1. The suit out of which this appeal arises was filed by one Bhikari Padhano who claimed to be the reversioner to the estate of one Krishna Padhano. The first defendant, Patto Padhanuni is the widow of the deceased Krishna. The plaintiff's case was that his father and the father of the deceased Krishna were brothers and that Krishna died leaving the first defendant as his only surviving heir. The second defendant was put up as having been adopted to Krishna and a formal deed of adoption, dated 6-8-1947 was executed by the first defendant in favour of the second. The plaintiff impugned this as a collusive document and as such challenges the title of the second defendant to succeed to the estate of the deceased Krishna. The plaintiff therefore prayed for a declaration that the adoption should be declared invalid and that the plaintiff, the next heir, to succeed to the properties left by Krishna.
2. The first defendant contested the suit and averred that her deceased husband, Krishna, had executed a registered deed of settlement dated 12-6-1939 under which he settled all his properties on her with full rights. Her further case was that he had also executed a registered will bequeathing all his properties to her. It was further alleged that Krishna died on 3-1-1940 and that even during his lifetime the first defendant enjoyed the properties settled upon her in her own right. She therefore disputed the right of the plaintiff to have a declaration of his reversionary interest to the properties of Krishna as, in fact, no properties had been left by Krishna. She supported the adoption of the second defendant by Krishna besides claiming title to the properties in her own right.
3. The genuineness and validity of the deed of settlement relied on by the first defendant, though raised in the written statement, was not put in issue. But the learned Munsif discussed it under issue No. 2 which read as follows:
'Whether the suit is maintainable in law.'
In disposing of this issue, the learned Munsif observes that he was not called upon to decide whether Krishna Padhano left any estate at all, or whether that estate passed out of the hands of the reversioner by virtue of his own act, on the view that the plaintiff was related to Krishna Padhano as his nephew and was his nearest reversioner. He accordingly granted the plaintiff a declaration that the adoption of the second defendant was invalid. Both the defendants appealed against this judgment. The learned Subordinate Judge who heard the appeal, however, did not discuss the genuineness of the settlement deed at all nor did he consider whether the plaintiff could maintain the suit for a declaration of his reversionary interest in view of the fact that there was no property left by the last maleholder which can be said to revert.
4. In second appeal, the only point that has been urged before us on behalf of the defendant-appellants is that unless the plaintiff succeeds in proving that Krishna Padhano left some properties in which the first defendant had only a woman's estate the plaintiff would not be entitled to a declaration of his future interest in such properties. If we hold that the deed of settlement relied on by the first defendant is a genuine transaction and that, by virtue of that deed, the first defendant has acquired an absolute right in the properties left by her deceased husband, then it is clear that there is no property left by him in which the plaintiff can claim any reversionary interest.
The suit being one for a declaration of title the Court has got to see whether under Section 42, Specific Relief Act, the plaintiff is entitled to any legal character or to any right as to any property. It is only when either of these ingredients is present that the Court may, in its discretion, make a declaration that he is so entitled. Assuming that the first defendant has acquired an absolute right in the properties left by her husband, can it be said that the plaintiff is entitled to a legal character or to a right to the properties of Krishna? It appears to us that the plaintiff had notice of the deed of settlement, about which there was a specific averment in the written statement, and did not care to amend his pleadings so that the binding character of the transaction may be decided by the Court.
We adjourned the hearing of this appeal to enable Mr. Mohapatra, appearing for the plaintiff-respondent to amend his plaint so that proper issues may be raised and the case sent back for final disposal. But the plaintiff did not choose to amend his plaint and have the matter finally disposed of. For the purpose of the disposal of this appeal, therefore, we are bound to hold, in the absence of any evidence to the contrary, that the deed of settlement must be taken to be a genuine transaction and that the widow is in enjoyment of her husband's properties in her own absolute right and that the plaintiff has no legal character or any interest in any of the properties of the late Krishna Padhano left in the hands of the first defendant. It is only when a woman enjoys what is known in Hindu law as a 'woman's estate' that a reversioner can claim a declaration that that property would revert to him on the termination of the widow's estate. Succession does not open to the heirs of the husband until termination of the widow's estate. Upon the termination of that estate the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death: see -- 'Moniram Kolita v. Kerry Kolitany', 7 Ind App 115 (A). 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 this 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 is otherwise invalid. But where there is no estate to be protected a suit for a mere declaration will not lie. Illustrations E and F to Section 42, Specific Relief Act, indicate the nature of suits contemplated in that Section.
5. We have, therefore, no option but to declare that the plaintiff is not entitled to a declaration as we are not satisfied that Krishna Padhano left any property of which the first defendant can be said to be in enjoyment as a limited owner. In the result, we would allow this appeal, set aside the judgments of the Courts below, and direct that the plaintiff's suit be dismissed with costs throughout.
6. I agree.