SAMID CHETTI Vs. ADAIKALAM CHETTI

JUDGEMENT

(1.) This is an appeal against an order of the District Judge, West Tanjore, appointing one Adaikalam Chetty as guardian of his minor nephew. Adaikalam Ghetti was the applicant in the guardianship petition, which was opposed by Sami Chetti the minor's paternal uncle. The latter appealed, but died during the pendency of the appeal. His son was brought on record as his legal representative and seeks to prosecute the appeal. Objection is taken that, the right to sue does not survive and that the appeal has abated.

(2.) The objection is based on the decision in Gangabai V/s. Khashabai 23 B. 719 : 1 Bom. L.R. 363 : 12 Ind. Dec. (N.S.). The facts of that case were, however, very different from those with which we are now concerned. The appellant there relied on a personal appointment as guardian under a Will and her brother, after her death applied for leave to prosecute her appeal. It was held that a claim based on personal trust did not survive. As Parsons, C.J., observed: "It cannot, therefore, be said that the right to sue, which in this case must be construed to mean the right to make the objection which Ganga Bai made, survived.

(3.) Ranade, J., also pointed out that the brother could not succeed as he claimed no right under the Will.