NITTALA YELLAMMA Vs. NITTALA SURYANARAYANAMURTHY

JUDGEMENT

(1.) Appellant 1 died without leaving any legal representatives. Her appeal abates. Respondents 1 and 3 are entitled to recover the costs against her estate, if any.

(2.) Appellant pressed his portion of the appeal that he was not party to the suit and that he was only a guardian of defendant 1 and he ought not to be made liable for the costs of the plaintiffs. The appellant relies on Narasimha Rau V/s. Lakshmipati Rau [1881] 3 Mad. 263, a decision on Code of 1877. Now we have got Section 35 of the present Code which uses the words "by whom" and we think these words are wide enough to include next friends and guardians of minor plaintiffs and defendants. Such a contention is consistent with the requirements of justice and with the rules of English law : see Morgan V/s. Morgan 12 T.L.R. 199. This seems to be the view taken by Phillips and Devadoss, JJ., in V. Krishnayya v. Ramayya , but we think that an order as to costs can be made against a guardian-ad-Iitem even if he is not a party to the suit. This is also the view taken in Ghulam Hussain Noor Mahomed V/s. Fatambai [1884] 8 Bom. 391, which appears to be a case on the Code of 1882.

(3.) It is also argued that defendant 1 attained majority during the pendency of the suit in the lower Court (sometime in 1921) and after she attained majority, he cannot be regarded as guardian. But all parties were content to continue with the old state of things, i.e., the quandam minor being continued to be represented by the guardian. This ground fails. In the present case it was found that the guardian fabricated a will and put it forward for his own ulterior ends. There is no hesitation or doubt in the finding of the lower Court. There is no reason to interfere with the order.