P L D 1961 Dacca 381 (PLP)

"Had defendant No. 2 any legal necessity for executing the patta in favour of defendant No. 1 ? And can this patta bind the plaintiffs?"

5. The trial Court decreed the suit holding that the patta Exhibit D had been executed without any consideration and without any legal necessity, and the reasons for execution of that patta are obvious, namely, that defendant No. 2 has so done out of affection since defendant No. I was living with her and looking after her after the death of Janaki Sardar, but even then this patta cannot bind the next reversioners beyond the life‑time of defendant No. 2.

6. On appeal the learned Additional District Judge affirmed the decision of the trial Court, and dismissed the appeal and decreed the suit of the plaintiffs. Hence this appeal.

7. Whether the transaction is for legal necessity or not is concluded by the findings of fact by the Courts below. So, the only question raised in support of this appeal by Mr. Acharyya, the learned Advocate for the appellant, is that the suit at the instance of the plaintiffs is not maintainable in presence of their mother Haridasi who is the next reversioner intervening between the widow of Janaki Sardar and the absolute reversioners the plaintiffs without impleading her as a party to the present suit. This point was never raised in any of the Courts below nor in the pleadings of the parties. The learned Advocate contends that it being a point of law going to the root of the matter, and as it does not require any investigation of facts, and can be raised for the first time in second appeal.

8. I do not agree with the learned Advocate that the point does not require any investigation into facts as Mr. Acharyya'; himself contended that until and unless it is proved that the intervening reversioner fraudulently in collusion with the widow concurred. with her in transferring the absolute title in the property the suit cannot be maintained by the remote reversioner,, and in support of his point Mr. Acharyya very strongly relied on the Privy Council decision in the case of Rani Anand Kunwar and another v. The Court of Wards (I L R 6 Cal. 764) (on behalf of Chundra Shekhar, an infant), where their Lordships expressed their opinion (at page 22) as follows : "Their Lordships are of opinion that although a suit of this nature may be brought by a contingent reversionary heir, yet that, as a general rule, it must be brought by the presumptive reversionary heir, that is to say, by the person who would succeed if the widow were to die at that moment. They are also of opinion that such a suit, may be brought by a more distant reversioner if those nearer in succession are in collusion with the widow, or have precluded themselves from interfering. They consider that the rule laid down in Brikaji Apagi .v Jagunnath Vithal (10 Bom. H C R 351) is correct. It cannot be the law that any one who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however, remote. The right to sue must, in their Lordships' opinion, be limited. If the nearest reversionary heir refuses without sufficient cause to institute proceedings, or if he has precluded himself by his own act or conduct, from suing or has colluded with the widow, or concurred in the act alleged to be wrongful, the next presumable reversioner would be entitled to sue ; see Koor Goolab Singh v. Rao Kurun Singh (14 M I A 176). In such a case, upon a plaint stating the circumstances under which the more distant reversionary heir claims to sue, the Court must exercise a judicial discretion in determining whether the remote reversioner is entitled to sue, and would probably require the nearer reversioner to be made a party to the suit." This general principle laid down by the Privy Council in the above case has been followed in subsequent cases by almost all the High Courts of undivided India, namely, Calcutta, Madras and Allahabad. In the case of Abinash Chandra Mazumdar v. Harinarh Shaha (I L R 32 Cal. 62 (65)), the Calcutta High Court observed : "It is now settled beyond the possibility of dispute by the deci sions of the Judicial Committee in the case of Raj Lukhee Debea v. Gokool 13 M I A 209, Goolab v. Rao Kurun and Jamoona Das sya v. Bama Soondari Dassya I L R 1 Cal. 289, that the nearest reversioner who is the presumptive heir in succession though such reversioner has merely a contingent interest, may maintain an action for a declaration that the acts of a female heir in possession of the property of the last full owner do not bind the estate. It is equally well settled that a remote reversioner cannot maintain such a suit unless the immediate reversioner has fraudulently colluded with the female heir or for some reason or other has made it impossible for him successfully to challenge the acts of the female heir ; Anand Kunwar v. Court of Wards." Question arose long before the Privy Council decision mentioned above whether the qualification laid down by the Privy Council for enabling the remote reversioner to maintain a suit is necessary or justifiable on principle when the immediate reversioner happens to be another female who has a qualified interest of the same description as the heirs whose acts are sought to be challenged. This point has been decided once in 1859 by Sudder Dewani Adalat in the case of Chunder Koomer Hazaree v. Dwarkanath Purdar ((1859) S D A R 1623). The learned Judges of the Sudder Dewani Adalat observed as follows : "A preliminary objection was taken to the plaint by the defendant's vakil on the ground of the interest of the minor on whose behalf it is brought being too remote. We see, however, no force in the objection. The minor is the first reversioner after the death of the two intervening life‑tenants, the widow and daughter of Biseswar Bardhan. His right is undoubtedly only contingent and has not vested, and it is possible that he may never succeed ; nevertheless we think in accordance with the precedents of this Court that a suit like the present to remove obstructions out of the way of the first reversioner, and so to enable him on the death of the tenants for life, if he survives them immediately to enter on possession, is main tainable in our Courts."

9. This decision of the Sudder Deovani Adalat has been referred to in the judgment in Abinash Chandra Mazumdar's case. Then comes in the learned and elaborate judgment of Mahmood. J., in the case of Balgobind v. Ram Kumar (I L R 6 All.431), where it has been held that the existence of female hairs, whose right of succession cannot surpass a widow's estate does not affect the status of the nearest presumptive revesionary heir to the full ownership of the estate, and that such presumptive heir can maintain a suit for declaratory relief, irrespective of the question of collusion or concurrence by such female heir holding a similar estate. This conclusion observed by Mookerjee, J. in the case reported to I L R 32 Cal. 62 (69) was supported by an elaborate examination by Justice Mahmood of the earlier authorities on the principles on which they are based. This decision has been followed by various High Courts, such as, Madras, in the case of Kandasami v. Akkammal (I L R 13 Mad. 195), where it has been held that the intervention of two life estates does not alter the nature of the reversionary interest, which section 42 of the Specific Relief Act was intended to protect, and that consequently such intervention does not preclude the reversioner from suing for a declaratory decree. The learned Judges of the Madras High Court pointed out that the conclusion was in accordance with the observation made in the case of Narayana v. Chengalamma (I L R 10 Mad. 1), and was also supported by the decision of the Judicial Committee in the case of Anat Bahadur Singh v. Raghuhath Kuar (I L R 8 Cal. 769), Mookerjee, J., in Abinash Chandra Mazumdar's case, followed the decision of their Lordships in the case of Balgobind v. Ram Kumar. But the same High Court in the case of Madari v. Malki (I L R 6 All. 428), held that in the absence of collusion or connivance between a widow and her daughter the plaintiffs who were remote reversioners were not competent to maintain a suit for a declaration that an alienation by the widow was not justified by legal necessity. The decision was reported a few days before the decision of Justice Mahmood in Balgobind's case, and it appears that Justice Mahmood was not aware of this decision taking contrary view which had not at that time been reported. The view taken in the case of Madari v. Malki, was followed in the subsequent decision by the same High Court in the case of Iswar Narain v. Janki (I L R 15 All. 132), where Tyrrel and Blair, JJ. refused to follow the decision in the case of Balgobind v. Ram Kumar, and adopted the view taken in the case of Madari v. Malki. But no reasons were assigned to meet the arguments embodied in the judgment of Justice Mahmood. So the Calcutta High Court in the case reported in I L R 32 Cal. 62, refused to follow the rule laid down in the case of Iswar Narain v. Janki, and observed (at pages 68 and 69) as follows : "The High Court of Allahabad is divided against itself upon the question raised before us. In the case of Madari v. Malki, two learned Judges held, that in the absence of any proof of collusion or connivance between a widow and her daughter, the plaintiffs who were remote reversioners were not competent to maintain a suit for a declaration that an alienation by the widow was not justified by legal necessity. This conclusion was based upon the decision of the Judicial Committee in the case Rani Anand Kunwar v. Court of Wards, which, however, is obviously distinguishable inasmuch as the nearer reversioner in whose presence the remote reversioner asked for a declaration would himself have been entitled to an absolute estate in the event of the succession opening out to him. A few days later, Oldfield and Mahmood, JJ., in the case of Balgobind v. Ram Kumar, held that the existence of female heirs, whose right of succession cannot surpass a widow's estate does not affect the status of the nearest presumptive reversionary heir to the full ownership of the estate, and that such presumptive heir can maintain a suit for declaratory relief irrespective of the question of collusion or concurrence by such female heir in the alienation, by a childless Hindu widow or other female heir holding a similar estate. This conclusion was supported by an elaborate examination by Mr. Justice Mahmood of the earlier authorities, and principle on which they are based, and we entirely agree with the judgment of that learned Judge, which appears to have been delivered in ignorance of the contrary view taken in the case of Madari v. Malki, which had not at that time been reported." As to why the qualification laid down by the Privy Council to enable the remote reversioner to maintain a suit is not necessary in the case of female heir intervening, an elaborate reason has been given by Justice Mahmood in his case reported in I L R 6 All. 431, and by the Calcutta High Court in the case reported in I L R 32 Cal. 62, mentioned above, where (at pages 65‑67) it has been observed as follows But the question arises whether this latter qualification is necessary or justifiable on principle when the immediate reversioner happens to be another female who has a qualified interest of the same description. as the heir whose acts are sought to be challenged. It appears to us to be clear that in the case in which, upon the death of a full owner, the estate successively passes through the hands of a series of female heirs who take only a qualified estate, before the property vests in another full owner, they may rightly be regarded in the aggregate as the holder of a limited interest which intervenes between the full ownership of the original owner and the ultimate taker. Each of these recipients of the limited interest has three common characteristics, namely, first, each possesses only a qualified right of alienation ; secondly, not one of them cat transmit the property to her own heirs, but it passes upon her death to the heir for the time being of the last full owners‑; and, thirdly, not one of them can alienate the estate absolutely even with the consent of the next female reversionary heir, for, where the next reversioner is herself a female who only takes a life‑estate, her consent will not bind the next reversioner who takes an absolute estate ; in other words, the assent of a female reversionary heir to an alienation made by a female heir cannot confer upon it a character of a greater validity than it would have possessed if it had been made by herself Goolab Singh v. Rao Kurum. We think, therefore, that there is a substantial distinction between the case in which a remote reversioner who would take an absolute interest, sues for a declaratory decree in the presence of a nearer male reversionary heir and the case in which such a suit is brought in the presence of a nearer female reversionary heir. It follows consequently that a male reversionary heir who would be entitled to the property absolutely, if he succeeded to it, ought to be allowed to challenge an unauthorised alienation by the holder of a qualified estate, whether or not such female heir is his immediate predecessor or is separated from him by the interposition of other possible female heirs. The principle upon which a reversionary heir is allowed to maintain a declaratory suit, although it may turn in the end that he is not the person who actually gets the property, is that otherwise evidence regarding the true character of the alienation might disappear and be not available when required. Obviously this principle has a much stronger application in the case in which several successive life‑states intervened between the original proprietor and the ultimate full owner, than in the case in which only one such life‑estate is interposed. We must hold accordingly that the view that a remote reversioner can bring a declaratory suit when the immediate reversioner is herself an only holder of a life‑estate is well founded on principle." With this view of the Allahabad and Calcutta High Courts based on various authorities cited in the report, I fully agree, and is the correct view, otherwise it will be difficult, in cases where female heirs intervene, for the ultimate owner to prove that the transfer is an unauthorised transfer if he is to wait till the life interest is exhausted, and the property goes to him.

10. It is contended by Mr. Acharyya that the suit may be maintained by the remote reversioner, but the intermediary life estate holders are to be impleaded in the suit. I am unable to accept this contention of Mr. Acharyya as correct. In the case of male reversioner intervening, succession may not be opened to the remote reversioner, but there is only a chance of succession in case of death of the intervening male reversioner. So, it is necessary to implead him as a party to the suit on the allegation that either he fraudulently colluded with the widow or the life- estate holder in the absolute transfer of the property, or for some reasons or other he has deprived himself of his right to challenge that unauthorised transfer or he may be unwilling to take any action. So, in order to substantiate this allegation against the intervening male reversioner he may be a necessary party ; but I do not understand why the female heir reversioner intervening should be impleaded as a party to the suit, when in spite of her collusions or consent, the remote male reversioner cannot be deprived from getting the property as a reversioner after the death of this female life‑estate. If it is not necessary to make any allegation as it is necessary in the case of male reversioner, I do not understand why the female heir is to be impleaded as a party to the suit. It has been held by Justice Mahmood in the case of Balgobind v. Ram Kumar, that such a presumptive heir can maintain a suit for declaratory relief, irrespective of the question of collusion or concurrence by such a female heir, in the alienation by childless Hindu widow or other female heir holding a similar estate.

11. Mr. S. C. Dutt, the learned Advocate for the respondents also relies on the cases of Chidumbara Reddier v. Nallamal and others (I L R 33 Mad. 410), Ramyad v. Rambihara (54 I C 357) and Deoki v. Jwala Prasad (I L R 50 All. 678 (695)), in support of his contention that it is not necessary to state in the plaint that the intervening female heirs are in collusion or have consented or otherwise incapacitated themselves to bring the suit for the purpose of maintaining a suit by the remote male reversioner for a declaration that the alienation by the widow is unauthorised, and not for any legal necessity. I have not discussed these authorities cited by Mr. Dutt for the respondents, as I agree with the view taken in the case of Balgobind v. Ram Kumar, followed by almost all the High Courts of undivided India, such as, Allahabad, Madras and Calcutta.

12. The result, therefore, is that the contentions of Mr. Acharyya, the learned Advocate for the appellant, cannot be upheld, and the appeal is accordingly dismissed with costs, and the judgments and decrees of the Court below are armed. K. B. A. Appeal dismissed.