1. The question in this appeal is whether the plaintiff is entitled to a declaration that a deed of gift executed by Mt. Dulhma in favour of her daughter Musammat Maharaji is invalid as against the right of the reversioners. The pedigree of the family to which the parties belong is given in the judgment of the Court below. Musammat Dulhma's husband, Ram Adhin, was the last survivor of the joint family to which he belonged and on his death Musammat Dulhma succeeded to a widow's interest in the property. She has three daughters who are all alive and are defendants to the; suit, and at the time of the institution of the suit there was also a daughter's son, Bachcha, who was Defendant No. 5. This child has since died.
2. The gift was in favour of one only of Musammat Dulhma's three daughters. The Courts below have held that it was valid as an acceleration of the widow's life interest. This finding is erroneous. It was held by the Privy Council in. Rangasami Gounden v. Nachiappa Gounden A.I.R. 1918 P.C. 196 that a surrender to be valid must be in favour of the nearest reversioner if there be only one, or all the reversioners I nearest in degree if there be more than, lone. This decision has been followed I in this Court in the recent case of Prag Narain v. Mathura Parsad A.I.R. 1924 All. 740 and by the Bombay High Court in Dodbasappa Ramalingappa v. Basawaneppa Shivlingappa  42 Bom. 719.
3. The next question is whether the plaintiff as a remote reversioner had any right to institute the suit. The general rule on the subject was laid down by their Lordships of the Privy Council in Rani Anada Kunwar v. The Court of Wards  6 Cal. 764.
4. The rule is that a suit of this nature must ordinarily be brought by the reversioner nearest in succession at the time. The cases in which a remote reversioner may be entitled to sue are thus stated:
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.
5. In this case the next reversioners entitled to sue are Mt. Maharaji's two sisters, Musammat Chandra and Musammat Badra. There was an allegation in the plaint that they were in collusion with the widow, but no issue was framed on the point, and no circumstance has been pointed out to us from which an inference of collusion could be drawn. The only fact relied upon by the appellant is that they refrained from suing for a period of some ten years after the gift. There is a conflict of authority on the question whether the fact that the nearest reversioner is a female holding a life interest is in itself sufficient to give the remote reversioner a right to sue.
6. The cases on both sides are given in a foot note to the 9th edition' of Mayne's Hindu Law at page 956. In this case, however, we have to see whether the plaintiff had a good cause, of action on the date when he instituted his suit. If he had no cause of action on that date his suit cannot succeed because one or more deaths have taken place during the pendency of the litigation. On the date when the suit was brought there was admittedly a daughter's son of Musammat Dulhma in existence, so that the plaintiff was hot even the next reversioner after the death of the daughter's son. In Gumanan v. Jahangira 40 All. 518 it was held by this Court that in the presence of daughters and a 'daughter's son, even if the daughter's son be a minor a remoter reversioner is not entitled to sue.
7. We accordingly dismiss the appeal with costs, but as we are deciding the case on a different ground from that on which it was decided by the Court below and overruling its decision on that ground, we think the costs should not include fees on the higher scale, and we direct accordingly.