T. Anjaneyulu vs P. Chinna Subbiah and Another

Devadoss, J.—The only point argued in this second appeal is that; the guardian of the plaintiff was guilty of gross negligence and that he is

therefore entitled to reopen the ease decided against him. The plaintiff''s guardian sued the father and his four sons for a debt due, according to her

allegation, by the whole family. The debt was ostensibly borrowed, for the expenses of the marriage of the 4th defendant, one of the sons of the 1st

defendant, in the previous suit. She got a decree against the father, the 1st defendant and the suit was dismissed against the sons. The plaintiff now

wants to raopen the case and get a decree against the defendants 3 and 4, on the ground that they executed Exhibit A, under whiah they

undertook to share the liability. Exhibit A was not produced in the previous suit. Mr. Lakshmanna strongly relies upon this fact and contends that

the omission to produce Exhibit A, in the previous suit, amounts to gross negligence. But it must be remembered that the previous suit was based

upon the ordinary Hindu Law liability, under which the father and sons are liable for a debt, borrowed for a purpose, such as the expenses of

marriage of one of the sons. This omission to produce Exhibit A in his previous suit cannot be considered to be gross negligence. The learned

Subordinate Judge has considered the matter and he is of opinion, that the document was kept back purposely, in order to get a decree against all

the defendants, i.e., the father and sons. In the face of that finding, it is impossible to contend that the plaintiff''s guardian was guilty of gross

negligence. Mr. Lakshmanna very strongly relies upon the case reported in Gotepati Subban and Others Vs. Gotepati Narasamma and Others, ,

There, the father set up a right by adoption, while he could very well have sot up a title under a will. The father evidently, in order to get the whole

property, set up the case of adoption, which was false to his knowledge and the finding in that case was that the father was aware of the existence

of the will, under which the son would entitled to half the property. The learned Judges held that the father was guilty of gross negligence, inasmuch

as he set up a false case to his knowledge and did not set up a case, which was true to his knowledge. In Punnayyah v. Viranna 1922 Mad. 273, it

was held that; a decree could be set aside, for the fraud or collusion of the guardian ad litem in not defending the suit, on behalf of the minor. The

facts are different here. The guardian claimed a decree against 5 persons, whereas she could have been satisfied with only a decree against

defendants 3 and 5. It cannot be said, in the circumstances, that she was guilty of gross negligence, which would entitle the plaintiff to have the case

reopened.

The second appeal is dismissed with costs.