Ramalingam represented by next friend Somu Pillai vs Venkatachalam represented by Court guardian Mr. T.R. Venkatarama Ayyar and Another

Alfred Henry Lionel Leach, C.J.—The appellant is a minor. He sued in the Court of the District Munsiff of Tiruturaipundi for a declaration

that a decree passed against him in Small Cause Suit No. 91 of 1937 on the file of the Subordinate Judge''s Court of Tiruvarur was not binding

upon him because of the gross negligence of his guardian in the conduct of that suit. On the 30th April, 1934, the plaintiff''s father executed a

promissory note in favour of one Muniammal. The plaintiff was joint with his father. On the 2nd September, 1934, Muniammal endorsed the

promissory note to her father, the first defendant. In 1937, the first defendant filed the suit in which the decree now complained of by the plaintiff

was passed. The father had died before the institution of that suit and the plaintiff was sued as the surviving coparcener and the legal representative

of his father. A decree was passed against him on the 12th November, 1937, but was limited to the family properties and to the separate assets of

his father in his hands. The present suit was filed on the 10th August, 1942. The District Munsiff held that there had not been gross negligence in

the conduct of the Small Cause Court Suit and relied on the judgment of Madhavan Nair, J., in Daiva Ammal and Others Vs. Selvaramanuja

Nayakar and Others, . Consequently he dismissed the suit. His decision was concurred in by the District Judge of East Tanjore. The plaintiff has

now appealed to this Court. The appeal has been placed before a Bench because the opinion expressed by Madhavan Nair, J., in Daiva Ammal x.

Selvaramanuja1 is in conflict with the opinion expressed by Varada-chariar, J., in Subbaratnam Chettiar Vs. Gunavanthalal Vidyasankar by agent

Narendralal-Gunavanthalal, .

This Court has always held that 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 conduct of the suit. The latest judgment of this Court on the question

was given in N.P.L. Egappa Chettiar Vs. Em.S.V.L. Ramanathan Chettiar and Others, . Daiva Ammal and Others Vs. Selvaramanuja Nayakar

and Others, was decided by a Division Bench composed of Madha-van Nair and Stone, JJ. In delivering the judgment of the Bench, Madhavan

Nair, J., said:

It is not proved that the lawyer was not provided with sufficient funds to conduct the case. In these circumstances, is it reasonable to hold that the

guardian has been grossly negligent in the conduct of the case if the lawyer fails to raise a point of law which may well have been raised by him?

We think not. It was observed in In re Speight : Speight v. Gaunt (1883) 22 Ch.D. 727, that a trustee is bound to conduct the business of trust in

the same way as an ordinary prudent man of business conducts his own and has no further obligation. In In re Weall: Andrews v. Weall (1889) 42

Ch.D. 674, it was pointed out that a trustee may select solicitors and agents and so long as he selects persons properly qualified he cannot be

made responsible for their intelligence and honesty. We think the same may be said about the guardian of a minor also. In the circumstances of this

case we think the guardian has done what could reasonably be expected of her, that she has defended the case with due care and that it will be

improper to ascribe negligence to her in conducting it.

In Subbaratnam Chettiar Vs. Gunavanthalal Vidyasankar by agent Narendralal-Gunavanthalal, , Varadachariar, J., who was sitting alone,

expressed the opinion that a minor can raise the plea of gross negligence notwithstanding that his guardian is not aware of the law or of the material

facts in the case. It would appear that the learned Judge was of the opinion that where the guardian has taken legal advice and has acted on it he is

not relieved of responsibility in the event of the practitioner being grossly negligent in tendering the advice.

As the decision in Daiva Ammal and Others Vs. Selvaramanuja Nayakar and Others, is that of a Division Bench, it is binding on us, as it was on

the Court below. We may add that in our judgment it cannot be said that there was gross negligence in the conduct of Small Cause Suit No. 91 of

1937. As we have mentioned, the decree in that case was passed on the 12th November, 1937. By that date, the judgment of the Full Bench of

this Court in S. Maruthamuthu Naicker Vs. P. Kadir Badsha Rowther and Others, had not been-delivered. It was not delivered until the 15th

December, 1937. Before that date there was acon-flict in the decisions of this Court on the question whether a member of a joint Hindu family

could be sued on a promissory note executed by the head of the family alone. In Nataraja Naicken v. Ayyaswami Pillai (1916) 32 M.L.J. 354 a

Division Bench had held that an indorsee of a promissory note executed by a member of a joint Hindu family could sue not only the maker, but the

other members of the family on the instrument. This decision was wrong and was overruled by the Full Bench which decided S. Maruthamuthu

Naicker Vs. P. Kadir Badsha Rowther and Others, , where it was held that the indorsee of a promissory note executed by the managing member

of a joint Hindu family is limited to his remedy on the note, unless the indorsement is so worded as to transfer the debt as well, and the stamp law

also is complied with. As there was a conflict of decisions on this question when the Small Cause Suit No. 91 of 1937 was being tried it could not

be said with reason that the pleader who was instructed by the minor''s guardian was grossly negligent in not objecting to the frame of the suit. As

the pleader was not grossly negligent, it cannot in any event be said that the guardian was grossly negligent.

For there reasons, the appeal is dismissed with costs.