The main legal point established is that a minor is not bound by a decree passed against him if he shows that his guardian is guilty of gross negligence.

Sankaran Nair, J.

1. This is an appeal by the plaintiffs from the decree of the Subordinate Judge of Masulipatam declaring that an alienation of the properties in suit in favor of the 2nd defendant by the 1st defendant, the widow of the last male owner is not binding on them and defendants 3 and 4 who are expectant reversioners. Bapanna the last male owner died in the year 1881. In 1882 his widow the 1st defendant sued to recover possession of the properties from the 2nd defendant who was then a minor. His father as his guardian contended in that suit that his son the 2nd defendant was adopted by the deceased. The Court found that there was no such adoption and decreed possession of the properties to the widow the plaintiff in that suit. In execution of the decree, she obtained possession and in 1897 she executed the registered deed of gift which the plaintiffs now seek to set aside.

2. The Subordinate Judge has held that the deed of gift is valid because the first defendant was entitled to a moiety of the properties in suit under a will executed!1 by her husband a few days before his death by which he left a moiety of his properties to the first defendant and the other moiety to the 2nd defendant who is his brothers son.

3. The first contention raised in appeal is that the 2nd defendant is barred by the proceedings in that suit from relying on this will. The Sub-Judge is of opinion that there was no bar as 2nd defendants guardian was guilty of gross negligence in defending that suit. The facts necessary for the decision of that question are these :-In that suit the widow alleged that her husband executed a will on the 8th May 1881, but a few days after the execution of the will he revoked it. The defence set up by the 2nd defendants father in the Court of first instance was that the 2nd defendant had been adopted by the 1st defendant, that he was not aware of the execution of the will and that even if the will was genuine it was not valid against the 2nd defendant. The Munsif found that the adoption set up by the 2nd defendants guardian was not proved. He also added that it was unnecessary to take any notice of the will as the evidence showed in his opinion that it was executed at a time when the testator was distressingly ill" and as both parties deny the will. He accordingly decided in favour of the 1st defendant.

4. In appeal the Judge held that the adoption was not proved. And as to the will, he observed " it is remarkable with what caution both parties approach Ex. A." The defendants deny its authenticity. But as a salter elect if the adoption is disallowed to profit by its provision to the extent of getting half the properties of the deceased for the minor 2nd defendant." He then considered the evidence in the case and found that the will was genuine and that it was revoked. The Sub-Judge is of opinion that the plea of adoption set up for the 2nd defendant in the former suit was false to the knowledge of his guardian and it was gross negligence on his part not to have relied on the will. I am of opinion that the Sub-Judge is right. There is no doubt from the evidence that the guardian who was the father of the minor must have known that the alleged adoption was false. Without his knowledge no such adoption could have taken place. The will was inconsistent with the adoption and he precluded himself from giving evidence about the genuineness of the will by setting up the false plea of adoption which he did no doubt to obtain the entire properties of the testator for his son who under the will would have obtained only half. The case before us then is that of a guardian who deliberately set up a false plea for adoption and fails to set up the claim of the minor under a will of which also he must have been aware. There is no doubt therefore that he was grossly negligent in the conduct of the suit. A minor is not bound by a decree passed against him if he shows that his guardian is guilty of gross negligence. I am of opi