S.P. Mohapatra, J.
1. The defendants are the appellants in this Second Appeal against the confirming judgment of the lower appellate Court arising out of a suit for declaration of title of the plaintiff, as the reversioner of the last male owner Sridhar who died in the year 1931, impugning the alienation made by the daughter of Sridhar in favour of the present defendant No. 1. The daughter is defendant No, 2. The daughter's son is defendant No. 3. Sridhar's widow Sambari died in the year 1936. The Kabala impugned in the present suit by the plaintiff, asserting himself to be the reversioner next after the daughter's son, is Ex. A dated 6th February 1954 which purports to be for a consideration of Rs. 200/- in favour of defendant No. 1 executed by defendant No. 2.
The plaintiff asserts that the transaction is not supported by consideration and not bona fide transaction for legal necessity and as such it is not binding against the reversioner. The defence is that the transaction is binding against the present plaintiff as it is supported by consideration and legal necessity. The further defence taken is that the plaintiff has no right to bring out the suit as he is a very distant agnate and therefore a very remote reversioner of Sridhar.
2. Both the courts below have come to the conclusion that the transaction in suit is not supported by consideration and legal necessity and as such they have decreed the plaintiff's suit. Both the courts below have found that Sridhar died leaving behind, him another nearer reversioner, who is the sister's son Kalia.
3. Mr. Misra appearing on behalf of the appellants, does not contest the position that the suit transaction is not supported by legal necessity. But he concentrates his point only to the effect that the suit by the remotest reversioner is not maintainable in the face of finding of the Courts below that the sister's son is alive. Indeed the daughter's son might have been colluding with the female heir (defendant No. 2) and that may not stand in the Way of the plaintiff to maintain the suit. But Mr. Misra strengthens his argument by asserting that in the presence of the sister's son Kalia, the present plaintiff, under the new law, is no heir--either Class I or Class II--but only a distant agnatic relation and as such a very remote reversioner. The suit, therefore, brought by him is bound to fail on this ground.
4. Undoubtedly actual heirs of Sridhar will have to be determined and succession reopens on the death of the limited owner, that is, on the death of daughter, defendant No. 2. On this basis, therefore, the position is clear that the plaintiff is a very remote reversioner and Kalia, the sister's son, is by far a nearer one. It has been laid down by their Lordships of the Privy Council in the case of Rani Anand Kunwar v. Court of Wards, reported in ILR 6 Cal 764:
'Although a suit, to contest an adoption made by a Hindu widow of a son to her deceased husband, may be brought by a contingent reversionary heir, yet it is not the law that any one who may have a possibility of succeeding to the estate of inheritance held by the widow for her life is competent to bring such a suit. The right to sue must be limited. As a general rule, the suit must be brought by the presumptive reversionary heir,--that is to say, by the person who would succeed to the estate 'if the widow were to die at the time of the suit.'
But it may be brought by a more distant heir, if those nearer in the line of succession are in collusion with the widow, or have precluded themselves from interfering. The rule laid down, in Bhikaji Apaji v. Jagannath Vithal, 10 Bom HCR 351 was approved.
'If the nearest heir had refused, without sufficient cause, to institute proceedings, or if he had precluded himself by his own act or conduct from suing, or had colluded with the widow, or had concurred in the act or alleged to be wrongful, the next presumable heir would be in respect of his interest, competent to sue. In such a case, upon a plaint stating the circumstances under which the more distant heir claimed to sue, a Court would exercise a judicial discretion in determining whether he was or was not competent, in that respect, to sue; and whether it was requisite or not, that any nearer heir should be made a party to the suit.'
The proposition enunciated by their Lordships of the Privy Council still holds good and is followed by all the High Courts in India even though the rigid principle has to some extent been liberalised only to the effect that the plaintiff in suitable circumstances may be allowed a chance to make the nearer reversioner a party to the suit and the suit should not be summarily dismissed on that ground if the circumstances are sufficient enough to, in a particular case, invoke the discretion of the Court.
5. Mr. Asok Das, appearing on behalf of the respondent, relied upon a Full Bench decision of the Madras High Court in the case of Lakshmi Ammal v. Anantharama Ayyangar, reported in AIR 1937 Mad 699 (FB). Their Lordships in that case had accepted the dictum laid, down by their Lordships of the Privy Council as the correct position; but nevertheless in the circumstances of that case, they allowed the nearer reversioner to be made a party.
6. The question, therefore, in the present case is whether Kalia, the sister's son, should be made a party in the present suit and the case is to be remanded for further trial by the trial Court. I am not, in the circumstances of the present case, inclined to allow this indulgence to the present plaintiff. It appears that the defendants in the first instance in their written, statement had taken up the plea that the suit is not maintainable when a nearer reversioner, that is, Kalia, the sister's son is alive. Not only in the face of this pleading the plaintiff refused to make the sister's son a party, but there was also an issue to the effect whether the sister's son was alive and the Courts below on a consideration of the entire evidence led by both parties have come to the conclusion that the sister's son Kalia is still alive. On account of this conduct of the plaintiff, I am afraid, the plaintiff is not entitled to the indulgence.
The present case seems to be fully covered by a Bench decision of the Allahabad High Court reported in AIR 1941. All 313, Lalta Prasad v. Dwarka Prasad. There also their Lordships followed with great respect the leading case reported in ILR 6 Cal 764 and observed that where a plaintiff sues as next reversionary heir, it is improper to read into the plaint an allegation that he is bringing the suit as a distant reversioner on the ground that the nearest reversioners have either precluded themselves from bringing the suit or have refused to do so. In the present case the categorical assertion made by the present plaintiff is that he is the next reversioner after the daughter's son. He was all along contesting the position that Sridhar had any other nearer relation and deliberately he did not even after the decision of the trial court make any attempt to make the sister's son a party to the suit.
In the circumstances, the plaintiffs suit must fail on this ground that he is not entitled to maintain the suit. But it must be made clear that this decision will not bind, the nearer reversioner, that is, the sister's son who may, if he, so chooses and if he is so advised, seek his remedies in accordance with law. The transaction, however, in any event, is to be binding on defendant No. 2 during her life time.
7. With these observations the appeal is allowed and the plaintiffs suit is dismissed. The parties are to bear their own costs throughout. Leave to appeal prayed for by Mr. Asok Das is refused.