1. This is a plaintiffs' appeal arising out of a suit in which the plaintiffs who are minors suing under the guardianship of their grandmother seek a declaration that certain deeds of alienation are void and not binding upon them. In the plaint the plaintiffs averred that their mother Mt. Mahadevi who was the daughter of Chunni Lal, the last male owner of the property in dispute, had without legal necessity alienated part of Chunni Lal's estate. In this appeal we are concerned only with one alienation, namely a mortgage dated 8th March 1927 in favour of the defendant Mt. Mehri Kunwar, and a decree obtained on the basis thereof dated 12th March 1931. The original and main defence to the suit was that the mortgagor Mt. Mahadevi was not a limited owner but a full owner of the property mortgaged under a will executed by her father Chunni Lal on 22nd February 1897. The learned Civil Judge in the trial Court held upon a consideration of the terms of the said will that Mt. Mahadevi was absolute owner of the property mortgaged. He further held that in any event the mortgage of 8th March 1927 was justified by legal necessity. In the result the learned Judge dismissed the suit.
2. The plaintiffs appealed and the case was heard by a Bench of this Court on 5th January 1937. In appeal the plea was taken that the will alleged to have been executed by Chunni Lal had not been proved. This plea was taken in view of the decision of the Privy Council in Basant Singh v. Brij Raj Saran Singh . This Court took the view that in the circumstances the defendants ought to be given an opportunity of proving the will by secondary evidence, a copy of the will only having been made available in the proceedings in the trial Court. This Court also took the view that the learned Civil Judge had dealt with the question of legal necessity in a somewhat perfunctory manner and that this matter should be further considered by the trial Court. In the result two issues were remitted to the Court below. These issues were:
(1) Was the will of which a copy was produced by the defendants validly executed by Chunni Lal? (2) Was the amount borrowed by Mt. Mahadevi under the mortgage of 8th March 1927 or any part of it borrowed for legal necessity
3. The decision of the trial Court on each of these issues is in favour of the defendants. The will has been held proved and further the borrowing of the money on the mortgage of 8th March 1927 was held to be justified by legal necessity. In appeal the finding that the will had been proved was not challenged by the plaintiffs. It was contended however that the evidence adduced by the defendants did not justify the conclusion that the borrowing of the money under the mortgage of 1927 was justified by legal necessity. In this appeal, for the first time, the defendants-respondents have preferred the plea that the plaintiffs' suit is not maintainable inasmuch as they are not the nearest reversioners entitled to succeed to the property on the death of the present holder Mt. Mahadevi. In view of the conclusion we have arrived at on this plea, it is unnecessary to consider whether or no the borrowing of the money on the mortgage of 8th March 1927 was justified by legal necessity. We are satisfied that inasmuch as the plaintiffs are not the nearest presumptive reversioners they are not entitled to maintain the present suit. The first question which arises for consideration is as to the nature of Mt. Mahadevi's estate. This depends upon the construction of Chunni Lal's will. The relevant portion of this document is as follows:
But after my death my wife Mt. Mohini will be the owner of the entire property left by me. Mt. Mohini aforesaid will have all the rights of ownership like myself, and she will be entitled to spend, transfer or mortgage any property she likes. After the death of Mt. Mohini aforesaid my daughter Mt. Mahadevi will be the owner in possession and enjoyment of the entire property left by Mt. Mohini, out of my properties. In case my wife Mt. Mohini dies in my lifetime, then after my death my daughter Mt. Mahadevi will be the owner in possession and enjoyment of the entire property left by me; she will have all the rights of ownership like myself. God forbid but in case Mt. Mahadevi predeceases Mt. Mohini, then Mt. Mohini will have the right to transfer my property to whomsoever she likes, or to will it away; and no heirs of Mt. Mahadevi belonging to her husband's family will have any right to it.
4. By these provisions it is plain that Chunni Lal conferred upon his wife in the event of his death a full estate in his property. She was to have 'the rights of ownership like myself' and she was to be 'entitled to spend, transfer or mortgage any property she likes.' If anything were left of the property on Mt. Mohini's death then Mt. Mahadevi was to become owner thereof. In other words, what the testator attempted to do was to give a full estate to his wife with a gift over in favour of his daughter. Having conferred the full estate on his wife however, the testator was not entitled to make a gift over in favour of anyone else. The provision by which he purported to make the gift over is clearly void. In this connexion we refer to the case in Mohan Lal v. Niranjan Das (1921) 8 AIR Lah 11 Mt. Mohini having become full owner under her husband's will her daughter Mt. Mahadevi on her mother's death took the estate as a stridhan heir. She became a limited owner: see Mulla's Principles of Hindu Law, p. 159. Mt. Mahadevi being a limited owner with only a life estate in the property to which she succeeded on her mother's death her heir is her daughter and not her sons the plaintiffs: see Amarjit Upadhya v. Algu Chaube : AIR1929All71 and Mulla's Principles of Hindu Law, page 149.
5. It was contended for the appellants however that although they were not the presumptive heirs they were entitled to maintain the suit for a declaration that an alienation by their mother was not binding on them. In support of this contention reference was made to the cases in Balgobind v. Ramkumar (1884) 6 All 431, Deoki v. Jwala Prasad : AIR1928All216 and Abinash Chandra Mazumdar v. Harinath Shaha (1905) 32 Cal 62. The decisions in Balgobind v. Ramkumar (1884) 6 All 431 and Abinash Chandra Mazumdar v. Harinath Shaha (1905) 32 Cal 62 certainly do support the appellants' contention. The decision in Deoki v. Jwala Prasad : AIR1928All216 however is definitely against the contention. In our judgment the law upon the question in issue has been clearly interpreted in the Privy Council decision in Rani Anand Kunwar v. The Court of Wards (1881) 6 Cal 764. Dealing with the question of the right of a remote reversioner to maintain a suit for a declaration that an alienation by a limited owner was invalid, the Board observed:
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 the 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 Bhikaji Apaji v. Jagannath Vithal (1873) 10 Bom HCR 351 is correct. It cannot be the law that anyone 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 everyone 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 Kooer Goolab Singh v. Rao Kurun Singh (1870-72) 14 MIA 176 In such a case, upon 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.
6. This exposition of the law has been considered in Balgobind v. Ramkumar (1884) 6 All 431 and Abinash Chandra Mazumdar v. Harinath Shaha (1905) 32 Cal 62. In both these cases the view was expressed that the Privy Council had in view the succession by a reversioner to full proprietary interest in the property and did not cover the case where the nearest presumptive heir took not a full proprietary interest but a limited estate. A Bench of this Court had occasion to consider this argument in Deoki v. Jwala Prasad : AIR1928All216 . In the course of their judgment in that case Sulaiman and Kendall JJ. observe:
There is thus a clear preponderance of authority in favour of the view that a reversioner to the full proprierty estate is entitled to maintain a suit without showing collusion between the nearer female heir and the widow, and that the principle laid down by their Lordships of the Privy Council has no application where the next heir is a female and as such entitled only to a life estate. But with great respect we would point out that all the learned Judges have ignored the significance of the definition of the words 'presumptive reversionary heir' as given by their Lordships themselves, and have introduced the words 'to the full proprietary interest' which are not to be found in that definition. In Rani Anand Kunwar v. The Court of Wards (1881) 6 Cal 764 their Lordships at p. 772 stated '...must be brought by the presumptive reversionary heir,-that is to say by the person who would succeed if the widow were to the at that moment.' When there is a nearer female heir intervening, it cannot be said by any stretch of the language that the next male heir is the person who would succeed if the widow were to the at that moment. In the face of this clear language, we are unable to agree that the words 'reversionary heir' used by their Lordships meant only 'reversionary heir to the full proprietary interest and did not include the female heir who would succeed immediately if the widow were to the at that moment. Although there have been expressions of the contrary view by so many eminent Judges, we feel it our duty to give effect to the clear language used by their Lordships and hold that the general rule laid down in Rani Anand Kunwar v. The Court of Wards (1881) 6 Cal 764 is not inapplicable to the case where a nearer female heir intervenes, provided that she would be the heir to the estate if the widow were to the at that moment.
7. We are in agreement with this exposition of the principle adumbrated by the Privy Council in Rani Anand Kunwar v. The Court of Wards (1881) 6 Cal 764 Learned counsel for the appellants contended that the decision in Deoki v. Jwala Prasad : AIR1928All216 was not binding upon this Bench and he maintained that the High Courts of Calcutta, Patna and Madras had taken a directly contrary view of the law. In particular, learned Counsel relied upon Abinash Chandra Mazumdar v. Harinath Shaha (1905) 32 Cal 62. In the course of the judgment in that case it is observed:
The principle upon which a reversionary heir is allowed to maintain a declaratory suit, although it may turn out 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-estates intervene between the original proprietor and the ultimate full owner, than in the case in which only one such life-estate is interposed.
8. We are unable to agree that the necessity for preserving the evidence in regard to the true character of the alienation is any justification for holding that a more remote heir is entitled to maintain a suit for such a declaration where a nearer female heir exists. The female heir is clearly entitled to maintain a suit for such a declaration herself and if she brings the suit the evidence will be preserved. In our view the principle approved of by the Privy Council in Rani Anand Kunwar v. The Court of Wards (1881) 6 Cal 764 applies to the circumstances of the present case. It was urged for the plaintiffs however that these circumstances justified the Court in exercising its discretion and allowing the plaintiffs to maintain the present suit. In support of this contention reliance was placed on certain observations in the judgment in the case already referred to; Deoki v. Jwala Prasad : AIR1928All216 . In the course of the judgment in that case it is observed:
It follows that although we are unable to hold that the existence of a nearer female heir can always be ignored by the next male heir, we are prepared to concede that even without any express proof of refusal, concurrence or collusion on her part there may be special circumstances in which a Court may exercise its discretion and grant the declaratory relief to a remote heir.
9. In our judgment, however, there are no such special circumstances in the present case. The plaintiffs came into Court with the averment, in para. 4 of the plaint, that they were the nearest reversioners of their maternal grandfather Chunni Lal and that they alone would become the owners of the property given below after the death of Mt. Mahadevi. Though the existence of Chunni Lal's will must have been known to the plaintiffs no reference was made to the will and despite the fact that the will was summoned by the defendants it was not produced by the plaintiffs. Not only did the plaintiffs fail to disclose the fact that there existed a nearer heir, namely their sister, but they failed to include any averments in their plaint that there were special circumstances such as would justify the Court in entertaining the suit despite the fact of her existence.
10. We have considered the evidence on the question of legal necessity. That evidence leaves us in no doubt whatever that Rupees 2000 was advanced on the mortgage bond of 8th March 1927. We do not desire to express any opinion as to whether the borrowing of the whole of this sum was strictly justified by legal necessity. A large portion however does appear to have been borrowed for the purpose of paying land revenue and irrigation dues and of defraying the expenses of the gauna ceremony of Mt. Mahadevi's daughter, and for repairs to shops which formed part of Chunni Lal's estate. Having given our full consideration to the entire facts and circumstances, we are satisfied that we would not be justified in the exercise of our discretion in granting any indulgence to the plaintiffs. They are not the presumptive heirs entitled to succeed to the property in suit on Mt. Mahadevi's death. They have neither averred nor proved any special circumstance which would justify a departure from the general rule that such a suit as the present is maintainable by the presumptive heir only. In the result the appeal is dismissed with costs.