1. This is an appeal by one Marudamuthu alias Veerappa Kandar, the plaintiff in O. S. No. 108 of 1948, on the file of the Subordinate Judge, Salem, against the Judgment and decree dismissing his suit with costs. That suit was filed by the plaintiff to set aside the decree in O. S. No. 95 of 1929, on the file of the lower Court, and to set aside the decree and execution sales in O. S. No. 10 of 1930, on the file of the lower Court, and to put him in possession of the plaint properties free from all encumbrances and to decree the past and future mesne profits at Rs. 4000 per year, and costs.
2. The plaintiff's allegations were briefly these: One Palaniappa Kandar was the paternal grandfather of the plaintiff and had properties worth nearly a lakh of rupees. His wife's brother was one Nataraja Kandar, a scheming and cunning man with an eye on Palaniappa's properties. Kandaswami the father of the plaintiff, was a man with an unsteady and undeveloped mind and was given to many vices and weaknesses. Nataraja Kandar gave a daughter in marriage to Kandaswami as his first wife. As that lady bore him no son, Kandaswami married one Sreerangayee, the mother of the plaintiff, as his second wife.
On the eve of the plaintiff's birth on 10-11-1928 Nataraja Kandar gave another daughter in marriage to Kandaswami as his third, wife. But the plaintiff was the only son of Kandaswami, the other two wives haying no sons. Palaniappa was well aware of the vices and weaknesses of Kandaswami and had taken from him a release deed, Ex. A-2, elated 24-1-1925, under which he relinquished his interests in the Joint family properties in favour of his father on condition of being paid Rs. 500 per year for his maintenance and agreed that on Palaniappa's death, not he but his heirs would take with absolute rights the entire properties left by Palaniappa.
3. Palaniappa died on 24-9-1927, i.e., 14 months before the birth of the plaintiff. On his death, the plaintiff's father, Kandaswami, took over and managed all his properties and drew out Rs. 4500, due to Palaniappa in O. S. No. 37 of 1928 on the file of the lower Court, and Rs. 11000 due to Palaniappa in O. S. No. 421 of 1927 on the file of the District Munsiff Court, Namakkal. He could have discharged all the liabilities of the family from the above two. amounts drawn out by him and from the income of the properties, but he failed to do so and applied them for his own extravagant expenses oh his vices and weaknesses. He also executed two bogus sale deeds in favour of Nataraja Kandar, his father-in-law, in respect of all the Joint family properties, for Rs. 40,000, and Rs. 5000 on 27-10-1928 and 7-1-1929 respectively. No consideration was paid therefor, and no title was intended to pass.
4. One Karuppanna Kandar, the plaintiff's father's sister's husband, filed O. S. No. 95 of 1929 on the file of the lower Court, against his father and sons after the execution of above two bogus sale deeds, for partition of the minor plaintiff's half share and delivery of it over to him, alleging that the partition was beneficial to the minor. Defendant 1 in that suit was Kandaswami Kandar, the father of the plaintiff, Nataraja Kandar was the 2nd defendant; the other 21 defendants were alienees etc. Enraged at the filing of this suit by Karuppanna on behalf of the minor plaintiff, the son of the second wife, who, it must be remembered, was not a daughter of Nataraja unlike the first and third wives, Nataraja murdered Karuppanna, and was convicted of the murder and sentenced to death and duly hanged in 1932. He went out of the record as 2nd defendant owing to such execution. The suit was conducted for the minor by Mr. K. Srinivasaraghavan, said to be an able lawyer of the Salem Ear, who became Government Pleader of Salem later on. After the murder of Karuppanna, one Chinnaswami Kandar, the husband of another paternal aunt of the plaintiff, was brought on record as the plaintiff's next friend, and the same lawyer, Mr. Srinivasaraghavan, was continued in the suit.
5. On 21-11-1932, the suit was decreed. Under the decree, one half of the entire properties, free from the two alleged bogus sale deeds to Nataraja but subject to seven debts of Palaniappa, was given to the plaintiff as his share, and a preliminary decree in accordance thereof was passed on 21-11-1932, and a final decree was passed on 7-7-1933.
6. The plaintiff alleged in O. S. No. 103 of 1948, now under appeal, that his interests were betrayed in the suit by his next friends and guardians, Karuppanna and Chinnaswami, owing to their gross negligence, and that even his father. Kandaswami was defrauded by the decree. He alleged that the decree in O. S. No. 95 of 1929 would not be binding on him, and should be set aside, as it was vitiated by the gross negligence of his next friends and guardians and the lawyer engaged by them. According to him, the guardians and next friends were guilty of gross negligence in three respects:
(1) In not persisting to the end in the attack on the two sale deeds for Rs. 40,000 and Rs. 5000 executed in favour of Nataraja, as wholly fraudulent and colourable, and in giving up that attack in the later stages. The lower Court found this to be absolutely false and unfounded, as the attack had been pursued till the very end by the guardians and next friends and their lawyer, and the Court had held that they were not binding on the plaintiff's share, but that they need not be set aside entirely, as they would be binding on Kandaswami's half share;
(2) That the guardians and their lawyer, had by gross negligence, admitted the liability of the plaintiff to debts amounting to Rs. 15000, covered by items 1 to 7 of the consideration under Ex. A-4. The lower Court found against the plaintiff on this allegation also, holding that there was no negligence on the part of the guardians and lawyer in this respect too and that the Court which tried O. S. No. 95 of 1929 had held after discussing the entire evidence, that those debts were binding on the minor plaintiff also, being genuine debts contracted by Palaniappa himself;
(3) that the guardians and the lawyer had failed to urge on the Court in O. S. No. 95 of 1929 that Kandaswami had given up all his interest in the joint family properties by executing a release deed, Ex. A-2, dated 24-1-1925 in favour of his father Palaniappa, and that the minor plaintiff was therefore, entitled to the entire Properties on the death of Palaniappa, as the sole heir of Kandaswami entitled to succeed, on Palaniappa's death, and had been guilty of the grossest negligence in asking Only a half share in the properties, and that, therefore, the suit O. S. No. 05 of 192s for partition was not filed for the benefit of the minor plaintiff.
He had urged further that the two sale deeds for Rs. 40000 and 5000 executed by Kandaswami in favour of Nataraja, were not also urged by the guardians and the lawyer as utterly void, since Kandaswami had given up all his rights to the properties under Ex. A-2. The lower Court held that this plea was urged in that form only by Mr. A. Lakshminarayana Aiyar, the learned counsel for the plaintiff, during the stage of arguments, and had not been set forth specifically and "relied on in the plaint as a specific act of gross negligence on the part of the guardians and their lawyer. It went on to say that it agreed with defendants 1 and 2 that Ex. A-2 was not really intended to be acted on and was not, as a matter of fact, acted on, and. that Kandaswami had admittedly taken over the properties of Palaniappa on his death on 24-9-1927, even before the plaintiff was conceived, and that the plaintiff could not urge this ground for that reason also.
It went on to say that even if Ex. A-2 was a genuine document intended to be acted on, Kandaswami would have only got separated from the joint family, under that document and could and would still have succeeded to his father Palaniappa's properties as his heir under the Hindu law, as the right of succession vests immediately on the death of the owner, and cannot remain in abeyance, and the plaintiff had not even been conceived at that time. It added that it was curious that the guardians and the lawyer should have been accused by the plaintiff of gross negligence in not raising this point in O. S. No. 95 of 1929, when even the plaintiff and his lawyer had failed to raise this point specifically in the plaint as an act of gross negligence on the part of the guardians and their lawyer. It held further that the clause in Ex. A-2 that Kandaswami's heirs should take the properties on the death-of Palaniappa and not Kandaswami himself, was invalid, as offending Section 6 of the Transfer of Property Act, by transferring a mere 'spes successionis', and that It was also not clear who the heirs of Kandaswami under Ex. A. 2 would be, since Kandaswami was alive then, and the question of heirs would arise only on his death.
It observed that even if that clause was held to be valid. Kandaswami's widow and one or two of the daughters would be the heirs, and that even if the plaintiff also was an heir, he would get much, less than the half share got for him by his guardians and their lawyer in O. S. No. 95 of 1929. It was, therefore, of the opinion that O. S. No. 95 of 1929 was instituted for the benefit of the minor plaintiff, and that Karuppanna, the next friend who instituted that suit, had acted for the plaintiff's benefit in filing that suit and in prosecuting it even unto death, he having been murdered by the enraged Nataraja, because he filed that suit on behalf of the plaintiff. So, it dismissed the suit with costs as regards the setting aside of the decree in O. S. No. 95 of 1929.
7. The plaintiff had also attacked the decree in O. S. No. 10 of 1930, and the execution proceedings and the sales therein, and had asked for the possession of the properties sold thereunder free from all encumbrances and with mesne profits, past and future, on the ground that his next friends and guardians, Karuppanna Kandar and Chinnaswami Kandar, and their lawyer had been guilty of acts of gross negligence in conducting the suit and execution proceedings.
He relied on one main act of gross negligence for setting aside the decree in O. S. No. 10 of 1930, viz, that the suit had been based on a 'varthamanam' or guarantee letter executed by Palaniappa in respect of the loan advanced to Nataraja Kandar and such a liability as guarantor or surety could not bind a son's son like the plaintiff, under the ruling in Narayan v. Venkatacharya, ILR 28 Bom 408 (A), and other rulings and this point had been failed to be raised in O. S. No. 10 of 1930 due to gross negligence of the guardians and their lawyer, who had submitted to a joint decree against the properties of both Nataraja and Kandaswami, instead of pressing the above legal point and asking for the properties of Nataraja alone to be proceeded against, or, at least, for the properties of Nataraja to be proceeded against in the first instance, and exhausted, before the properties of the minor plaintiff were proceeded against.
The lower court rejected this contention on the ground that the guardians and their lawyer had evidently not raised the question of non-liability of the minor plaintiff for the debt, as it was not a naked surety or guarantee debt, covered by the Bombay ruling and other rulings, since paragraph 4 of the plaint in O. S. No. 10 of 1930 had stated "Palaniappa Kandar, at whose instance the loan was made, promised to pay the said amount with interest if the first defendant failed to make payment when demand was made", end as it was also clear that the loan sued for in O. S. No. 10 of 1930 was a loan contracted by Nataraja Kandar, one of ,the three partners in a firm of which Palaniappa Kandar and Shanta Kandar. P. W. 4, were also equal partners, and Palaniappa had taken an endorsement in his favour of the promissory note executed by Shanta Kandar and Nataraja Kandar in favour of the creditor before standing surety for the loan advanced to Nataraja and that, therefore, Palaniappa was not only a primary creditor in aspect of the loan, making the son's son, the pontiff, liable to the extent of the joint family properties with him, but had also taken consideration for becoming a surety or guarantor, and, therefore, the plaintiff had become ineligible to claim the benefit of the Bombay and other rulings, which would apply only to cases of naked guarantees unsupported by Consideration and would never apply to primary loans.
It also observed that there was the further fact that Kandaswami and the plaintiff would only succeed to the properties of Palaniappa as heirs, if Ex. A. 2 was held to be valid and binding and not get the properties as coparceners by Survivor ship, and that the plaintiff, at any rate, had succeeded only as heir and not as coparcener, and that, therefore, the suit debt in O. S. No. 10 of 1930 would bind him to the extent of the properties of Palaniappa inherited by him. It went on to say that the guardians of the plaintiff and their lawyer had strenuously urged that the properties of Nataraja Kandar should be proceeded against and exhausted before the properties of Palaniappa Kandar. Kandaswami and the plaintiff were proceeded against, but that the court had not agreed with that contention and had passed a joint and several decree, and that the matter had also become of no importance because all the Properties of Nataraja, Kandaswami and the plaintiff had been sold in satisfaction of the decree on O. S. No. 10 of 1930.
8. The plaintiff relied on some acts of alleged gross negligence on the part of his guardian, Chinnaswami Kandar, and his lawyer, in the sub-sequent execution and sale proceedings in O. S. No. 10 of 1930, the main act alleged being the failure to submit, to the court, at the time of the settling of the proclamation, the proper upset prices for the properties brought to sale, and the consequent lack of bids at the court sale, and sale of the properties for low sums, causing enormous loss to the plaintiff. The lower court rejected this plea, negativing all acts of alleged negligence on the part of the guardian, Chinnaswami and his lawyer, and relying also on the findings of a Bench of this court consisting of King and Byers JJ. in A. A. O. NO. 128 of 1940, filed by this very plaintiff against the order made by the Subordinate Judge, Salem, in E. A. No. 172 of 1932 for setting aside these very court sales, held in E. P. No. 32 of 1931, the very execution proceedings referred to in O. S. No. 10 of 1930.
The Subordinate Judge had held that the upset prices fixed were not inadequate or unreasonable, having regard to the various disputes about the title and the encumbrances, and that the inadequacy of the prices realised at the court sale if any was not the result of any under-statement of the values in the sale proclamation. So, he had refused to set aside the sales and had dismissed the E. A. with costs. The learned judges of this court when dismissing the appeal with costs, said as follows:
"We are not convinced, that the interests of the minor appellant have been in any way jeopardised by any negligence on the part of his guardian. We are not convinced that the upset Prices were fixed at a ridiculously low figure. We are not convinced that the low bids offered were in any way influenced by any errors or omissions in the proclamation. They were clearly due to the reluctance of the bidders to purchase what might well turn out to be of no value at all. We see no reason to interfere with the order of the learned Subordinate Judge and dismiss this appeal with costs."
The lower court held that there was no negligence whatever on the part of the guardian or the lawyer at any stage in the execution proceedings in the end, therefore, it dismissed also the suit regarding the prayer for setting aside the decree in O. S. No. 10 of 1930 and the execution sales thereunder. Hence this appeal.
9. We have perused the entire records, and heard Mr. K. Bhashyam, the learned counsel for the appellant, and Mr. T.M. Krishnaswami Aiyar, the learned counsel for the contesting respondents. Mr. Bhashyam could not show how the lower court went wrong in its finding against negligence of the plaintiff's guardians and the lawyer in the conduct of O. S. No. 93 of 1929, and in, therefore, dismissing the plaintiff's prayer to set aside the decree in that suit. We are satisfied that the lower court was perfectly right in its findings thereon, and are in entire agreement with them. The allegation that the guardians and the lawyer had not persisted in their attack on the two sale deeds for Rs. 40000 and Rs. 5000, executed by the plaintiff's father, Kandaswami, in favour of Nataraja, was wholly baseless.
They had persisted in the attack and had succeeded in getting the plaintiff's half share in the properties free from those sale deeds, though they failed to get Kandaswami's half share in those sale deeds free from those sale deeds, as the Court held that Kandaswami would be bound by them. It is not reasonable to expect the guardians of this minor plaintiff not only to protect his share but also the share of the opposite party, his father, whose case stood on a much worse footing. In any event, neither the guardians nor the lawyer could prevent the court from arriving at its own findings regarding the liability of Kandaswami's share under the sale deeds willingly executed by him and held to be supported by consideration to the extent of his share.
10. Nor can the guardians and the lawyer be held to be guilty of negligence in not putting forth the non-liability of the minor plaintiff for the debts in items 1 to 7 held by the court to be binding on his half share of the properties. They had set up that plea, but the court had held against it for excellent reasons, viz, that the debts had been contracted by Palaniappa, the paternal grandfather of the minor plaintiff, and would be binding on the plaintiff to the extent of the properties he inherited from Palaniappa or took by survivorship, whichever way we look at it.
Nor can the guardian and their lawyer be said to have been guilty of negligence in not urging that under the release deed, Ex. A. 2, Kandaswami had relinquished his share in favour of his father, Palaniappa, and agreed to his (Kandaswami's) heirs succeeding to the properties of Palaniappa at his death, and that, therefore, the plaintiff, as Kandaswami's son and heir, would be entitled to the entire properties of Palaniappa at his death and not merely to a half share in the properties.
It cannot be suggested with any reasonableness that the guardian, Karuppanna, had acted negligently in not raising that plea and in filing the suit for a mere half share. Karuppanna had acted diligently and had indeed fought for the plaintiff's rights tooth and nail into death against the unscrupulous and resourceful opponent, Nataraja. who even murdered him in revenge for filing such a partition suit. The lower court had given various reasons for negativing the allegation of negligence on the part of the guardians and their lawyer regarding this also, and we agree with these reasons which are convincing and conclusive.
11. Before proceeding further, we may as well consider the law regarding the setting aside of decrees due to the negligence of guardians. The law is well settled on the point. In a Bench decision of this court in Subbanna v. Narasamma, 27 Mad LJ 486: (AIR 1915 Mad 384). (B), Sankaran Nair and Spencer JJ. held that a minor is not bound by a decree in a suit against him if he is able to show that his guardian was guilty of gross negligence in the conduct thereof. There, a guardian deliberately set up the false plea of adoption, and neglected to put forward the rights of the minor under a will of adoptive father, though he was aware of that will.
It was held that decreeing of the properties in the suit in favour of the testator's widow, on a finding that there was no adoption, would not operate as 'res judicata' against the minor in a suit subsequently brought by him for recovering one half of the properties under the will of the testator, in view of the cross negligence of his guardian in the prior suit is not putting forward the minor's right to a half share Under the will.
12. In Daiya Ammal v. Selvaramanuja AIR 1936 Mad 479 (C), the leading case on this branch of the subject, a Bench of this court, consisting of Madhavan Nair and Stone JJ. held that the failure on the part of a minor's guardian, who had given all the relevant facts to his lawyer, a competent man, to raise the plea that the debt in question would not bind him, as it was a debt contracted by the manager of the joint family as member of a trading partnership, in which the family as a whole does not become a member, was not gross negligence on his part entitling the minor to have the decree set aside. The following observations in the judgment are important:
"We are prepared to assume that the special aspect of the question of non-liability now presented before us escaped the notice of the lawyer who conducted the case. But the question is whether the guardian, who has taken all the necessary steps to conduct the case properly and has entrusted the case to a lawyer can be said to be grossly negligent on account of the lawyer's failure to raise a legal point in defence which may well have been raised by him.
It is not denied that the lawer engaged was sufficiently competent to conduct the case. It is not assorted that there was any collusion between the lawyer and the plaintiff or that he was in any other way remiss in conducting the case. 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 or law Which may have been raised by him? We think not.
It was observed in In re Speight; Speight v. Guant. (1883) 22 Ch. D. 727 (D), 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. Weall, (1889) 42 Ch. D 674 (E); 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 and that she has defended the case with due care and that it will be improper to ascribe negligence to her in conducting it."
The learned Judges went on to say:
"Can a guardian, who, after defending the suit 'bona fide' and conducting it to the best of his ability, elect to abide by the decision given by the court without preferring an appeal against it, holding it to be correct, and that an appeal would be useless, be said to have acted negligently in not preferring the appeal. No express decisions of any High Court bearing on the point have been brought to our notice. In the circumstances, we cannot consider the failure to prefer an appeal as negligence on the part of the guardian in defending O. S. No. 55 of 1922, assuming that that conduct can rightly be taken into consideration in deciding whether the guardian had properly defended the suit, which strictly speaking, is the only question we are called upon to decide in this case."
13. Mr. Bhashyam submitted that the principle of safeguarding the interests of the minor against the negligence of his guardian and his lawyer, applied to suits, should he extended also to appeals and execution proceedings. Though the matter is not decided in any case cited before us by either side, We are of opinion that gross negligence on the part of the guardian and his lawyer in execution proceedings as well as in not filing an appeal, where one was certainly called for, against decisions in suits Conducted by him (but not in suits decided before be became guardian) will entitle the minor to rely on the principle though the principle in question is not one of natural justice or of an international private law, but one peculiar to India, where minors have been the favourites of the law from time Immemorial and have been given special privileges denied to others and the protection of the minor has been the special duty of the King or State.
It is obvious that in the absence of fraud or collusion, it may be considered to be not part of natural justice that the other side should be made to suffer by depriving it of the benefits of its decree, simply because the minor's guardian and lawyer, over whom it had no control, had been guilty of gross negligence in conducting the suit, appeal or E. P. But, still, the principle has been applied to suits, and we cannot see any valid reason why it should not be extended in suitable cases to execution proceedings and to appeals which ought to have been filed by the guardian in suits conducted by him. The fact that the Bench in AIR 1936 Mad 479 (C) did not hold that negligence in not filing an appeal cannot be considered at all, and that it really considered the point and found against the alleged negligence, is also in favour of our view.
So too, the fact that a Bench of this Court, in A. A. O. No. 128 of 1940, did not say that negligence of the guardian or his lawyer in execution proceedings cannot be relied on, but, as a matter of fact, considered the point and found against the alleged negligence, shows that the guardian's or his lawyer's negligence in execution proceedings can also be set up by the minor for setting them aside in suitable cases. This, if a court has decreed a share at partition to a son-in-law in the usual 'Mitakshara' joint family (apart from 'illatom' sons-in-law) or has given an extra share (jyestha-bhagam) to one brother, despite it is the duty of the minor's guardian and his lawyer to file an appeal and get the error set right,
So too, if an inalienable 'swastivachkam' inam, belonging to a minor, is allowed to be sold away in execution, by the gross negligence of the guardian and his lawyer appearing for him in execution proceedings in not raising this point, the minor can, in our opinion, rely on this negligence for setting aside the execution proceedings.
14. The point may arise as to what the Bench in AIR 1936 Mad 479 (C) meant by putting in the sentence "It is not denied that the lawyer engaged was sufficiently competent to conduct the case." We take that sentence to mean that the lawyer engaged should not be obviously incompetent, like an advocate enrolled that day being engaged to conduct a heavy adoption or mortgage suit, or an advocate who had practised all his life only in a criminal court, and is admitted to be unacquainted with civil law, being engaged in such a suit. Put that way, the charge of discrimination will be avoided and the court saved from the invidious task of comparing the competency of one advocate against another's.
15. Though in Subbaratnam v Gunavanthalal. AIR 1937 Mad 472 (F), Varadachariar J. sitting alone, sought to extend the law laid down in the Bench ruling in AIR 1936 Mad 479 (C) and held that a minor can rely on the gross negligence of his guardian when he was proved to be not aware of the material facts in the case necessary for raising the legal point said to have been omitted to be raised, and though he Was ignorant of the very point of law, this extension was soon cancelled and set right in the decision of a Bench of this court consisting of Sir Lionel Leach O J. and Yahya Ali J. in Ramalingam v. Venkatachalam, ILR (1946) Mad 170: (AIR 1945 Mad 374) (G).
It was held there that failure on the part of the guardian or his lawyer to raise an objection as to the frame of the suit filed against the minor and to contend that the indorsee of a promissory note executed by the managing member of a joint Hindu family is limited to his remedy on the note unless the endorsement Is so worded as to transfer the debt as well and the stamp requirement is complied with would, not amount to gross negligence and entitle the minor to have the decree set aside, as there was a conflict of decisions on the point till the Pull Bench ruling in Maruthamuthu Naicker v. Kadir Badsha Rowther ILR (1938) Mad 568: (AIR 1938 Mad 377) (FB) (H) settled the conflict. In Srirangam v. Rangarao, AIR 1937 Mad 848 (I), it was held that the guardian is not bound to raise a false or untenable defence or persist in it having raised it. Mr. Bhashyam and Mr. T.M. Krishnaswami Aiyar the learned counsel on both sides agree that the rulings cited above represent the state of law on this point.
16. Applying the above rulings to the facts of this case, it is obvious that there was no negligence on the part of the plaintiff's guardians or their lawyer in the conduct of O. S. No. 95 of 1929. Their failure to rely on Ex. A.2 and to claim for the minor plaintiff the entire properties would not be negligence, on the facts and the rulings, even if they were fully aware of the contents of Ex. A. 2 as they might" have considered it to be an 'untenable plea' in. view of their considering that Ex. A. 2 was not acted on and that Kandaswami had succeeded to Palaniappa's estate as his heir or surviving coparcener, even before the plaintiff was conceived, and that the plaintiff's rights in the circumstances, either as coparcener or as heir by succession, will be only to One half, his father Kandaswami being entitled to the other half, and the question of who were Kandaswami's heirs under Ex. A. 2 when Kandaswami was still alive, being liable to various interpretations, under none of which the plaintiff would get more than a half share claimed for him in the suit.
Indeed, at the time when the minor plaintiff had absolutely no property left, in view of the two sale deeds for Rs. 40,000 and Rs. 5,000 executed by his father in favour of Nataraja in respect of the entire remaining properties, Karuppanna was public spirited enough to file a suit on behalf of the minor as his next friend. He admittedly engaged competent lawyer Mr. Srinivasaraghavan and fought out the terrible Nataraja, at the risk of murder, and vindicated the plaintiff's rights to a half share in the properties.
There Is absolutely no doubt, therefore, that the lower court was right in dismissing the plain tiff's suit regarding the relief of setting aside the decree in O. S. No. 95 of 1929 prayed for therein. It is equally obvious that neither the guardian nor his lawyer can be charged with negligence in that suit which was certainly beneficial to the minor, and in not filing an appeal against it.
17. Mr. Bhashyam urged that the lower court has gone wrong in not setting aside the decree in O. S. No. 10 of 1930, or the consequent execution proceedings, owing to the gross negligence of the guardian and his lawyer in conducting them. We may dispose of the alleged negligence in the execution proceedings first. We agree with the lower court that there was no negligence whatever of the guardian or his lawyer at any stage of the execution proceedings, and that the upset prices were not fixed low because of such negligence, and that the low bids in the court auction were not due to the low upset prices but to other material factors like innumerable creditors and decree-holders and likely disputes regarding the properties, difficulty in getting possession, etc.
We may add that the point has become of little practical importance now, in view of the finding of a Bench of this court in A. O. No. 128 of 1940 (J), against any such negligence on the part of the guardian or the lawyer, and any injury caused by any such negligence, regarding this very E. P. and sales. In our opinion, riot only is there no merit in the contention of negligence of the guardian or the lawyer in the execution proceedings, but the decision of a Bench of this court in A. A. O. No. 123 of 1940 (J), regarding this very matter will operate as 'res judicata' and preclude the plaintiff from agitating it over again.
18. Lastly. Mr. Bhashyam contended that the guardian and the lawyer were negligent in not raising the plea that the minor plaintiff, as the son's son of Palaniappa, would not be liable for the debt of Palaniappa as guarantor or surety. He pointed out that, under the rulings in ILR 28 Bom 408 (A) and Dwarkadas v. Kishandas, 55 All 675: (AIR 1933 All 587) (K), a son's son is not liable for the payment of his undivided Paternal grandfather's debt incurred as guarantor or surety, and urged that the guardian and the lawyer were grossly negligent in not raising the point, and added that if they had only raised it, there would have been no decree against the minor plaintiff in O. S. No. 10 of 1930, and that in consequence, the sales in execution of that decree would also automatically fail, just as brandies fail when the trunk is cut.
But as Mr. T.M. Krishnaswami Aiyar pointed out a serious doubt must have occurred to the guardian and the lawyer conducting O. S. No. 10 of 1930 on behalf of the minor plaintiff, who was a defendant therein, whether the debt sued on was really a surety or guarantee debt of Palaniappa and was not also a primary debt of his, as alleged in paragraph 4 of the plaint and as was admitted in Ex. A. 4, which says
"Whereas you have accordingly executed a promissory note for Rs. 2575 and whereas my father himself had received the entire amount of the aforesaid promissory note",
though this recital in Ex. A. 4 had been overlooked by the lower court, Mr. Krishnaswami Aiyar pointed out that there was the tell-tale fact that Palaniappa had not a promissory note executed in favour of the same creditor by the other two partners. Shanta Kandar & Nataraja Kandar, endorsed in his favour on 2-2-1927 before he stood guarantee or surety for this debt, and urged that this would amount to consideration for his standing guarantee or surety for this debt making the plaintiff thereby liable, and there was also this further point that if the plaintiff had only succeeded as heir to the properties and not as coparcener, the objection would not avail him, as he would be bound to nay the debt to the extent of the properties of Palaniappa he succeeded to.
So, he contended that neither the guardian nor the lawyer was bound to raise such an Untenable defence, and that, in any event Under the ruling of the Bench in AIR 1986 Mad 478 (C) the plaintiff in this case could not have the decree in O. S. No. 10 of 1930 set aside on the ground of gross negligence of the guardian or his lawyer. He added that there were as many as 13 decree-holders who had brought the properties, got by the plaintiff in O. S. No. 95 of 1929, to sale, and shared the sale proceeds 'pro rata' and that even if the decree in O. S. No. 10 of 1930 were set aside, and consequently the court sales in execution thereof the plaintiff will profit mighty little.
This last argument is, of course, irrelevant when considering the Question of the liability of O. S. No. 10 of 1930 to be set aside owing to gross negligence of the plaintiff's guardian or lawyer. But we agree with Mr. T.M. Krishnaswami Aiyar that the evidence on record shows it to be probable that the" debt of Palaniappa, sued for in O. S. No. 10 of 1930 was a debt for which he was primarily liable and not merely a guarantee or surety debt, and that, even if it were not so, Palaniappa had stood guarantee or surety for that debt because of his being given an endorsement of the prior promissory note in favour of the same creditor by the other two partners Shantha Kandar and Nataraja Kandar, and there Is a great deal of force in the lower court's observation that these two things formed part of the same transaction and that the endorsement of the prior promissory note, for the same amount and at the same rate of interest, formed the consideration for Palaniappa's standing surety or guarantee for the debt sued for, and, therefore, the ruling in ILR 28 Bom 408 (A), would not apply, and the minor plaintiff, the son's son of Palaniappa, would be liable to discharge the debt even if it was a guarantee or surety debt since it was not a naked guarantee or surety debt taken on without any consideration. We agree with Mr. Krishnaswami Aiyar that the guardian and the lawyer had also reason to hear the contention that the plaintiff had only succeeded as heir and not as coparcener, and would, therefore, be liable for this debt of Palaniappa. Above all, there is the fact that the guardian was a faithful guardian, who had fought the plaintiff's case unto death, and there was no fraud or collusion alleged as against him or the lawyer, Mr. Srinivasaraghavan, who was admitted to be quite competent. The guardian, we have no doubt, placed all the facts within his knowledge before the lawyer and the lawyer did not consider it worthwhile to raise this plea of non-liability of the plaintiff for the alleged guarantee or surety debt of his grandfather, and, so under the ruling in AIR 1936 Mad 479 (C), there was no negligence on the part of the guardian and the lawyer, and the plaintiff could not get the decree in O. S. No. 10 of 1930 set aside.
19. A minor point urged by Mr. Bhashyam was that the guardian and the lawyer had negligently submitted to the usurious rate of interest at 36 per cent per annum stipulated for regarding the debt sued for in O. S. No. 10 of 1930, and had failed to file an appeal. But, as Mr. T.M. Krishnaswami Aiyar pointed out, Palaniappa had got endorsed in his favour a prior promissory note executed by Shanta Kandar and Nataraja Kandar and that under that promissory note also a similar rate of 36 per cent per annum had been stipulated for and had been decreed as in this suit Mr. Shahabuddin, who later became a Judge of this Court, had also held that that rate was neither panal nor usurious, and that it was usual in such cases to charge such rate of interest. The fact to remember is that the guardian and his lawyer had raised this point regarding the penal and usurious nature of the interest, and it was covered by issue 2 in the suit which ran "Whether the rate of interest claimed is penal and usurious" though the court had decided against it. Guardians cannot be held to be responsible for what the court decides. . Nor was it a case where the guardian and the lawyer could have filed an appeal with a sure chance of success, as those were days when such high rates of interest were allowed by courts, and even Palaniappa had got a promissory note with the same rate of interest, as consideration for standing surety or guarantee for this Promissory note, and a decree had been passed granting in full that rate of interest.
20. It follows from all this that the lower court was right also in dismissing the plaintiff's suit for setting aside the decree in O. S. No. 10 of 1930.
21. In the end, therefore, we dismiss this appeal with the costs of the contesting respondents 1 and 2 (one set).