Mt. Hafizan vs Akhleswari Prasad Narain Singh and Others

Ross, J.—This is an appeal by the plaintiff against the decree of the Subordinate Judge of Patna, reversing the decree of the Munsif of Bihar, in a suit brought by the plaintiff for rent from 1323 to 1326 in respect of a share in Mauza Naubatpur Lotan. This share was in lease to the father of defendant No. 1 for a number of years. After his death defendant No. 2, mother and guardian of defendant No. 1, took a fresh lease of the share from 1312 to 1318. In 1319 the lease was renewed verbally for one year and there was a further registered lease from 1320 to 1326. Rent has been paid up to 1322 only.

The suit was contested by defendant No. 1, who alleged that he attained his majority on the 9th of May 1918, that he had no concern with the property in suit, that the lease was not taken for his benefit and that he had derived no advantage from it, and the leasehold property was not in his possession. The Munsif decreed the suit but the Subordinate Judge held that it has not been shown that the lease was for the benefit of the minor and he, therefore, dismissed the suit.

It was contended on behalf of the appellant that the Record of Rights shows that the defendant No. 1 was the lessee of the share and that, as he had not repudiated the lease on attaining his majority, the suit ought to hare been decreed; and that there ought to have been a decree, if not against the defendant No. 1 personally, at all events against the leasehold property. It was further contended that as the suit was not defended by defendant No. 2 there ought to have been a decree against her. On the finding that the defendant No. 1 was the lessee, and as the lease was taken by the defendant No. 2 not on her own behalf but as guardian of her minor son, the defendant No. 1, it is clear that there could be no decree against defendant No. 2 in this case. The Subordinate Judge has held that the lease was not for the benefit of the defendant No. 1; consequently, he cannot be bound by it. A decree against the leasehold property would be of no advantage to the plaintiff and could not be given, because the finding in effect is that in law there is no lease; and, therefore, there, can be no leasehold property to proceed against. Reference was made on behalf of the appellant to the decisions in Mir Sarwarjan v. Fakhruddin Mohmed [1907] 34 Cal. 163 and Murugesam Pillai v. Gnana Sambanda Pandara Sannadhi [1917] 40 Mad. 402, but these decisions have no bearing on the present case. The appeal is dismissed with costs.