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Govinda Pillai, Minor by His Next Friend Muthusami Pillai Vs. Thayammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1904)14MLJ209
AppellantGovinda Pillai, Minor by His Next Friend Muthusami Pillai
RespondentThayammal and ors.
Cases ReferredTekait Doorga Persad Singh v. Tekaitni Doorga Konwari L.R.
Excerpt:
.....gh..........him after the death of the widow. the district munsif gave (the declaration asked for, but the district judge dismissed the suit on the ground that it was barred by limitation as the plaintiffs' father did not bring any suit (though it was open to him to do so) and any such suit by the father would now be barred by time and a suit by the son must a fortiori be also barred.2. the district judge refers to ayyadorai pillai v. solai ammal i.l.r. 24 m. 405 as an authority for his view. but that case refers to an adoption which introduces an heir into a family and effects a change of status and is thus very different from a, mere transfer of property and attention was specially drawn to this distinction by the learned judges who decided ayyadorai pillai v. solai animal i.l.r. 24 m. 405......
Judgment:

Benson, J.

1. The plaintiff, who is a minor, sued, as reversioner, for a declaration that an alienation of the plaint property by the 1st defendant, who is a Hindu widow, is invalid as against him after the death of the widow. The District Munsif gave (the declaration asked for, but the District Judge dismissed the suit on the ground that it was barred by limitation as the plaintiffs' father did not bring any suit (though it was open to him to do so) and any such suit by the father would now be barred by time and a suit by the son must a fortiori be also barred.

2. The District Judge refers to Ayyadorai Pillai v. Solai Ammal I.L.R. 24 M. 405 as an authority for his view. But that case refers to an adoption which introduces an heir into a family and effects a change of status and is thus very different from a, mere transfer of property and attention was specially drawn to this distinction by the learned Judges who decided Ayyadorai Pillai v. Solai Animal I.L.R. 24 M. 405. The District Judge seems also to have had in view the case of Chhaganram Astikram v. Bai Motigavri I.L.R. 14 B. 512 which is referred to by the District Munsif and which is directly in support of the view taken by the District Judge. The correctness of that decision, however, may well be doubted for the reasons stated by the Full Bench of the Allahabad High Court in the case of Bhagwanta v. Sukhi I.L.R. 22 A. 33. It was there pointed out by a Full Bench of six Judges that where, as in this case, the plaintiff would not be entitled to immediate possession if the female having a life estate should die on the date of the institution of the suit, the article of the Limitation Act applicable is not No. 125, but No. 120, which allows a suit to be brought within six years from the date when the right to sue accrued. It was also pointed out that when there are several reversioners, as in this case, entitled successively to succeed to an estate held for life by a Hindu widow, no one of such reversioners can be held to claim through or to derive his title from another reversioner, even if that other happens to be his father, but each derives his title from the last full owner; that the right of each to sue for a declasation cannot accrue before he is born and that a person, who is a minor at the date of the alienation or who is born subsequently during the life of the widow, is entitled to the benefit of Section 7 of the Limitation Act.

3. We think that that decision is correct. There is no privity of estate between one reversioner and another as such and therefore, an act or omission by one reversioner cannot bind another reversioner who does not claim through him.

4. The reasons, therefore, given by the District Judge for dismissing the plaintiffs' suit are, we think untenable.

5. It is, however, coutended for the respondents that the decree of the District Judge ought to be sustained for other reasons, viz., (1) because the plaintiff, as a remote reversioner, has no right to sue while a nearer reversioner is alive and (2) because the suit is one in which the court, in the exercise of its discretionary power, under Section 42 of the Specific Relief Act, ought to refuse to make a declaratory decree in the plaintiff's favour even if he has the right to sue.

6. The widow's husband died in 1870. The alienation was first made by a mortgage in 1871. This mortgage, it is found by the courts below, was supported by necessity only to the extent of Rs. 75. It was followed by another mortgage in 1875 in discharge of the former motgage and this by a court-sale in 1884 in execution of a decree obtained on the mortgage. The plaintiff was born in 1883, some 12 years after the first mortgage. He is a remote reversion's!1 of the third grade. There are reversioners (2nd and 3rd defendants) of the 2nd grade and apparently reversioners of the 1st grade also alive.

7. None of these have questioned the alienation and their right to do so by a declaratory suit is now in each case barred by limitation. The plaintiff, as a remote reversioner, cannot succeed to the property so long as nearer reversioner is alive and it is contended for the respondents that the plaintiff has no right to bring a suit for a declaration, as he is not the presumptive or immediate reversioner. The right to bring a declaratory suit is given by Section 42 of the Specific Relief Act, 1877 and though illustration (E) of that section and Article 125 of the Limitation Act refer only to suits by a person presumptively entitled to possession, it would be wrong, on principle, to hold that the words of a section in an Act must be limited to the illustrations given in the Act, or by reference to the suits specially enumerated in the Limitation Act. The principle which should guide the court is laid down by the Privy Council in the case of Rani Anund Koer v. The Court of Wards L.R 8 IndAp 14 us follows :--' Their Lordships are of opinion that although a suit of this nature may be brought by a contingent reversionary heir, that is to say, by the person who would succeed if the widow were to die at that moment, they are also of opinion that such a suit may be brought by a more distant reversioner if those nearer in succession are in collusion with the widow, or have precluded themselves from interfering. They consider that the rule laid down in Bhikaji Apagi v. Jagannath Vithal 10 Bom. H.C.R. 351 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. If 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: see Koer Golab Singh v. Row Kurun Singh 14 M. I. A. 193 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.'

8. That is the rule laid down by the Privy Council with regard to an adoption, but the same rule was laid down by this Court in suits like the present for a declaration in regard to an improper alienation : Gurulingaswami v. Ramalakshmamma I. L.R. 18 M. 53.

9. In the present case the nearest reversioner concurred in the improper alienation; and aft those nearer than the plaintiff had omitted to sue and are now barred from doing so by limitation. They are all made parties to the suit. We think that in these circumstances all the nearer reversioners must be held to have precuded themselves from suing and that the plaintiff is therefore entitled to maintain the suit. Whether the court ought, in the first instance, in the exercise of its discretion, to have allowed the suit to proceed seeing that there is only a small probability of the plaintiff becoming a presumptive heir, may well be doubted on the ground that the defendants ought not to be harassed and the time of the courts wasted in litigation that may never have any practical result, Tekait Doorga Persad Singh v. Tekaitni Doorga Konwari L.R. 5 IndAp 149. But as the matter now stands before us the suit has been tried in three courts and it has been found that the alienation by the widow was without necessity and was improper except to the comparatively small extent of Rs. 75. It may be that when the widow dies the plaintiff will be the presumptive reversioner and in that case a decreein the present suit would save him from having to again prove the impropriety of the alienation, whereas if we now dismiss his suit on the ground that the District Munsif ought to have exercised his discretion and refused to hear it, the whole matter will have to be again litigated. As matters stand, our giving the plaintiff a decree on the facts proved cannot, in any event, do any harm, but may, in the event of the plaintiff being the presumptive heir when the widow dies save further litigation. For these reasons we set aside the decree of the District Judge and give the plaintiff a declaration that the alienation is not valid as against him beyond the lifetime of the widow save to the exent of Rs. 75 for which defendants Nos. 5 and 6 have a charge on the property.

10. The plaintiff must pay and receive proportionate costs throughout.

Davies, J.

11. I would simply add that by allowing the declaration in this particular case to stand it will (1) serve the purpose of perpetuating testimony for whomsoever may happen to be the next reversioner on the death of the widow and (2) so to prevent the time of our courts from having been utterly wasted which otherwise would be the case.


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