C.K.S. Krishnamurthi and Another vs Chidambaram Chettiar and Others

Alfred Henry Lionel Leach, C.J.—The appellants are the plaintiffs in the suit. They are the sons of the 10th defendant. They seek to set

aside the decree of this Court in Appeal No. 250 of 1937 in so far as it affects the interest claimed by them in the properties mentioned in the

plaint. Appeal No. 250 of 1937 arose out of O.S. No. 1 of 1936, which was filed by the plaintiffs'' father in the Court of the Subordinate Judge cf

Madura to recover possession of the land in suit. The Subordinate Judge held that he had failed to prove title to the land. On the other hand he

found that the respondent in that appeal had established a title and he had also shown that he had been in adverse possession for more than the

statutory period before the 10th defendant purported to purchase the property. On appeal this Court considered that it was not necessary to go

into the question of the 10th defendant''s title because it was obvious that the respondent had already acquired a title by adverse possession.

The plaintiffs in the present suit alleged that their father was grossly negligent in the conduct of O.S. No. 1 of 1936 and that the present case falls

within the principle discussed in N.P.L. Egappa Chettiar Vs. Em.S.V.L. Ramanathan Chettiar and Others, where this Court accepted as stare

decisis the earlier decisions of this Court and other High Courts, to the effect that in India a minor can sue to set aside a decree passed against him

in a suit not only on the ground of fraud or collusion, but also on the ground of gross negligence on the part of his guardian in the suit.

The learned Subordinate Judge did not consider it necessary to inquire whether there had been gross negligence on the part of the plaintiffs''

father in the conduct of O.S. No. 1 of 1936. He''held that in that suit the father had sued as the manager of the joint family and that the junior

members of that family were bound by the decree. With this decision we are in entire agreement.

The principle referred to in N.P.L. Egappa Chettiar Vs. Em.S.V.L. Ramanathan Chettiar and Others, cannot be applied to a case like the

present one. The principle only applies to a suit which concerns property held by the minor in his own right and in which a decree is passed against

the minor. The principle should certainly not be extended to cover a case like the present one. Here the father, as the manager of the family,

represented all the co-parceners and he sued on the basis that the property belonged to the family. If the appellants'' contention were accepted, it

would mean that any coparcener, whether he be an adult or a minor, could sue to set aside a decree lawfully passed on the ground of the

manager''s negligence.

The appeal is dismissed with costs.