Alfred Henry Lionel Leach, C.J.
1. The appellant instituted this suit in the Court of the Subordinate Judge of Devakottai for a declaration that the decree passed in O.S. No. 88 of 1933 by the Subordinate Judge of Coimbatore is void and therefore not binding on him. When that suit was tried the appellant was a minor and his adoptive mother acted as his guardian-ad-litem at all times material to the present suit. The suit resulted in a decree being passed against him for the payment of the sum of Rs. 31,497-10-6. It had been filed to recover money deposited with a firm belonging to the family in which the appellant was born. Before the suit was instituted he was given in adoption to another family and therefore was not responsible for the liabilities of his father's family. In the present suit the appellant averred that his guardian-ad-litem had been guilty of gross negligence in that he had not pleaded a partition and in not. proving his adoption. At the hearing the Official Assignee, who is the seventh defendant, raised the contention that the suit was not maintainable unless the plaintiff could show fraud or collusion, although this plea was not raised in his written statement. An issue was, however, framed and the question was argued. The result was that the Subordinate Judge came to the conclusion that the suit did not lie unless fraud or collusion was alleged and consequently he dismissed the suit with costs. The appeal is from this, decision.
2. For many years this Court has consistently held that it is open to a minor to challenge a decree passed against him on the ground that his guardian had been grossly negligent in the con-duct of the suit. The leading case is Chunduru, Punnayya v. Rajam Viranna1 (1921) 42 M.L.J. 429 : I.L.R. Mad. 425 and this has been followed on numerous occasions since. In Karri Bapanna v. Yerramma : AIR1923Mad718 , the Court went a step further and held that a minor could by way of. defence raise a plea of gross negligence on the part of his guardian-ad-litem in a previous suit. The opinion of this Court expressed in Punnayya v. Rajam Virawna (1921) 42 M.L.J. 429 : I.L.R. Mad. 425 is shared by the High Courts of Calcutta, Allahabad, Patna, Lahore and until recently by the Bombay High Court. At first the Calcutta High Court took the view that a minor could not maintain such a suit without pleading fraud or collusion en the part of his guardian. See Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R.(1885) Cal. 69. But a contrary opinion was expressed some ten years later in Lalla Sheo Churn Lal v. Ramnandan Dobey I.L.R.(1894) Cal. 8. The opinion formed in that case is still maintained. See Mohesh Chandra v. Manindranath 45 C.W.N. 508. A Full Bench of the High Court of Allahabad considered the question in Siraj Fatima v. Mahmud Ali (1932) 54 All. 646 (F.B.) and came to the conclusion that a suit would lie even in the absence of fraud or collusion if there had been gross negligence. The Patna High Court came to the same conclusion in Mathura Singh v. Rama Rudra Prasad Sinha (1935) 14 Pat. 824. Like the Calcutta High Court the Lahore High Court at first held that there must be fraud or collusion. The first decision was given in Imam Din v. Puran Chand (1919) 1 Lah. 27, in which reliance was placed on Raghubar Dyal Sahu v. Bhikya Lal Misser I.L.R.(1885) Cal. 69 but in two later cases, Fazal Din v. Muhammtud Shafi A.I.R. 1928 Lah. 674 and Punnum Mal v. Bishambur Dayal A.I.R. 1940 Lah. 205 the opinion that gross negligence is sufficient to found a suit was expressed.
3. The earlier decisions of the Bombay High Court were to the effect that gross negligence gave a minor a cause of action. See Cursandas Natha v. Ladkavahu (1895) 19 Bom. 571 Hanmantapa v. Jivubai (1900) 24 Bom. 547 and Sureshchandra v. Bai Iswari (1937) 40 Bom.L.R. 127 But strong doubt was expressed by Beaumont, C.J., in Auraj Joharmal v. Dalpat Supadu I.L.R. (1937) Bom. 839 When the question was raised later in Krishnadas Padmanabha Rao Chandavarkar v. Vithoba Annappa Shetti I.L.R. (1939) Bom. 340. (F.B.) It was referred to a Full Bench. In that case the learned Chief Justice expressly held that under the English law an infant' cannot challenge a decree properly passed against him on the ground that his guardian-ad-litem was guilty of gross negligence in suffering the decree and that being so there was no reason why such a cause of action should lie in British India. The other learned Judges concurred. The result is that in Bombay a suit cannot be instituted unless there is fraud or collusion averred.
4. In the present case the Subordinate Judge considered that Chunduru Punnayya v. Rajam Viranna1 (1921) 42 M.L.J. 429 : I.L.R. Mad. 425 had been overruled by the decision of the Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao (1937) 1 M.L.J. 113 : L.R. 64 IndAp 17 : (1937)I.L.R. Mad. 263 (P.C.) and for this reason he held in favour . of the defendants on the preliminary issue. The Subordinate Judge failed to appreciate the judgment of the Judicial Committee. It is manifest that it does not in any way affect the judgment in Chunduru, Pnnnayya v. Rajam Viranna (1921) 42 M.L.J. 429 : I.L.R. 45 Mad. 425. In Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao (1937) 1 M.L.J. 113 : 1937 L.R. 64 IndAp 17 : (1937) I.L.R. Mad. 263 (P.C.) the plaintiff sought a declaration that certain temples in the Guntur District were public temples and that certain lands formed their endowments. It was contended for the defendants that the doctrine of res judicata applied as the questions in issue had been raised and decided in a former suit. 'With a view to meeting this contention the plaintiffs pleaded that the plaintiffs in the former suit had been guilty of gross negligence. In the trial Court and in this Court the principles relating to negligent conduct in previous litigation by a guardian in the name of a minor were accepted as being applicable to a case in which the parties were litigating on behalf of a public institution, but the Judicial Committee held that these principles did not apply. After referring to Lalla Sheo Churn Lal v. Ramnandan Dobey I.L.R.(1894) Cal. 8 Chunduru Punnayya v. Rajam Viranna1 (1921) 42 M.L.J. 429 : I.L.R. Mad. 425 Karri Bappmna v. yerramma : AIR1923Mad718 and Ananda Rao v. Appa Rao : (1924)47MLJ700 , Lord Thankerton in delivering the judgment of the Board observed:
Their Lordships are not concerned to discuss the validity of these decisions, or the elusive distinction between negligence and gross negligence, as they are satisfied that the principle involved in these cases is not applicable to such cases as the present one. The protection of minors against the negligent actings of their guardians is a special one, and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian. Their Lordships would only add that they are not prepared to agree with the view expressed in Karri Bapanna's case : AIR1923Mad718 that the principle of Section 44 of the Indian Evidence Act, can be extended to cases of gross negligence.
Their Lordships did not decide the question whether a person could rely on the gross negligence of his guardian-ad-litem in a previous suit when he sought to set aside the decree passed therein. They were merely considering whether the principle expressed in India should be extended to suits with regard to public religious trusts, and the answer was in the negative. Their Lordships did indicate that Karri Bapanna v. Yerramma : AIR1923Mad718 certainly went too far, but they did not go beyond this. In Krishnadas Padmanahha Rao Chandavarkar v. Vithoba Annappa Shetti I.L.R. (1939) Bom. 340 (F.B.) the Full Bench which decided that appeal also held that the Privy Council in Talluri, Venkata Seshayya v. Thadikonda Kotiswara Rao (1937) 1 M.L.J. 113 : 1938 L.R. 64 IndAp 17 : (1937) I.L.R. Mad. 263 (P.C.) had not determined this question. The Calcutta High Court in Mahesh Chandra v. Manindranath 45 C.W.N. 508 had read the judgment of the Judicial Committee as indicating that a minor is in a special position and as affirming Chunduru Punnayya v. Rajam Viranna (1921) 42 M.L.J. 429 : I.L.R. Mad. 425. and Lalla Shea Churn Laly. Ramnandan Dobey I.L.R.(1894) Cal. 8. In Punnum Mal v. Bishambar Dayal A.I.R. 1940 Lah. 205 the Lahore High Court also agreed that the judgment of the Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswura Rao (1937) 1 M.L.J. 113 : L.R. 64 IndAp 17 : I.L.R.(1937) Mad. 263 (P.C.) does not effect any change in the law. As in our opinion this is undoubtedly the case this appeal will be allowed and the suit remanded to the trial Court to hear and determine the remaining issues.
5. The appellant is entitled to his costs in this Court. The costs in the trial Court will abide the further hearing. The appellant is also entitled to a refund of the court-fee paid on the memorandum of appeal.