MINOR RAMALINGAM REPRESENTED BY NEXT FRIEND SOMU PILLAI Vs. MINOR VENKATACHALAM REPRESENTED BY COURT GUARDIAN MR. T.R. VENKATARAMA AYYAR AND ANR.

JUDGEMENT

(1.) 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 v. : AIR1936Mad479 . 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 v. : AIR1937Mad472 .

(2.) 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 Egappa v. : AIR1942Mad384 . Daiva Animal v. : AIR1936Mad479 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:

(3.) AS the decision in Daiva Ammal v. : AIR1936Mad479 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 Maruthamuthu Naicker v. : AIR1938Mad377 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 Maruthamuthu Maicker v. : AIR1938Mad377 , 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.