant is a necessary party in such a suit. The present case arises under the Travancore Malayala Brahmin Act of 1106. Section 12 of this Act lays down that no decree shall bind an illom unless it is obtained against the karnavan as such and the senior anandaravans of his branch and of every collateral branch, if any. This provision makes it clear that every member of the illom is not a necessary party to the suit. If so, in the present case both the karnavan and two other major members including the senior anandaravan being parties, the appellant, who was a minor at that time, was not a necessary party. In such a case, where the minor is not a necessary party, the rule that the minor can get the decree set aside for the gross negligence of the guardian may not apply; for, even without the minor being impleaded as a party the decree will be binding on him. In C. K. S. Krishnamurthi v Chidambaram Chettiar (A. I. R. 1946 Mad. 243) a Division Bench of the Madras High Court has held that where the father sues as the manager of the joint family the decree in that suit is binding on the junior members of the family and the principle that a minor can get the decree set aside on the ground of gross and culpable negligence of the guardian will not apply to such a case. The Privy Council in Venkata Seshayya v Kotiswara Rao (I. L. R. 1937 M. 263) has laid down that the principles relating to the negligent conduct of a former litigation by a guardian in the name of a minor are not applicable to the case of parties litigating on behalf of a common right. The Privy Council in Venkata Seshayya v Kotiswara Rao (I. L. R. 1937 M. 263) has laid down that the principles relating to the negligent conduct of a former litigation by a guardian in the name of a minor are not applicable to the case of parties litigating on behalf of a common right. (Vide also, in this connection, Ichikutty v Narayanan Namboodiri (32 Cochin Law Reports 593 at 597) and p. 289 of Trevelyan). In that view, since the appellant was not a necessary party in the earlier suit, the decree in which would be binding on her even without her being on the party array, and since the right is a common right which she claims along with others, who were also parties to the previous litigation, the present suit may not even be maintainable. 7. At any rate, I am not deciding the case on its non-maintainability alone. According to me, on merits also the decision of the lower court is correct. There is no case for the appellant that there was no consideration for the mortgage document. The only case is that there was no necessity for the mortgage at that time. It has come out in evidence that at the time when the mortgage was created, the illom house was under construction and that there were some debts also due by the illom. The mortgagee's father appears to have actually visited the illom and found the illom house being constructed. He appears to have also made enquiries with the brother of the 3rd defendant and with the Kariastha of the illom regarding the necessity. In those circumstances, it is clear that the mortgagee made reasonable enquiries regarding the necessity of the illom and he advanced the money only after such reasonable enquiries. The contention of the learned advocate of the appellant is that under the partition the 3rd defendant came into possession of a fairly large amount of money and therefore there was no need for borrowing. I do not think that the mortgagee, under the circumstances, was bound to find out as to what happened to that money. At the time when he lent the money the illom house was under construction and was not yet completed. There were also debts due by the illom to be discharged. I do not think that the mortgagee, under the circumstances, was bound to find out as to what happened to that money. At the time when he lent the money the illom house was under construction and was not yet completed. There were also debts due by the illom to be discharged. It was to meet those expenses that the money was lent and that was done after reasonable enquiries regarding the necessity. 8. In the aforesaid circumstances, the court guardian with no other information excepting that available in the mortgage document, had done everything that he could possibly do. It cannot be said that, because he did not cross examine the witnesses, he committed gross and culpable negligence in the conduct of the case. Even if the case was contested, the result, as I have already indicated, would not have been different. Therefore, the minor did not have a valid defence and she did not lose any right, which she would have gained if the court guardian cross examined and contested the suit. 9. The second appeal thus fails and is dismissed with costs of the contesting respondents. The appellant is also liable to pay the Government the court fee payable in the case.