Teja Singh, J.
1. This Letters Patent appeal is directed against the judgment of a learned Single Judge of the Lahore High Court. The facts of the case need be shortly stated. One Haidar sold a certain piece of land to Gurbakhsh Singh on 14th August 1939 for Rs. 6000. Fateh Mohammad, who claimed to be Haidar's collateral in the third degree, brought the usual suit for a declaration that the land being ancestral and the sale being without consideration and necessity it did not affect the plaintiff's reversionary interests. The suit was resisted on the grounds inter alia that the sale was for consideration and necessity and Fateh Mohammad's suit was speculative, because Haidar's son and collaterals, nearer than Fateh Mohammad, were alive and his chances of succession to the property in case Haidar died were very remote. The Subordinate Judge rejected the second contention. As regards the first contention, he held that necessity had been proved only for Rs. 399 out of the total consideration. Accordingly he granted the plaintiff a declaratory decree that the sale would not affect his reversionary rights except to the extent of Rs. 399. Gurbakhsh Singh after having unsuccessfully appealed to the Senior Subordinate Judge preferred a second appeal to the Lahore High Court. The learned Single Judge of that Court set aside the decree merely on the ground that the suit was speculative.
2. Mr. Amar Nath Grover, who appears for the custodian of Fateh Mohammad's property, who is now an evacuee, contended that 'the learned Single Judge after having held that Fateh Mohammad had a right to maintain the action, notwithstanding the fact that Haidar's sons and nearer collaterals were alive, had erred in dismissing the suit. His contention was that according to the statutory law, Fateh Mohammad had the right to sue for a declaration and to dismiss the suit on the ground of its being speculative is to go counter to the provisions of the law which gave Fateh Mohammad that right. The learned Single Judge has disposed of this point with the following observations:
Section 6 of Punjab Act II of 1920 has a bearing on the competency of the suit alone and not on the question whether the suit should be decreed or not, even if it was competent. A declaration is a discretionary relief and it is well settled that in suitable circumstances, it may be withheld by Courts. It is on this principle that the authorities quoted by learned Counsel for the appellant really proceed, although there is no express mention of this principle in the body of those rulings. In every case, therefore, it is to be considered with reference to the circumstances of that case, whether a plaintiff should be non-suited on the ground that his suit was purely speculative or not.
I am inclined to agree with the learned Judge that the question whether or not a plaintiff has a right to bring a suit to set aside an alienation is different from the question whether a suit even if maintainable should be dismissed, because it is speculative. I also agree that the decision of the question whether the declaratory relief, which is discretionary with the Court, should or should not be refused must depend upon the facts and circumstances of each case. What has to be determined is whether there is any justification for refusing that relief in the present case. It is true that Haidar has two sons but they are both minors. It is also true that Fateh Mohammad's father, Kamal, is alive and naturally he is a nearer collateral of Haidar's than Fateh Mohammad himself. But it is conceded that he colluded in the sale and thus deprived himself of the right to challenge it by a suit. Kamal had another brother of the name of Nawab Din, but both sides are agreed that he is now dead. This means that Haidar's two minor sons and Kamal stand between Fateh Mohammad and succession to Haidar's property. Now, it is well settled that if the nearest reversioner is a minor or he has colluded in the alienation the remoter reversioner can bring the suit. It is because of this principle that Fateh Mohammad's right to maintain the present action was recognised by the Courts below and it is not even urged before us that the view taken by them is wrong. If the desirability of granting the plaintiff the relief claimed by him is to be decided independently of his locus standi to bring the suit, it was the defendants' duty to show that there existed certain reasons other than the existence of Haider's sons and Kamal on account of which the relief should be refused. I have no doubt that in this the defendants have failed and the only ground on which the suit has been thrown out is that because Haider's son and Kamal intervene between Haider and the plaintiff his suit is speculative. Had the position of the vendee been that, there were certain other reasons and circumstances than the existence of the two minor sons of the alienor and Kamal, that made it improper for the discretionary relief to be granted, the condition would have been different but when we are asked to exercise our discretion against the plaintiff on the very grounds, which cannot deprive him of his right to maintain this action, in my judgment it is tantamount to taking away with one hand what is given with the other.
3. The learned Single Judge relied upon two cases. The first is Girdhari and others v. Mam Chand and Ors. A.I.R. 1924 Lab. 646. In that case, the alienor had three sons and all of them were minors. The plaintiff who brought the suit to set aside the alienation was the vendor's collateral in the fifth degree. The learned Judges while accepting the contention that the suit was speculative made the following observations:
This contention is, in our opinion, well founded and must prevail. It is admitted on behalf of the respondent that the alienor, Niadar, has 3 sons living who are nearer in order of succession than the plaintiff, but it is urged that they are minors and that the plaintiff is entitled to sue as next friend in order of succession to them. A large number of authorities have been cited in support of this proposition and reliance is placed on para 67 of Rattigan's Customary Law which lays down that where a nearer reversioner is precluded from suing or colludes with the alienor a more remote reversioner is entitled to maintain the action. This is, however, not the ease here. This is a purely speculative claim, the respondent only having a bare possibility of succeeding and nothing more, and we have therefore no hesitation in holding that he has no locus standi.
With all deference, I am not able to appreciate the reasoning given by the learned Judges and my opinion is that to hold that a collateral of the vendor who has a right to maintain an action in the presence of the vendor's sons who are minors should be non-suited on the ground that his suit is speculative merely because of the existence of those very minor sons, is virtually to hold that no such right exists.
4. The other case is Jai Singh and others v. Darbara Singh and Anr. A.I.R. 1925 Lah. 396. In that case, the learned Judges devoted the major part of their judgment to show that the alienation was otherwise valid but before concluding they also observed that the plaintiffs had kept silent for twelve years and their suit was speculative, because between them and the succession there was the vendor's son who was still a young man and might have sons. Evidently the vendor's son was not a minor, otherwise if he had been one mention of it would have been made in the judgment. This, in my opinion, distinguishes that case from the present one. Moreover, the observation regarding the speculative nature of the claim was only a passing one.
5. Mr. Tek Chand, learned Counsel for the respondents, cited Budh Singh and others v. Mt. Dhan Kaur and Aer. 57 P.R. 1898, which he contended supported the judgment of the learned Single Judge. It is a very brief judgment that the learned Judges delivered in that case. The pedigree-table reproduced in the judgment shows that the plaintiff was the ninth degree collateral of the vendor and there is nothing from which it can be said that collaterals nearer than the plaintiff did not exist or if they existed they did not exercise their right to maintain the action. The observations appearing in the judgment regarding the speculative nature of the suit read as below:
It has been held that where a nearer reversioner is precluded from suing, or colludes with the alienor, a more remote reversioner can sue, but this is not the case here. This is a purely speculative claim with only the remotest chance of ever having any practioal effect. We think that plaintiff is not entitled to sue, following Sarfaraz Khan v. Mohhan 81 P.R. 1896 and Gharib Khan v. Mirza Ali Bahadur Khan 7 P.R. 1893.
This case, in my opinion, cannot help the respondents in any way.
6. The case which appears to me to be in point is Muhammad and others v. Mahni and Ors. A.I.R. 1931 Lah. 299. The plaintiff was the vendor's collateral in the fifth degree. The vendor had three nephews, i.e. the sons of his deceased brother, of whom one was a major who had given approval to the sale. The remaining two were minors. The trial Court decreed the plaintiff's suit holding that necessity and consideration for the sale had not been proved and the plaintiff was competent to maintain the action. On appeal the District Judge agreed with the trial Court on all the findings but dismissed the suit on the ground that the decree should not have been given in the case as the declaratory relief was discretionary with the Court. The High Court set aside the decree of the District Judge and held that the suit could not be regarded as speculative.
7. The other case on the point is Khanqah Hazrat Sultan Bahu Sahib v. Pira and Ors. A.I.R. 1928 Lah. 6, decided by a Bench of the Lahore High Court consisting of Harrison and Tek Chand, JJ. Here a gift had been made by a widow and a suit to set aside the gift was brought by the remote collaterals. It was urged before the High Court that the suit was speculative and should not have been decreed, inasmuch as the two daughters of Murad the husband of the widow, and two sons of the daughters were in existence and in the presence of these four persons the suit was not likely to have any practical result. It was conceded that the sons of the daughters were minors. The learned Judges spurned the contention with the following remarks:
In this case the sons are minors and this appears to us to make all the difference. A minor, as stated in Rattigan's Digest in Article 67 is treated as being ordinarily incapable of defending his rights in the same way as a person who has attained majority. It is therefore laid down in that article that a more remote reversioner may sue where the next reversioner happens to be a minor.
I would prefer to follow these two authorities and hold that the present suit could not be regarded as speculative and it should not have been dismissed on that ground.
8. Before concluding, I would also like to point out that even if discretion had to be exercised in favour of the vendee this was primarily the business of the trial Court but that Court after going into the merits of the case refused to do so. Even the learned Senior Subordinate Judge who heard the appeal from the judgment and decree of the trial Court did not think of exercising the discretion in the vendee's favour. The learned Single Judge ignored this fact altogether and while holding that the plaintiff should be non-suited, because the declaratory relief was discretionary did not give any grounds for interfering with the exercise of discretion on the part of the Courts below. I am inclined to think that the judgment is defective on this ground also.
9. For all these reasons, I would allow the appeal, set aside the judgment of the learned Single Judge and restore the judgment and decree of the trial Court. There will be no order as to costs.