1. This suit was brought by the plaintiff for a declaration that on the death of his mother he will be entitled to get a two-anna share in Mauza Malhipur.
2. There were three brothers, Sita Ram, Mata Din and Ram Lochan, the property in suit belonging to Ram Lochan. The plaintiff alleged that Ram Lochan was separate from his brothers. Ram Lochan died, the plaintiff said, 15 years ago, but it has been found that he died 27 years ago. Ha left him surviving a daughter, Musammat Bilasi. On the finding of the First Court that Ram Lochan was separate, she was his heir. The plaintiff is her son and presumptive heir.
3. In the plaint it is alleged, that after the tenth of Ram Lochan, Musammat Bilasi went to reside in Kulu and the names of Ram Lochan's brothers were entered in the revenue papers in place of Ram Lochan.
4. The plaint goes on to say:---'These brothers used to go to Kulu frequently and assured the plaintiff's mother that her property was safe. They also used to pay every year different amounts of money to the plaintiff's mother as profits.'
5. In paragraph 5 the cause of action is stated as follows:---'This year the plaintiff (who was a minor) has some to know that the defendants have, after the death of Ram Lochan, got their own names recorded against the property of Ram Lochan instead of getting the name of the plaintiff's mother recorded against it. Hence the suit'. The main defence to the suit was, that Ram Lochan and his brothers were joint, and consequently, that on Ram Lochan's death the plaintiff bad absolutely no right.
6. The First Court apparently found that although after Ram Lochan's death his brothers got their names recorded in the revenue papers, nevertheless they have been paying the profits of the property, at all events a portion of them, to Musammat Bilasi. It also found that the property was the separate property of Ram Lochan, that the sons of Ram Lochan died in his life time and that Musammat Bilasi was his heir. It then granted the plaintiff the declaration he asked for. The Trial Court did not decide the issue which was raised, as to whether the plaintiff was entitled to maintain the suit in the life-time of his mother.
7. On appeal the learned Additional District Judge of Gorakhpur, relying on paragraph 648 of the 8th Edition of Mayne's Hindu Law and the cases therein sited, dismissed the suit on the ground that a declaratory suit daring the life-time of the heiress was not maintainable. In cur opinion this was correct. For all we know, all that she did was to make arrangements by which the brothers of Ram Lochan would be enabled to mar age the property for her. The plaintiff himself admits that his mother has been receiving at least some of the profits and she apparently made no complaint on this subject. It would be useless to give a decree to the plaintiff which might never have any effect. It will be open no doubt to the plaintiff if he survives his mother to sue for possession of the property if possession is denied him.
8. We dismiss the appeal with costs including fees on the higher scale.