C O M M O N O R D E R

These Civil Revision Petitions arises at the instance of the plaintiff.

2.The property originally belonged to one Karuppagoundar S/o.Rajagounder. He purchased the property in the year 1946. Thereafter, he settled the property in favour of his two daughters, Rasaammal and Palaniammal. The said Rasaammal was entitled to common 1/4th share in the suit property. Rasaammal sold her 1/4th share in favour of the plaintiff and his wife Lakshmi by way of registered sale deed dated 04.12.1992. The remaining 1/4th portion belonged to the 1st defendant. The plaintiff admitted that the 2nd defendant Rukmani's husband one Chinnu @ Chellappan was entitled to 1/2 share in the suit property. He died and therefore, his wife Rukmani and sons Velusami and Venkatesan @ Devakumar succeeded to the 1/2 share. The plaintiff pleaded he convened a Panchayat on 06.04.2003 and sought for division of the property. No division was not effected to the satisfaction of the plaintiff. Hence, he filed a suit for partition and separate possession and seek his 1/4th share of the property.

3.The suit was originally presented before the Subordinate Court at Namakkal. By virtue of enhancement of pecuniary jurisdiction of the District Munsif Courts, the suit was transferred to the file of the District Munsif cum Judicial Magistrate at Paramathi and re-numbered as O.S.No.404 of 2004.

4.In the said suit, summons were served on all the defendants. Yet they remained exparte. An exparte preliminary decree came to be passed on 27.02.2006. Thereafter, the petitioner / plaintiff filed I.A.No.417 of 2009 seeking for appointment of an Advocate Commissioner and to pass a final decree. In the said proceedings, notice was ordered to the respondents / defendants. Notice was also served and they engaged a counsel. Arguments were heard in the final decree application and it also came to be allowed on 18.08.2010. An Advocate Commissioner was appointed who visited the suit property on 09.10.2010.

5.At that stage, the defendants filed an application to condone the delay of 1820 days in filing the application to set aside the exparte preliminary decree. The defendants pleaded that the 4th defendant is mentally challenged and therefore, the decree passed by the Trial Court without appointing a guardian for him is unsustainable. The plaintiff pointed out to the Court that the petition to condone the delay also suffers from the same infirmity. He urged no petition had been filed to appoint any of the petitioners / defendants as the legal guardian for the mentally challenged person namely the 4th defendant. Thereafter, an application was filed in I.A.No.289 of 2014 by the 2nd defendant / mother of the 4th defendant, seeking to appoint her as his guardian.

6.In the application filed for condonation of delay, the 3rd defendant entered the witness box and deposed as P.W.1. One Dr.Sivakumar, entered the witness box and deposed as P.W.2. The plaintiff entered the witness box and marked the summons that had been served on the defendants at the time of preliminary decree as well as the vakalat that had been filed on behalf of the defendants / respondents at the time of the final decree proceedings. The plea of the plaintiff was that at no point of time, it was disclosed to the Court, that the 4th defendant was a mentally challenged person and therefore, they are not entitled to take the said plea at the belated stage. To substantiate their case, the petitioners had filed Ex.P1 to P4, namely the medical records issued by the hospitals. A noteworthy one is Ex.P4, a certificate that had been issued by NIMHANS Hospital at Bangalore, stating that the 4th defendant is mentally challenged.

7.On a consideration of the pleas raised by the parties, the learned Trial Judge appointed the 2nd defendant / mother as the guardian for the 4th defendant and also condoned the delay in filing the application to set aside the exparte preliminary decree on payment of cost of Rs.3,000/-.

8.Aggrieved by th