1. This is a plaintiff's appeal arising out of a suit by her for declaration of her reversionary right in respect of the properties left by one Brajamohan Praharaj Mohapatra, the last male-holder and for a further declaration that defendant 1 is not theadopted son of the said Brajamohan. Plaintiff Js the lull sister of Brajamohan who died on 3-12-43 leaving behind him three widows who are defendants 2, 3 and 4.
Defendant 1 is alleged to be the adopted son of Brajamohan; the adoption having been made by the widows after his death on the basis of an authority given by him during his life time. The plaintiff thus challenged the validity of the adoption and prayed for a declaration that defendant 1 was not the adopted son of Brajamohan. It is further averred in the plaint that Brajamohan had a son and a daughter who predeceased him. Defendants 2 and 3 in their written statement not only supported the adoption of defendant I, but also stated that Brajamohan left a daughter named Basanti born to him through defendant 2 and that she was still alive.
Accordingly they challenged the right of the plaintiff-appellant to institute the present suit on the ground that she was not the nest reversioner. Defendant 4 who is the third widow of Brajamohan first filed a joint written statement along with defendants 1, 2 and 3, but subsequently resiled from it and supported the appellant's case and stated that the girl set up by defendants 1, 2 and 3 is not the daughter of Brajamohan, but of one Braja Misra, a Pujari of the Thakurbadi, installed in the residential house of the deceased Brajamohan.
On these pleadings, the main issue framed in the suit, at the first instance, was: Whether defendant 1 was the validly adopted son of Brajamohan and whether the plaintiff and her sons are the ultimate reversioners?
2. The learned Subordinate Judge in his judgment dated 30-3-1946, while holding that the adoption of defendant 1 was invalid, came to a further finding that Basanti was the daughter of Brajamohan and as such was the next heir, and accordingly, the plaintiff has no reversionary right and dismissed the suit.
3. Against this judgment the present appeal was filed on 26-7-46. The plaintiff-appellant filed a petition on 6-7-53 for amendment of the plaint by impleading Basanti Dei as defendant 5 and for other consequential amendments. After notice to the parties, a Bench of this Court allowed the amendment on 21-9-53.
When the appeal came up for hearing, Mr. M.S. Rao, learned counsel for the respondents, urged that in view of Basanti Dei having now become a party, a fresh issue should be framed and the parties should be allowed to lead evidence in respect of that issue. Accordingly, a Bench of this Court remanded the case to the Court below for decision after framing a fresh issue as issue No. 8. Issue No. 8 runs as follows:
'Is defendant 5 Basanti the daughter of late Brajamohan Praharaj Mohapatra and his wife Lakshmi Dibya (defendant 2) or else is she the daughter of Brajabandhu alias Braja Misra?'
At this stage it would be pertinent to mention that defendant 1 has not challenged the finding of the trial Court against the validity of his adoption before this Court; and thus has become final.
4. The learned Subordinate Judge by his order dated 15-5-1954, submitted his finding to this Court holding that defendant 5, Basanti Dei, is the daughter of the late Brajamohan Praharaj Mohapatra and his wife Lakshmi Dibya (defendant 2) and that she is not the daughter of Brajabandhu alias Braja Misra.
5. At the commencement of the hearing of this appeal after remand, a question arose regarding the maintainability of the suit in view of the Hindu Succession Act, 1956 (Act 30 of 1956, hereinafter referred to as 'the Act'), which came into forceon 17-6-56. By Section 14 of the Act, a female Hindu hasbeen given the absolute right in the property acquired before or after the commencement of the Act. Section 14 of the Act runs as follows:
'Section 14(1) Any property possessed by a female Hindu acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation : In this sub-section, 'property' includes both moveable and immovable property acquired by a female Hindu by inheritance, or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase, or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where theterms of the gift, will or other instrument or thedecree, order or award prescribe a restricted estatein such property.'
6. Hence the effect of the Act is to confer absolute ownership on a female Hindu; in this case the widows of the last male-holder, in respect of all properties left by a male Hindu, which was in her or their possession on the date of the commencement of the Act, even though the husband or the male Hindu had died long before the commencement of the Act.
Thus, the widows (defendants 2 to 4) have become the full owners of the estate left by Brajamohan, the last male-holder, and not the limited owners. The legal right does not spring from a vacuum. It must emerge as a necessary consequence from amongst the bundle of facts as they present.
Once the full owner has been admitted to be in possession of the property, one of the heirs has no manner of right whatsoever to maintain a suit of the present nature; for the right of a reversioner as one of the heirs under Section 42, Specific Relief Act is limited to the question of preserving the estate of a limited owner for the benefit of the entire body of reversioners. But as against a full owner the reversioner has no such right at all.
Therefore, it is now well-settled that the reversioner, in this case being the sister of the last male-holder, is not entitled to a mere declaration under Section 42, Specific Relief Act, when she comes within the second class of heirs, as mentioned in the schedule appended to the Act. Sections 8 and 9 of the Act are relevant in this connection, and they run as follows :
'Section 8. The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:
(a) firstly, upon the heirs, being the relatives specified in Class I of the schedule;
(b) secondly, if there is no heir of class I, then Upon the heirs, being the relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Section 9. Among the heirs specified in the Schedule, 'those in class I shall take simultaneously and to the exclusion of all other heirs', those in the first entry in class II shall be preferred to those in the second entry, those in the second entry shall be preferred to those in the third entry, and so on in succession.'
Thus, the plaintiff having been included in the second class of heirs has been completely excludedby the widow-defendants who come in as heirs in Class I. And the widows would acquire the light of full ownership as to the estate of the deceased under the Act. It is, therefore, clear that the plaintiff has got neither any legal character, nor any interest in praesenti to be entitled to a mere declaration of her reversionary right.
7. Mr. Jena, learned counsel for the plaintiff-appellant, contended that the suit is maintainable, in spite, of the Act, under Section 42, Specific Relief Act (Act 1 of 1887), as the plaintiff-appellant can maintain a suit for a pure declaration.
Before the enactment of the Specific Relief Act of 1887, mere declaratory decrees were introduced as an innovation, and first obtained authoritative sanction in England by Section 50 of the Chancery Procedure Act of 1852 (15 and 16, Vict. c. 86). Seven years later in 1859 it was inducted in India by Section 15 of the old Code of Civil Procedure, 1859. Section 15 as then stood was:
'No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for civil Courts to make binding declarations of right without granting consequential relief.'
Now Section 42, Specific Relief Act is in the following terms:
'Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may, in its discretion, make therein a declaration that he is so entitled, and the plaintiff need not in such a suit ask for further relief.
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
'Explanation': A trustee of property is a 'person interested to deny' a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.'
8. Thus, under Section '42, Specific Relief Act, the plaintiff must be a person entitled to any legal character or to any right or interest to the property. If the plaintiff seeks any further relief than a mere declaration of title, he must seek such relief.
Mr. Jena, learned counsel for the appellant relied, for his contention, on two decisions; one of the Bombay High Court and the other of the Madras High Court. The Bombay decision is reported in Bai Shri Vaktuba v. Thakore Agarsinghji & Ransinghji Agarsinghji v. Thakore Agarsinghji Raisinghji, ILR 34 Bom 676 (A). In that case a Talukdar as plaintiff brought a suit for a declaration that defendant 2, a minor was not his son and that he was not born to the plaintiff's wife, defendant 1, and for an injunction restraining the defendant from proclaiming to the world that defendant 2 was the plaintiff's son and from claiming maintenance from him as such son.
The defendants contended that the suit was not maintainable under the provisions of the Specific Relief Act and that it was premature. On these facts, it was held that the suit was maintainable, it being within the provisions of Section 42, Specific Relief Act. This case is clearly distinguishable as the plaintiff had a right in praesenti in that suit, and that in order to be entitled to a relief for maintenancethe question of sonship was necessary to be (SIC)ded.In the Madras case reported in Kameswar Rao(SIC)agannadha Sastry, AIR 1941 Mad 405 (B), the(SIC)was one under the Madras Hereditary Village(SIC)ces Act (Madras Act 3 of 1895). In that case,(SIC)plaintiff's suit was for declaration that the defendant is not the adopted son and as such is cog-nizable by a civil Court under Section 42, Specific ReliefAct; and a revenue Court has no jurisdiction to entertain such a suit.
It was held that where the defendant's adoption stands in the way of the plaintiff's succession to a village office, the plaintiff is entitled to maintain the suit in the civil Court under Section 42, Specific Relief Act for a declaration that the defendant is not the adopted son. Thus, it is clear that the plaintiff in that suit could maintain a mere declaratory suit as he had a right in praesenti, the vacancy having arisen in the village office.
9. Mr. M.S. Rao, learned counsel for the respondents, contended that the suit is not maintainable in view of the Act, in its present form. Mr. Rao relied upon a decision of the Judicial Committee of the Privy Council reported in Seoparsan Singh v. Ramanandan Prasad, 43 Ind App 91: (AIR 1916 PC 78) (C) and he relied upon a passage at page 97 (of Ind App): (at p. 80 of AIR), where Sir Lawrence Jenkins while delivering the judgment of their Lordships of the Privy Council said:
'A plaintiff coming under this section must, therefore, be entitled to a legal character or to a right as to property. Can these plaintiffs predicate this of themselves? Clearly not; and this is, in effect, stated in the plaint, where they described, themselves as entitled to Bachu Singh's estate in case of an intestacy after the death of the defendant-widows. But as things stand there is no intestacy,
Bachu Singh's will has been affirmed in a Court exercising appropriate jurisdiction and the propriety of that decision cannot, in the circumstances of this case, be impugned by a Court exercising any other jurisdiction. It is not suggested that in this litigation the testamentary jurisdiction is, or can be invoked, and yet there can be ho doubt that this suit is an attempt to evade or annul the adjudication in the testamentary suit, and nothing more. This is apparent from the plaint, from the amendment made in the High Court after Ramanandan had died and from the very circumstances of the case.
This use of a declaratory suit illustrates forcibly the warning in Sri Narain Mitter v. Sreemutty Kishen Soondary Dassee, (1873) IA Sup Vol 149 at p. 162 (D) where it was said :
There is so much more danger in India than here of harassing and vexatious litigation that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation.' The next case relied upon by Mr. Rao was a case reported in Shamarendra Chandra Deb v. Birendra Kishore Deb, ILR 35 Cal 777 (E), where it has been held that:
'A person cannot sue for a declaration of his right to immovable property, which may never come into existence, as a mere contingent right which may never ripen into an actual existing right, is not always sufficient to ground an action for such declaration.'
Mr. Rao also relied upon a decision in Moothoo Vijia Ragoonadah v. Dorasinga Tevar, 2 Ind App 169 (PC) (F). That was a case under Section 15, old Civil Procedure Code (Act 8 of 1859), and was a suit by the plaintiff for a declaratory decree to the effect that, he was entitled as next heir after the death of the first appellant to the Shevajunga zamindari for immediate part possession and management thereof, for maintenance, and for other relief in respect of waste committed by several of the appellants. Sir James Colvile in delivering the judgment of their Lordships of the Privy Council said at p. 179 that:
'They at first conceived that the power of the Courts in India to make a merely declaratory decreewas admitted to rest upon the 15th section of the Code of Civil Procedure, the effect of which has been so much discussed. Mr. Doyne, however, raised some questions as to that, and suggested that the power was possessed by the Courts in the Mofussil before the Procedure Code was passed, and had not been taken away thereby.
No authority which establishes the first of these propositions was cited, and their Lordships conceive that if the Legislature had intended to continue to those Courts the general power of making declarators (if they ever possessed such power) it would not have introduced this clause in the Code of Procedure, which, if a limited construction is to be put upon it, clearly implies that any decree made in excess of the power thereby conferred would be objectionable, the words of the section being: 'No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the civil Courts to make binding declarations of right without granting consequential relief. Nor does any Court in India, since the passing of the Code seems to have considered that it had the power of making declaratory decrees independently of that clause, and it was further held at page 187:
'It appears, therefore, to their Lordships that the construction which must be put upon the clause in question is, that a declaratory decree cannot be made unless there be a right to consequential relief capable of being had in the same Court or in certain cases in some other Court.'
10. Reliance was placed on certain decisions of this Court. The first case Is a case reported in Patto Padhanuni v. Bhikari Padhano, 20 Cut LT 633 : (AIR 1954 Orissa 211) (G), where it has been held that a reversioner is not entitled to sue for a mere declaration that he is the next reversioner, though he has a right to sue for the protection of the estate. It was open to the plaintiff in that case to sue for a declaration that the settlement deed conveying the estate absolutely to the widow was never, in fact, executed or that it was otherwise invalid, but where there is no estate to be protected, a suit for a mere declaration will not lie.
Our attention was drawn to an unreported decision of this Court in Balamukunda Dip v. BishnuDip. Second Appeal No. 360 of 1950, D/- 2-9-1954 (Orissa) (H). There, Mohapatra, J., while denying the plaintiff the right of declaration, relied upon the celebrated decision of the Privy Council reported in Janaki Ammal v. Narayanswami Aiyar, ILR 39 Mad 634: (AIR 1916 PC 117) (I), where Lord Shaw while delivering the judgment of their Lordships of the Privy Council said at page 637 (of ILR Mad): (at p. 118 of AIR) :
'It follows from this state of the law that it is Impossible to predicate at this moment who is the reversionary heir of the deceased proprietor. If a Court of law proceeded to make any declaration of right upon that subject, such a declaration would be subject to being rendered valuless by development of events.
It would not, after events had developed, be even of authority in regulating or declaring the rights of the present respondents as against any other claimants to the character of reversionary heir. A priori, accordingly, a declaration of right granted at the present stage would appear to be stamped with something in the nature of futility.'
11. The second contention of Mr. Jena wasthat when there are more than one heir includinga reversioner to succeed to the widows after theirdeath, the plaintiff is entitled at least for a declaration that she is the next heir to succeed the widows. This contention of Mr. Jena is bound to fail, because it is the settled rule of law against the grantof such a relief when the only question for decision is which of the two persons (plaintiff or defendant 5 in this case) is entitled to the character of the next reversioner.
In this connection, reference may be made to a decision reported in Rama Rao v. Raja of Pithapur, ILR 42 Mad 319: (AIR 1919 Mad 871) (J). The plaintiff, therefore, cannot maintain a suit for declaration of her right to the immovable property, which may never be in existence after the death of defendants 2 to 4 and her contingent right may never ripen to a full and complete right in future.
12. It was then contended that the Act is not retrospective, but prospective. Under Section 14 of the Act, property possessed by a female Hindu whether acquired before or after the commencement of the Act, shall be held by her as the full owner thereof and not as a limited owner. There is no material on record to show that the widows (defendants 2 to 4) were not in possession of the properties left by their husband.
Hence, there is no doubt that the Act would apply to this case when the disputed properties are in possession of defendants 2 to 4 long before the commencement of the Act.
13. Mr. Jena next contended that there may be some alienations by defendants 2 to 4 prior to the coming into force of the Act. There is nothing on record to show that defendants 2 to 4 had actually alienated any of the properties left by their husband. If actually the widows had alienated any of those properties before the coming into force of the Act, and which were not in their possession at the time the Act came into force, they do not become full owners in respect of those properties, by virtue of Section 14 of the Act, and may continue to remain as limited owners.
Whether the plaintiff, as one of the reversioners, would be entitled to challenge those alienations, if any, on the ground of necessity or otherwise, is a question which it is unnecessary to decide in this litigation as no such relief has been asked for, and we leave the question entirely open.
14. Mr. Jena further contended that the Act, even if applies retrospectively, will not apply to agricultural lands, and for this he relies upon the Federal Court decision reported in Hindu Women's Rights to Property Act, 1937, In the matter of, AIR 1941 PC 72 (K). That was a case which came up for decision by the Federal Court on a reference made by His Excellency the Governor-General of India.
Gwyer C. J., who delivered the judgment of the Court held that the Hindu Women's Rights to Property Act of 1937, and the Hindu Women's Rights to Property (Amendment) Act of 1938, do not operate to regulate succession to agricultural land in the Governors' Provinces; and do operate to regulate devolution by survivorship of property to other than agricultural lands.
This decision, in view of the changed position in law, no longer holds good. The Federal Court decision was based upon the law of legislative competency as it then stood, by the Government of India Act, 1935. In Schedule 7, Government of India Act, 1935, this subject appears in the Concurrent Legislative List (List 3) as item No. 7. Item 7 was in the following terms:
'Wills, Intestacy and Succession, save as regardsagricultural lands.'
Now under the present Constitution of India(SIC)same subject has been dealt with in the Concur(SIC)List (List 3) in Schedule 7 as item No. 6. Item No. (SIC)runs as follows:
'Marriage and divorce, infants and min (SIC) Adoption, Wills, Intestacy and Succession, J (SIC) Family and Partition, all matters in respect(SIC)which parties in judicial proceedings were, immediately before the commencement of this Constitution, subject to their personal law.'
It is clear that the Parliament had omitted thephrase 'save as regards agricultural land' from item No. 5 of the Concurrent List in order to have a uniform personal law for Hindus throughout India, and accordingly, it necessitated the enlargement of Entry No. 5. We have no doubt, therefore, that in view of the change in law, the Act will apply to agricultural lands also, and the decision in AIR 1941 PC 72 (K) would no longer hold good.
15. Since all the contentions advanced by Mr. Jena learned counsel for the plaintiff-appellant have failed, we are clearly of opinion that the suit in its present form is not maintainable and is bound to be dismissed.
16. Our attention was drawn to a Vakalatnama filed on behalf of respondent 1 as major by Mr. A. Das, an advocate of this Court. Mr. A. Das has neither filed a petition for the discharge of the guardian, nor has appeared at the time of the hearing which continued from day to day. Mr. U.C. Misra, Advocate, who was the guardian ad litem for the minor respondent 1 was present in Court and is entitled to withdraw the costs which have been deposited by the appellant.
17. Having regard to the abrupt change in law, we order that each party will bear his own costs in this Court.
18. I agree.