1. This is an appeal filed by the plaintiffs who are the sisters' sons of the last owner for a declaration that the alienations made by one or other of the three widows of the last male holder are not valid and binding on them, after the death of the widows. The suit is resisted by the alienees mainly on the ground that the plaintiffs are not the nearest reversioners but that the 22nd defendant is the nearer reversioner, he being alleged to be the deceased's brother's son. If the 22nd defendant is the son of a deceased brother of the last male holder, it is undoubted that in law he succeeds in preference to the sisters' sons. The 22nd defendant also claims that he was the nearer reversioner and that the alienations were not binding upon him. On these pleadings an issue was joined whether the plaintiffs are the nearest reversioners which involves the question of fact whether the 22nd defendant is the brother's son of the deceased. After an elaborate trial, the lower Court found against the plaintiffs and in favour of the relationship set up on behalf of the alienees and by the 22nd defendant. The suit was accordingly dismissed as being one by a remote reversioner. The lower Court held that there were no circumstances alleged or proved which would enable a remote reversioner to maintain a suit when there is a nearer reversioner alive. The plaintiffs appeal.
2. The finding that the plaintiffs are not the nearest reversioners and that the 22nd defendant is the brother's son of the deceased is amply justified by the documentary and oral evidence which has been dealt with in the judgment of the lower Court. We see no reason to differ from the finding of the lower Court on that point.
3. The main question urged by the learned advocate for the appellant is that the 22nd defendant who is a party to this suit has not filed any suit to impugn the alienations in question so far, that he himself is an alienee of one of the items in the suit, and that this is a case in which the 22nd defendant has either colluded with the other alienees or has precluded himself from filing the suit. It is therefore urged that a suit by the remote reversioner may be sustained. The declaration sought, it is said, is for the benefit of the reversion, i.e., for the benefit of the person who happens to be the reversioner at the time of the widow's death.
4. It has long been established that even though a declaration may be for the benefit of the person who ultimately turns out to be the reversioner, it is the declared policy of the Courts not to entertain a suit by a remote reversioner when there is a nearer reversioner alive. This rule is subject to certain exceptions which are well summed up in the leading case of Rani Anand Kunwar v. The Court of Wards (1880) L.R. 8 LA. 14 : I.L.R. 6 Cal. 764 namely, refusal of the nearest reversioner without sufficient cause to institute proceedings or his collusion with the widow or alienees. Barring such and other like exceptions, it is clear that we cannot allow a suit by a remote reversioner to be maintained. It is true, as alleged by the learned advocate for the appellants, that in some cases of an exceptional character, a suit by a remote reversioner has been entertained. He relies upon the decision of this Court in Lakshmi v. Anantharama : AIR1937Mad699 where the lower Court granted a declaration in favour of the plaintiffs holding that they were the nearest reversioners of the last male holder. The question whether the plaintiffs were the nearest reversioners or not depended on whether Madras Act II of 1929 had reference to the death of the last male holder or the death of the widow or other limited owner, on whose death the succession opens. If the material point of time was the male holder's death, then the plaintiffs in that action were undoubtedly the nearest reversioners. If the material point of time was the date of the death of the limited owner when the succession opened, there were a sister and sister's son who would be the nearer reversioners under the new Act. There was a conflict of judicial opinion on the point. The trial Court upheld the plaintiffs' contention, found the alienations not valid and granted a declaration. In appeal, owing to the difference of opinion above mentioned the matter was referred to a Full Bench. The Full Bench held that the material point of time was when the succession opened. This led to the result that the plaintiffs were not the nearest reversioners. It was under those circumstances that an appeal was made to a Division Bench when the case came on before them, to allow the plaintiffs to add the sister's son who was then a minor as a party and to have the question determined. Owing to the very exceptional nature of the case and to the circumstance that it was only when the Full Bench took a different view that the plaintiffs were decided to be remoter re-versioners, the suit was entertained at the instance of the remote reversioner making the nearer one a party. We must also note the fact that the trial Court had granted a decree in favour of the plaintiffs in that case and the question was whether that decree ought to be set aside.
5. In the present case the defendants pleaded in the written statement that the plaintiffs were not the nearer reversioners and that the 22nd defendant was the nearest reversioner. That was the stage for the plaintiffs if they had so minded, to allege that even if they were not the nearer reversioners, there was collusion or inaction or other circumstances which enabled them to file the suit even though the 22nd defendant was the nearer reversioner. Far from taking such a course they persisted in their attitude that they were the nearest reversioners and alleged that the 22nd defendant was not the brother's son of the deceased. The parties went to trial on that question and after an elaborate trial, the plaintiffs case has been found against. They raise this question for the first time in appeal. There is no indication that even at the time of the trial in the Court below the question was ever raised by the appellants. We are therefore unable to entertain this question at this stage.
6. The appeal fails and is dismissed with costs. This appeal has been filed in forma pauperis. The appellants must pay the Court fee payable on memorandum of appeal.