1. This appeal under Clause 10 of the Utters Patent from a decision of Tare J. arises out of a suit filed by the respondents, who as remote reversionary heirs of one Sukhlat claimed a declaration that the sale of the land in suit affected by Mst. Jagarmati, the widow of Sukhlal, in favour of the defendant-appellant did not affect the rights of any of the reversionary heirs after the death of the alienor. The plaintiffs joined in the suit three nearer reversioners as defendants alleging that they were neither prepared to file a suit for declaration nor were they ready to support the plaintiff's claim. The suit was decreed by the Civil Judge, Second Class, Bilaspur. Thereupon the appellant Bhagatram, who had purchased the property, unsuccessfully appealed first to the District Judge of Bilaspur, and then to this Court
2. The only question that arises for determination in this appeal is whether in the presence of nearer reversioners the plaintiffs were entitled to challenge the alienation made by Mst. Jagarmati. The learned Single Judge took the view that the Courts below had exercised a judicial discretion in permitting remote reversioners to sue as the nearer reversioners persistently refused to challenge the alienation made by the widow and this indicated their concurrence in the act of the widow Mst. Jagarmati. He rejected the contention advanced on behalf of the appellant that the plaintiffs had prima facie failed to show that the nearer reversioners had, without sufficient cause, refused to challenge the alienation. According to him, the plaintiffs had established 'a successive course of conduct on the part of the next reversioners which indicated either their implied consent or concurrence with the wrongful act of the widow in alienating the property without any legal necessity', and that, therefore, it was on the nearer reversioners and the appellant not only to allege but also to prove the existence of sufficient cause on the part of the nearer reversioners for their refusal to sue.
3. Shri Jakatdar, learned counsel for the appellant, did not, and indeed could not, question the firmly established principle laid down by the Privy Council in Rani Anand Kunwar v. Court of Wards, ILR 6 Cal 764 (PC), and other decisions of the various High Courts that a remote reversioner is entitled to sue if the nearer reversioners refuses, without sufficient cause, to institute proceedings, or has concurred in the act alleged to be wrongful, or has colluded with the limited heir, or has precluded himself by his own act or conduct from suing, or is not in a position to sue because of his poverty.
He, however, argued that the plaintiffs claimed to institute their suit on the ground that the nearer reversioners were unwilling to challenge the alienation; that according to the Privy Council decision the unwillingness on the part of the nearer reversioners entitling the remote reversioners to sue must be one without sufficient cause; and that the plaintiff did not even allege any 'insufficient cause' for the unwillingness of the nearer reversioners to sue for a declaratory decree, nor did the plaintiffs make any attempt to prove the fact that the nearer reversioners were refusing to challenge the alienation without any sufficient cause.
4. In our judgment, this appeal must be dismissed. The answer to the contention put forward by the learned counsel for the appellant is to be found in the observations of the Privy Council in ILR 6 Cal 764 (PC) (supra). After stating the exceptional circumstances in which remote reversioners might bring a suit to challenge alienation by a widow, their Lordships of the Privy Council proceeded to say:
'In such a case, upon a plaint stating the circumstances under which the more distant reversionary heir claims to sue, the Court must exercise a judicial discretion in determining whether the remote reversioner is entitled to sue, and would probably require the nearer reversioner to be made a party to the suit.'
These observations clearly show that the rule laid down in Rani Anand Kunwar's case, ILR 6 Cal 764 (PC) (supra), is a rule of prudence and not a rule of law. It does not in any way affect the right of a nearer or a remote reversioner to sue for a declaratory decree under Section 42 of the Specific Relief Act. The principle laid down by the Privy Council is only for the guidance of the Courts in exercising their discretion in determining whether a declaratory suit by aremote reversioner should be allowed to go on when the nearer reversioner is in existence. In Lakshmi Ammal v. Anantharama, ILR (1937) Mad 948 : (AIR 1937 Mad 699) (FB), after examining the case of Rani Anand Kunwar, ILR 6 Cal 764 (PC), and other cases in which that decision was followed, the Madras High Court put the matter thus:
'Though the law does not generally encourage declaratory suits by remote reversioners when nearer reversioners are in existence, still it is not always necessary that such suits should be dismissed, for Courts in a proper case may well allow the suit to go on, taking care to safeguard the interests of the nearer reversioners in existence.'
If, as observed by the Privy Council, upon a plaint stating the circumstances under which the more distant reversionary heir claims to sue the Court must exercise a judicial discretion in deciding whether he is entitled to sue, then it is not necessary for the plaintiff remote reversioner to establish as a positive fact that the refusal of the nearer reversioner to challenge the alienation is not based on any sufficient cause.
5. Now, here, the nearer reversioners had refused to join the plaintiffs in an earlier suit, which they had filed for challenging an other alienation made by the widow, and which suit was decreed. Two of the nearer reversioners who were made defendants in the present suit did not put in appearance and the suit proceeded ex parte against them. The third one filed a written statement supporting the plaintiffs' claim in its entirety saying that he was not willing to be made a plaintiff in the suit as he did not want to indulge in litigation. None of the nearer reversioners evinced any interest in the proceedings or the result of the suit and never made any application for being transposed as plaintiffs.
A stronger case where a remote reversioner could be allowed to sue for a declaratory decree cannot be imagined. Learned counsel admitted that there would not be sufficient cause for the unwillingness of a nearer reversioner to sue if he took the view that he considered the alienation to be fully supported by consideration and necessity. If this express unwillingness to sue would be without sufficient cause entitling the remote reversioner to institute a suit for challenging the alienation, there it is difficult to see how in the present case the remote reversioner is not entitled to sue for a declaratory decree especially when he has made the nearer reversioners parties to the suit and safeguarded their interest. In our judgment, in the circumstances of the case the plaintiffs were clearly entitled to sue for a declaratory decree.
6. In the result, this appeal fails and is dismissedwith costs.