A party cannot challenge the validity of a decree in a subsequent appeal if they failed to appeal the preliminary decree, particularly where they previously admitted to representing the other party.

J U D G M E N T

The 1st defendant in O.S.No.241 of 2004 of the Munsiff’s Court, Perumbavoor has come up in Regular Second Appeal, by challenging the final decree passed by the said court and the judgment and decree passed by the lower appellate court in A.S.No.102 of 2014.

2. The suit is one for partition. The suit property originally belonged to late Pappi Amma, devolved on her three children, since she died intestate. The 1st plaintiff is the eldest among the children. The 2nd defendant in the suit is a mentally retarded woman, whose mother is the younger sister of the 1st plaintiff. The mother of the 2nd defendant, Leelavathi Kunjamma, is the second daughter of Pappi Amma and she predeceased Pappi Amma leaving the 2nd defendant as her sole legal heir. The appellant herein, who is the 1st defendant, is born to Pappi Amma in her second marriage and therefore, he is the uterine brother of the 1st plaintiff and deceased Leelavathi Kunjamma.

3. On the death of Pappi Amma, her properties devolved on the 1st plaintiff, the 2nd defendant and the 1st defendant in equal shares. Therefore, the 1st plaintiff filed the suit for getting her 1/3 share over the property partitioned by metes and bounds. A preliminary decree declaring her right to get partition of her 1/3rd share over the property was passed. The said decree was not challenged or carried in appeal. In fact, the 1st defendant had admitted, as DW1 during trial, that he had no objection in granting the decree for partition and separate possession of the 1/3rd share of the 1st plaintiff. The preliminary decree became final.

4. Thereafter, the 1st plaintiff filed I.A.No.1959 of 2013 for getting the final decree passed. In the final decree application, the 1st defendant had not raised an objection to the effect that no guardian was appointed for the 2nd defendant. The trial court passed the final decree. Suddenly, wisdom prevailed upon the 1st defendant in the form of a contention that no guardian was appointed for the 2nd defendant and therefore, the preliminary decree as well as the final decree are nullity and non-est in the eye of law.

5. Taking up such a contention, he challenged the final decree before the Subordinate Judge’s Court, Perumbavoor, through A.S.No.102 of 2014. The main challenge was that no guardian was appointed for the 2nd defendant under order XXXII Rule 3 of the Code of Civil Procedure and therefore, the judgments and decrees in the suit are nullity as well as non-est in the eye of law. The lower appellate court did not find any merit in the appeal and consequently, dismissed the appeal with costs and hence, this Regular Second Appeal.

6. Heard the learned Senior Counsel Sri.Ram Kumar for the appellant, and the learned counsel Smt.Girija K.

Gopal for respondents 1 and 2.

7. The appellant has arrayed the 2nd defendant as the

3rd respondent in the Regular Second Appeal. According to the learned Senior Counsel, there is no use for the preliminary decree as well as the final decree in the matter and the same is not executable.

8. Per contra, the learned counsel for respondents 1 and 2 has argued that the appellant has no locus standi to challenge the validity of the preliminary decree or the final decree in the matter. It has been argued that the appeal preferred by the 1st defendant before the lower appellate court as well as the Regular Second Appeal preferred by the appellant are not maintainable under Section 97 of the Code of Civil Procedure , when no appeal was preferred by him against the preliminary decree. Further, it has been argued that all along the proceedings before the trial court, the appellant herein had specifically taken the stand that he was the guardian of the 2nd defendant, and that the 2nd defendant was under his care and protection and further, that he had no interest adverse to that of the 2nd defendant. It has been argued that the trial court had appointed the 1st defendant as guardian for the 2nd defendant, when the 1st defendant had acted