Shiv Dayal, J.
1. One Bulakichand had instituted a suit for declaration of title and possession in respect of certain properties situated in Sarafa Bazar, Lashkar. On the plaintiff's death his widow Pattobai was brought on record. She continued the suit. Eventually, a compromise was arrived at between the parties. Some properties were then transferred by Pattobai to Krishin Biharilal, father of her counsel, under three sale deeds. The present appeals arise out of two suits instituted by Ganeshilal and Laxmichand as reversioners challenging the alienation made by Pattobai in favour of Krishin Biharilal. At the request of the counsel for both sides both the appeals have been heard together and are being decided by a common judgment.
2. During the pendency of the reversioners' suit for setting aside the alienation and for declaration, that the alienation was not binding on them, Pattobai died in the year 1953 The defendants then raised an objection that me suit could not continue because it was a declaratory suit, pure and simple, filed in a representative capacity by presumptive reversioners. But on the death of Pattobai since there no longer remained any claim in any 'presumptive' reversioner the suit could not continue. This objection was rejected by the trial Judge on January 14, 1954. Eventually, the suit was dismissed on the ground of estoppel. The plaintiffs took an appeal. In the first appellate Court a preliminary objection arose whether the suit in the present form could continue after Pattobai's death. The learned Judge of the first appellate Court answered this question in the negative and dismissed the suit on that ground alone. He also set aside all the findings reached by the trial Judge, not on merits but as a consequence of his decision on the preliminary question. The plaintiffs have now come up in second appeal.
3. It is contended by Shri Gupta that the relief for possession was not open to the plaintiffs on the date of the institution of the suit and the proviso to section 42 of the Specific Relief Act was, therefore, no impediment to the continuance ofthe suit. Moreover, the suit court not be thrownout without giving plaintiffs an opportunity to amend the plaint in view of the subsequent events.
4. During the course of hearing learned counsel for the appellants sought permission to make an application for leave to amend the plaint. It was allowed. An application under Order 6 Rule 17, C. P. C. has been tiled. But the prayer that leave to amend the plaint should be granted is in the alternative, that is, if it is held that the suit in the present form cannot continue then alone the question of granting leave to amend is to be considered by me.
5. The present suit is by collaterals of Bulkichand, husband of Smt. Pattobai the alienor. The suit was instituted in her life time. Necessarily the suit could only be to obtain a declaration that the sales of the suit properties effected by her were void qua the plaintiff's reversionary interests. It is uncontestable that during Pattobai's life a suit for possession could not be instituted. The proviso to Sec. 42 comes into play when the plaintiff omits to seek further relief than a mere declaration of title, when he is able to seek such further relief. Obviously, therefore, there was no defect in the frame of the suit on the date of its institution. Doubtless the court can take notice of subsequent events and determine a dispute between the parties in the light of altered circumstances. But it does not follow as an inevitable corollary that the suit would become bad on account of the happenings of subsequent events. Ordinarily, it is the rights of the parties as they stood on the date of institution of the suit that have to be adjudicated upon, but this rule may be deviated from and the plaintiff may be required to amend his plaint in the light of the altered circumstances when, for, instance, the Court comes to the conclusion that it would shorten litigation or would do full justice between the parties.
In the present case, the plaintiff's suit has been; thrown out at the appellate stage, indicating that the plaintiffs would be entitled to bring a fresh suit. I do not think that inflicting upon the plaintiffs a second round of litigation would bridge it; it would only be protracting it. It is a different matter that the plaintiffs, if so advised, had themselves volunteered to amend the plaint so that there was no necessity of instituting a separate suit for possession after they succeeded in the present suit. But, as I say, that was for the plaintiffs to choose. In my opinion, the learned Additional District Judge has erred in throwing out the plaintiff's appeal and the suit, just because of Puttobai's death during the pendency of the suit It seems to me that if the plaintiff does not choose to pursue another remedy which has become available to him, he cannot be compelled under the law to do so.
6. In fact Shri Dwivedi, learned counsel for the respondent Krishna Bihari Lal vehemently urged that section 42 of the Specific Relief Act being itself discretionary, the Court should take into consideration all the circumstances of the case. Learned counsel endeavours to draw a distinction between a case where the plaintiff had a vestedright free from doubt and another where the plaintiffs case was based on mere spes sucessionis.
Some argument was addressed that the plaintiffs were not the nearest reversioners and, prima facie, they were estopped from bringing this suit. In the plaint the plaintiffs have described themselves as collaterals of Bulkichand, being his father's father's daughters' sons' sons. They riled a genealogy with the plaint. The defendant baldly denied the relationship without stating whether the plaintiffs were differently related to Bulkakichand or they were not related at all. Learned counsel has not been able to point out who else was a nearer reversioner or, to be precise, the nearer heir to Bulkichand, the last full owner, on the date of Pattobai's death. Today I am not concerned with that question except to look at it prima facie as insisted on by the learned counsel for the defendant.
7. Shri Gupta then endeavoured to satisfy me, prima facie, on the question of estoppel as well. But at this stage Shri Dwivedi intervened and made a statement 'Solemn concession', to use his own words that the present suit can continue in the present form. In view of this concession the application for leave to amend the plaint need not be considered at this stage by this Court because it has been made in the alternative.
8. Both these appeals are allowed. The judgments and decrees passed by the first appellatecourt in both the appeals before him are set aside.Both the cases shall now go back to the first appellate Court for proceeding with the appeals inaccordance with law. The appellants shall getfrom the defendants-respondents Rs. 50/- only asconsolidated costs in this Court in each of the twoappeals.