Kunj Behari Lal minor through Musammat Larheti v. Deoki Nandan
1933-08-16
body1933
DigiLaw.ai
JUDGMENT Kendall, J. - This application arises from a suit for rent which was filed by a minor boy under the guardianship of his adoptive mother. The claim was resisted on several grounds, the rest of which I need not notice now. The trial court however has dismissed the suit on the ground that the Plaintiff had no right to sue as the property was vested in the adoptive mother, who was not herself a party to the suit, and the present application is made on the ground that this decision is wrong as the property is vested in the minor son. 2. It has been claimed on behalf of the applicant that the adoption having been proved the property of the father at once vested in the adopted son, and that he therefore displaced his adoptive mother who was then a widow. The other side poi ited to an agreement which had been made as a condition of the adoption between the natural mother (also a widow) and the adoptive mother to the effect that during the fife-time of the adoptive mother the latter would be owner of the whole property and that only after her death the Plaintiff should be owner. On behalf of the opposite-party it is argued that the result of this agreement is to displace for the time being the adopted son, that is to say that at the time of the suit the pioperty vested in the adoptive mother and the suit could not be brought by the son. I have been referred to a decision of their Lordships of the Privy Council in the case of AIR 1927 139 (Privy Council) in which it has been held that agreements of this kind are to be regarded as valid. On p. 527 their Lordships remarked: But the consensus of judgments seems to solve these two questions in this way, namely, that the consent of the natural father (in this case mother) shows that it is for the advantage of the boy, and that the mere postponement of his interest to the widow's interest, even though it should be one extending to a life interest in the whole property, is not incompatible with his position as a son. 3.
3. This passage is certainly good authority for holding that the interest of the son is postponed in these circumstances and that he has no right to sue during the life-time of his adoptive mother. It is true that in the present case the mother appears to have been willing to allow the son to sue. In fact in her statement she remarked that she was not the owner of the property but her adopted son. At that stage however she was not speaking as an impartial witness, because if it were to be held that she was the owner of the property, a substantial portion of the rent claimed would become barred by limitation. On the other side the Defendants were anxious to prove that she was the only person who could sue in order to avoid the payment of rent. The equities of the case are possibly in favor of the Plaintiff, but the initial mistake was made on his behalf of filing the suit in the name of the son apparently with the object of saving rent that had become barred by limitation. There is therefore not very much to be said on either side. Legally I must hold for the reasons that I have already given that the decision of the trial court is correct, and the application is therefore dismissed with costs.