( 79 )
PARAMANATHER v. PARAMANATHER et al.0. R., Chavakachcheri, 8,862.
Action against heirs of deceased debtor—Averments in plaint—Liability ofheirs in possession—Suit against minor—How guardian ad litemis to be appointed.
Where a creditor sues the heirs of a deceased debtor the plaintmust show that the defendants possessed themselves of the estate ofthe debtor in such a way as to make them responsible for the claimto the extent of the assets in their possession.
If a minor is sued and he takes no steps to have a guardian adlitem appointed to represent him in the action, then it is for theplaintiff to procure the appointment of a guardian in order that hemay be able to continue the action.
/T'HE plaintiff averred in his plaint that one Verakutty owedhim Rs. 20 on a promissory note; that Verakutty diedleaving his sons, the defendants, as his only heirs ; that the seconddefendant was a minor under the care and guardianship of hisbrother, the first defendant, who had no interest adverse to thatof the first defendant; and prayed for judgment against the defend-ants as legal representatives of the estate of the deceased Verakutty.The defendants filed no answer. The Commissioner, however,was dissatisfied, at the ex parte hearing, with the evidence as to theexecution of the note, and dismissed the plaintiff’s claim.
The plaintiff appealed.
Senathirajah, for appellant.
1st April, 1895. Withers, J.—
I would have had some hesitation in affirming the judgmentappealed from if there had been any one against whom it couldhave been executed.
The plaint, however, does not say that the defendants (or eitherof them) have possessed themselves of the estate of the maker ofthe promissory note in such a way as to make them responsiblefor the alleged claim to the extent of the assets which may havecome into their possession.
Then the second defendant is not properly a party to this action.
If a minor i8 sued and he takes no steps to have a guardian adlitem appointed to represent him in the action, then it is for the
. plaintiff to procure the appointment of a guardian in order that he
may be able to continue the action.
The procedure of appointing a next friend for a minor plaintiffand a guardian ad litem for a minor defendant has been confoundedin this instance.
PARAMANATHER v. PARAMANATHER et al