Judgment :- 1. A. S. No. 622 of 1971 is an appeal against the decree in O. S.34 of 1969. That is the main appeal and we will state the facts in that appeal before we come to A. S.73 of 1972. The appellant in the appeal is the plaintiff in the suit. The suit was one for declaring a decree void as against the leasehold right claimed to be that of plaintiff and defendants 16 and 17 over the plaint schedule properties and also for an injunction restraining the passing of a final decree in the suit O. S.21 of 1946 in so far as it concerns the rights of the plaintiff claimed is the suit. Plaintiff claims to be the manager of his branch consisting of himself and defendants 16 and 17. They are children of one deceased Madhavan, Defendants 2 to 6 in the suit, their father one Kesavan and his father one Unippalan jointly filed a suit O. S.21 of 1946. That suit was for partition of the properties of a joint family known as Vallipparambil. At the time of institution of that suit plaintiffs as wall as defendants 16 and 17 who are members of that family were minors. It is not disputed that the family was a Joint Hindu family governed by Hindu Mitakshara Law. Plaintiffs and defendants 16 and 17 were defendants 17 to 19 in O. S.21 of 1946 and the father of the plaintiff deceased Madhavan was the 15th defendant therein. The first defendant in this suit who is the brother of the deceased Madhavan was the 16th defendant in the earlier suit. At the time of the institution of the suit Madhavan, the father of the plaintiff was sought to be appointed as guardian of the plaintiff and defendants 16 and 17. Madhavan died before filing written statement in the earlier suit and thereupon the plaintiffs there applied for appointing the first defendant in this suit as guardian of the plaintiffs and his brothers. The first defendant is purported to have acted as such guardian and filed a written statement as guardian in that suit. A preliminary decree for partition was passed on 30-6-1948 and the plaintiff in that suit applied for passing the final decree pursuant to which a commission was issued for effecting division. The first defendant is purported to have acted as such guardian and filed a written statement as guardian in that suit. A preliminary decree for partition was passed on 30-6-1948 and the plaintiff in that suit applied for passing the final decree pursuant to which a commission was issued for effecting division. According to the plaintiff, his father, Madhavan, had, in his individual capacity, obtained a lease for the plaint properties from Krishnan, the common manager of the family under a lease deed of 1944 and pursuant to that lease Madhavan is said to have been in possession until his death. Plaintiff and defendants 16 and 17 claim that they obtained the rights of Madhavan and therefore they are entitled to claim that the leasehold right enured to them. In view of the provisions of Act 1 of 1964 they claim fixity of tenure in regard to these properties. They seek to avoid the decree in O. S.21 of 1946 in so far as it concerns their claim in regard to the suit property. The first defendant herein who was the 16th defendant in that suit was not qualified to be a guardian of the plaintiff and his brothers, but nevertheless he was so appointed and he did not seek to set up contentions namely, the availability of the lease to Madhavan as a special right in regard to the plaint schedule properties, It is contended that the interests of the plaintiff were not safe in the bands of Madhavan as he was having adverse interest against the plaintiff, and so plaintiff must be deemed to have been not represented at all in that suit with the result the decree would be a nullity as against the plaintiff. It is also contended that as guardian the first defendant did not act as he should have .from which, at the hearing, a plea of gross negligence on the part of the guardian is attempted to be spelt cut. It is therefore contended that when the plaintiff came to know of the existence of a leasehold right in 196S he had to file the suit claiming the relief of declaration as well as injunction which has been made in the suit. The suit was contested by the first defendant as well as defendants 12 and 13. It was also contested by defendants 14 and 15. The suit was contested by the first defendant as well as defendants 12 and 13. It was also contested by defendants 14 and 15. Defendants 8 to 11 also filed a statement adopting the contentions of defendants 14 and 15. The case of the contesting defendants was that Madhavan bad no lease in regard to plaint schedule properties, the properties were held under a maintenance arrangement and the case that there was an execution of lease deed was not true. According to them there was only a maintenance arrangement and the maintenance arrangement was in favour of the branch family and therefore first defendant had no adverse interest as against the plaintiff and he bad no contention available as defence to the suit which could have been successfully set up. The court below found that Est. P1 which is contended to be a lease deed obtained by Madhavan was really a document intended to provide for the maintenance of the branch of Madhavan and that was executed by Madhavan as manager and not in his individual capacity, found that though Ext. P1 took the form of a lease deed, it is really an arrangement for the maintenance of the members of the branch tarwad, and therefore no special right is obtained by the plaintiff under Madhavan as claimed. It also found that the suit challenging the decree at this distance of time would be barred by limitation. In that view the suit was dismissed. 2. In these appeals several contentions are raised and several questions argued by counsel of both sides. It is the appellant's case that though the first defendant was a party to the earlier suit and the first defendant claimed to have filed a written statement as manager of his branch, in so far as he did not set up a plea available to the plaintiff at that time which he was bound to do as guardian of the plaintiff, it must be found that the conduct of the first defendant was bad for gross negligence. If is also contended that the guardian appointed in the suit had interest adverse to the minor since it would not have been to the advantage of the first defendant here to have set up a contention that Madhavan obtained leasehold right for himself as that would have reduced the share of the first defendant.. If is also contended that the guardian appointed in the suit had interest adverse to the minor since it would not have been to the advantage of the first defendant here to have set up a contention that Madhavan obtained leasehold right for himself as that would have reduced the share of the first defendant.. It is therefore the appellant's case that adverse interest must be found in the guardian and that would be sufficient to bold that the decree was void as against the minor. Though a preliminary decree is passed in O. S.21 of 1946 final decree is yet to be passed and the matter is pending. In fact it is seen that the special claims set up in the suit was not adjudicated m the preliminary decree but was left to be considered at the time of final decree. 3. The appeal A. S.73 of 1972 is by the 17th defendant in O. S.21 of 1946 who is the plaintiff in the other suit. That arises in the course of proceedings for passing final decree in O. S.21 of 1946. On the attainment of majority the 17th defendant is said to have become aware of the leasehold right which was available as defence to the suit but which defence bad not been set up. Though this was raised in the suit that was negatived. But subsequently Kerala Land Reforms Act 1 of 1964 was amended by Act 35 of 1969 and thereupon the 17th defendant filed an application praying for reopening the preliminary decree and for disposal of the final decree proceedings after considering the right of defendants under Act 1 of 1964, as amended. In the meanwhile the Sub-Judge baa given a direction to the commissioner to effect partition and to conduct the sale of the Hem over which appellant claims tenancy right. One of the items is residential compound in which the appellant is living. The court below found that the appellant is not entitled to the reliefs claimed and dismissed the application. It is against that order that A. S.73 of 1972 has been filed by the 17th defendant in that suit who is the plaintiff in the other suit. 4. One of the items is residential compound in which the appellant is living. The court below found that the appellant is not entitled to the reliefs claimed and dismissed the application. It is against that order that A. S.73 of 1972 has been filed by the 17th defendant in that suit who is the plaintiff in the other suit. 4. Though the question of gross negligence of the guardian and the availability of plea of gross negligence to avoid a decree in the circumstances such as those present here were argued before us we need not go into that question if we find that the appellant is entitled to succeed on the plea that the guardian had interest adverse to the minor and further that this circumstance would be sufficient to render the decree void as against the minor. For, if we agree with the appellant's counsel on this question, it may not be necessary to go into the other questions. Therefore we deal with this first. 5. Before we go into the question as to what would be the effect of the guardian-ad-litem appointed being one who has adverse interests, it would be profitable to consider the circumstances in this case and the pleadings of the parties to see what exactly is the nature of the claim by the plaintiff. 6. It is seen that Madhavan, the father of the plaintiff was the manager of his branch in the year 1944. One Krishnan was the common karanavan of the family. It is evident that notice was issued to Krishnan by some members of the family in 1944 challenging his conduct as a joint family manager as detrimental to the interests of the tarwad. The fact that a suit for partition was proposed was also mentioned in the notice. Ext. P1 deed comes into existence soon thereafter. That document is seen executed on 3 71944. It is purported to be a pattom-chit executed by Madhavan in favour of Krishnan, the common manager. That mentions that the properties scheduled in that document were already in the possession of Madhavan under an earlier lease arrangement. It provides that a rent of Rs. 340/- is fixed as rent for the properties and further directs that out of this rent Rs. 100/- was to be set off towards payment of tax to the State and the balance Rs. It provides that a rent of Rs. 340/- is fixed as rent for the properties and further directs that out of this rent Rs. 100/- was to be set off towards payment of tax to the State and the balance Rs. 240/- was to be appropriated towards the expenses for maintenance of the branch family It further mentions that as and when any necessity arises in the tarwad to recover any of the items from the lessees, it is open to the lessor to so recover on payment of value of buildings if any put up and also the value of trees that might have been planted by the lessees. We have necessarily to consider the question, whether this document is a lease deed or a mere maintenance arrangement. The court below held that it is only a maintenance arrangement. It is true that it refers to an adjustment of rent towards expenses for maintenance of members of Madhavan's tavazhi. That by itself cannot be sufficient to read the document as a maintenance arrangement. Apart from the fact that the document is styled as a Pattom-chit the apparent tenor h consistent with reading it as a lease deed. It provides for rent and it provides for possession being with the lessee. It further provides that in the event of recovery of the properties, value of improvements is to be paid to the lessee. We see no reason why, against the apparent tenor of the document, we should read it as a maintenance arrangement. The fact that Rs.240/- were to be appropriated towards maintenance will be relevant possibly in considering whether the document enured to the benefit of the tavazhi and not to Madhavan. But that is not relevant in considering whether the document is a lease or a maintenance arrangement. We disagree with the conclusion reached by the court below that Ext. PI is a maintenance arrangement and find that it is a lease deed. 7. It is seen that at the time of Ext. PI the plaintiff's father was the eldest member of his branch consisting of himself and his children. We disagree with the conclusion reached by the court below that Ext. PI is a maintenance arrangement and find that it is a lease deed. 7. It is seen that at the time of Ext. PI the plaintiff's father was the eldest member of his branch consisting of himself and his children. Whether he was the eldest member of any larger branch is not a matter on which there is any appropriate pleading, though at the hearing it was contended that Madhavan and after him first defendant were managers of a larger branch consisting of Madhavan and first defendant, namely, the descendants of Madhavan's father. There is some evidence in this case to show that Madhavan's father gave his properties to his children even during his life time and that is referred to as a partition. There is nothing to show that the tavazhi referred to in Ext. P1 is the tavazhi consisting of the first defendant also nor can we read such a plea in the written statement. Therefore, as it is, we must find that Ext. P1 enured to Madhavan and the members of his branch which would mean that the plaintiff had an interest under Ext. P1. It is not shown that the first defendant also had an interest akin to that of the plaintiff. If that be the case, then, if the interests of the plaintiff had been set up that would have gone in reduction of the share of the first defendant and that would be sufficient to characterise the interest of the first defendant in the earlier suit as adverse to the minors, namely, plaintiff and his brothers. 8. We are not going into the question whether the lease deed subsisted even after a mortgage of some of the properties was taken by the lessee as is indicated by the evidence in the case. It is seen that subsequent to the lease, some of the properties were mortgaged in favour of Madhavan. That was in the year 1945 under document No. 1512. Whether the leasehold right subsisted nevertheless and whether there was any interest available to the lessees under the lease thereafter are not matters with which we should concern ourselves here. Suffice to say that since under Ext. That was in the year 1945 under document No. 1512. Whether the leasehold right subsisted nevertheless and whether there was any interest available to the lessees under the lease thereafter are not matters with which we should concern ourselves here. Suffice to say that since under Ext. P1 proved in the case it is seen that plaintiff had a case for claiming a right and such a claim would have been adverse to the claim which the first defendant could have made in the suit first defendant was a person who was adversely interested in the partition suit O. S.21 of 1946. 9. This necessarily takes us to the question whether a decree obtained against a minor represented by a guardian-ad-litem who had an interest adverse to the minor is a void or voidable decree. In the latter event it has to be avoided by the minor within the time limited by law. If the decree is void, there is no question of avoiding the decree. This is a question on which the High Courts in India have expressed different views. But we think that as early as in Rashid-Un-Nisa v. Muhammad Ismail Khan (ILR. 31 All. 522) the Privy Council had expressed clearly on this question. The question that arose before the Privy Council was whether the plaintiff in a suit was properly represented by a guardian-ad-litem who was a married woman. On the facts it was found that the interests of the guardian were adverse to the plaintiff. Dealing with the effect of the representation by such a guardian, the Privy Council said thus: "S. 244 of the Civil Procedure Code applies to questions arising between parties to the suit in which the decree was passed, that is to say, between parties who have been properly made parties in accordance with the provisions of the Code. Their Lordships agree with the Subordinate Judge that the appellant was never a party to any of these suits in the proper sense of the term. Her sister; Ulfat-ua-nissa, was a married woman, and therefore was disqualified under S.457 of the Code from being appointed guardian for the suit, and Mauladad's interest was obviously adverse to that of the minor". Their Lordships agree with the Subordinate Judge that the appellant was never a party to any of these suits in the proper sense of the term. Her sister; Ulfat-ua-nissa, was a married woman, and therefore was disqualified under S.457 of the Code from being appointed guardian for the suit, and Mauladad's interest was obviously adverse to that of the minor". The Courts in India have applied the dictum of this decision to several cases to hold that a decree obtained against a minor represented by a guardian-ad-litem who had an interest adverse to the minor was void so far as the minor was concerned. We refer only to some of these decisions on this point as the decisions appear to be numerous. There seems to have been some difference of opinion on this question in the High Court of Madras though later the Madras High Court seems to have read the decision of the Privy Council as holding that in such a case the guardian who has interests adverse to the minor does not represent the minor at all. In Sellappa Goundan v. Musa Naiken (ILR. 47 Mad. 79) Odgers J. said thus: "However a decision as to this may be unnecessary as I held that the law goes to this length that a minor represented by a guardian whose interest is adverse is not legally represented at all. This is I think the result of the decision in Rashid-un-nisa v. Muhammad Ismail Khan (ILR. 31 All. 572) as followed in Second Appeal No. 1092 of 1918 in this Court". Hidayatullah C. J. and Kotval J. in the decision in Ramprasad v. Dagdulal (AIR. 1956 Nag. 215) dealt with a case of representation of a minor by a next friend having adverse interest and the learned judges said 'In our opinion, the order of compromise was obtained against a minor who was for all intents and purposes unrepresented in the suit. It was therefore a nullity as against him and did not bind him. 1956 Nag. 215) dealt with a case of representation of a minor by a next friend having adverse interest and the learned judges said 'In our opinion, the order of compromise was obtained against a minor who was for all intents and purposes unrepresented in the suit. It was therefore a nullity as against him and did not bind him. Once this position is reached, it follows that the minor was not represented by reason of the next friend having carved out an interest for herself, and the compromise and the decree upon it must be treated as nullities:" A Division Bench of the High Court of Travancore-Cochin had reviewed exhaustively the decisions of the various High Courts on this question and though apparently some of the decisions took a view contrary to the view taken by the Madras High Court which we have referred to here, the learned judge explained those decisions as not really laying down a view different from that adopted by the Madras High Court. We are referring to the decision in Ebrahim v. M. Cheriyan (AIR. 1956 Trav.-Co. 70). The court said thus: 'The provision contained in 0.32 R.4(1) that no person whose interest is adverse to that of the minor should be appointed his guardian for the suit is a mandatory provisions and if such a person is appointed guardian it cannot be said that the appointment was made according to law." The court added "It has therefore to be taken that the minor was not properly represented in the suit. If there was not proper guardian for the suit for the minor the minor must be deemed to have been no party to the suit as was held by the Privy Council in 31 All. 572 (PC). The decree must therefore be regarded a nullity so far as the minor is concerned." 10. It is true that in some decisions a contrary view has been taken. But we have not been persuaded to agree with the view taken by the learned judges in those cases. We need only refer to two illustrative cases, that in Mahadev Shankar v. Swamirao (AIR. 1943 Bom. 387) and in Ram Kirpal v. Munabati Kumri (AIR. 1958 Patna 477). But we have not been persuaded to agree with the view taken by the learned judges in those cases. We need only refer to two illustrative cases, that in Mahadev Shankar v. Swamirao (AIR. 1943 Bom. 387) and in Ram Kirpal v. Munabati Kumri (AIR. 1958 Patna 477). In the case of a Hindu joint family, where the manager has the power to bind the minor members of the coparcenary by an alienation for legal necessity, it is open to the son to challenge the alienation in a suit brought to enforce the alienation, on the ground that although it may be binding on the manager, it is not binding on the minor. His interest may therefore conflict with that of the manager as the defences of both may be different. Whether the representation of the minor by the manager in such a case would render the decree void or whether it would be voidable only was the question that engaged the attention of the learned judges in the decision in Mahadev Shankar v. Shankar Swamirao (AIR. 1943 Bom. 387). After referring to some of the decisions on this question, the learned judges summarised the result as follows: "In the case of a Hindu joint family where the manager has the power to bind the minor members of the coparcenary by an alienation for legal necessity, it is open to the son to challenge it in a suit brought to enforce the alienation on the ground that although it may be binding on the manager, it is not binding on the minor. His interest may, therefore, conflict with that of the manager as the defences of both may be separate and even antagonistic if the manager wants to throw the burden of his private debt on the family. in such a case it would be undesirable to appoint the manager as the guardian ad litem for the minor in the suit, but if he is so appointed and a decree is passed against the minor's interest in the property, it cannot be said, in absence of fraud or collusion on the part of the manager, that the decree is a nullity merely because the manager ought not to have been appointed as his guardian. If the minor subsequently sues to set aside the decree, he must show that the alienation was not, infact, binding on him. If the minor subsequently sues to set aside the decree, he must show that the alienation was not, infact, binding on him. This would be especially so where the manager is the father who is the natural guardian of the minor and whose personal debts also are binding on the son if they are antecedent to the alienation and are not illegal or immoral." we may notice here that though the decision of the Privy Council in Rashid-Un-nisav. Muhammad Ismail Khan (ILR. 31 All. 572) and the decision of the Madras High Court in Sellappa Goundan v. Madsa Naiken (ILR. 47 Mad. 79) to which we have adverted have been noticed by the learned judges, these decisions have been sought to be distinguished from the case before that court. The learned judges say that in the Madras case it was found on the evidence that the debts were not binding on the minors that it was of such a nature as would not bind the sons, that the defence that the minor's share was not liable would have prevailed if it had been set up in the former suit and that therefore the father acted with gross negligence in not setting up that defence. The learned judges proceed to say that "This decision can be clearly distinguished from the present case, because it was found on the evidence in that case that the debts were not binding on the minors. Except on this finding it is difficult to see on what other ground the decision would have been what it is. Mr. Thakor. however, relied on certain observations that it was improper and in fact illegal to appoint the father as guardian at all, and that a minor represented by a guardian whose interest was adverse was not legally represented. It is contended that those observations support the argument that the appointment of the father as guardian ad litem was illegal in its inception on account of a possible conflict of interest, and that the decision of the Privy Council in 36 I.A. 168 also supports that contention. Following the decision of the Privy Council the Madras High Court considered the question of the nature of the decree and held that in view of the conflict of interest between the guardian ad litem and the minor the decree was a nullity as against the minor. Following the decision of the Privy Council the Madras High Court considered the question of the nature of the decree and held that in view of the conflict of interest between the guardian ad litem and the minor the decree was a nullity as against the minor. We do not see any ground to distinguish that decision as has been attempted to be done by the learned judges in the Bombay decision. 11. In the decision of a Single Judge of the Patna High Court in Ram Kripal v. Munabati Kumri (AIR. 1958 Patna 477) the Court observed that when a decree has been passed in contravention of proviso to 0.32 R.4 (1) of the Code of Civil Procedure, the minor alone may attack the validity of a decree passed against him in a manner contrary to the provisions laid down in the proviso to R 4 (1) of 0.32, The contravention, if any, according to the learned judge, is not to make the decree void ab initio or nullity but only voidable. The decision of the Privy Council 'in Rashid-un-nisa v. Muhammed Ismail Khan (ILR. 31 All. 572) was cited before the learned judge and the learned judge has taken the view that the decision does not lay down the rule that the decree would be void. We think, as we have earlier observed, we would follow the view taken by the Madras High Court and other High Courts holding that the decree would, in such a case, be a nullity as far as the minor is concerned. 12. This court had occasion to consider what should be the procedure to be adopted when a decree obtained in a suit against a minor is held to be bad. Of course the decree would remain binding as against the others while the decree would be inoperative only against the minor. The proper course in such a case would be to reopen the decree against the minor and relegate the parties other than those who are bound by the decree to the stage at which proceedings should commence as against the minor. That would mean that in this case the preliminary decree passed in O.S. 21 of 1946 must be reopened so as to enable the minor 17th defendant in the suit who is the plaintiff here to file a written statement raising his defence based upon Ext. That would mean that in this case the preliminary decree passed in O.S. 21 of 1946 must be reopened so as to enable the minor 17th defendant in the suit who is the plaintiff here to file a written statement raising his defence based upon Ext. P1 lease deed in regard to the plaint schedule properties. That would normally be the proper course. But in this case we are not adopting that course for a good reason. Even in the preliminary decree the special rights set up by the parties have not been adjudicated. Those are left open for decision in the final decree. Therefore if the claim by the plaintiff had been actually set up normally it would have been directed to be considered at the time of passing of the final decree. If that be the case, there is no reason why in a suit which has been pending for many years now, the preliminary decree should be reopened. The claim based upon Ext. P1 could appropriately be adjudicated before passing the final decree. It is sufficient to state here that the question will be deemed to have been left open to be considered in the final decree and it is declared so. The preliminary decree will be deemed modified to that extent. The court will post the case to a specific date to enable the plaintiff here who is the 17th defendant in O. S.21 of 1946 to file a written statement in that suit in regard to his claims based upon Ext. P1 and thereafter will try the question of the rights, if any, set up by the 17th defendant and will adjudicate on it before passing final decree. 13. There are certain consequential directions to be given pursuant to our decision in the appeal. It is said that the properties were placed in the bands of a receiver pending disposal of the suit. It is also said that the income of the properties conserved by the receiver is is deposit in court. Now that we are reopening the decree so as to enable the plaintiff to urge his claims in regard to the plaint schedule items, there is no justification for continuing the appointment of receiver. The receiver will be discharged and the properties put in the possession of plaintiff and his brothers who are defendants 16 and 17 in the suit. Now that we are reopening the decree so as to enable the plaintiff to urge his claims in regard to the plaint schedule items, there is no justification for continuing the appointment of receiver. The receiver will be discharged and the properties put in the possession of plaintiff and his brothers who are defendants 16 and 17 in the suit. The income of the properties deposited in court will be transferred to the credit of O. S.21 of 1946 to be held in deposit in that case subject to final orders to be passed in the final decree. 14. It is said that out of the amounts brought in by the receiver as income of the suit properties, disbursements have been made to some of the members of the family. This must necessarily be a matter for accounting at the time of final decree. The court will go into that matter at the time of passing final decree. 15. Coming to the Appeal A. S.73 of 1972, we do not think that an adjudication on the merits is called for. Now that we hold that the preliminary decree will not be considered as having adjudicated the special claims of the plaintiff and his brothers in regard to the plaint schedule items, there is no question of the properties covered by it being sold pursuant to the preliminary decree. That must only be after adjudication of the claims of the plaintiff and bis brothers which has been directed to be investigated at the time of final decree. For this reason the order of the court below is vacated. The appeal is allowed. Parties will suffer costs in both the appeals, in the circumstances of the case.