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Sheo Pargash Ojha and ors. Vs. Kesho Prasad Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1922)ILR44All19
AppellantSheo Pargash Ojha and ors.
RespondentKesho Prasad Singh
Excerpt:
res judicata - civil procedure code (1908), section 11, explanation vi--hindu law--reversioners--alienation by widow--effect of suit by nearest presumptive reversioner during the widow's life-time on subsequent suit after widow's death between actual reversioner and the alienes. - - from either point of view, there fore, the appeal must fail in regard to the zamindari property in dispute. subsequently kishan prasad also failed to pay his government revenue. 382 was no longer good law by reason of the pronouncements of their lordships of the privy council in the cases of venkatanarayana pillai v. we may as well at once state that we do not for a moment doubt the accuracy of the decision in bhagwanta v. in the later one we do not think it is correct to say that their lordships expressed a.....pramada charan banerji, j.1. i have had the advantage of reading the judgment prepared by my brother tudball and i fully agree with it. there is nothing which i may profitably add without repeating what he has said.2. having regard to the recent pronouncements of their lordships of the privy council which my learned colleague has quoted at length, it must be held that a suit by a reversioner for setting aside an alienation made by a hindu widow in possession is brought by him in a representative capacity, that is, as representing the whole body of reversioners, for the protection of the estate. a decree in such a suit is, there fore, binding, not only between the reversioner who brought the suit and the transferee, but also as between the whole body of reversioners on the one hand and the.....
Judgment:

Pramada Charan Banerji, J.

1. I have had the advantage of reading the judgment prepared by my brother Tudball and I fully agree with it. There is nothing which I may profitably add without repeating what he has said.

2. Having regard to the recent pronouncements of their Lordships of the Privy Council which my learned colleague has quoted at length, it must be held that a suit by a reversioner for setting aside an alienation made by a Hindu widow in possession is brought by him in a representative capacity, that is, as representing the whole body of reversioners, for the protection of the estate. A decree in such a suit is, there fore, binding, not only between the reversioner who brought the suit and the transferee, but also as between the whole body of reversioners on the one hand and the transferee or his representative in title on the other. This is so, not because one reversioner must in that case be deemed to claim through another, but because the reversioner who sues represents the others and Explanation VI of Section 11 of the Code of Civil Procedure comes into operation. In the Full Bench case of Bhagwanta v. Sukhi (1899) I.L.R. 22 All. 33 all that was held was that one reversioner did not claim through another. There are, no doubt, certain observations of the learned Chief Justice in his judgment in that case which are favourable to the appellant, but they cannot be followed in view of the opinion recently expressed by their Lordships of the Privy Council, The whole question has been fully discussed by my learned colleague and all that I need say is that I agree with him. In these circumstances we must dissent from the decisions in which a contrary view has been held and must rule that it is not open to the appellant to dispute the correctness of the decision in the former case and to show that the mortgage made by the widow was for valid necessity.

3. Speaking for myself, I am inclined to hold that the sale which took place at the instance of Kishan Prasad was a sale of the rights and interests of the widow such as they were declared to be in the suit of the reversioners decreed before the sale. No doubt the property was described to be the share of the husband held by the widow, but as before the sale it was held, as between Kishan Prasad and the reversioners, that the mortgage by the lady could not enure beyond her life, and as the property was put up for sale in enforcement of the mortgage after the decree, the mortgagee must be deemed to have caused only the life-interest of the widow to be sold. If this view is correct, the interests acquired by the purchaser at the auction sale came to an end with the death of the window and the appellant has no longer any right in the property. From either point of view, there fore, the appeal must fail in regard to the zamindari property in dispute.

4. As for the grove in dispute, it is impossible to hold that Section 79 of the Tenancy Act applies to it.

5. I also would dismiss the appeal.

Tudball, J.

6. This appeal arises out of a suit brought by the three plaintiffs respondents as the reversioners of one Ram Manohar Ojha, to recover possession of his estate from the various persons to whom his widow Musammat Audha Kunwar transferred or who took possession there of after her death. The defendants have separately appealed in respect of those properties which are in their separate possession. The appeal No. 439 of 1918 has been settled and has been dismissed, but without costs.

7. The present; appellant is the owner of the Dumraon Raj. The other appellant, Musammat Dharchana Kunwar, is the widow of one Babu Kishan Prasad, alias Kishan Ram. Ram Manohar Ojha died about the year 1856 leaving three childless widows and an estate. The two of the widows died leaving Musammat Audha Kunwar in sole possession. The estate consisted of zamindari in four villages, including a 2 anna 8 pie share in village Pachrokia, a grove No. 526 in mauza Balihar, some muafi and fixed rate tenancies in another village and an occupancy holding in the district of Arrah.

8. The zamindari was subject to alluvion and diluvion and it was held under permanent settlement.

9. The widow appears to have soon commenced to alienate the estate and her husband's reversioners started litigation in respect there to in 1883, with which, however, we are not concerned in this appeal. She fell in arrears with her Government revenue, and as the Raja of Dumraon was a co-sharer and liable jointly there for to Government, it was recovered from him. On the 18th of May, 1893, he sued her in the Revenue Court to recover what he had paid and obtained a simple money decree for Rs. 505-5-4 on the 29th of January, 1894. In execution of his decree a portion of the estate was attached and advertised for sale. Dhanai Ojha, the presumptive reversioner, intervened to save the property. He petitioned the Collector and asked to be granted a lease for 12 years, offering to pay off the decree and to furnish security. The Collector approved, but Musammat Audha Kunwar did not agree, Accordingly, on the 25th of December, 1899, she borrowed Rs. 1,000 from Kishan Prasad and mortgaged the estate to him, Out of this sum she paid Rs. 587 to satisfy the Raja's decree. There is no evidence to show what necessity if any, there was for borrowing the balance of the Rs. 1,000, As this debt was not paid, Kishan Prasad sued and obtained a decree for sale on the basis of the mortgage on the 31st of March, 1903, There upon Dhanai Ojha, the presumptive reversioner, at once sued for a declaration that the alienation by the widow was without legal necessity and that neither it nor the decree obtained there on by Kishan Prasad could affect the estate other wise than for the life-time of the widow or, was binding on the reversionary body.

10. A decree was passed in his favour to this effect on the 21st of June, 1904, as against the widow and Kishan Prasad. On the 16th of November, 1904, the estate was sold at auction in execution of the mortgage decree and purchased by Kishan Prasad himself. He entered into possession. The grove No. 526 in mauza Balihar was not included in this sale. It was situated in a village of which the Raja of Dumraon is the zamindar. Subsequently Kishan Prasad also failed to pay his Government revenue. The arrears were recovered from the Duarraon Raj as before. A suit for these was brought against him and a decree obtained in execution of which the 2 annas 8 pies share of Pachrokia was attached and sold and purchased by the Raja in 1912. Musammat Audha Kunwar died on the 9th of September, 1914, The Raja of Dumraon there upon unlawfully took possession of grove No. 526 in mauza Balihar. The present suit was instituted in September, 1917, by the three respondents as the next reversioners entitled to the estate on the death of the widow. Various defences were raised by the two defendants, but in this and the connected appeal we are concerned with only two of these.

(1) The two defendants pleaded that the transfer, by the widow was for legal necessity and was there fore binding on the estate.

(2) In respect to grove No. 526, the Raja of Dumraon pleaded that he was the zamindar of Balihar; that the grove was a holding within the meaning of the Tenancy Act; that he had taken adverse possession of it on the death of the widow, and a suit for possession of it would lie only under Section 79 of the Tenancy Act, for which the period of limitation was only six months; that no suit could lie in the Civil Court, and moreover, was barred by limitation, having been brought in 1917.

11. The court below hold on both these points in favour of the plaintiffs and granted a decree for possession of the grove No. 526 and the share in mauza Pachrokia and Rs. 25 mesne profits as against the Maharaja Kesho Prasad Singh, and for the other property as against Musammat Dharchana Kuuwar, the widow of Kishan Prasad. Both findings are challenged on appeal. The first point is common to both appeals and the second arises only in appeal No. 17 of 1919. No other points are pressed before us. On the main question, that of legal necessity, the respondents raise the plea that the former decision and decree of the 21st of June, 1904, obtained by Dhanai as against the widow and Kishan Prasad, is binding on the parties and this Court cannot now go behind it; and as it was there in hold that the transfer to Kishan Prasad was not binding on the estate after the death of the widow, the reversioners are now entitled to possession.

12. These appeals came before a Bench of this Court, and the Judges who constituted that Bench, being of opinion that the ruling in Chhiddu Singh v. Durga Dei (1900) I.L.R. 22 All. 382 was no longer good law by reason of the pronouncements of their Lordships of the Privy Council in the cases of Venkatanarayana Pillai v. Subbammal (1916) I.L.R. 38 Mad. 406 and Janaki Ammal v. Narayanasami Aiyer (1916) I.L.R. 39 Mad. 634 referred these appeals for decision by a larger Bench. The decision in Chhiddu Singh v. Durga Dei (1900) I.L.R. 22 All. 382 is no doubt in favour of the appellants and against the contention of the respondents. In that case Balu Singh was the last male owner. Some of his brothers and nephews during the life-time of the widow sued to set aside certain alienations as not being for valid and legal necessity. It was held that some of the alienations were bad and some were good. On the death of the widow, some of the nephews who were actual reversioners and who had not been parties to the former suit sued for possession of those properties in respect to which it had been held in the former suit that the alienations were binding on the estate. This Court held that the former decision did not operate as res judicata and was not binding on the plaintiffs. The decision was based on the finding of a Full Bench of this Court in Bhagwanta v. Sukhi (1899) I.L.R. 23 All. 33, where in it was held that where there are several reversioners entitled successively under the Hindu law to an estate held by a Hindu widow, no one of such reversioners can be held to claim through or derive title from another, even if that other happens to be his father, but the derives his title from the last full owner. Some stress was also laid on certain remarks of their Lordships of the Privy Council in the cases of Jumoona Dassya Chowdhrani v. Bamasoonderai Dassya Chowdhrani (1876) L.R. 3 I.A. 72 and Isri Dut Koer v. Mussumut Hansbutti Koerain (1888) L.R. 10 I.A. 150 as tending to show that their Lordships were of the opinion that the decision in such a former suit did not operate as res judicata. We may as well at once state that we do not for a moment doubt the accuracy of the decision in Bhagwanta v. Sukhi (1899) I.L.R. 22 All. 33 that a reversioner who succeeds to the estate on the death of a widow inherits from the last male owner and not through any other reversioner. But we do not agree with the decision in Chhiddu Singh v. Durga Dei (1900) I.L.R. 22 All. 832. The former decision is not a sufficient basis for the decision of the point now before us. No doubt, at first glance it might appear to be so when read with Section 43 of the Specific Relief Act. In neither of the decisions in Jumoona Dassya Chowdhrani v. Bamasoonderai Dassya Chowdhrani (1876) L.R. 3 I.A. 72 and Isri Dut Koer v. Mussumut Hansbutti Koerain (1888) L.R. 10 I.A. 150 have their Lordships of the Privy Council decided the point. In the older one a doubt was expressed, but no opinion. In the later one we do not think it is correct to say that their Lordships expressed a strong opinion that such a decision would not be binding as res judicata in the case of a now reversioner. The plea was raised before their Lordships that they should exercise their discretion and refuse to grant the declaration sought by the presumptive reversioner, on the ground that a part of the case raised a difficult point of law, the decision of which, though involving expense and delay, might not after all be binding upon the actual reversioner. Their Lordships remarked that this reasoning did not apply to the case before them, and then continued; 'nor is it reality conceivable that the decision will be fruitless, because the question of law is of such a nature that its decision, though not binding as res judicata between the widows and a new reversioner, would be so strong an authority in point as probably to deter either party from disputing it.'

13. It seems that it is the portion italicized that the Bench of this Court took to be a strong expression of opinion. We cannot agree that their Lordships intended to say or did say any more than that the decision, even if it was not binding as res judicata, would be so strong an authority in point as probably to deter either party from disputing it. They nowhere expressed a strong opinion that it would not be binding as res judicata, between the, widow and a new reversioner. The decision in Chhiddu Singh v. Durga Dei (1900) I.L.R. 22 All. 382 entirely overlooked the capacity in which a presumptive reversioner sues in such a case as the present one. There are four kinds of suits which a presumptive reversioner might bring against a widow and others:

(1) For a declaration that he himself is the presumptive reversioner.

(2) For a declaration that an adoption is invalid.

(3) For a declaration that an alienation is not binding, on the reversioners and cannot enure beyond the life-time of the widow.

(4) To restrain the widow from wasting and damaging the estate.

14. The first class would clearly be one brought in a purely personal capacity and such a declaration has always been refused as being futile because no one can predicate that the plaintiff will be the actual reversioner when the estate actually opens out.

15. In the second class it has been held, vide Chirurolu Punnamna v. Chiruvolu Perrazu (1906) I.L.R. 29 Mad. 390 that the presumptive reversioner represents the remote reversioner, provided the matter is decided after a fair trial, and that the same principle applies when a remote reversioner is allowed to sue under special circumstances to set aside an adoption and that the true purpose of the concession of a right of suit in these cases is the protection of the interests of the person or persons who may eventually turn out to be the heir or heirs. In the case of Venkatanarayana Pillai v. Subbammal (1915) I.L.R. 38 Mad. 406 their Lordships of the Privy Council concurred in the opinion of the Madras High Court that the presumptive reversioner's suit in such a case is in a representative capacity. In this class of cases, there fore, the decision has been held to be binding as between the actual reversioner at the death of the widow and the adopted son or any one claiming through him.

16. In the case of the third class of suit, however, the Madras High Court, until the decision in the Full Bench case of Varamma v. Gopaladasayya (1918) I.L.R. 41 Mad. 659, had sometimes drawn a distinction between this class and the second class (to set aside an adoption), but in a Full Bench case that Court has altered its view in the light of the decisions of the Privy Council in Venkatanarayana Pillai v. Subbammal (1915) I.L.R. 38 Mad. 406 and Janaki Ammal v. Narayanasami Aiyer (1916) I.L.R.39 Mad. 634 It has now held that in this class of case also the presumptive reversioner's suit is a representative suit on behalf of all the reversioners. It seems to us obvious that such a suit, if genuine and properly fought out, is one the true purpose of which is the protection of the interests of the person or persons who may eventually turn out to be the heir or heirs, and that the position of the plaintiff in both these two classes of suits is exactly the same.

17. Similarly, in the fourth class of suit to restrain waste, the plaintiff reversioner brings his suit in a representative capacity to protect the interests of all the reversioners and also those of the person or persons who may eventually turn out to be the actual heir or heirs. In the case of Venkatanarayana Pillai v. Subbammal (1915) I.L.R. 38 Mad. 406 their Lordships of the Privy Council remark as follows:

The Indian law, however, permits the institution of suits in the life-time of the female owner for a declaration that an adoption made by her is invalid or an alienation effected by her is not binding against the inheritance.

18. They then point to the difference in the language of Articles 118 and 125, Schedule I, of the Limitation Act as to who may institute the suit in each class of case, and then continue: 'But it does not follow from these words (of Article 125) that the suit brought in the latter case by the nearest reversioner is for his personal benefit for the object is to remove a common apprehended injury to the interests of all the reversioners, presumptive and contingent alike.'

19. They then point out the distinction between the two classes of suit and remark:

But in both the right to sue is based on the danger to the Inheritance common to all the reversioners which arises from the nature of their rights.... Although, no doubt, as their Lordships have already remarked, there is great difference in the character of the two classes of suits the position of the plaintiffs in both instances when closely examined will be found, so far as the point for decision is concerned, to be the same.

20. We do not lose slight of the fact that in the case the point for decision was whether the next reversioner was entitled, on the death of the presumptive reversioner, to carry on the suit instituted by the latter, but their Lordships clearly state that, apart from the question whether the next presumable heir is the legal representative of the deceased presumptive reversioner, there remains the outstanding fact of identity of interest on the part of the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of their rights.

21. In the case of Janaki Ammal v. Narayanasami Aiyer (1916) I.L.R. 39 Mad. 634 a presumptive reversioner sued to restrain the widow from wasting the estate and for any further relief which the court might deem fit to give in the case. The Courts in India held that waste had not been established. Before the Privy Council it was urged that he was entitled to a declaration that he was the next presumptive heir, because his claim to be such had been disputed. It was held that in the circumstances, he having failed to make good the main heads of his complaint, no such declaration ought to be granted to him. This claim for this declaration was clearly a personal claim, where as the suit to restrain waste had really been brought in a representative capacity. Their Lordships remarked as follows:

It is also true that a reversionary heir is recognized by a Court of Law as having a right to demand that the estate be kept free from waste and free from danger during its enjoyment by the widow or other owner for life. But a reversionary heir thus appealing to the court truly for the conservation and just administration of the property does so in a representative capacity so that the corpus of the estate may pass unimpaired to those entitled to the reversion. The law on this subject was recently expounded, in the judgment of this Board delivered by Mr. Ameer Ali in Venkatanarayana Pillai v. Subbammal (1915) I.L.R. 38 Mad. 406. This representation is in law founded upon a different set of considerations from those which would seek to stamp the character of reversionary heir on one individual. The latter operation attempted during the enjoyment of the life estate would necessarily be premature and might, as stated, be futile. The former is justified by the considerations of keeping the estate intact for the person to whom as reversionary heir it shall ultimately and at the proper time be determined that the estate shall go.

22. We have quoted at length from these two decisions because it seems to us clear that, according to these remarks, in a suit like the one now before us, the former suit was clearly one brought by the presumptive reversioner in his representative capacity and not in his personal capacity, and the decision there in, if obtained alter fair contest and in the absence of fraud and collusion, must be binding as between the widow and her alienee on the one side and the whole reversionary body on the other. If it were not so binding it surely would be futile to grant any such declaration as is sought, for no one can predicate that the plaintiff reversioner will be the actual reversioner when the widow dies. Such a suit is clearly brought in a representative capacity in order to keep intact the estate for the persons to whom as reversioners it will ultimately go on the death of the widow. The right claimed by the presumptive reversioner is a right to demand that the estate be kept intact and free from danger during its enjoyment by the widow. It is a right claimed in common for himself and all the members of the reversionary body. If he colludes with the widow that right may be enforced by the next reversioner after him. If he dies during the prosecution of his suit his place as plaintiff may be taken by the same next reversioner. Explanation VI of Section 11 of the Code of Civil Procedure clearly lays down that where persons litigate bond fide in respect of a private right claimed in common for them selves and others, all persons interested in such right shall 'for the purposes of this section be deemed to claim under the persons so litigating.'

23. In the present case, there fore, for the purpose of Section 11 of the Code, the present plaintiffs must be deemed to claim under Dhanai Ojha. It will be noted that this is so deemed only for the purposes of this section and this does not necessarily conflict with the decision in Bhagwanta v. Sukhi (1899) I.L.R. 22 All. 33 that the, actual reversioner on the death of the widow inherits from the last male owner. It is only where such a declaratory suit has been brought by the presumptive reversioner in his representative capacity, claiming the right which he has in common with every other reversioner, that (this rule laid down in Explanation VI of the section applies.

24. In view, there fore, of the pronouncements of their Lordships of the Privy Council as to the nature of such suits and the capacity in which the plaintiffs there in sue, the logical conclusion at which the Court must arrive is that a former decision, whichever way it may be, is binding as between the transferee and the actual reversioner when the widow dies, provided that the matter has been fully and genuinely contested. Our attention has been called to the decision of a Bench of this Court in Darbari Lal v. Govind Ram (1921) I.L.R. 43 All. 514 which has adhered to the decision in Chhiddu Singh v. Durga Dei (1900) I.L.R. 22 All. 382. This decision does not recommend itself to us. We do not think that sufficient attention has been paid there in to the Privy Council rulings to which we have referred, Here also we note that in Bombay the representative character of the reversioner's suit has all along been recognized. The appellant has acquired at auction the right, title and interest of Kishan Prasad in the share in mauza Pachrokia, which he put to sale in execution of his decree against his judgment-debtor. In view of the decision of the 21st of June, 1904, Kishan Prasad's rights came to an end on the death of Musammat Audha Kunwar and the plaintiffs are entitled to recover possession.

25. There remains the question of grove No. 576. The appellant pleads that a suit for possession of this can only lie in the Revenue Court and ought even there to have been brought within six months, as he took possession of it on the death of the widow. He is, he says, the zamindar, and the plaintiffs were agricultural tenants whom he has illegally ousted. It is pointed out that the grove-holder, as the settlement records show, used to deliver half the produce of the grove as rent. It has to be admitted before us that the holder of this grove, Ram Manohar Ojha, and his widow were grove-holders, pure and simple. They held no zamindari in the village and the land is land which was granted by the zamindar for the purpose of planting a grove, the grantee agreeing to deliver one-half of the fruit to the zamindar.

26. In the case of Habibullah v. Kalyan Das (1914) 12 A.L.J. 1080 the late Sir Sundar Lal, J., reviewed the case-law on the subject of the status of a grove-holder and pointed out that the consensus of authority of cases decided both in this Court and by the Board of Revenue is in favour of the view that land held for the purposes of a grove is not land held for agricultural purposes. We do not propose to diverge from this view and to import any more uncertainty into the law on this point. Section 79 of the Tenancy Act enables a tenant who has been unlawfully ejected from his holding by a landlord to bring a suit to recover possession and compensation, and the period of limitation for such a suit is six months as laid down by the Act. A holding consists of lands held or let for agricultural purposes, and as pure grove land is not land held for agricultural purposes, the section cannot apply. The plaintiff's remedy can there fore lie only in the Civil Court and the ordinary period of 12 years' limitation will apply. The suit is there fore rightly brought in the Civil Court and is within limitation. The result, therefore, is that the appeal fails and is dismissed with costs.

Sulaiman, J.

27. I agree. The question of res judicata in the form in which it arises in this case does not seem to have come up directly before their Lordships of the Privy Council for decision. There are, however, certain dicta in two classes of cases which have been the source of conflicting decisions by the courts in India. In suits brought to challenge an adoption there are observations which have led courts to infer that the adjudication in such suits would bind all the subsequent reversioners. In Jumoona Dassya, Chowdhrani v. Bamasoonderai Dassya Chowdhrani (1876) L.R. 3 I.A. 72 their Lordships laid stress on the peculiar nature of the suit, in which the plaintiff, upon a remote and contingent interest, comes into court not only to destroy the title of a person in possession of an estate, but to destroy his civil status. In Rajendro Nath Holdar v. Jogendro Nath Banerji (1871) 14 Moo. I.A. 07 it was pointed out how unjust it might be after long lapse of time to deprive him of the status which an adopted son has acquired in the family into which he has been introduced. In Jagadamba Chowdhrani v. Dakhina Mohun (1886) L.R. 13 I. A. 84 the desirability of allowing only a moderate time within which such delicate and intricate questions as those involved in adoption should be brought into dispute was emphasized. Sir Barnes Peacock in Brojo Kishoree Dassee v. Sreenath Boss (1868) 9 W.R. C.R. 463 even thought that 'it had been decided by the Privy Council that such a decree is binding upon the reversionary heirs in Ranee Surnomoyee's case' (2 W.R., P.C., 13). That case, however, decided nothing of the kind. On the other hand, certain remarks in suits brought to set aside an alienation by a limited owner were considered to lean the other way. In Tekait Doorga Persad Singh v. Tekaitni Doorga Konwari (1878) L.R.5 1. A. 149 their Lordships observed that 'the decision (as to legal necessity) might not be final in his favour because the present plaintiff might die in the life-time of the widow, and the estate might never come to him'. In Isri Dut Koer v. Mussumut Hansbutti Koerain (1883) L.R. 10 I.A. 150 Sir Arthur Hobhouse when referring to the reason assigned for refusing relief on the ground of discretion, viz., that the decision may after all not be binding on the actual reversioners, remarked: 'Nor it is readily conceivable that the decision will be fruitless because the question of law is of such a nature that its decision, though not binding, as res judicata between the widow and a new reversioner, would be so strong an authority in point as probably to deter either party from disputing it.' This last observation was taken by Strachey, C.J., in Bhagwanta v. Sukhi (1899) I.L.R. 22 AIl. 33 to imply that their Lordships 'indicate strongly that such a decision would not be binding as res judicata in the case of a new reversioner '. And this opinion was followed in Chhiddu Singh v. Durga Dei (1900) I.L.R. 22 All. 382 and Darbari Lal v. Govind Ram (1921) I.L.R. 43 AIl. 514. These different conclusions led to a fine distinction between the legal effects of decrees in the two classes of cases, which is best illustrated by the following remark, on page 411, in Chiruvolu Punnamma v. Chiruvolu Perrazu (1906) I.L.R. 29 Mad. 390: 'The result of the view that we take is that, though in suits relating to alienations by a qualified owner the dicta of the Privy Council preclude our holding that the presumptive reversioner represents remote reversioner, yet in suits to set aside an adoption the presumptive reversioner ought, on principle, to be held to represent the remote reversioner, provided the matter is decided after a fair trial '. The basis of the distinction was that a suit to challenge an adoption was considered a representative suit, while a suit to set aside an alienation was not. As a logical result of this differentiation it was considered that if in a suit to sot aside an alienation the plaintiff died the right to sue did not survive and the suit abated: Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib (1904) I.L.R. 27 Mad. 588.

28. The whole aspect of the question has now been completely altered by the recent pronouncement of their Lordships of the Privy Council in Venkatanarayana Pillai v. Subbammal (1915) I.L.R. 33 Mad. 406 emphasizing that a suit by a reversioner to set aside an alienation is also a 'suit brought by the presumptive reversioner in a representative capacity and on behalf of all the reversioners. The act complained of is to their common detriment just as the relief sought is for their common benefit ', and that there is 'the outstanding fact of identity of interest on the part of the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of 'their rights.' This opinion has been reiterated in Janaki Ammal v. Narayanasami Aiyer (1916) I.L.R. 39 Mad. 634.

29. In view of such a clear pronouncement as to the true nature of the suit, inferences from certain remarks in cases in which the point did not directly arise have no longer any weight: vide Varamma v. Gopaladasayya (1918) I.L.R. 41 Mad. 659. The main basis of the distinction having disappeared, in my judgment the decision in a suit to set aside an alienation would just as much be binding on all the reversioners as that in a suit to challenge an adoption. Further, it is to be borne in mind that the remarks of their Lordships were made in cases which arose while Act VIII of 1859 was in force. Section 1 of that Act, which embodied the principle of res judicata, did not contain any provision like the one which found place in the Acts of 1877 and 1882 and which is now to be found in Explanation VI to Section 11 of the present Code of Civil Procedure, It seems to me that when once the representative character of the suit is accepted, the decision must, by virtue of the Explanation referred to above, operate as res judicata. The right to get the alienation declared invalid is a right claimed in common by the whole body of reversioners, and they must all, for the purposes of Section 11, be deemed to claim under the persons litigating. The decision in a case instituted by the next reversioner would, there fore, if free from fraud or collusion, be final, and it would not be open to other reversioners to re-open the question; much less can it to open to a defeated transferee or his representatives to re-agitate the matter as against the actual reversioner who inherits the estate. It is true that a reversioner claims from the last male owner and not through another reversioner; but the legal effect of Explanation VI of Section 11 of the Code of Civil Procedure is that such reversioner is deemed to have been represented through the person suing, and must, there fore, be bound by the adjudication and can also claim the benefit of it. There may be a large number of persons who have equal and independent title, and none of them may claim through another, yet they all may be deemed to be represented by only some of them who are actually suing.

30. I should like to add that it would simplify matters considerably, and would also avoid all possibility of collusion or carelessness in the prosecution of the case, if original courts while entertaining suits by reversioners to set aside alienations by limited owners were to follow the procedure prescribed by Order I, Rule 8, of the Code of Civil Procedure, and after the issue of the necessary notice implead remoter reversioners who may apply to be made parties. But even if this procedure has not been strictly followed, I would find it difficult to see how a defeated transferee, when subsequently sued by the actual reversioner, can claim not to be bound by the decree against him.

31. The other legal question raised in appeal involves no difficulty. The claim to recover possession of the grove cannot be barred by the six months' rule of limitation unless it be held that the suit should have been brought in the Revenue Court under Section 79 of the Agra Tenancy Act. But the grove in suit not being land let or held for agricultural purposes is not a holding as defined by the Act, and so Section 79 could have no application.

32. I there fore concur in the order proposed.

33. The order of the Court is that the appeal is dismissed with costs.


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