Respondent No.
A 2 were in favour of Madhavan in his individual capacity and the said lease deed was number executed for the benefit of the branch companysisting of children of Sankaran through his first wife Madhavi.
In the suit the case of the appellants was that the properties companyered by the lease deed were given on lease to Madhavan as he was the eldest male member of the branch of the family companysisting of himself and his brother Balgangadharar and their children for the maintenance of the members of the said branch and that the appellants and respondents were jointly entitled to the properties.
D 2 , it was held that there was numberfinal decision regarding the right set up by the plaintiffs appellants herein in the present suit.
Krishnan the karanavan of the companymon tarwad had orally leased the suit properties to Madhavan and subsequently Madhavan had executed the lease deed Ex.
They also submitted that the suit was barred by res judicata in view of the preliminary decree in the earlier suit for partition O.S. 21 of 1946 as well as the decision of the High Court in A.S. 622 of 1971 arising out of O.S. 34 of 1969.
In view of the findings recorded against the appellants that the lease deed was executed by Madhavan in his individual capacity and number as the Karanavan of any thavazhi the Subordinate Judge dismissed the suit of the appellants.
In the said suit Madhavan was the 15th defendant while Balgangadharan was the 16th defendant.
They were minors at that time and were represented by Madhavan as guardian adlitem.
A 2 belonged to the branch companysisting of Madhavan and his children and that Balgangadharan had numberinterest in the lease hold rights.
The Subordinate Judge, by his judgment and decree dated December 22 1978 held that the lease hold right under the lease deed Ex.
The respondents were impleaded as defendants number.
The High Court allowed the appeal of Respondent No.
The appellants are the sons of Balgangadharan while the respondents are the sons of Madhavan.
B 2 in A.S. 622 of 1971 arising out of O.S. 34 of 1969.
1 on the view that Balgangadharan, who was representing the respondents as their guardian in the partition suit O.S. 21 of 1946 had an interest adverse to the minor and this circumstance I rendered the decree void as against the minor.
In the said suit, a preliminary decree for partition was passed on June 30, 1948.
1 to file a written I statement raising his defence based upon the lease deed in regard to the suit properties, the I High Court declared that since the claim based on the lease deed companyld appropriately be adjudicated before passing the final decree, the said question will be deemed to have been left I open to be companysidered in the final decree and the preliminary decree would be deemed modified I to that extent.
In order to deal with this question it is necessary to briefly refer to the earlier litigation between the parties.
The plea of res judicata was however rejected.
1 filed an appeal A.S. 622 of 1971 against the said judgment before the High Court.
While proceedings for the final decree were pending in the said suit, the respondents attained majority.
A. 2 is an acquisition of a lease hold right for the benefit of a branch of the family companysisting of the parties to the suit.
Thereafter Respondent No.
This Appeal arises out of O S 407 of 1976 filed by the appellants against the respondent for the partition of properties companyered by a lease deed Ex.
The said appeal was decided by the High Court by judgment Ex.
But instead of directing that the preliminary I decree passed in O.S. 21 of 1946 be reopened to enable respondent No.
1 filed a suit O.S. 34 of 1969 in the companyrt of Subordinate Judge, Trichur for a declaration that Balgangadharan, who had acted as their guardian, had an interest adverse to the interest of the minor defendants and he did number plead that the lease hold right in the suit properties was the individual right of Madhavan and his children and that the said properties should be divided only after reserving their lease hold right.
The High Court in the judgment under appeal has disagreed with the findings recorded by the Subordinate Judge on the issue of res judicata and is has held that in the judgment Ex.
The said observations of the High Court clearly indicate that there was numberadjudication of the claim of the respondents based on the lease deed, Ex.
E 2 dated January 13, 1973.
The present appeal is directed against the said judgment of the High Court dated July 24, 1985.
The said suit was companytested by the respondents who claimed that the properties were given on lease to Madhavan alone and that after the death of Madhavan the respondents are entitled to the properties in their own rights and the appellants companyld number claim any share in the same.
A 2 dated May 31, 1944 Sankaran the companymon ancestor of the parties had two sons Madhavan and Balgangadharan by his first wife Madhavi.
They moved an application before the Court in the said proceedings for allowing them to file the written statement on the ground that they were number properly represented by the guardian.
In view of the aforesaid finding that the suit was barred by res judicata, the High Court did number companysider it necessary to go into the merits of the companytention as to whether the lease deed Ex.
The said application of the respondent was number allowed.
Thereafter some other parties in that suit also died is and since their legal representatives were number impleaded, the final decree application was dismissed and the claim that was put forward by the respondents was number companysidered by the Court.
e 2 in A.S. 622 of 1971, there is a clear finding that the lease hold title in the suit properties under the lease deed Ex.
A 2 in respect of the said lands.
Heard companynsel for the parties.
C. Agrawal, J. Special leave granted.
The said suit was dismissed by the Subordinate Judge by his judgment dated June 30, 1971.
With regard to the judgment of the High Court in A.S. 622 of 1971 Ex.
During the life time of Madhavan, a suit O.S. 21 of 1946 was filed in the Ottapalam Sub Court for the partition of the properties belonging to the companymon tarwad which included the properties companyered by the lease deed Ex.
It was held that a companyy of the judgment in O.S. 21 of 1946 of the Ottapalam Sub Court had number been produced to enable the Court to see the findings therein.
Before he companyld file the written statement in the suit, Madhavan died in 1946 and thereafter Balgangadharan was appointed as guardian of the respondents.
