1. This second appeal arises out of a suit brought by the plaintiff for a declaration that the decree in small cause suit No. 2888 of 1924 on the file of the Small Cause Court, Trichinopoly, is not binding on the plaintiff or the family properties in his hands. The small causes suit was instituted on a promissory note executed by the plaintiff's undivided uncle, one Muthukrishna Chettiar, who died pending that suit. On his death the plaintiff who was then a minor was impleaded as the second defendant and all that appears at present is that he was represented by a Court guardian. The decree and the judgment show that the Court guardian engaged a vakil for the minor plaintiff and it was pleaded on his behalf that the deceased first defendant was not the managing member of the family and that the debt was incurred by him for immoral purposes. An issue was raised whether the suit promissory note was binding on the family. The small cause Judge held that the plaintiff in that suit was entitled to a decree not merely against the assets of the deceased first defendant but also against the family properties of both the defendants, because the promissory note had been executed by the first defendant when he was in management of the family affairs for a debt which was found due on dealings. He added:
The first defendant was a ruby merchant and the dealings related to the purchase of rubies. The defendants are a Chetti family which may be presumed to be a trading family. The first defendant was a trader in rubies.
2. In the present suit, the plaintiff alleged that the decree was not binding upon him and the family properties in his hands, on two grounds (i) that he was not properly represented in the small cause suit, and (ii) that his guardian ad litem had been guilty of gross negligence. The objection as to proper representation rests on the circumstance that the plaintiff had been represented by a Court guardian when his mother was alive. The learned District Judge rightly points out that at this time of the day when the records of the small cause suit had been destroyed, it is not possible to hold that the plaintiff in the small cause suit must have been guilty of fraud in the matter of getting the minor represented by a Court guardian.
3. It is scarcely likely that any Court would in the first instance have appointed a Court guardian. Some steps must have been taken to have somebody else appointed guardian and it is only on failure of these steps that a Court guardian is likely to have been thought of. I am not therefore prepared to interfere with the lower Court's conclusion so far as the first ground is concerned.
4. As regards the second ground, the fact, as now concurrently found by both the Courts, is that the ruby trade in connection with which the uncle executed the promissory note to the plaintiff in the small cause suit was not an ancestral trade but one started by the uncle himself. Both the Courts have also held that on these facts the minor nephew could not have been legally held liable for that debt of the uncle, nor the family property which had come into his hands, by survivorship. On these findings, the District Munsiff gave a decree in the plaintiff's favour, but the learned District Judge set it aside with the following observations:
It has not however been shown that the omission to take this line of defence was due to any culpable negligence on the part of the Court guardian. There is no evidence at all as to what he did and what particular step he took.... The pleader who appeared for plaintiff has also not been examined to show from whom and in what circumstances he derived his instructions. In the absence of any positive evidence from him or from plaintiff's mother....I consider that this appeal should be allowed.
5. On behalf of the respondent, Mr. T.R. Srinivasa Aiyar contends that this is a finding of fact which I am not entitled to interfere with; I cannot accede to that contention. I am bound by the facts stated by the learned Judge but the question whether on these facts what will amount in law to negligence has been made out or not is one which it is open to this Court in second appeal to consider. I may also dispose of another contention of Mr. Srinivasa Aiyar, viz., that as a matter of law a minor can have a decree against him set aside only on the ground of fraud and not on the ground of gross negligence on the part of the guardian. There is no doubt something in support of this contention in Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R.(1885)12 Cal. 69, but all the later authorities are against it. It is sufficient to refer to Punnayyah v. Viranna (1921) 42 M.L.J. 429 : I.L.R. 45 Mad. 425, Jogarao v. Venkamma : AIR1927Mad497 , Ayya Pillai v. Ayyadurai Goundan (1934) 67 M.L.J. 927 and Gotepati Subban v. Gotepati Narasamma : (1914)27MLJ486 . The passing reference in Sellappa Goundan v. Masa Naiken : AIR1924Mad297 , to the decision in Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R. (1885) 12 Cal. 69, certainly does not imply dissent from the considered judgment in Punnayyah v. Viranna (1921) 42 M.L.J. 429 : I.L.R. 45 Mad. 425. The decision in Raj Gopal Acharjya v. Upendra Acharjya Goswami I.L.R.(1926) 5 Pat. 768, turned on the express language of Section 258 of the Chota Nagpur Tenancy Act. That on general principles the Patna High Court has taken the same view as the Madras Court will be seen from the observations of that Court in Kali Charan v. Hirdai Narain A.I.R. 1935 Pat. 24
6. Before dealing with the particular ground dealt with in the Courts below, I may state that there is one other point which also seems to me to be of some importance in the case, namely, whether the plea of the liability of the family property in the hands of the minor defendant should have been allowed to be raised in the small cause suit at all. As stated already, that suit was on a promissory note executed by the minor's paternal uncle and he was the only defendant in the first instance. It is true that a line of authority in this Court beginning from Krishna Aiyar v. Krishnasami Aiyar I.L.R.(1900) 23 Mad. 597, makes it permissible for the creditor to include in one and the same suit not merely the claim against the maker of the promissory note but also the claim against the other members of the joint family in respect of the debt represented by the note. But there can be little doubt that such a suit really combines two causes of action and two kinds of liability, namely, that of the maker under the note, and that of the other members under the Hindu Law. The authorities bearing upon this question have been considered at some length in a recent judgment in Appeal Suit No. 89 of 1931 to which I was a party and it is unnecessary to re-capitulate them here. There can be no doubt that on the death of the maker the cause of action on the note would have survived only against his legal representative in the strict sense, i.e., his heir-at-law and not against the surviving members of the joint Hindu family other than sons. In the case of sons the special provision enacted in Section 53, Civil Procedure Code, may introduce a difference. But in the case of the other members of the joint family the mere fact that they may be equally liable with the maker for the debt will not make them legal representatives of the maker. That they cannot be legal representatives so far as the joint family property in their hands is concerned has been recognised in several cases. It is sufficient to refer to Veerappa Chettiar v. Ramaswami Aiyar I.L.R.(1903) 27 Mad. 106, Gyanendra Nath Basu v. Rani Nihalo Bibi I.L.R.(1910) 32 All. 404, Sumeshar Bind v. Baldeo Sahu (1934) 33 A.L.J. 293 and Dwarka Das v. Krishan Kishore I.L.R.(1921) 2 Lah. 114 . Cases in this Court have also held that a decree obtained against a member of a joint Hindu family even if it be for a debt binding on the family cannot be executed against the shares of other members of the family unless they be sons of the judgment-debtor. Cf. Viraragavamma v. Samudrala I.L.R.(1885) 8 Mad. 208, Guruvappa v. Thimma I.L.R.(1887)10 Mad. 316 and Sathuvayyan v. Muthusami I.L.R. (1888)12 Mad. 325 and Lakshmana Chettiar v. Muthu Chellia Goundan (1934) 68 M.L.J. 104. In a recent case Seshayya v. Sanjivarayudu (1933) 67 M.L.J. 393, it was held by Cornish, J., that in a suit on a promissory note executed by a member of a joint Hindu family the surviving members of the joint family cannot be impleaded as legal representatives. There has been some difference of opinion between a case in this Court, Rengathammal v. Venkatachariar : AIR1930Mad575 and the decision of the Allahabad High Court in Sumeshar Bind v. Baldeo Sahu (1934) 33 A.L.J. 293, as to whether the possession of separate property by the deceased member of the joint Hindu family and the devolution thereof on a surviving member of a joint Hindu family should be proved in the first instance even before the surviving member could be impleaded as a legal representative. But even in the Allahabad case, the Court recognized that after impleading the survivor as a legal representative, a decree could be passed only against the assets of the deceased and not as against the joint family property. In the light of these considerations I am of opinion that an objection could have been taken on behalf of the minor defendant to his being impleaded as a legal representative in the small cause suit on the death of his undivided uncle. When he was so added he could have raised only such defences as were appropriate to his character as legal representative. An issue as to the binding character of the note on the family should not have been permitted to be raised and dealt with at all.' Cases which relate to the immovable property possessed by a joint Hindu family in respect of which a member of the family sues or is sued in a representative character and cases in which the managing member of a family may sue on debts due to the family stand on a different footing altogether and do not bear any analogy to the present case.
7. Assuming, however, that the omission to take exception in the small cause suit to the trial of the question of the liability of the family property would not of itself amount to gross negligence on the part of the guardian ad litem, because the question must at least have been tried in a separate suit, the minor has a stronger ground on the merits in the present case. As I have stated already, both the Courts have concurrently found that the trade in the course of which the debt was incurred by the uncle was not an ancestral trade but one started by the uncle. If this fact had been pleaded, a decree could not have been passed as against the joint family property in the hands of the minor. I do not see how the omission to examine the plaintiff's mother or the vakil who appeared for him in the former litigation bears upon this question. I am prepared to assume for the purpose of argument that the mother herself was the guardian ad litem of the minor. The respondent could not put his case on a higher footing. It will then follow either that she was not aware of the law or that she was not aware of the material facts. In either view, the omission to raise the plea will amount to gross negligence. I am not for a moment asserting that untenable or unfounded defences should have been put forward but the investigation of the facts in the present case has shown that this defence was clearly available. On the other hand, the only defence thought of on the former occasion was the stock defence of illegality and immorality which no attempt was made to substantiate. As held in Gotepati Subban v. Gotepati Narasamma : (1914)27MLJ486 , the omission to put forward the correct defence equally with the putting-forward of an absurd defence will constitute gross negligence on the part of the guardian ad litem. The second appeal must therefore be allowed and the decree of the trial Court restored with costs here and in the Court below.
8. Application is made to me for leave to file a Letters Patent Appeal. I should gladly have granted the leave if the interests involved were large enough to justify it. The amount of the small cause decree is only about Rs. 367 and subsequent interest. I do not think it justifies the further prolongation of this litigation. I decline to grant leave.