1. The, question, in this case is wether the third defendant, the mother of one Krishna Brahmam, deceased, and his presumptive reversioner, in suing for and obtaining a decree declaring the adoption of the first defendant as son to Krishna Brahmam made by his widow the 2nd defendant, acted in a representative capacity with reference to the plaintiff the next reversioner and the other ulterior reversioners, assuming that the decree was obtained without fraud or collusion and after a fair trial.
2. The question was argued by Mr. Krisbnaswami Aiyar on behalf of the 1st defendant and Mr. Bangachariar on behalf of the plaintiff very fully and ably, and our attention was drawn to a number of decisions more or less bearing on the matter. It will be convenient first to collate such of these cases as are really pertinent, even if but to a limited extent, and then to examine the question with reference-to the principle involved. The cases relied on, speaking generally, fall under two main heads, (1) those relating to alienations of property forming part of the estate of a deceased full owner by a widow or other successor thereto who takes only a qualified interest, and, (2) those relating to adoption by widow.
3. Taking up the former, in Tekant Doorga Persad Singh v. Tekaitni Doorga Konwani one Doorga Konwari, mother of the late full owner had executed a deed of sale of a portion of the estate to a * person named Joy Mungal. The estate was impartible and the plaintiff Doorga Per shad as the eldest male heir in the eldest branch of the second degree in the family sued inter alia a declaration of the invalidity of the deed by the qualified owner alleging a Koolachar or family custom by which he claimed to be entitled to succeed Doorga Konwari. The High Court found against the Koolachar and dismissed the suit. This dismissal was upheld by the Judicial Committee but not on the grounds on which the High Court had proceeded. Their Lordships considered that even if the finding as to the Koolachar relied on by the plaintiff were in his favour, it would still' be necessary to remit the case for a finding as to how far the alienation was justified by necessity, and as so to remit the case would lead to expense and delay, they confirmed the decree of the High Court but at the same time set aside the finding of that Court as to the Koolachar leaving it open to the plaintiff and others to litigate that matter in the future. As one of the reasons for their Lordships thus declining to grant a declaration in the exercise of their discretion they observe:
And if the enquiry (as to the necessity for the deed) should result in a finding favourable to Joy Mungal, the decision might not be final in his favour because the present plaintiff might die in the life-time of the widow, and the estate might 'never come to him.(p. 163)
4. In Isri Dut Koer v. Mussumat Hansbutli Koerain (1883) L.R. 10 IndAp 150, observations of a similar character were also made and they ran thus:
The only reason assigned for refusing relief on the ground of discretion is that part of the case raises a difficult point of law the decision of which, though involving expense and delay, may after all not be binding on the actual reversioners. That may be a reason more or less weighty according to circumstances. In this case it does not apply to the original estate of Budnath, as, to which the plaintiffs are clearly right and the defendants clearly wrong in their contention. Nor is it readily conceivable that the decision will be fruitless; because the question of law is of such a nature that its decision though not binding as res judicata between the widows and a new reversioner would be so strong an authority in point as probably to deter either party from disputing it. (p. 157.)
5. Of the decisions under this head by courts in this country those most relied on by Mr. Krishnaswami Aiyar were Sakyahari Ingle Rao Sahib v. Bhavani Bazi Sahib I.L.R(1904) M. 588, Bhagawanta v. Sukhi I.L.R(1899) A. 33, Govinda Pillai v. Tayammal I.L.R(1904) M. 57, and Abinash Chandra Mazumdar v. Harinath Shaha I.L.R(1904) C. 62. In the first of these cases a Division Bench of this Court held that in a suit brought by a reversioner to impeach an alienation by a qualified owner, the right did not survive on the death of the plaintiff to the next reversioner. In the Allahabad case the deceased full owner's daughter's sons sued in 1894 for a declaration of the invalidity of an alienation made in 1876 by their maternal grandmother, the widow of the full owner. At the date of the alienation as well as at the date of the plaintiff's suit their mother was the presumptive reversioner, but she had omitted to take legal proceedings for impeaching the alienation. The Pull Bench held that the suit was not time-barred, one ground for the decision being that no reversioner under/the Hindu Law presumptive or otherwise represented another reversioner for the purpose of limitation with reference to declaratory suits of the description before the Court, dissenting from Pershad Singh v. Chedee Lall (1870) 15 W.R. 1, and Chhaganram Astikram v. Bai Motigavri I.L.R(1890) B. 512, In Govinda Pillai v. Thayammal I.L.R(1904) M. 57, a Division Bench of this Court following the Allahabad case gave a similar decision, and Brett, and Mookerjee, JJ., held the same in Abinash Chundra Mazumdar v. Harinath Shaha I.L.R(1904) C. 62.
5. Passing to the cases under the other head, viz., those relating to adoption by a Hindu widow, so far as the Privy Council is concerned there is nothing more than the following observation in Jumoona Dassya v. Bamasoonderi Dassya (1870) 15 W.R. 1.-'They give no opinion as to what the effect of a decree in such a suit may be, whether one in favour of the adoption is binding against any reversioner except the plaintiff, or whether, on the other hand a decision adverse to the adoption would bind the adopted son as, between himself and anybody except the plaintiff. All their Lordships can do on the present occasion is to say that. Jumoona has not made out her right to have this adoption declared invalid.'
6. As regards the tribunals in this country, the Bombay High Court has apparently not been called upon to give any decision in such a matter. The same is the case as regards the Calcutta High Court, though the decision of the Division Bench already referred to in Abinash Chandra v. Harinath Shaha I.L.R (1904) C. 62 shows that the learned judges who decided it were prepared to hold that there was no distinction between litigation on the part of reversioners concerning alienations by qualified female owners and such litigation connected with adoptions by widows. In Allahabad it was held in an unreported case referred to in the Full Bench Judgment already cited that no reversioner presumptive or otherwise represented in point of law any other reversioner even in suits in which adoptions are impeached I.L.R(1899) A. 44, and that must be taken to be the rule finally accepted In that province having regard to the approval which that decision has received at the hands of the Full Bench. So far as this Court is concerned there is a direct conflict of authority. In Adilakshmi v. Venkataramayya (1902) 13 M.L.J. 359 the representative character was denied, while in Ayyadorai Pillai v. Solai Ammal (1901) I.L.R. 24 M. 405 it was conceded, this latter case being distinguished and not dissented from in, Sakhyahari Ingle Rao Sahib v. Bhavani Bozi Sahib I.L.R. (1904) Mad. 588 and Govinda Pillai v. Thayammal I.L.R. (1904) M. 57.
7. This is how the cases stand. Mr. Krishnaswami Aiyar's contention was that the right of a reversioner to impeach an alienation of property by a qualified Hindu female owner and his right to impeach an adoption by a Hindu widow rest in essence on identical grounds and that logically as well as according to the preponderance of authority the right should be held to be no more than personal to each individual reversioner presumptive or otherwise.
8. The argument of Mr. Rangachariar on the other side was that in spite of the view generally adopted in recent decisions by this High Court and by the Allahabad and the Calcutta High Courts in cases connected with alienations of property by qualified female owners, the view which best accords with principle is that the presumptive reversioner does occupy a representative position; and that having regard to the fact that disputes regarding the truth or validity of an adoption involve questions of family status, the view accepted in Ayyadorai Pillai v. Solai Ammal I.L.R. (1904) M. 405 should be affirmed in preference to that laid down in Adilakshmi v. Venkataramayya (1902) 13 M.L.J.. 359 at all events with reference to suits relating to adoptions.
9. The question raised is by no means easy to answer, but on full consideration we think that the view contended for by Mr. Rangachariar ought to prevail.
10. Now what in fact is the true character of the right of a reversioner under the Hindu Law to impeach an alienation by a qualified female owner or an adoption by a Hindu widow? His interest involves nothing of present proprietary nature. His right, no doubt, is a consequence of the doctrine of reverter incident to the qualified estate of females taking as heirs of a deceased Hindu. But none of these reversioners, speaking strictly, can be said individually to possess any certain or tangible interest in the reversion; for the person who will get it is only he who shall actually survive the qualified proprietor and who shall occupy at her death the position of heir to the last full owner, and who that will be, it is of course impossible before-hand to say. In short, these would-be-claimants under the Hindu Law to a future estate with possession are quite unlike the owners of reversion as known to the system of law from which the term has been borrowed, for the obvious reason that the right of such owners is indefeasible while the right of these so-called reversioners is defeasible by their death in the lifetime of the qualified owner (compare Collett's Specific Relief Act, 2nd Ed., p. 283). All that these can rely on is a possibility of succeeding or a 'Spes successionis' to use the language of the Judicial Committee in Bahadur Singh v. Mohar Singh I.L.R(1877) IndAp. 9. This from the very nature of the case is so with reference to every reversioner irrespective of the proximity or remoteness of his relationship to the full owner.
11. In conceding a right of suit to persons possessing an interest of this defeasible character, the law provides a very exceptional remedy and in the comparatively early case of Katanm Nachiar the Judicial Committee advert to this when they say :'The arguments now under consideration are founded on the right of a reversioner to bring a suit to restrain a widow or other Hindu female in possession from acts of waste although his interest during her life is future and contingent. Suits of that kind form a very special class and have been entertained by the Courts 'ex necessitate rei.'
12. It is needless to add that the true purpose of the concession s of a right of suit in all these cases is the protection of the interest of the person or persons who may eventually turn out to be the heir or heirs, and the object of the legal proceeding is really the perpetuation of testimony which, owing to lapse of time, might not be available for the heir when the succession actually opens. Now as it is not possible either to determine beforehand who will be the actual successor or to predicate the existence of any substantial distinction between the right of one reversioner and that of another, in theory it would seem that the right to take legal proceedings for perpetuation of testimony should be conceded to, each and all of such persons. That, however, having regard to the contentious character which the proceeding assumes, would be an intolerable hardship on the transferee from the qualified owner or the alleged adopted son as the case may be. Hence the rule laid down by the Judicial Committee in Rani Anund Koer v. The Court of Wards (1880) L.R. 8 IndAp. 22 in terms which may aptly be quoted here in full:
Their Lordships are of opinion that although a suit of this nature may be brought by a contingent reversionary heir, yet that, as a general rule, it must be brought by the presumptive reversionary heir, that is to say, by the person who would succeed if the widow were to die at the moment. They are also of opinion that such a suit may be brought by a more distant reversioner it those nearer in succession are in collusion with the widow, or have precluded themselves from interfering. They consider that the rules laid down in Brikaji Appaji v. Jaganath Vithal (1871) 10 B.H.C.R. 951 is correct. It cannot be the law that any one who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however remote. The right to sue must, in their Lordships' opinion, be limited. It the nearest reversionary heir refuses, without sufficient cause, to institute proceedings, or if he has precluded himself by his own act or conduct from suing or has colluded with the widow, or concurred in the act alleged to be wrongful, the next presumable reversioner would be entitled to sue: Cooer Golab Sing v. Rao Kurun Sing (1871) 14 M.I.A. 183. In such a case upon a plaint stating the circumstances under which the more distant reversionary heir claims to sue, the Court must exercise a judicial; discretion in determining whether the remote reversioner is entitled to sue, and would probably require the nearer reversioner to be made a party to the suit.
13. The rule thus laid down furnishes, as Mr. Rungachariar urged, practically conclusive proof that the correct view of the law on the point is that a reversioner allowed to maintain such a suit does thereby act not only for himself but also on behalf of all the rest, for the selection of one out of a body of persons possessing a common or similar interest as the individual empowered to carry on legal proceedings for the vindication of such interest necessarily involves the concession to him of a representative capacity in the matter. Some observations by Sir Barnes Peacock in Brojo Kishoree v. Sreenath Bose (1868) 9 W.R. 463 may also be cited as in point. He said:
It might be very reasonable, at the instance of a presumptive reversionary heir whose estate would not accrue until the death of the widow, to try whether an adoption made by a widow was valid or not, and, upon proof of the invalidity of the adoption, to declare that it was invalid. In such a case, if the reversionary heir should be compelled to wait until the death of the widow, before they could get the question tried as to the validity of the adoption, they might have to wait until after all the witnesses who could prove the invalidity of it were dead, for the widow might outlive all the witnesses. Such a suit might, we apprehend, be maintained by the presumptive reversionary heirs for the benefit of the persons. whether themselves or others, who might be the heirs of the husband at the time of the widow's death, in the same manner as the presumptive reversionary heirs may sue to restrain a widow from committing waste, although, if the widow should survive them they would sustain no injury by the waste. It is unnecessary for the Court, now to determine whether, if in such a case the defendant should succeed in establishing the validity of the adoption, the decree would not be binding upon the persons who might eventually succeed upon the death of the widow in the same manner as a decree against a widow representing the right of her husband in an estate is binding upon the reversionary heirs. It has been decided by the Privy Council that such a decree is binding upon the reversionary heirs in Ranee Sumomoyee's case (1865) 2 W.R.P.C. 13. This of course is upon the assumption that the suit is honestly brought and conducted.
14. Though the matter was not actually decided, yet, it is perfectly clear from the terms of the observations that that eminent Judge's inclination of mind was in favour of holding that the decision in such a case would be binding, upon whomsoever may become entitled to the succession, and that the position of the reversioner suing was analogous to that of the widow who is entitled to the possession of her husband's estate and who is unquestionably recognized as representing all his successors.
15. Further in dealing with the question, it is of course necessary not to overlook the grave and important nature of disputes relating to adoptions. The Judicial Committee has had occasion more than once to dwell on it. In Rajendro Nath Holdar v. Jogendro Nath Banerjee (1871) 14 M.I.A. 67 their Lordships pointed out the analogy between disputes relating to adoptions and those relating to legitimacy, and said:
The case seems to their Lordships to be analogous to one in which the legitimacy of a person in possession is questioned a very considerable time after his possession has been acquired, by a party who has a strict legal right to question his legitimacy. In such a case the defendant 'in order to defend his status, should be allowed to invoke against the claimant every presumption which reasonably arises from the long recognition of his legitimacy by members of the family or others persons. The case of a Hindu claiming by adoption is perhaps as strong as any case of the kind that can be put; because when, under a document which is supposed and admitted by the whole family to be genuine, he is adopted, he loses his rights-he may lose them altogether-which he would have in his own family; and it would be most unjust after long lapse of time to deprive him of the status which he has acquired in the family into which he has been introduced, except upon the strongest proof of the alleged defect in his title.
16. Again in Jamoona Dassya v. Rama Sunderi Dassya (1876) L.R. 3 I.A reference is made to the particularly heavy onus which lies on plaintiff's in such suits in these terms; 'Their Lordships, in making this observation, are not insensible to the nature of the suits. It is one in which she, upon a remote and contingent interest, which will probably never accrue to her, comes into court, not only to destroy the title pf a person in possession of an estate; but to destroy his civil status; and therefore a more ' than ordinary burden of proof lies upon her.' Lastly there are the well known observations of Lord Hobhouse in Jagadamba Chowdhrani v. Dhakhina Mohun (1858) L.R. 13 I.A which conclude thus:
It seems to their Lordships that the more rational and probable principle to ascribe to an act whose language admits of it, is the principle of allowing only a moderate time within which such delicate and intricate questions as those involved in adoptions shall be brought into dispute, so that it shall strike alike at all suits in which the plaintiff cannot possibly succeed without displacing an apparent adoption, by virtue of which the defendant is in possession.
17. Therefore whether regard is had to the theoretical ground on which the right to sue in cases like the present is accorded to reversioners, or to the character of the issue involved in the litigation from the point of view of the person claiming under the adoption, the justice and expediency of making adjudications in such cases final as far as possible is manifest. And this desirable end may be easily secured by adopting appropriate procedure. The presumptive reversioner, or, where in the discretion of the court a remote reversioner is allowed to sue, the remote reversioner, ought to be required to disclose the names of other persons interested in the reversion so far as may be practicable and notice should be served upon them of the commencement of the proceeding in order to enable them to apply to be made parties should they wish to do so. They may join as plaintiffs or if unwilling to join as plaintiffs they may be made defendants. This was contemplated in the leading decision on the point, Rani Anund Koer v. The Court of Wards (1880) L.R. 8 IndAp, as will he seen from the concluding clause in the quotation from the case already made and would probably require the nearer reversioner to be made a party to the suit.
18. When such a course is adopted the reversionary right will be well potected, and in cases of necessity the conduct of the suit may be entrusted by the Court to the reversioner or reversioners who would act most effectively in the interest of all possessing the spes successionis.
19. In Abinash Chundra v. Harinath I.L.R(1904) C. 62 and in other cases referred to therein it was held that a remote reversioner is not precluded by the existence of a newer, female reversioner from suing without showing fraud or other cause within the ruling in Rani Anund Koer v. The Court of Wards (1890) L.R. 8 I.A. at p. 23 on the part of such nearer reversioner, and it was argued by Mr. Krishnaswarai Aiyar that those decisions render it impossible to hold that the remote reversioner should be represented by any female reversioner. This argument has no real force.
20. In holding that a remote reversioner can sue notwithstanding the existence of a nearer female reversioner without proof of collusion etc., on the part of the latter, Muthusami Aiyar and Handley JJ. in Kandasami v. Akkammal I.L.R(1889) M. 195 relied upon the decision in Thakurain Ramanund Koer v. Thakurain Raghunath Koer (1882) L.R. 9 IndAp 41 where it was held that a suit by remaindermen for a declaration was not barred by the non-joinder as plaintiff of another remainderman entitled to take in priority to the plaintiff both taking under the same will. Now the established rule of English Law applicable to the case of such remaindermen was laid down by Lord Holt in Pyke v. Crouch I. Lord Raymond 730 in the following terms:
If several estates in remainder be limited in a deed, and one of the remainder men obtains a verdict for him in an action brought against him for the same land; that verdict may be given in evidence for the, subsequent remaindermen in an action brought against hi in for the same land, though he does not claim under the first remainderman, because they all claim under the same deed.
21. Mrs. Krishnaswami Aiyar's argument against conceding to any reversioner male or female the right to bind others which he rested on the words of Section 13 of the Civil Procedure Code, viz., under whom they or any of them claim, overlooks what was pointed out by Latham, J. in Ahmed Bhoy Hubeebhoy v. Vulleebhoy Assumbhoy I.L.R(1882) B. 703 where the learned Judge says that that section is not exhaustive of the law of res-judicata and that cases of representative litigation are left un provided for thereby. (See also Stokes Anglo-Indian Code, Vol. II, at p. 393.)
22. The view which we have taken as to the character of the suit by a reversioner to impeach an adoption cannot be understood as in real conflict with the dicta in Tekait Doorga Persad Singh v. Tekait Doorga Kunwari (1878) L.R. 5 IndAp63 and in Isri Dut v. Mussumat Hansbuti (1883) L.R. 10 IndAp 157 quoted in the beginning of this judgment: for there the disputes were as to alienations by qualified proprietors. And the express reservation of the opinion of the Judicial Committee in Jumoona Dassya v. Bamasundari Dassya (1876) L.R. 3 IndAp 84 as to the effect of a decision in a reversioner's suit relating to an alleged adoption, in which they dwelt on the special character of such suits, precludes our taking the dicta in Doorga Prasad Singh v. Doorga Konwari (1878) L.R. 5 IndAp as covering cases of adoption also. No doubt, as already shown, the right to impeach an alienation and the right to question an adoption rest upon the same basis, viz., the necessity to protect the reversionary interest; but there is little in common between what disposes of one's whole life, such as an adoption, and what relates to mere transfers of items of property. This vital distinction, Isri Dutt Koer v. Hunsbutti (1883) L.R. 10 IndAp t 157, between the two classes of cases was ignored, and even the precisely similar character of the interests of one and all of a number of persons sharing in the same hope of successions as well as the interconnection existing between them in the matter of the right to sue was overlooked in the Full Bench case of Bhagwanta v. Sukhi I.L.R. (1899) A. 32 of Allahabad High Court on which Mr. Krishnaswsmi Aiyar strongly relied. In short, the whole conception, in that case of the nature of the reversioner's right to sue is vitiated by the assumption that the right resides exclusively in the presumptive reversioner for the time being, and that not only on his death but also on his failure to sue within the limited time or on the occurrence of other circumstances justifying a suit by a remote reversioner there is an extinction of that presumptive reversioner's right and a similar exclusive right springs up in favour of the person next in the line of succession and so on. The unsoundness of this assumption will be seen at once if it is remembered that a presumptive reversioner whose right to sue for a declaratory decree is barred under Article 125 of the Indian Limitation Act, can nevertheless under Article 141 maintain a suit for possession if he survives the qualified owner.
23. This assumption has led the Allahabad Court to the further view that distinct causes of action accrue to the different reversioners in succession with reference to the same act of, alienation-a view which is opposed to the principle of the decision cited in the note 11 at p. 183 of Mittra on Limitation, 4th Edition.
24. Where there is an alienation by a qualified owner what injures the reversion is nothing but the unauthorized character of the transfer, and the moment such a transaction takes place a cause of action accrues to one and all interested in the reversion to have it declared, that the transfer cannot operate beyond the qualified owner's life. In other words, there is but a single cause of action to be sued upon by the person or persons permitted to sue according to the rule enunciated in Rani Anund Koer v. The Court of Ward's (1880) L.R. 8 IndAp 22. It is impossible to see how it can properly be held that from one and the same act of alienation successive causes of action spring up, as it were, merely because the reversioner having the preferential right to sue allows the time given for such a suit to lapse. We think that the more correct view is that reversioners who are likely to be affected by the inaction of those above them in the line of succession will be barred unless they themselves sue within the time applicable to their case from the date of the alienation by which their possible future right was infringed. The Allahabad Judges in dissenting from the decisions in Joygobind Sahoy v. Mahatab Koonwar (1870) 15 W.R. 1 and Chhaganram Astikram v. Bai Matigavri I.L.R. (1890) 14 Bom. 512 according to which the cause of action for a declaratory decree accrues once for all on the date of the alienation, seems to think that their view derives support from the provisions of the present Limitation Act. No doubt the language of Col. 1 of Article 125 is not literally applicable to a suit by a remote reversioner who is allowed in the discretion of the Court to sue owing to the collusion, neglect, &c;, of the presumptive reversioner, but the apparent difficulty presented by such language may be obviated by construing the words 'Hindu who if the female died &c;, in the article, as comprehending, for the purposes of the article, a remote reversioner allowed bylaw to sue in his stead. Having regard to the heading of Col. (1)-'Description of suit' we think it is permissible to hold that the language of Article 125 is intended rather to describe the character of the suit than to strictly limit the person who may bring such suits. This construction is, we think, warranted by the analogy of the Privy Council decision in Gnanasambandha Pandara Sannadhi v. Velu Pandaram (1900) L.R. 27 IndAp 69 and by those decisions in which succeeding Maliants and Malabar Stanies have been treated as persons claiming through or under their predecessors, though in strictness they do not so claim. On the other hand the recognition of successive rights of suit with reference to each man in the line of heirs, not only those in existence at the time of the alienation but even those who come into being in the indefinite future, unknown as such rights were to the substantive law at the time of passing of the present Limitation Act, and in the absence of statutory provisions introducing new rights of that class is judicial legislation of a character which it is difficult to justify. In Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) L.R. 27 IndApp. 60 just referred to, Sir Richard Couch said that 'The Hindu Law of Inheritance did not permit the creation of successive life estates in this endowment'. This objection to successive life estates applies with even greater force to the creation of successive contingent reversionary interests for the purpose of impeaching the acts of the qualified owner.
25. In Chhaganram v. Astikram Bai Motigavri I.L.R. (1890) B. 512 where Birdwood and Jar dine, JJ., in dealing with the application of Article 120 to the case of a suit for a declaration of the invalidity of a court sale held in execution of a decree against a widow beyond her life, express themselves as follows:
It could not have been the intention of the Legislature in giving a right to sue for a declaration within 6 years from the accrual of the right, to give successive rights to a series of successive reversioners to harass the alienees of an estate with repeated suits in respect of the same alienation. It has been held that when the widow dies, a new right of action (for possession) will be given to the reversioner then living (see Sreenath Kur v. Prasanna Kumar Ghose, but till then, at any rate, any right to seek declaration possessed by any reversioner whose title to sue had accrued after the alienation must be regarded as derived from the person who was the heir presumptive at the time of the alienation.
26. If it be thought that it would be going too far to hold that Article 125 applies to a suit for a declaratory decree by a reversioner, who is not the presumptive reversioner, the only alternative would be to lay down that the right to sue in such a case accrues within the meaning of Article 120 at the date of the alienation.
27. No doubt to hold that such a suit is governed by Article 125, and to sustain at the same time the decision in Sakhjahari Ingle Rao Sahib v. Bhavari Boyi Sahib I.L.R. (1904) M. 588 is anomalous. But the doctrine, for instance, that possession adverse to the widow, does not affect the reversioner as enacted by Article 141 of the Limitation Act while she nevertheless represents those who take in succession to her in the matter of res judicata is not less anomalous. If it be considered that consistency requires that uniformity of rules should prevail in regard to both the classes of suits by reversioners, viz., those relating to alienations and those touching adoptions, we think that the better course would be to treat, the plaintiff in the former as for every purpose acting on behalf of all the others interested like him in questioning the unauthorized transfer, rather than to deprive the plaintiff in a suit, against the alleged adopted son of the representative character which the peculiar nature of that description of litigation, as already, shown, makes it imperative to ascribe to the plaintiff in such cases.
28. We should not conclude without noticing an objection which Mr. Krishnaswami Aiyar very strongly pressed. If we followed him correctly, his argument was that in the recognized instances of the manager of a joint Hindu family, and of a Malabar Karnavan, and of a Hindu widow taking as heir to her husband and the like, it is possession coupled with the capacity to bind others by alienation according to the substantive law, that constitutes the sole ground for according to them the capacity to represent the other persons interested in the litigation, and that as no reversioner is bound by a transaction entered into by another with reference to the reversion, representation in cases like the present cannot in law be allowed. The rules as to remaindermen, as laid down in the passage already cited from the judgment of Lord Holt in Pyke v. Couch (Lord Raymond's Report Vol. I, p. 730) is alone sufficient to refute this objection. Its unfounded character will be further seen from the 'Note on parties' in Mitford's Chancery Pleadings where after a review of the authorities, the true ground of the doctrine of representation of parties is thus shortly indicated:
The fact would seem to be, that there is no actual representative existing as a ground for the adjudication in the absence of the persons interested ; but that there is a virtual and constructive representation for the purposes of the adjudication, as the result of considerations of necessity or convenience and community of interest. Necessity or convenience, combined with community of interest, and not representation, is the criterion for deciding whether such adjudication shall take place (5th Edn., page 409.)
29. The result of the view that we take is that though in suits relating to alienations by a qualified owner, the dicta of Privy Council preclude our holding that the presumptive reversioner' represents remote reversioners, yet in suits to set aside an adoption the presumptive reversioner ought, on principle, to be held to represent the remote reversioner, provided the matter is decided after a fair trial.
30. The same principle must, of course, apply to a remote reversioner allowed to sue under special circumstances to set aside an adoption. A further conclusion to which we have been led is that an unauthorized alienation by a qualified owner gives rise to a cause of action for a declaratory suit from the date of the alienation to all the reversioners.
31. Though Davies, J., has not had the opportunity of perusing this judgment, yet he agrees with us in the answer to be given to the question referred.
32. We accordingly answer the question submitted for our opinion in the affirmative.