1. This is a plaintiff's appeal arising out of a suit for declaration and recovery of possession of certain plots of land.
2. Musammat Soukali, a Hindu widow in possession, executed a permanent lease on the 28th of April 1902 of four sir plots in favour of Musammat Bhola Kunwar. There was another person who also joined in the deed, but as he did not actually become the heir of the estate it is immaterial to consider this circumstance. In 1918 Musammat Soukali executed a mle-deed of her rights in the same plots in favour of Bhawani Din. In 1916 Bhawani Din transferred his rights to Ram Naresh and others. On the 23rd May 1920 the widow died.
3. The present plaintiffs, who are the reversioners to the estate, instituted this suit alleging that the lease in question was a fictitious document and, in the alternative, that it was not binding on them as subsequent heirs after the death of the widow. They also sought a decree for possession in case they were found to be out of possession.
4. There was some question raised in the Court below as to whether the whole estate had been transferred by Musammat Soukali in 1913 or not. It was suggested on behalf of the plaintiffs that a small fractional share was left out. This point has been decided against the plaintiff by the learned District Judge, and they have not sought to challenge it before me. It may, therefore, be taken for granted that in 1902 Musammat Soukali executed a permanent lease of the four plots in question and then, some eleven years afterwards, she purported to transfer whatever she had left in those plots, along with other properties, to Bhawani Din.
5. The learned District Judge had dismissed the suit on the technical ground that, so long as the plaintiff had not got the subsequent sale-deed of 1913 set aside they had no locus standi to bring this suit in respect of the previous lease. This was the view which also had found favour with the Court of first instance.
6. I am quite unable to agree in this view. There are two points which have been entirely overlooked by both the Courts below. The first is, that the plaintiff had a separate cause of action with respect to these two separate deeds which where in favour of different sets of persons. There is no law which compels a reversioner to bring one common suit to challenge all alienations made by a Hindu widow even though such alienations are in respect of different rights and in favour of different parties. Twelve years have not yet expired since the death of the widow and it cannot even be suggested that the reversioner's right to have the subsequent sale-deed set aside has in any way been extinguished. As a matter of fact, on behalf of the appellant a certified copy of the judgment was tendered before me as showing that, on a subsequent date, a suit for cancellation of the subsequent sale-deed was actually decreed. I have not admitted this copy because, for the purposes of this appeal, the point is immaterial.
7. The second ground is, that it is open to the reversioners to get only one of several transfers made by a Hindu widow set aside leaving aside the several transfers if they so choose to act. So far as the defendants, who are the representatives of the permanent lessee, are concerned, if it is established that the transfer in their favour was without legal necessity and was not binding on the reversioners they would have to give up possession of the lands. The position of the reversioners would then be that they would obtain possession of these lands and hold them at least as against the defendants. If they succeed to get the subsequent sale-deed set aside they would then become absolute owners. If, however, they fail to do that or omit to institute a suit, then at best their liability would only be to pay the rent reserved in the permanent lease to Bhawani Din or his representatives.
8. I cannot see how the suit can be thrown out on the technical ground that the plaintiffs did not, before instituting the present suit, institute another suit for setting aside a transfer which had taken place eleven years afterwards and which was in favour of persons who are no parties to the suit. In my opinion the ground on which the suit has been dismissed was wholly unjustified. No other question has been decided by the learned District Judge. The finding of the Court of first instance as regards the rights of defendant No. 8 have in no way been challenged.
9. I accordingly allow this appeal, set aside the decree of the lower Appellate Court and remand the ease for disposal according to law.
10. It has been brought to my notice that Raja Ram, respondent No. 5, was not properly served and no further steps were taken as against him. It has also been pointed out that Tilak-dhar, respondent No. 6, is dead and no attempt has been made to bring his legal representatives on the record. If any of these persons did not form members of a Hindu joint family of which the surviving members are already on the record, it is quite clear that, so far as the interest of that person in the lease is concerned, it will remain absolutely unaffected by the present decree. The decree of the Court below shall stand as regards their interests.
11. Costs of the appeal will be costs in the cause and will abide the result.