N P L EGAPPA CHETTIAR Vs. EMSVLRAMANATHAN CHETTIAR

JUDGEMENT

(1.) The appellant instituted this suit in the Court of the Subordinate Judge of Devakottai for a declaration that the decree passed in O.S. No. 88 of 1933 by the Subordinate Judge of Coimbatore is void and therefore not binding on him. When that suit was tried the appellant was a minor and his adoptive mother acted as his guardian-ad-litem at all times material to the present suit. The suit resulted in a decree being passed against him for the payment of the sum of Rs. 31,497-10-6. It had been filed to recover money deposited with a firm belonging to the family in which the appellant was born. Before the suit was instituted he was given in adoption to another family and therefore was not responsible for the liabilities of his father's family. In the present suit the appellant averred that his guardian-ad- litem had been guilty of gross negligence in that he had not pleaded a partition and in not. proving his adoption. At the hearing the Official Assignee, who is the seventh defendant, raised the contention that the suit was not maintainable unless the plaintiff could show fraud or collusion, although this plea was not raised in his written statement. An issue was, however, framed and the question was argued. The result was that the Subordinate Judge came to the conclusion that the suit did not lie unless fraud or collusion was alleged and consequently he dismissed the suit with costs. The appeal is from this, decision.

(2.) For many years this Court has consistently held that it is open to a minor to challenge a decree passed against him on the ground that his guardian had been grossly negligent in the con-duct of the suit. The leading case is Chunduru, Punnayya V/s. Rajam Viranna1 (1921) 42 M.L.J. 429 : I.L.R. 45 Mad. 425 and this has been followed on numerous occasions since. In Karri Bapanna V/s. Yerramma , the Court went a step further and held that a minor could by way of. defence raise a plea of gross negligence on the part of his guardian-ad-litem in a previous suit. The opinion of this Court expressed in Punnayya V/s. Rajam Virawna (1921) 42 M.L.J. 429 : I.L.R. 45 Mad. 425, is shared by the High Courts of Calcutta, Allahabad, Patna, Lahore and until recently by the Bombay High Court. At first the Calcutta High Court took the view that a minor could not maintain such a suit without pleading fraud or collusion en the part of his guardian. See Raghubar Dyal Sahu V/s. Bhikya Lal Misser (1885) I.L.R. 12 Cal. 69. But a contrary opinion was expressed some ten years later in Lalla Sheo Churn Lal V/s. Ramnandan Dobey (1894) I.L.R. 22 Cal. 8. The opinion formed in that case is still maintained. See Mohesh Chandra V/s. Manindranath (1941) 45 C.W.N. 508. A Full Bench of the High Court of Allahabad considered the question in Siraj Fatima V/s. Mahmud Ali (1932) 54 All. 646 (F.B.) and came to the conclusion that a suit would lie even in the absence of fraud or collusion if there had been gross negligence. The Patna High Court came to the same conclusion in Mathura Singh V/s. Rama Rudra Prasad Sinha (1935) 14 Pat. 824. Like the Calcutta High Court the Lahore High Court at first held that there must be fraud or collusion. The first decision was given in Imam Din V/s. Puran Chand (1919) 1 Lah. 27, in which reliance was placed on Raghubar Dyal Sahu V/s. Bhikya Lal Misser (1885) I.L.R. 12 Cal. 69 but in two later cases, Fazal Din V/s. Muhammtud Shafi A.I.R. 1928 Lah. 674 and Punnum Mal v. Bishambur Dayal A.I.R. 1940 Lah. 205, the opinion that gross negligence is sufficient to found a suit was expressed.

(3.) The earlier decisions of the Bombay High Court were to the effect that gross negligence gave a minor a cause of action. See Cursandas Natha V/s. Ladkavahu (1895) 19 Bom. 571, Hanmantapa V/s. Jivubai (1900) 24 Bom. 547, and Sureshchandra V/s. Bai Iswari (1937) 40 Bom.L.R. 127 But strong doubt was expressed by Beaumont, C.J., in Auraj Joharmal V/s. Dalpat Supadu I.L.R. (1937) Bom. 839, When the question was raised later in Krishnadas Padmanabha Rao Chandavarkar V/s. Vithoba Annappa Shetti I.L.R. (1939) Bom. 340. (F.B.), It was referred to a Full Bench. In that case the learned Chief Justice expressly held that under the English law an infant" cannot challenge a decree properly passed against him on the ground that his guardian-ad-litem was guilty of gross negligence in suffering the decree and that being so there was no reason why such a cause of action should lie in British India. The other learned Judges concurred. The result is that in Bombay a suit cannot be instituted unless there is fraud or collusion averred.