Subbayya vs Saminadayyar

In our opinion the order of the District Munsif of the 10th June 1893 and his decree dismissing the suit were wrong in point of law. It is quite

clear that the adopted son is the legal representative of the person to whom he is adopted. This being so, Section 371 would prevent the institution

by him of any fresh suit. An application was made on his behalf within due time claiming to be the legal representative, and therefore u/s 366 it was

not competent to the Court to order that the suit should abate. The order of the District Munsif above mentioned must be taken to be an order

within the meaning of Section 367; for we agree with the Judge that a '' dispute'' within the meaning of that section need not be between persons

claiming to represent the deceased plaintiff. The title to represent being denied, there is in the present case a dispute between the claimant and the

defendant. We therefore think the District Judge ought to have entertained the appeal. We also think that an appeal lay against the decree

dismissing the suit--Bhikaji Ramachandra v. Purshotam ILR 10 Bom. 220

We must set aside the decrees of the Courts below, and also the order of the District Munsif, and remand the case to the Court of First Instance

for disposal.

The costs incurred in the lower Appellate Court and in this Court must be paid by respondent, the other costs must be provided for in the fresh

decree.