1. The appellants are the plaintiffs who sued for repartition of their tarwad after setting aside the prior decrees in partition had in O. S. No. 64 of 1943 on the file of the Sub Court, Mangalore. Ext. A1 dated December 7, 1944, is the preliminary decree and Ext. A2 the final decree dated November 30, 1949, in that prior suit. That suit was instituted by the present six plaintiffs in conjunction with defendants 9 to 14 who arrayed themselves respectively as plaintiffs 2 to 7, 1 and 8 to 12 therein. It is averred that due to the fraudulent machinations of the 10th defendants husband the 14th defendant who was conceived by the 10th defendant long after the date of the suit was also given a share in the decree Ext. A1, wherefore the present plaintiffs were given only 6/20 share instead of 6/19 legitimately due to them, that the 2nd plaintiff who was insane had no next friend or guardian in that suit and therefore the decree cannot bind him, that the final decree was not in accord with the preliminary decree, that the division of properties by metes and bounds in Ext. A2 was unfair to the plaintiffs, that the direction in the preliminary decree for 1st defendant to render account for his management for six years before suit was overlooked in the final decree and that on all the above grounds the decrees in the prior suit, Exts. A1 and A2 were invalid, should be set aside and repartition made. The defendants contested the suit, denying any prejudice to the plaintiffs by the decrees in the prior suit and the allegation of insanity to the 2nd plaintiff during its pendency. The court below dismissed the suit finding against the plaintiffs on all the points raised. Hence this appeal.

2. The prior suit in question is O. S. No. 64 of 1943, the plaint wherein is Ext. A3 here, dated August 3, 1943. The present 10th defendant was the 8th plaintiff therein described as big with child. Claim was made for that child in the womb in Ext. A3. Ext. B3 is an affidavit sworn by the present 2nd plaintiff on August 7, 1943, in support of an application for a receiving order by all the plaintiffs, and therein also the 10th defendant was referred to as enceinte. D. W. 1 the husband of the 10th defendant and D. W. 2 the husband of the 3rd defendant have identified the child then in the 10th defendants womb as the present 14th defendant who was made the 12th plaintiff in the prior litigation. Ext. A35 extract from the concerned Register of Births was put in evidence of the 10th defendant having given birth to a child on October 22, 1944. The fact that she delivered a child in October 1944 cannot disprove her having been enceinte in August 1943 or having given birth to a child soon thereafter. D. Ws. 1 and 2 have sworn that the child delivered by the 10th defendant in October, 1944 was one conceived subsequent to the birth of the 14th defendant. It is not disputed before me that at the partition of the tarwad a child in the womb of any female member is entitled to a share. The award of a share to the 14th defendant in Exts. A1 and A2 cannot be said to have caused any prejudice to the plaintiffs.

3. Relying on Exts. B3 and B14, affidavits sworn by the 2nd plaintiff on August 7, 1943 and July 10, 1944, Exts. B6 and B11 lease deeds executed by him on February 8, 1944, and April 22, 1944, in respect of properties under Receivers management in O. S. No. 64 of 1943, Ext. B63 the judgment dated February 23, 1953, in O. S. No. 122 of 1934 for partition of the main tarwad of the present parties and others wherein the 2nd plaintiff had not been shown insane and Ext. B38 the application for delivery dated March 31, 1953, by the 2nd plaintiff and others in the above suit, the Subordinate Judge disbelieved the plea of the 2nd plaintiff having been insane. Adverting to Exts. A5 to A17, the Subordinate Judge observed :

"However, Exts. A5 to A17 may show that for a period of one year and a few months from 1949 to 1950 the 2nd plaintiff was in the Mental Hospital. According to defendants he was not insane but was getting epileptic fits sometimes, and it was also not correct to say that he was not capable of protecting his interests ......epilepsy is also a mental disease ...... the attempt of the plaintiffs is to show that because the 2nd plaintiff had been in the Mental Hospital it must be presumed that he was insane and incapable of protecting his interests. That I say is not correct. It might be that off and on, he gets fits but that is not sufficient to hold that he was incapable of safeguarding his interests ...... Even assuming that he had been insane and that was the reason why he was treated in the Mental Hospital for some time there is no evidence to show that he was incapable of looking after his own property and this court will be justified in acting on the presumption that he was sane."

Exts. A5 to A17 show clearly that the 2nd plaintiff was in the Government Mental Hospital, Calicut, as an inpatient from April 4, 1949 to April 7, 1950. Neither side has called anybody from the Mental Hospital to prove the disease for which he was treated there. The Subordinate Judge says that epilepsy is also a mental disease and that it might be that the 2nd plaintiff was getting fits off and on for which he might have resorted to the Mental Hospital. It is very difficult to assume that for treatment of epilepsy which affected the 2nd plaintiff with fits "off and on" he was treated as inpatient in the Mental Hospital for a year and more. The inference can only be that he was insane in the concerned period. The 1st plaintiff, the mother of the 2nd plaintiff, has sworn as P. W. 1 that the 2nd plaintiff was treated in 1949-1950 in the Mental Hospital for insanity. There is no evidence on record to counter that testimony. Ext. A13 a post card dated Government Mental Hospital, Kozhikode, 7-4-1950, refers to the 2nd plaintiffs mental condition not having shown any appreciable improvement till its date. In these circumstances it has to be held that Kunhambu Nair, the 2nd plaintiff, had been insane in the period 4-4-1949 to 7-4-1950; and the final decree in O. S. No. 64 of 1943 was on 30-11-1949. It is difficult to accept the opinion of the Subordinate Judge that even if the 2nd plaintiff was insane he could not be taken as incapable of protecting his interests. If he was insane, the inference follows that he was incapable to look after his affairs.

4. The question then is of the effect of the decree having been made when one of the plaintiffs to suit was insane and was not represented by a next friend. Two aspects arise for consideration here, firstly of the insane being one of the plaintiffs to the suit and secondly of his being a member of a tavazhi whose other members were the other plaintiffs in the suit.

In Gulabchand Nanulal v. Fulchand Nirachand (AIR 1959 Bombay 232) it is observed:

"..... there is a difference between a decree obtained against a minor without appointing a guardian for him and a decree made in a suit brought by a minor plaintiff, without he being represented by a next friend. Provisions of O.32 R.3 and O.32 R.11(2) of the Civil Procedure Code impose a duty on the Court to make an order of appointment of a guardian for the minor defendant when the fact of his minority becomes known to the Court. This duty has to be performed by the Court irrespective of any application for appointment of a guardian of the minor defendant. There is no such duty imposed on the Court in the case of a minor plaintiff. On the other hand it appears that it is expected of the pleader or the person who institutes a proceeding on behalf of the minor to see that the name of the minors next friend is shown on the record; failure of which might render him liable in costs. The decree made in a suit against a minor defendant without appointing a guardian for him may, therefore, on account of failure to perform an imperative statutory duty on the part of the Court, amount as a general rule to a nullity but such would not necessarily be the case when a suit instituted by or on behalf of a minor without mention of his next friend on record is decided by a Court. In our view, the provisions of O.32 R.2 make the position clear. R.2 of O.38 provides that where a suit is instituted by or on behalf of a minor without a next friend the defendant may apply to have the plaint taken off the file with costs to be paid by the pleader or other person by whom it was presented. In the event the defendant fails to raise this objection and the suit proceeds and a decree is made that decree is not a nullity."

The above exposition shows that where the minor or the insane is one of the plaintiffs, a formal order of appointment of another as his next friend is unnecessary and all that is required is for another to have intimated the Court that he is safeguarding the interests of the incapable plaintiff in the action. It then follows that, if in a particular case another person failed to intimate so but did really act as the next friend in the suit, the omission would only be an irregularity and not a fatal defect in the proceedings. The decree in such a case would be valid and cannot be set aside unless prejudice is proved to have been caused to the incapable by the omission.

The present plaintiffs were plaintiffs 2 to 7 in the prior suit, O. S. No. 64 of 1943. They form a tavazhi, the 1st plaintiff being the mother and all the rest her children. Barring the 2nd plaintiff, the only other adult at all relevant times was the mother. She has engaged counsel for herself and all her children and in the final decree taken the share due to herself and her children inclusive of the 2nd plaintiff. It cannot then be said lightly that the 2nd plaintiff had suffered and been prejudiced by the absence of a next friend on record.

Further, the mother and children constitute a tavazhi which is to all legal purposes a tiny Marumakkathayam tarwad. It was so in the prior litigation and remains so even in the present suit. The thavazhi of the plaintiffs has never so far been divided. If the 2nd plaintiff was an incapable, the karnavathi was the 1st plaintiff. She was then the accredited representative of the entire tavazhi and must therefore be taken as having prosecuted the prior suit in that capacity. The allotment made in the final decree for the tavazhi affirms that inference. It cannot then be said that the 2nd plaintiff was not represented in the prior suit after he became insane. See para 10 of the judgment in Gulabchand Nanulal v. Fulchand Hirachand (cited supra). The complaint of non representation of the 2nd plaintiff after he became insane has therefore little substance.

5. Another ground of attack is of the final decree Ext. A2 being not in conformity with the preliminary decree Ext. A1. The preliminary decree awarded 12/twentieth shares to 12 persons jointly ; but the final decree subdivided the same among these 12 persons 6 shares being allotted to the plaintiffs 1 to 6, I share to the 9th defendant, and 5 shares to defendants 10 to 14, who were all plaintiffs in that suit. Nothing has been made out of any prejudice having been caused to the present plaintiffs by such subdivision. The present plaintiffs formed one natural tavazhi and they were 6 of the 12 plaintiffs in that suit. In the preliminary decree they were awarded 6/twentieth shares in conjunction with another 6 such shares to the other 6 plaintiffs of that suit who were outside their tavazhi ; and in the final decree they were separated and given shares independently. This was only to their advantage, in that another suit for partition of the plaintiffs tavazhi from the others had been avoided.

6. The averment that, in effecting division by mets and bounds in the final decree properties more fertile have been allotted to other members and those yielding less have been allotted to the plaintiffs has not been substantiated by evidence.

7. That the provision in the final decree for the viniyogas and other religious ceremonies of the tarwad had been excessive has also not been made out. The plaint avers and it has been found correct by court below that the annual income of the tarwad was above 240 muras of paddy, 10800 coconuts 3 1/2 candies of arecanuts and Rs. 640/- in cash. The allotment for the religious services is of properties yielding annually 50 muras of paddy only. No other member of the tarwad had challenged that allotment as excessive and the plaintiffs themselves do not appear to have made any such imputation at the time of settling the final decree.

8. Lastly, it was pointed out by counsel for the appellants that the preliminary decree had directed the 1st defendant to account for the income and expenditure of the tarwad for six years prior to the institution of the suits; but it has been overlooked in the final decree. This no doubt is a defect in the final decree. The court below has observed that the direction to settle accounts could not be carried out because the parties did not adduce any evidence in regard thereto. That cannot be a valid explanation for not making an adjudication in regard to the matter left to be adjudged in the final decree. If parties concerned did not give evidence on the matter at issue, it ought to have been decided against the party who claimed settlement of accounts. The final judgment must give a quietus to all disputes raised in the case, especially when it has been expressly directed so by the preliminary decree in the case. But that is not a point available in a fresh suit to invalidate the final decree by any of the parties to the decree. If the decree was defective of any accidental omission the remedy ought to have been sought in that suit itself.

9. None of the grounds urged by the plaintiffs to invalidate the decrees in Exts. A1 and A2 has any substance. Though the court below erred in finding the 2nd plaintiff to have been sane throughout the pendency of the prior litigation, the ultimate decision by it has been correct. The appeal fails, and is dismissed hereby.