MINOR RAMALINGAM REPRESENTED BY NEXT FRIEND SOMU PILLAI Vs. MINORVENKATACHALAM REPRESENTED BY COURT GUARDIAN MRTRVENKATARAMA AYYAR

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 30 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 12 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 10 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/s. Selvaramanuja . 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/s. Gunavanthalal Vidyasankar .

(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/s. Ramanathan . Daiva Animal V/s. Selvaramanuja 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: It is not proved that the lawyer was not provided with sufficient funds to conduct the case. In these circumstances, is it reasonable to hold that the guardian has been grossly negligent in the conduct of the case if the lawyer fails to raise a point of law which may well have been raised by him? We think not. It was observed in In re Speight : Speight V/s. Gaunt (1883) 22 Ch.D. 727, that a trustee is bound to conduct the business of trust in the same way as an ordinary prudent man of business conducts his own and has no further obligation. In In re Weall: Andrews V/s. Weall (1889) 42 Ch.D. 674, it was pointed out that a trustee may select solicitors and agents and so long as he selects persons properly qualified he cannot be made responsible for their intelligence and honesty. We think the same may be said about the guardian of a minor also. In the circumstances of this case we think the guardian has done what could reasonably be expected of her, that she has defended the case with due care and that it will be improper to ascribe negligence to her in conducting it.

(3.) In Subbaratnam Chettiar V/s. Gunavanthalal Vidyasankar , Varadachariar, J., who was sitting alone, expressed the opinion that a minor can raise the plea of gross negligence notwithstanding that his guardian is not aware of the law or of the material facts in the case. It would appear that the learned Judge was of the opinion that where the guardian has taken legal advice and has acted on it he is not relieved of responsibility in the event of the practitioner being grossly negligent in tendering the advice.