Judgment.- Plalntiff is the appellant. He filed a suit for recovery of a sum of money due under a promissory note executed by the 1st defendant. His case-was that the 1st defendant was appointed as the guardian of D. Chalapathirao under the Lunacy Act and that the 1st defendant borrowed the amount for performing his obsequies. The 2nd defendant was impleaded as the widow of Chalapathi Rao. In the plalnt, he stated that the debt was contracted and spent for the spiritual benefit of late Chalapathi Rao, the lunatic, and for meeting the obsequial expenses and that the debt was consequently binding on his estate. He further stated in paragraph 1 that as the properties belonging to late Chalapathi Rao were at present in the possession of defendants 1 and 2, they were liable to discharge the suit debt. He prayed for a personal decree against the 1st defendant and as against the properties belonging to Chalapathi Rao in the hands of the defendants I and 2. The 1st defendant filed a written statement stating that the amount was borrowed for the obsequies of Chalapathi Rao, that the 2nd defendant requested her to execute the promissory note, that the second defendant actually received the amount and utilised it for the obsequies. The 2nd defendant denied that the amount was borrowed for the obsequies, that the income got from Chalapathi Rao’s properties was large, that there was no necessity for the 1st defendant to borrow, that the 1st defendant was liable to render an account for the income realised by her during her management and that no decree should be passed against the estate in her hands. The plalntiff examined himself as P.W.1. He deposed that the amount was borrowed for the obsequies of 2nd defendant’s husband. He stated that he would be satisfied with a decree against the estate of Chalapathi Rao, if any, in the hands of defendants 1 and 2. In cross-examination, he made it clear that he did not want a personal decree against the 1st defendant. An appeal was preferred by the 2nd defendant to the Subordinate Judge, Tenali. The Subordinate Judge rightly followed the decision in Rama Kamath v. C.L.Lobo1, and held that the 1st defendant ceased to be the guardian on the death of the lunatic and that the properties in the hands of the 2nd defendant could not be proceeded against. An appeal was preferred by the 2nd defendant to the Subordinate Judge, Tenali. The Subordinate Judge rightly followed the decision in Rama Kamath v. C.L.Lobo1, and held that the 1st defendant ceased to be the guardian on the death of the lunatic and that the properties in the hands of the 2nd defendant could not be proceeded against. He, therefore, held that the decree that was passed as against the estate of Chalapathi Rao in the hands of the 2nd defendant was wrong, and allowed the appeal. The plalntiff has preferred the second appeal. His contention is that the properties of late Chalapathi Rao in the hands of the 2nd defendant are also liable. The learned advocate for the appellant relied on section 303 of the Indian Succession Act and contended that the 1st defendant was in the position of an executor de son tort and that the properties of Chalapathi Rao might consequently be proceeded against. Section 303 runs in the following terms: “A person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or admin1strator in ex1stence thereby makes himself an executor of his own wrong. Exception(1): — Intermeddling with the goods of the deceased for the purpose of preserving them or providing for his funeral or for immediate necessities of his family or property, does not make an executor of his own wrong.” Section 304 defines the liability of executor of his own wrong, section 320 provides that the funeral expenses to a reasonable amount shall be paid before all debts. So the question for consideration is whether the 1st defendant was an executor de son tort ? Apart from the single act of borrowing under the suit promissory note, no other act of intermeddling is alleged or proved in the case, so as to attract the terms of section 303 of the Indian Succession Act. The 1st defendant was only in the position of a guardian prior to the death of the lunatic. According to the decision in Rama Kamath v. C.L. Lobo1, the powers of the guardian ceased with the death of the lunatic and the estate vested in the lunatic’s heir, i.e., the 2nd defendant. Therefore the contention of the learned advocate based on the provisions of the Indian Succession Act has no substance. According to the decision in Rama Kamath v. C.L. Lobo1, the powers of the guardian ceased with the death of the lunatic and the estate vested in the lunatic’s heir, i.e., the 2nd defendant. Therefore the contention of the learned advocate based on the provisions of the Indian Succession Act has no substance. The next contention urged by the learned advocate for the appellant was that the 1st defendant would have a right of subrogation as against the 2nd defendant in respect of moneys borrowed for the benefit of Chalapathi Rao’s estate and that instead of passing a decree against the 1st defendant and driving him to a separate suit all the equities might be worked out in the present suit. Unfortunately there is no pleading to that effect. The plaintiff has not alleged in the plaint that the 1st defendant who executed the promissory note in his favour had a right of subrogation as against Chalapathi Rao’s estate or that on taking accounts, moneys would be due to the 1st defendant from his estate and that right might be worked out in the suit itself. No issue was framed on this question. There is not even an application for amendment of the plaint in Second Appeal. Under these circumstances, I am not prepared to permit the appellant to raise this question of subrogation at this stage in as much as several questions of fact will have to be determined and the case remanded for taking evidence. The learned Advocate for the appellant relied upon the decision in Manindra Chandra v. Sudirkrishna1, for the proposition that even if it was not specifically pleaded in the plaint, he was entitled to be substituted to the indemnity which defendant I had against the estate. I do not agree with that case. The plaintiff should have pleaded in his plaint that the 1st defendant was entitled to indemnity from the 2nd defendant and that on account taking, the 2nd defendant would be liable to pay the 1st defendant. It was brought to my notice during the course of the arguments that a suit was instituted by the 2nd defendant as against the first defendant and a decree was passed as against the 1st defendant for the amounts collected by her during her management, and that the 1st defendant was not entitled to recover any sums from the estate of Chalapathi Rao. The learned Advocate for the appellant wanted me to remand the case to the trial Court, so as to enable him to adduce evidence and work out his right of indemnity and to show that the 1st defendant was entitled to recover monies from Chalapathi Rao’s estate and that the first defendant intermeddled with the estate of Chalapathi Rao even after his death. I am not prepared to remand the Second Appeal at this stage in the absence of any pleading to that effect or an amendment application praying for such a relief. The second appeal therefore fails and is therefore dismissed. I direct each party to ‘bear its own costs. No leave. D.L.N. ------------- Appeal dismissed.