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Bechu Ahir Vs. Hansraj Ahir and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1930All0
AppellantBechu Ahir
RespondentHansraj Ahir and ors.
Excerpt:
- - these must be taken to have either colluded with the life-tenant in the wrongful act complained of or to have concurred in the said act. 8. both upon general principles and the authorities set out above the right of suit clearly belonged to bechu, and his claim ought not to have been dismissed upon the mere fact that he was not the next presumptive reversioner. the plaintiff is clearly admitted as the first cousin of sarup, who has been found to be the last male holder of the property in dispute.sen, j.1. this is an appeal by the plaintiff and it arises out of a suit for a declaration that a deed of gift, dated 30th march 1922, executed by defendants 3 and 4, in favour of defendants 1 and 2, was null and void and not enforceable against the plaintiff's reversionary right. the following genealogical table will elucidate the relation of the parties:mansha ahir_________|_____________| |gur dayal sheo ratan| mt. manjharibechu plaintiff defendant 3._________|______| |sarup = anup|mt. sahti defendant 4|mt. ganga dei defendant 2.|hansraj, defendant 1.2. sheo ratan was separate from gur dayal and bechu. sheo ratan had two sons, sarup and anup. anup predeceased his father, so that upon sheo ratan's death sarup became the sole owner of the property by rule of survivorship. on 30th march.....
Judgment:

Sen, J.

1. This is an appeal by the plaintiff and it arises out of a suit for a declaration that a deed of gift, dated 30th March 1922, executed by defendants 3 and 4, in favour of defendants 1 and 2, was null and void and not enforceable against the plaintiff's reversionary right. The following genealogical table will elucidate the relation of the parties:

Mansha Ahir_________|_____________| |Gur Dayal Sheo Ratan| Mt. ManjhariBechu plaintiff defendant 3._________|______| |Sarup = Anup|Mt. Sahti defendant 4|Mt. Ganga Dei defendant 2.|Hansraj, defendant 1.

2. Sheo Ratan was separate from Gur Dayal and Bechu. Sheo Ratan had two sons, Sarup and Anup. Anup predeceased his father, so that upon Sheo Ratan's death Sarup became the sole owner of the property by rule of survivorship. On 30th March 1922 Mt. Sahti, who on the death of Sarup had only a limited interest in the property, executed a deed of gift in favour of her daughter Ganga Dei and her daughter's son Hansraj. Mt. Manjhari had no interest in the property, but she was joined in the execution of the deed of gift. Plaintiff claimed to be the next presumptive reversioner of Sheo Ratan. He alleged that upon the death of Sheo Ratan. Mt. Manjhari took to evil ways and that Sarup and Anup were not born in wedlock. The finding of the Court below is that Mt. Manjhari was the wedded wife of Sheo Ratan and Sarup and Anup were the lawful issues of that marriage. It is patent therefore that the plaintiff was not the next presumptive reversioner of Sarup. The next presumptive reversioner is Mt. Ganga Dei who, if she succeeds to the estate of Sarup, would also have a limited interest in the property. She was to be followed by Hansraj, the daughter's son. The succession of the plaintiff thus depends upon the happening of a remote and uncertain contingency.

3. The plaintiff did not state in the plaint that he was entitled to maintain the suit either because the next presumptive reversioners had colluded with the life tenant, or had otherwise precluded themselves from interfering. The suit was resisted on the ground that the plaintiff was not the nest presumptive reversioner and therefore was not competent to maintain the suit. This plea found favour with the Courts below which dismissed the suit. Plaintiff impugns the correctness of the decision of the Courts below. The law regulating the right of action in suits by reversioners has been laid down by the Judicial Committee in In re Rani Anand Kunwar v. The Court of Wards [1881] 6 Cal. 764 The following pronouncement has been made in this case:

It cannot be the law that anyone who may have a possibility of succeeding on the death of a 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. It 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,

4. This view has been reiterated in later decisions such as Venkatanarayana Pillai v. Subbammal A.I.R. 1915 P.C. 124. Referring to the earlier decision, their Lordships observe at p. 412:

But in laying down this broad rule their Lordships pointed out in clear terms that under certain circumstances the next presumable reversioner would be entitled to sue.

5. In Jhandu v. Tarif A.I.R. 1914 P.C. 34 their Lordships held that a contingent reversioner was not competent to maintain a declaratory suit unless he showed that the nearer reversionary heir had precluded himself from suing.

6. It is unfortunate that the plaintiff came into Court with a number of false allegations and put forward his pretension as the next presumptive reversioner, which he was not. He was, as a matter of fact, a contingent reversioner. He had not stated in the plaint that the presumptive reversioner had either colluded with the life-tenant or had otherwise precluded herself from suing. At the same time one cannot shut one's eyes to the fact that the deed of gift has been executed by the life-tenant in favour of persons who are nearer than the plaintiff in the order of succession under the Hindu law. These must be taken to have either colluded with the life-tenant in the wrongful act complained of or to have concurred in the said act. The act complained of is one which is clearly to their benefit and which passes the property from the life-tenant to them. Where the suit is directed against alienation in favour of the next presumptive reversioner the contingent reversioner from the nature of things is the only person entitled to challenge the transaction, and there does not appear to be any reason for holding that a suit by him is not competent. Under those circumstances the only person who was left in the field to challenge the legality or validity of the act of Mt. Sahti, the widow of Sarup, was Bechu Ahir, the plaintiff and no other person. I am fortified in this view by the decision of this Court in Raja Dei v. Umed Singh [1912] 84 All. 207 in which a Hindu widow in possession gifted the property in favour of a daughter's son during the lifetime of her daughter. It was held that a contingent reversioner was entitled to maintain a suit for declaration that the transfer was invalid, when the next reversioner was a female entitled to a life interest only.

7. It was further held that where the donee was the next reversioner presumptively entitled to the absolute ownership of the property the suit by the contingent reversioner was not barred. This view was followed in Jaint Singh v. Gosain [1918] 46 I.C. 85. The lower appellate Court has relied upon Meghu, Bai v. Ram Khelawan [1913] 35 All. 326. In this case the presumptive reversioner had not concurred in the alienation made by the widow; nor was he the transferee under the alienation impugned in the action. The presumptive reversioner had not by any acts or omissions precluded himself from challenging the act of the widow. Under those circumstances there was no excuse on the part of a contingent reversioner to assume the carriage of the Suit.

8. Both upon general principles and the authorities set out above the right of suit clearly belonged to Bechu, and his claim ought not to have been dismissed upon the mere fact that he was not the next presumptive reversioner. I would therefore reverse the decrees of the Courts below and decree the plaintiff's suit.

Niamatullah, J.

9. I entirely agree with the conclusion of my learned brother that the plaintiff is entitled to maintain the suit for the declaratory relief he seeks in his plaint. The fact that he made certain false allegations to establish his right as the presumptive reversioner of Sheo Ratan does not disqualify him from maintaining the suit if the facts found invest him with a status in which he can, sue for the declaration he seeks. On their own showing of the contesting defendants the deed of gift was executed by the widow of the last male holder in favour of his daughter and her son. The plaintiff cannot be denied the right to impeach a deed of gift which is in favour of a reversioner nearer than himself. It cannot be humanely expected that such reversioners would challenge the deed of gift in their own favour. The ease, therefore, comes within the rules enunciated in the cases to which reference has been made in the leading judgment. Defendants 1 and 2 have unquestionably precluded themselves from bringing a suit of the character brought by the plaintiff, having accepted the gift made by the present life estate holder.

10. To concede to the plaintiff a right to bring a suit for a declaration that the deed of gift will be 'null and void and not enforceable as against the future right of inheritance of the plaintiff' does not necessarily exclude the consideration of the further question, whether having regard to the particular circumstances of the case, the declaratory relief which is always in the discretion of the Court, should be granted. The deed of gift purports to have been executed by the widows of Sheo Ratan and Sarup in favour of the daughter of the last male holder and her son, and recites practically the whole: of the family pedigree including the line in which the plaintiff's name occurs. The plaintiff is clearly admitted as the first cousin of Sarup, who has been found to be the last male holder of the property in dispute. The instrument evidences a gift in favour of such persons and made under such conditions that it cannot be considered to amount to a surrender of the estate by the widow of the last male holder. In these circumstances I am inclined to think that the declaration prayed for by the plaintiff is a declaration of what is palpably and uncontestably true. If the plaintiff's suit is dismissed his right to recover possession on the termination of the life estate, in case no nearer reversioner is alive, cannot be questioned. In cases of transfers for consideration in which questions of legal necessity may arise, the grant of a declaratory relief ordinarily serves the useful purpose of declaring rights which depend upon proof of circumstances as to which evidence may disappear by the time succession to the estate opens. But in a case where the transfer is a gift pure and simple made by a Hindu widow, no question of legal necessity or its validity as such can arise. It is in my opinion not desirable as a rule to grant a declaration which can serve no useful purpose now or hereafter. In view, however, of the fact that the defendants written statement denies that the plaintiff belongs to the family of the last male bolder, though the plea is in the teeth of what is stated in the deed of gift itself, I am not prepared to take a different view from that of my learned brother on this part of the case. Accordingly I concur in allowing the appeal in terms mentioned in his judgment.

11. We allow this appeal, set aside the decrees of the Courts below and decree the plaintiff's suit. As the parties came to Court on false allegations we direct that they should bear their own costs throughout.


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