Judgment :- 1. Defendants 7 to 11 in O.S.No.15 of 1971, on the file of Subordinate Judge, Padmana-bhapuram, are the appellants. 2. The plaintiffs prayed for a decree of partition and separate possession of 1½2 share of 5/32 (i.e., 5/64) of plaintiffs 1 and 2 and 44-4/9 cents of plaintiffs 3 to 10 in the suit property by metes and bounds and for recovery of the same from the defendants and for consequential reliefs. In the body of the plaint, it is stated that the entire plaint schedule property originally belonged to four houses viz., Poyvilai Veedu, Samayarathala Kunchu Veedu, Elayampara Veedu and Mampallivilakathu Veedu. Out of the four houses, Poyvilai Veedu was entitled to 5/8 share while the other three houses had th share each in the suit property. Under Ex.A-1 partition deed dated 14.12.1922, in the Poyvilai Veedu one half of 5/8 share of that Veedu devolved on Kumaran Krishanan and other half fell to the share of Raman Pillai Ramakrishna Pillai. Plaintiffs 1 and 2 defendants 1, 3 and 4 are the heirs of Kumaran Krishna. 1st defendant is the brother of 3rd defendant. Plaintiffs 1 and 2 and 4th defendant are the children of 3rd defendant, while plaintiffs 3 to 10 are the children of 1st defendant, whose wife is the 2nd defendant. Defendants 1 and 3 have also become divided in 1110 M.E., each taking one half of 5/8. Plaintiffs 3 to 10 and 2nd defendant are together entitled to 50 cents under sale deeds dated 13.8.1964. The share obtained by Raman Pillai Ramakrishna Pillai under the partition deed Ex.A-1 was sold to one Kesava Pillai, the deceased husband of 6th defendant in the suit. His one half right has devolved on defendants 6 to 14. 3. One Neelakantan Thampi of Mampallivilakathu Veedu, who is the father of 15th defendant purchased the share of Mampallivilakathu Veedu and also Samayarathala Veedu and that has now devolved on the 15th defendant. The th share of Elayampara Veedu was purchased by defendants 16 and 17 and each of them is entitled to 1 1/616th share. Neelakantan Thampi, a member of Mampallivilakathu Veedu filed a suit as O.S.No.424 of 1959, on the file of District Munsifs Court, Padmanabhapuram, impleading the plaintiffs 1 to 8 and defendants herein as defendants in that suit. The th share of Elayampara Veedu was purchased by defendants 16 and 17 and each of them is entitled to 1 1/616th share. Neelakantan Thampi, a member of Mampallivilakathu Veedu filed a suit as O.S.No.424 of 1959, on the file of District Munsifs Court, Padmanabhapuram, impleading the plaintiffs 1 to 8 and defendants herein as defendants in that suit. Plaintiffs 1 and 2 who were minors were not represented in that suit and no contentions regarding their right was raised. The plaintiffs 3 and 4 who were then majors were fraudulently described as minors and plaintiffs 3 to 8 who were all either minor or mischieviously described as minors remained ex parte and no proper guardian was appointed to look after their interests in the suit property. It is said that the decree obtained by the plaintiffs therein is behind their back and therefore wholly void and not binding on them or their shares in the suit properties. It is their case that their claim was duped by defendants 1 and 6 to 11 in order to get excess share for themselves. The minors were also cheated and defrauded and consequently the share of Poyvilai Veedu had been wrongly distributed and the share allotted to the sharers and alienees of Poyvila Veedu under that decree is obviously wrong and vitiates the whole decree. It is therefore, said that the decree in O.S.No.424 of 1959 is a nullity in so far as me plaintiffs are concerned. It is under the above circumstances, plaintiffs have filed the above the suit for partition. 4. I need only extract the contentions raised in the written statement filed by the appellants, who are defendants 7 to 11 in the suit. In the written statement, they disputed the maintainability of the suit. It is said that even though as per the revenue records, Poyvilai Veedu was entitled to 5/8th share, they were exercising ownership over the entire plaint schedule, since there was an earlier mortgage executed by the other houses and which became barred. The execution of Ex.A-1 is admitted, but it is said that Kumaran Krishnan and Raman Pillai Ramakrishna Pillai each were entitled to one half of the entire property. It is said that the plaintiffs 9 and 10 have no manner of right over the suit property and the sale deed relied on by them is also invalid. The execution of Ex.A-1 is admitted, but it is said that Kumaran Krishnan and Raman Pillai Ramakrishna Pillai each were entitled to one half of the entire property. It is said that the plaintiffs 9 and 10 have no manner of right over the suit property and the sale deed relied on by them is also invalid. It is also said that plaintiffs 3 to 10 are not members of Poyvilai Veedu. The sale deeds are also ab initio void It is said that against the preliminary decree, the matter came up to this Court in S.A.No.1531 of 1961, and by the decree of this Court, they were declared to be entitled to one half of the whole property. It is said that the plaintiffs are not entitled to claim any share. The 1st defendant conducted the suit as Kamavan and the mother was also appointed as guardian ad litem. There is no illegality in the decree passed in O.S.No.424 of 1959, the suit filed by the father of the 15th defendant. It is a valid decree and the same is not liable to be set aside, nor it could be ignored by the plaintiffs. They prayed for the dismissal of the suit. 5. The trial court, as per judgment dated 13.2.1974, passed a preliminary decree as prayed for. It came to the conclusion that the earlier decree in O.S.No.424 of 1959 is not binding on the plaintiffs, since they were not properly represented. It also came to the conclusion that a re-partition has to take place from out of plot Nos. 1, 3, 6, 7, 9 and 10 in Ex.B-6 final decree and out of these plots, the plaintiffs and defendants 1 to 4, 6 to 14 and 18, 19, 21, 22, 24 and 25 will be given their share as declared under issue No. 14 of the judgment. 6. Though the appellants filed an appeal against the said judgment, the same was without any success. The lower appellate court was also of the view that there was gross negligence on the part of the guardian in not contesting the earlier suit and the preliminary and final decrees passed in the earlier suit are not binding on the plaintiffs. The concurrent judgment is assailed in this second appeal on the following substantial question of law: “1. The lower appellate court was also of the view that there was gross negligence on the part of the guardian in not contesting the earlier suit and the preliminary and final decrees passed in the earlier suit are not binding on the plaintiffs. The concurrent judgment is assailed in this second appeal on the following substantial question of law: “1. Whether the decree and judgment in O.S.No.424 of 1959 are nullity in so far as the plaintiffs in the present action is concerned. 2. Whether the suit is barred by time as the present plaintiffs have not sued for setting aside the decree in O.S.No.424 of 1959 within the time prescribed by law.” 7. Before considering the facts of the case, it is better to have a clear picture about the relationship of the parties: "DIAGRAM" 8. According to me, if only the courts below have taken into consideration the fundamental principles of Marumakkathayee Law, the decision would have been otherwise. It is admitted even in the plaint that under Ex.A-1, ? share of the plaint schedule properties were taken into equal shares by Kumaran Krishanan and Raman Pillai Ramakrishna Pillai Under Ex.A-1, the entire 4 ½ acres were divided by these two persons. When two male members took shares in the property, it cannot be taken as a tarwad property. On the death of Kumaran Krishnan, it devolved on his son and daughter who are defendants 1 and 3 in this case. The trial court as well as the lower appellate court have assumed that on the death of Kumaran Krishnan, the property has devolved on plaintiffs 1 and 2 and defendants 1, 3 and 4. The said statement is not correct. Plaintiffs 1 and 2 as well as plaintiffs 3 to 10 are claiming right only on the basis of some documents either taken from the 1st defendant or the 3rd defendant. So, naturally they have to satisfy their claim from out of the shares allotted to defendants 1 and 3. It is in this line, we have to consider whether the decision of the courts below is correct or not. 9. One Neelakantan Thampi, a member of Mampallivilakathu Veedu, and the owner of /the share obtained the full right of the house and he also purchased the ?th share of Samayarathala Kunchu Veedu. It is in this line, we have to consider whether the decision of the courts below is correct or not. 9. One Neelakantan Thampi, a member of Mampallivilakathu Veedu, and the owner of /the share obtained the full right of the house and he also purchased the ?th share of Samayarathala Kunchu Veedu. He filed a suit as O.S.No.424 of 1959, for declaration that he is the owner of specific plots or in the alternative for a partition. In that suit, the present appellants were also parties. They contended that neither Mampalliviiakathu Veedu or Samayarathala Kunchu Veedu are entitled to any share in the plaint item, in view of Ex.A-1, where the entire property has been taken by their predecessors and Kumaran Krishnan, the predecessor of the plaintiffs. It was their case, that the other ?th share was mortgaged to Poyvila Veedu and the mortgage is barred and they are the full owners of the entire property. The said contention was not accepted and Neelakantan Thampi was declared entitled to ¼th share as prayed for by him. During final decree proceedings, Neelakantan Thampi died and his daughter, the 15th defendant was impleaded in that suit. 10. As I said earlier, the suit was instituted by Neelakantan Thampi, and the present appellants had no say the way in which the suit was framed. The present appellants and the present plaintiffs excluding plaintiffs 9 and 10 were only co-defendants in that suit. The present 2nd defendant was impleaded both in his personal capacity and as guardian of her children plaintiffs 3 to 8. She did not think of contesting the litigation and remained ex parte. Likewise, the present 3rd defendant, who was representing and guardian of the present plaintiffs 1 and 2 who were defendants 12 and 13 in the earlier suit, remained ex parte. The present 1st defendant was the 1st defendant in the earlier suit who contested the case. In the final decree proceedings, these appellants were allotted 2 acres 28 ½ cents in plot Nos.3, 6 and 10. That was pursuant to the preliminary decree passed. The present 1st defendant was the 1st defendant in the earlier suit who contested the case. In the final decree proceedings, these appellants were allotted 2 acres 28 ½ cents in plot Nos.3, 6 and 10. That was pursuant to the preliminary decree passed. In the Second Appeal No. 1531 of 1961, this Court has held thus: “In the result, I confirm the decree of the lower appellate court, and that of the trial court entitling the plaintiff to the particular plots claimed by him, but with a modification that if on actual measurement, it is found that the extent exceeds 1 acre and 11.75 cents, it will be open to the trial court to take away the excess in a manner which may be convenient as can be determined by the court and make it available for allotment to the other sharers. The suit is hereby remanded to the trial court for this limited purpose and also for passing a preliminary decree for the allotment of /the share to the Elayampara Veedu branch and also for the allotment out of the 5/8th share of the Poyvilla Veedu branch, of a half of the entire property to the appellants (one half of the entirety will be 4/5th of 5/8th share allotted to Poyvila Veedu branch). Before closing, reference must be made to the prayer of Sri T.P.Ramachandran, learned counsel for the respondent with respect to the interim order passed by this Court continuing the appointment of the Receiver appointed by the criminal court, now it is hereby made clear that it will be open to the plaintiff/respondent to take possession of the specific plots claimed by him from the receiver, but with a liability to restore the extent in excess of 1 acre and 11.75 cents if it is so found by the trial court. The respondent/plaintiff will also be entitled to withdraw the amount of mesne profits in full, but with a liability to return the proportionate part thereof pertaining to the excess in extent of 1 acre and 11.75 cents if it is so found. Subject to the above direction and modification, the appeal is dismissed with costs.” It was while the final decree proceedings were pending, the present suit was filed. 11. Subject to the above direction and modification, the appeal is dismissed with costs.” It was while the final decree proceedings were pending, the present suit was filed. 11. The main contention raised by the plaintiffs was that the earlier proceedings are not binding on them since their guardian was neither diligent in prosecuting the litigation nor they were properly represented. It is their case that plaintiffs 3 and 4 who were already majors were shown as minors and no summon was served on them, and even if they are treated as minors, their guardians who are defendants 2 and 3 respectively, did not think of contesting the suit, thereby their rights have been seriously affected. In effect, the present suit is to re-partition the entire property over again, ignoring the preliminary and final decrees passed in O.S.No.424 of 1959 I have already said that the present appellants had nothing to do with the institution of the earlier suit, since they were also defendants therein. So, there cannot be any charge that the suit has been instituted fraudulently. 12. The further question that arises for consideration is that even assuming that defendants 2 and 3 were ex parte, and did not represent the minors, how far their rights are affected. It is here we have to consider whether they have got a right of their own or whether they are claiming under some other person. Plaintiffs claim their right under Exs.A-3 and A-4 only. Ex.A-3 is the sale deed executed by the 1st defendant in favour of the 2nd defendant and his children, who are plaintiffs 3 to 8. Ex.A-4 is another sale deed executed by the 1st defendant in favour of 3rd plaintiff. If the plaintiffs really rely only on Exs.A-3 and A-4 to claim their right, naturally they will have to rely on their antecedent title. For the said purpose, we have to consider the title of the 1st defendant, who is none other than the son of Kumaran Krishnan. Apart from the sale deeds, they have no independent right. So, their right must be limited to the right of the 1st defendant. No reliance could be placed on Ex.A-4, since that document came into existence only on 13.3.1964, long after the institution of the earlier proceeding, which is barred by lis pendens. Apart from the sale deeds, they have no independent right. So, their right must be limited to the right of the 1st defendant. No reliance could be placed on Ex.A-4, since that document came into existence only on 13.3.1964, long after the institution of the earlier proceeding, which is barred by lis pendens. The plaintiffs have no case that the 1st defendant remained ex parte and did not contest the suit. No fraud was also alleged to the 1st defendant in the earlier proceeding. His claim was also based on Exs.A-1 and A-9 partition deeds. It is after taking into consideration the above rights, a preliminary decree was granted in his favour. While passing the final decree, the inter se right between the appellants and the 1st defendant was also considered, and thereafter the Commissioner allotted plot Nos. 1, 7 and 9 to defendants 1 and 15. A final decree was also passed as evidenced by Ex.B-6. 13. In the suit filed by Neelakantan Thampi, the only persons who are entitled to contest the suit were the 1st and 3rd defendants. Ex.A-9 partition deed is also as between them. None of the other plaintiffs are parties to Ex.A-9, which was wrongly understood by the trial court. Out of defendants 1 and 3, the 1st defendant alone contested the earlier suit and he was allotted a share. The 3rd defendant remained ex parte, and therefore, she was not given any share. The plaintiffs who were claiming right under defendants 1 and 3 will have to satisfy their claim in the properties allotted to them. Merely because the appellants put forward a large claim, that by itself would not be a ground to set aside the decree, unless the plaintiffs can show that they have an independent claim, apart from defendants 1 and 3. It is here we have to consider what is the duty of a guardian. Neither the 2nd defendant nor 3rd defendant cared to contest the earlier case, since they very well knew that their right is only confined to the claim put forward under Kumaran Krishnan and it is not a tarawad property. It must also be noted that Exs.A-3 and A-4 in this case are only executed by the 1st defendant and not by the 3rd defendant in the case. It must also be noted that Exs.A-3 and A-4 in this case are only executed by the 1st defendant and not by the 3rd defendant in the case. So, naturally plaintiffs 3 to 10 will have to satisfy the claims only from the property allotted to the 1st defendant in the earlier case. If the 1st defendant has executed any document in excess of his share, that cannot be a ground for setting aside a decree. The 2nd defendant who is also one of the beneficiaries under Ex.A-3 also remained silent. As I said earlier, Ex.A-4 is pending suit, and therefore, no relief can be granted on that basis also. If Exs.A-3 and A-4 goes and the same are not relevant to consider for setting aside the earlier decree, I do not think that plaintiffs 3 to 10 can have claim against the appellants. 14. In so far as plaintiffs 1 and 2 are concerned, either under Ex.A-1 or Ex.A-9, they are not given any share. In Ex. A-9, the only person who was given a share is the 3rd defendant. She was not aggrieved by the earlier judgment. If she thought of remaining ex parte, she has to suffer the consequence. The trial court assumed that the heirs of Kumaran Krishnan are plaintiffs 1 and 2 and defendants 1, 3 and 4. The said statement in paragraph 31 of the judgment is only a copy of the allegation in the plaint. Plaintiffs 1 and 2 and 4th defendant can never be the legal heirs of Kumaran Krishnan. As I said earlier, defendants 1 and 3 are the legal heirs of Kumaran Krishnan. It is further stated in the same paragraph of the judgment of trial court, that under Ex.A-2 partition deed, 5/32 share was allotted to the 1st defendant and 5/32 share was allotted to plaintiffs 1 and 2 and defendants 3 and 4. This statement is also patently incorrect, and it is also a copy of the plaint allegation. In Ex.A-9 the defendants 1 and 3 alone have taken shares. The 3rd defendant was at that time a minor and she was represented by her husband as guardian. It was also not a tarawad property, since they have inherited the same from their father. The further statement in paragraph 31 of the judgment of the trial court is also misleading. The 3rd defendant was at that time a minor and she was represented by her husband as guardian. It was also not a tarawad property, since they have inherited the same from their father. The further statement in paragraph 31 of the judgment of the trial court is also misleading. It is said that the plaintiffs 1 and 2 as two of the four parties who got 5/32 share will be entitled to 5/64 share. I have already said that plaintiffs 1 and 2 are not given any share in any document. The further statement is that “the 1st defendant who got 5/32 share under Ex. A-9 has executed 3 sale deeds and he executed Ex.A-3 sale deed in favour of the 2nd defendant and plaintiffs 3 to 8 for 40 cents, and since this 40 cents has been sold to 7 persons each of them will be entitled to 5/5-7 cents. Thus the 2nd defendant will be entitled to 5-5/7 cents and plaintiffs 3 to 8 to 34-2/7 cents. The 1st defendant executed Ex.A-4 sale deed in favour of 3rd plaintiff for 9 cents. Thus under Exs.A-3 and A-4 sale deeds, plaintiffs 3 to 8 became entitled to 43-2/7 cents.” According to me, the purchasers under Exs.A-3 and A-4 cannot claim any right as against the appellants and their relief can only as against the 1st defendant, their vendor. Likewise, the 21st defendant who claims 12 cents of land, purchased the property from the 5th defendant. Ex.B-9 is the sale deed. The vendor under Ex.B-9, stated to have purchased the property from the 1st defendant. That document is not before Court. Ex.B-9 is pending the earlier litigation. 21st defendant is also similarly placed as that of the plaintiffs. 15. According to me both the appellants as well as the plaintiffs in this case are bound by the statement in Ex.A-1. It may be true that as against the other the branches, the statement in Ex.A-1 may not be binding; But the plaintiffs and the appellants are claiming 5/8th share of poyvilla Veedu, for which Ex.A-1 was executed. If only the courts below understood the facts rightly, they would not have passed the impugned decree. As I said earlier, the Court below have assumed that plaintiffs have independent right. If only the courts below understood the facts rightly, they would not have passed the impugned decree. As I said earlier, the Court below have assumed that plaintiffs have independent right. It failed to understand the right of defendants 1 and 3 and the claim of plaintiffs was only under them and not de hors their right. It must also be stated that plaintiffs 1 and 2 have no right over any portion or the property and merely because the 3rd defendant remained silent, their right is not going to be affected. Likewise, though, the 2nd defendant also remained silent, their rights were also properly contested by the 1st defendant, to whom plot was allotted. He is the father of plaintiffs. Merely because the share allotted to the 1st defendant is less, that cannot be a ground to set aside the earlier decree. 16. It is also settled law, that a guardian is not expected to put forward frivolous grounds under the guise of protecting the interests of minor. A guardian is only expected to put forward such pleas which are likely to be upheld by court. A Division Bench of this Court, in a decision reported in Balabhadra Srirangam and another v. Madhyanapurangarao and others Balabhadra Srirangam and another v. Madhyanapurangarao and others Balabhadra Srirangam and another v. Madhyanapurangarao and others , A.I.R. 1937 Mad. 846: Balabhadra Sriranga v. Madhyanapu Raigarao (1937)2 MLJ. 236 hasheld thus: “Where a minor ward seeks to get the decree obtained against his guardian ad litem set aside on the ground that the guardian ad litem, though he has filed a written statement, does not appear at the trial and allows the suit, so far as the minors are concerned, to proceed ex parte and further alleges that the decree is vitiated by negligence of the guardian and collusion between the mortgagees and the guardian, it is the duty of the mortgagor to prove the collusion and the negligence set up by him; the burden lies upon him of proving his allegations and that burden is not discharged by merely showing that his guardian ad litem, who had put forward a defence, did not appear to substantiate it. The defence might have been untenable or worthless and it does not follow that merely because a guardian ad litem chooses to raise a defence, he is bound to persist in it, whether good or bad, to the end. In this respect there is no difference whatsoever between a guardian failing to raise a defence and abandoning a defence which has been raised. If at the very outset the guardian thinks that there is no available defence to the action, he may refrain from defending it; likewise, if after filing an untenable defence the guardian realizes that the decree put forward is bad or worthless, there is nothing in law to compel him to proceed with or persist in it. Hence the burden of proving that circumstances exist which vitiate the decree is upon the mortgagor and it is an element in that proof, without which the mortgagors case would amount to nothing, that there was an available good ground of defence which the guardian failed to put forward at the hearings.” The said decision was followed by another Bench of this Court in a decision reported in Marudamuthu Khandar v. P.S.Ar.Ar.Arunachalam Chettiar and others Marudamuthu Khandar v. P.S.Ar.Ar.Arunachalam Chettiar and others Marudamuthu Khandar v. P.S.Ar.Ar.Arunachalam Chettiar and others, A.I.R. 1957 Mad. 395. 17. Since the decrees of the courts below are based on misunderstanding of facts, even though it is concurrent the court bound to set aside the same under Sec. 100 of Code of Civil Procedure. The decree in O.S.No.424 of 1959 cannot be declared as a nullity, in view of the reasons stated above. Since I find the substantial question of No. 1 in favour of the appellants, no answer is necessary for substantial question of law No.2. 18. In the result, the judgments of the courts below are set aside and the suit in O.S.No.15 of 1971, on the file of Subordinate Judge, Padmanabhapuram, shall stand dismissed. There will be no order as to costs.