1. The Civil Miscellaneous Appeal and Civil Revision Petition arise from the dismissal by the lower Appellate Court of Appeal No. 158 of 1919, for default of appearance of the guardian of the first appellant, who was then a minor but has now become a major. An application was made, soon after the dismissal for default, by the paternal uncle of the minor for the removal of the guardian on the ground of fraud and negligence, for appointing him as a new next friend and for setting aside the order of dismissal and rehearing the appeal, on the ground that the guardian on record had acted with gross negligence, in getting the appeal dismissed for default. It was alleged that the guardian had so allowed the appeal to go by default, because there were criminal proceedings between him and the minor and civil litigation between him and the minor's grand-mother with reference to the minor's estate.
2. The learned Judge, in disposing of the matter on affidavits, held that there was no sufficient ground for removing the guardian, but he did not, in doing so, refer to the main allegation of enmity between the guardian and the minor; and after having refused to remove the guardian, he dismissed the application for restoring and rehearing the appeal, on the ground that the person who applied for it, the paternal uncle, not having been accepted as the next friend of the minor, had no locus standi to apply on behalf of the minor. The minor has now become a major, pending the proceedings in this Court and he has adopted the petition filed by his paternal uncle as his own and has proceeded before us on that footing.
3. The main complaint, that is urged, is that the Court should have taken evidence and decided whether the guardian was not negligent in his duty, in allowing the appeal to go by default. The minor having become a major, it is no longer necessary to remove any guardian, as the guardian has ceased to be such, by the mere efflux of time. We have only therefore to consider the question whether we should allow the appellant to adduce evidence to show that his guardian was negligent in his duty and did not conduct the appeal properly before the lower Court and that therefore this appeal should be restored to the file and reheard, with himself as the appellant. We think there is substance in this appellant's contention that evidence should have been taken, as the respondent does not admit that there has been enmity between the guardian and the minor. That is a matter which can be decided only after taking evidence. We therefore decide to call for a finding from the Subordinate Judge of Tiruvalur, on the following issue : Whether the guardian acted with gross negligence in allowing Appeal No. 158 of 1919, on the file of the Third Additional Subordinate Judge's Gourt of Tanjore at Mayavaram, to be dismissed for default by that Court.' Evidence will be allowed on both sides and the finding will be returned in two months from this Pate and ten days will be allowed for objections.
4. The Subordinate Judge's finding was to the effect that the guardian ad litem purposely allowed the appeal to be dismissed or default so that his conduct amounted to fraudulent conduct and not mere gross negligence.
5. The appeal came on for final hearing, before Kumaraswami Sastri and Waller JJ. who accepted the findings of the lower Court and reversing the order of the lower Court directed the restoration of the appeal.