T ANJANEYULU Vs. PCHINNA SUBBIAH

JUDGEMENT

(1.) 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 4 defendant, one of the sons of the 1 defendant, in the previous suit. She got a decree against the father, the 1 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 V/s. Gotepati Narasamma , 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/s. 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.

(2.) THE second appeal is dismissed with costs.