1. This appeal arises out of an action the like of which is not to be found in the books; in form it was to set aside an alleged deed of surrender made by a Hindu widow in favour of the plaintiff and to set aside two deeds of sale executed thereafter by the plaintiff in favour of certain persons. The suit was directed against the widow, who executed a deed of surrender, and against defendants Nos. 2, 3 and 4, who were the purchasers under the alleged deeds of sale. Defendant No. 5 was joined as being the widow of one Shiva, in whose favour the plaintiff alleged the widow had executed a deed of sale relating to a portion of the properties.
2. The properties in question are recognised portions of bhagdari property and they are numbered as 9/14, 9/15, and 7/1. Then there is another property 7/2. All these properties except the last originally belonged to one Ramsing and his son Chhita. After the death of Ramsing, Chhita succeeded to the) properties by survivorship and died on August 14, 1907. At that time the family consisted of his widow Bai Jatan, his mother Bai Jivi, defendant No. 1, and his sister Bai Chanchal, defendant No. 2. The widow Bai Jatan succeeded to the properties. She remarried in 1910,...and it is clear that her interest in the properties on remarriage came to an end. Before remarriage however she and defendant No. 1 Bai Jivi executed a deed of sale to Shiva Ranchhod, husband of defendant No. 5, relating to two properties, 9/14 and 9/15. In July, 1917, Bai Jivi who on remarriage of Jatan succeeded to the property executed a deed of gift with regard to the property 7/1 in favour of her daughter, defendant No. 2, and a fortnight thereafter defendant No. 2 gifted away the property to Shiva Ranchhod. On September 10, 1928, Bai Jivi executed a deed of surrender in favour of the plaintiff who was the next reversioner. The deed which was duly registered recited that Bai Jivi relinquished her life estate in properties 7/1, 9/14, and 9/15 and conveyed the same to the plaintiff for a consideration of Rs. 4,999 as a provision for her maintenance and the maintenance of her daughter, defendant No. 2 Two days thereafter, i.e., on September 12, 1928, the plaintiff sold the property 7/1 to defendants Nos. 3 and 4 for a sum of Rs. 6,999. Defendant No. 3 was the step-brother of the husband of defendant No. 2, and defendant No. 4 was his wife. On November 17, 1928, the plaintiff sold the property 9/1.5 to defendant No. 2, the consideration in the deed being stated to be the sum of Rs. 1,499. The present suit was instituted on April 7, 1929.
3. The plaintiff in the plaint referred to the various transactions, which I have set out, and alleged that all those transactions were by way of a device, to divide Chhita's property among the nominees of defendant No. 1, and pleaded that the deed of surrender was not binding on him and he had no right to execute the deeds of sale in favour of defendants Nos. 2, 3 and 4. His case was that if he had been aware of his own rights he would not have executed these sale-deeds and that he became a party to these transactions as it was represented to him that all the properties of Chhita were given to him, and that if the declaration sought was not made, the properties would be wasted and his rights affected. The actual prayers in the plaint were for a declaration that the deed of surrender, exhibit 58, and the two deeds of sale, exhibits 53 and 54, were not binding on the plaintiff. In the body of the plaint, however, the plaintiff pleaded in the alternative that if the deed of surrender was operative and binding on him, he was entitled to take possession of the properties, and as the properties were throughout in the possession of defendants Nos. 1 and 2, an injunction should issue against them by preventing them from recovering possession from the tenants of those properties. In an exhaustive judgment the learned First Class Subordinate Judge of Broach came to the conclusion that the plaintiff had failed to prove the case of fraud set up by him in the plaint as also in establishing the case that these transactions were a device as alleged by the plaintiff. He held that the sale-deeds were for considerations and were binding on the plaintiff, arid that under the surrender deed the plaintiff became the owner of the properties, and dismissed the suit.
4. Although, there was no prayer in the plaint specifically for cancelling these three deeds, the plaintiff's case really was that he was entitled to a declaration that they were void or voidable and were not binding on him, and it is on that footing that the case has been argued before us on behalf of the appellant. The learned Counsel who argued on behalf of the appellant contended that the case fell under Section 39 of the Specific Relief Act as regards the relief by way of cancellation of these deeds and under Section 42 of that Act as regards the declaratory relief sought.
5. Now the relief as to cancellation of an instrument is, as pointed out by Story, founded upon the administration of the protective justice for fear that the instrument may be vexatiously or injuriously used by the defendant against the plaintiff when the evidence to impeach it may be lost or that it may throw a cloud or suspicion over his title or interest. Section 39 of the Specific Relief Act is based upon1 the same principle, and under that section three points have to be borne in mind: (1) The written instrument in question is either void or voidable as against the plaintiff (2) who may reasonably apprehend serious injury from the instrument being left outstanding (3) in view of all the circumstances of the case the Court considers it reasonable and proper to administer the protective and preventive justice asked for. The relief the Court can grant is of a limited character. The reliefs are (1) adjudge that the instrument is void or voidable (2) order it to be delivered up and cancelled.
6. The question then is whether the plaintiff's case satisfies these three conditions. I will assume that the deed of surrender is void, though the point is debatable. But what is the serious injury which the Court can say was reasonably apprehended by the plaintiff? I put this question to the plaintiff's counsel in the course of discussion but got no answer. Mere speculation as to unknown and vague complications arising in the future is hardly any ground to take action under Section 39. Then, again, is this a case in which the Court in its discretion should under the circumstances of the case grant the relief the plaintiff wants? The plaintiff attempted to make out a case for this purpose by alleging that the surrender and the subsequent deeds of sale by him were designed by Bai Jivi to keep the property among herself and her nominees. That case was rejected by the learned Judge and we think rightly. The plaintiff failed to prove the fraud he set up and failed to prove that all these deeds were part of the same transaction. By the deed admittedly he got one property. In fact he got three, two of which he promptly sold for a valuable consideration on which he is suing. True he alleged that he too parted with Rs. 4,000 odd by way of consideration for the surrender but he failed to prove it and because he failed to pay it to Bai Jivi that he agreed to transfer one of the properties to her daughter in part payment of the sum he had agreed to pay for the surrender. The widow was not bound to surrender. She did so however and thereby the plaintiff was at least benefited to some extent. Where is the injury? It seems to me difficult to hold under the circumstances of the case that the plaintiff really had a cause of action apart from fraud, which, however, he failed to establish. Apart from that it is difficult to hold that the case comes within Section 39 of the Specific Relief Act.
7. The next relief sought is one for declaration under Section 42 of the Act. The question is whether the conditions under that section were satisfied. These are (1) the plaintiff must be entitled- to a legal character at the time of; the suit, or (2) to a right to property (3) defendant should have denied these or be interested in denying this character or right, and (4) the plaintiff should not be in a position to ask for relief consequential upon declaration sought. The last condition may be left out of consideration in this case. I will assume that the first exists. The second is clearly wanting and the third, it is common ground, does not exist. The third condition is important. Even if the plaintiff has a present existing interest, no cause of action accrues to him until there is some infringement or threatened infringement of his right, in other words, a cloud must be cast on his title before he can ask for its removal. He must allege and prove hostility on the part of the defendant, for no Court will move on merely speculative grounds. Is that the position here? We think not. The defendants all swear by the deeds. They accept the surrender and the subsequent transactions entered into by the plaintiff voluntarily on the strength of the surrender. There is no hostility so far as they are concerned. Apart from surrender the plaintiff has no legal character or no right to any property. It is really difficult to appreciate the plaintiff's grievance. A reversioner undoubtedly has such an interest in the property held by a Hindu widow as would entitle him to sue under Section 42 to challenge an improper alienation made by the widow or an adoption made by her. The ills (e) arid (f) to Section 42 make the position clear. It is important to note that the relief sought in ill. (e) is for a declaration that the alienation was void beyond the widow's lifetime. But nobody has heard of a case where a reversioner has been allowed to ask for a declaration that a surrender in his favour and to which he is a party is void. Undoubtedly when the reversion falls in, the actual reversioner other than the plaintiff may perhaps complain of the act to which the plaintiff was a party. The principle is that a reversioner can question the acts of the Hindu widow without waiting for her death because evidence to show that the act was unauthorised may by lapse of time be not available for that purpose. But it is obvious that the reversioner who complains of such acts must be a stranger to the acts themselves and not a party to them as in this case. A surrender is after all a kind of alienation and a reversioner who consents to an alienation by the widow is precluded from disputing the validity of the alienation though he may have received no consideration for his consent. It is immaterial if the alienation is by way of gift. The actual reversioner may avoid such a transaction on the widow's death. In our opinion, it is difficult under the circumstances of the case to sustain the suit under Section 42 of the Specific Relief Act.
8. But assuming that the plaintiff had a cause of action the question is whether he has succeeded in establishing it. The case put before us on his behalf is that the deed of surrender was invalid and void, firstly, on the ground that it was for a consideration paid by the plaintiff for; it to the widow relinquishing her interest in the property, and, secondly, on the ground that it did not comprise the whole of the life interest of the widow in the whole of the estate held by her. It is argued therefore that the plaintiff got no title and therefore the sale-deeds executed by him in favour of defendants Nos. 3 and 4 arid subsequently in favour of defendant No. 2 are not binding on him. The deed of surrender, if it was for consideration, and that is the plaintiff's case, may be defective as a deed of surrender, but it is difficult to see how the plaintiff can question a deed under which he himself derived benefit and to which he was a party. The case that the widow had precluded herself from surrendering her interest in the whole of Chhita's estate as she had parted with her life interest in regard to two of the three properties included in the deed cannot be accepted. It is common ground that in spite of the alienation of 1909 in favour of Shiva Ranchhod the property has all along been in the possession of Bai Jivi. It was not therefore necessary for her to sue to set aside the alienation. Shiva's widow, who was defendant No. 5, has disclaimed all her interest in the property. As to the gifts of 1917 defendant No. 2 was a party to the surrender and she accepted it. This property also was in the possession of Bai Jivi and as far as the widow of Shiva, who was defendant No. 5, is concerned she lays no claim to it. Apart from this it is clear law that ' where a widow alienates a portion1 of the estate inherited by her from her husband without legal necessity, and subsequently surrenders the whole of her interest in the estate to the next reversioner, the reversioner is not entitled to immediate possession of the portion so alienated, but must wait for possession until her death. The reason is that though the alienation is not binding on the reversioner, it is binding on the widow for her life, and the alienee is entitled to possession during her lifetime.' (Mulla's Hindu Law, para. 5, p. 212.) It is for that purpose that the plaintiff came to the Court with the case that all these transactions formed part of one and the same transaction and were entered into by way of a device to retain the property for the benefit of defendant No. 2 and Bai Jivi and their nominees. We have been referred to the evidence on this point, and we have no hesitation in holding that the conclusion reached by the learned Judge that the plaintiff had failed to establish the case of fraud and the allegation that it was a device is perfectly correct.
9. As to the subsequent sale-deeds, the position of defendants Nos. 3 and 4 again is very simple. By these deeds the plaintiff represented that he had' a title to the properties and he received consideration from them. It is difficult therefore to see how the plaintiff can come to the Court and say that, he had no title at the time he executed the deeds of sale. A person cannot be allowed to make contradictory allegations or to blow hot and cold and to affirm at one time one thing and to disaffirm it at another time so as to found a claim on it and it is clear law that a grantor or a lessor cannot be allowed to dispute his own title with either the grantee or the lessee. Therefore, the learned Judge was right in dismissing the plaintiff's action so far as it related to the deeds of sale.
10. As I have said at the outset, we have not been referred to a single precedent as far as this case is concerned, and it is difficult in my opinion to support an action of this nature where the plaintiff had nothing to lose but clearly stood to gain as a result of the transactions. It is for that purpose that he came to the Court again with the story of fraud regarding the execution of the sale-deeds and the allegation that he had received no consideration. That story has been disbelieved by the learned Judge, and we think that his decision is right.
11. With regard to property 7/2 which came to defendant No. 1 as a gotraja sapinda and not as the mother of Chhita, it was argued that this property was not included in the deed of surrender. We have not got any materials before us to express any definite opinion as regards that property or as to the rights of the parties with reference to it.
12. The appeal, therefore, must be dismissed with costs. There will be two sets of costs.
13. I agree.