I.D. Dua, J.
1. On 8th December 1949, Shib Dayal made a gift of the land in suit in favour of his brother's daughter's son, defendant No. 3. This mutation was sanctioned on 26th September, 1950. On 9th of December, 1950, Karam Singh plaintiff-respondent, a third degree collateral of the donor instituted the present suit for the usual declaration that the said gift was not binding on him. The suit land was claimed to be ancestral and it was pleaded that Gurdial, defendant No. 2, who is a brother of defendant No. 1. had consented to the gift in dispute, with the result that the plaintiff as a remoter reversioner was entitled to file the suit.
All the three defendants contested the plaintiff's claim denying the ancestral nature of the land as also the locus standi of the plaintiff. The gift was asserted to be valid having been made in lieu of services rendered by the donee to the donor. The trial Court held the plaintiff to be a collateral of the donor within five degrees. Indeed, this point was conceded by the defendants at the time of arguments.
Part of the land in question was held to be ancestral and part non-ancestral. With respect to the validity of the gift, the trial Court observed that the donor's brother who is the next heir having consented to it, the gift became valid and unassailable. For this view reliance was placed on Faqir Chand v. Mt. Bishan Devi, AIR 1947 Lah 185.
2. Karam Singh went up in appeal to the Court of the learned District Judge who relying on Fateh Mohammad Khan v. Gurbux Singh, 1948-50 Pun LR 314; (AIR 1949 EP 210), held that the nearest reversioner having colluded with the donor, the plaintiff was entitled to the declaration sought. The lower appellate Court also observed that Dlia-ram Singh donee being a minor of 12 years could not have rendered any services to the donor. It was urged before the learned District Judge that in reality it was the donee's father who had rendered services.
Repelling this argument the lower appellate Court observed that under Customary Law it was services rendered by the donee alone which could justify the gift; it was further observed that even in the written statement services were pleaded to have been rendered by the donee and not by his father. Reference was also made by the learned District Judge to the statement of Lachhman D.W. 1 that Kirta, father of the donee, had been rendering services to the donor. The learned District Judge, while dealing with the objections raised on behalf of the defendants-respondents before him to the finding by which a part of the land was held ancestral, observed that no cross-objections had! been put in by them.
> Although the learned Dist. Judge is not right in thinking that cross-objections could or should have been preferred by the defendants, nevertheless the District Judge on the merits also upheld the finding of the trial Court with respect to the ancestral nature of a part of the land. Holding that the gift was not valid according to custom, a declaratory decree as prayed was granted to the plaintiff for the land found to be ancestral in nature.
3. On second appeal, Mr. Hem Raj Mahajan has assailed the judgment and decree of the lower appellate Court on the ground that the donor's brother and his brother's daughter being alive, the suit by the present plaintiff was speculative and indeed incompetent. He has also placed reliance on AIR 1947 Lah 185, a Division Bench decision by Abdul Rashid A. C. J. and Achhru Ram J. Head-note (b) of this judgment is in the following terms:
'Ancestral immovable property can be alienated either for necessity, or with the consent of male descendants, or, in the case of a sonless proprietor, of his male collaterals.
Where the alienation is valid by reason of its having been assented to by the alienor's descendants in case the alienor is not a sonless proprietor it cannot be contested by any one. The occasion to refer to Para. 67 of the Rattigan's Digest arises only where the concurrence of the next reversioner in the alienation has not the effect of making it absolutely unassailable. Where, however, it has the effect of making the alienation wholly unassailable Para. 67 cannot be taken to confer any right on the remoter reversioners to challenge that alienation.'
Khuda Yar v. Imam Din, AIR 1927 Lah 521, a decision by Jai Lal J. was followed in this case. The counsel for the appellants has in this connection also drawn my attention to the provisions of Section 8 of the Hindu Succession Act No. 30 of 1956 which is in the following terms:
'8. General rules of succession in the case of males.--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.'
Neither the donor's brother nor his brother's daughter nor her son fall in class I of the Schedule mentioned in Section 8. The donor's brother is an heir falling in Sub-clause (2) of class II and brother's daughter in Sub-clause (4) of class II. The counsel contends that in view of the new Hindu Succession Act the plaintiff's claim must be held to be speculative.
My attention has also been drawn to Section 4 of this Act which abrogates any text, rule or interpretation of Hindu Law or any custom or usage as part of that law with respect to any matter for which provision has been made in this Act. Section 14 confers full proprietary rights on Hindu women and abrogates the rule which used to confer on them rights of limited ownership only. The counsel in the light of this provision submits that the plaintiff's suit must be held to be wholly speculative and the plaintiff should not be granted the discretionary relief in the nature of declaration. In support of this contention he has also placed reliance on Dayal Jawala v. Buja Biru, 1958-60 Pun LR 543: (AIR 1959 . Punj 326), where Gurnam Singh J. on second appeal set aside the order of the Court below and refused to grant discretionary relief in the nature of declaration that the gift made by the widow in favour of her next heir was not binding on the reversioners.
4. Mr. D. K. Mahajan has on the other hand placed reliance on 1948-50 Pun LR 314: (AIR 1949 EP 210) where it is observed that if the nearest reversioner is a minor or has colluded in the alienation, the remoter reversioner can bring a suit to challenge the alienation. Where the alienor's sons are minors and his father has colluded in the alienation, a third degree collateral can maintain an action to challenge the alienation. With respect to 1958-60 Pun LR 543: (AIR 1959 Punj 326) Mr. Maha-jan contends that that was a case of acceleration of succession and would, therefore, be clearly distinguishable.
He has also submitted that brother's daughter's son as an heir comes after the plaintiff, with the result that it is only the donor's brother and his brother's daughter who arc preferential heirs as against the plaintiff. On this ground he submits that the suit is not speculative but is permissible under the rule of custom. Mr. Mahajan has also made a reference to Madho Das v. Mukand Ram, (1955) 2 SCR 22: ((S) AIR 3955 SC 481) for the submission that the consent given by a reversioner would only be binding on him and not on the other reversioners, who are entitled to impeach the alienation, to which they have not given consent.
In this connection my attention has also been invited to Dhiyan Singh v. Jugal Kishore, (1952) 3. SCR 478 at p. 488: (AIR 1952 SC 145 at p. 148) where again it is observed that other reversioners who do not claim through the one who has consented are not bound by such consent. Mr. Maha-jan has also contended that the declaration granted in the present case would not in any way affect either the donor's brother or the donor's brother's, daughter because if they are alive at the time of the death of Shiv Dayal then they would indisputably be entitled to succeed.
It is only if, at the time the succession opens, the donor's brother and his brother's daughter are not in existence that the declaratory decree would become operative and the plaintiff would be entitled to take advantage under it. Mr. Mahajan-has further submitted that the gift being of a part of the estate does not amount to acceleration 06 succession and therefore the legal fiction which is. sometimes applied to the gift being construed as incorporating two transactions, one in favour of the-consenting reversioner and the other by. the consenting rcveraoner in favour of the donee, cannot be pressed into service in the present case.
5. After giving my most anxious thought to the contentions advanced by the counsel for the parties, in my view, in the present case, the declaration should not have been granted. On the donor's, death the immediate heir would be his brother after whom it would be the brother's daughter who becomes the absolute owner of the property. As a matter of fact if the donor's brother succeeds, then bis daughter and a son of his predeceased daughter would both fall under class I of the Schedule mentioned in Section 8 of the the Hindu Succession Act.
In this view of the matter, in my opinion, the . present plaintiff has a very remote and a faint chance of succession to the donor's estate. His claim, therefore, is purely speculative, his interest merely theoretical, and the decree in his favoui , would hardly have any practical effect. It would be stamped with something in the nature of futility, Janaki Animal v. Narayanaswami Aiyer, AIR 1916 PC 117. It is also legitimate to keep it view the fact that the donor is still alive and it is open to him still to accelerate the succession by making a gift of his entire estate in favour of his brother or his brother's daughter with the consent of his brother or to the donee with the consent of the former two.
There can be acceleration by stages: Bhagwana v. Mt. Pritam Kaur, 1955-57 Pun LR 279. If it is so open to him, the decree passed in the present litigation would obviously become wholly ineffectual. The learned District Judge could not possibly have considered this aspect of the case because the Hindu Succession Act has come into force after the decision of the appeal by the learned District Judge.
6. I am also doubtful if the learned District Judge was right in observing that a minor who is 12 years old is incapable of rendering services to the donor. In any case by now the minor must be fairly grown up and capable of rendering services. If the donor can even now make a valid gift in favour of his brother's daughter's son in lieu of services rendered by him, it is hardly a I proper exercise of Judicial discretion to grant the discretionary relief by way of a declaration to the present plaintiff.
7. For the reasons given above, this appealsucceeds and setting aside the judgment and decree of the learned District Judge. I restore thatof the trial Court and dismiss the plaintiffs suit.In the circumstances of the case, the parties aredirected to bear their own costs throughout.