The court discussed the liability of family property in the hands of a minor defendant and the permissible causes of action in a small cause suit.

Varadachariar, J.

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 plaintiffs 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 Courts 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 plaintiffs 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 plaintiffs 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 bou