1. This suit was brought to have an alienation made by a Hindu female declared to be void. The plaintiff's grandfather, Muthaiyar, by whom he was adopted as a son, demised by a settlement deed of the year 1889 certain properties of the value of Rs. 8,500 in favour of Kalyani Ammal, his daughter by his second wife, in order that she:
should enjoy them during her lifetime and that after her they should be enjoyed with all rights by her sons and daughters who may be alive.
2. The plaint alleges that out of the said properties Kalyani Ammal, who is first defendant, had in 1907 alienated certain immoveable property without necessity by a deed of exchange in favour of the third defendant.
3. The first defendant has a daughter, second defendant, who was born in 1899. As she was unborn at the date of the execution of the settlement deed, the main question to be decided was whether, the disposition in her favour was valid. The District Munsif held that it was valid under Hindu Law. An appeal was preferred from his decision on 28th January, 1914 and was heard and decided on 31st October, 1914. Between the filing and the disposal of the appeal Madras Act I of 1914 came into force. Section 3 of this Act declares that transfers and bequests may be validly made in favour of unborn persons. The District Judge therefore applied the provisions of this Act and dismissed the appeal, holding that the plaintiff not being at present a reversioner had no right of suit.
4. It is now contended on the plaintiff's behalf that he was the nearest reversioner at the time when he instituted his suit, seeing that the second defendant acquired an interest by virtue of an enactment which came into force after the suit was decided in the first Court and while an appeal was pending. It is argued that the law applicable to this suit wilt be the law as it stood at its institution on 3rd January, 1912; further, that as the second defendant has precluded herself from suing by colluding with first defendant and setting up her mother's absolute right, he is entitled to sue for the preservation of the estate and that he does so on behalf of the general body of reversioners.
5. It is not necessary to go into the question whether this disposition in favour of unborn persons was valid even under the general law applicable to Hindus before the passing of Act I of 1914, as the District Munsif held that it was; for we are satisfied that the Act was rightly applied by the District Judge to the facts of the present case.
6. The Act is by nature a declaratory one, and therefore it cannot be argued that it must not be construed so as to take away previous rights (vide Maxwell on the Interpretation of Statutes, page 361). Section 2 declares:
In the case of transfers intervenes or wills executed before the date of this Act, the provisions of this Act shall apply to such of the dispositions thereby made as are intended to come into operation at a time which is subsequent to such date.
7. In Kudappa Venkayamma v. Narasimma : (1916)31MLJ33 the provisions of the Act were applied retrospectively to dispositions under a will in favour of persons who were not in existence at the death of the testator, although the will was made long before the Act was passed and although the suit, like the present suit, was instituted in 1912 before the passing of the Act. We see no reason to differ from that decision and are of opinion that Act I of 1914 has retrospective effect. So far as second defendant's rights under the will are concerned, Section 2(2) expressly gives retrospective effect to the dispositions under the will. This being so, plaintiff's rights must also be retrospectively affected by necessary implication.
8. As was pointed out in Kanakayya v. Janardhana Padhi I.L.R. (1913) Mad. 439 the authority of an Appellate Court is not limited to determining the question whether the Original Court was right according to the law in force at the time of its judgment. Under Order XLI, Rule 33 of the Code of Civil Procedure an Appellate Court is entitled to pass such further decree or order as the case may require, the object being, as explained in Govinda Parana Guruvu v. Dandasi Pradhanu (1910) 20 M.L.J. 528, to avoid unnecessary multiplicity of proceedings. In that case a ryot was allowed to plead in appeal a right of occupancy which had been conferred on him by Section 6 of the Madras Estates Land Act, although, when the Court of First Instance passed a decree for ejecting him, the said Act had not come into force.
9. As regards the plaintiff's right to obtain a declaratory decree, it may be observed in the first instance that he is not at the present date the nearest reversioner to the property in suit, if as the settlement deed implies, the children of first defendant who survive their mother are to take an absolute estate at her death. Besides second defendant who is still a minor, other children may be born or adopted during the first defendant's lifetime.
10. Article 125 of the Limitation Act, as pointed out by their Lordships in the Privy Council decision--Venkatanarayana Pillai v. Subbammal I.L.R. (1915) Mad. 406--contemplates suits for a declaration that an alienation effected by a Hindu female life owner is not binding being brought by the person who, if the female died at the date of instituting the suit, would be entitled to possession. At the date of instituting this suit if Kalyani had died, the second defendant would certainly have been entitled to possession unless the creation of an interest in favour of an unborn person be held to be void at its inception.
11. The principle laid down in a previous decision by Privy Council--Rani Anand Kunwar v. The Court of Wards I.L.R. (1881) Cal. 764--was that although a contingent reversionary heir may bring a suit of this nature, yet. as a general rule, it must be brought by the presumptive reversionary heir, i.e., the person who would succeed if the life owner were to die at that moment. This principle was held in Chidambara Reddiar v. Nallammal I.L.R. (1910) Mad. 410, to be inapplicable to a case where the nearer heir is a female and as such is entitled only to a limited estate. It would apply when a female entitled to an absolute estate intervenes.
12. Thus the plaintiff in the present suit has no present right to impeach the alienations made by the first defendant unless he can show either that the demise in favour of the unborn children of first defendant was void in law, or that if it was not void, the interest thereby created in favour of second defendant as well as that of first defendant were those of limited owners. We are not prepared to find for him on either of these legal contentions. But his pleader quotes Rani Anand Kunwar v. The Court of Wards I.L.R. (1881) Calc. 764 for the further purpose of showing that if the heirs nearer in succession collude with the life owner, a more distant reversioner may sue.
13. In this case defendants Nos. 1 and 2 put in a joint written statement asserting that under the deed of settlement the first defendant became absolutely entitled to the properties given to her thereby. It was also put forward that if this was not the right construction to be put on the document, the plaintiff was still not entitled to succeed.
14. The construction of the document depended on the interpretation to be put upon it in a Court of Law. It is not known what view the minor will adopt as to her rights when she attains majority. At present she is under the control of her father and mother who have merged her interests in their own. The circumstances, therefore, are not such as to justify a presumption that she will not assert her reversionary rights when she becomes a major, and there is certainly no evidence that when plaintiff filed his suit he was aware that the presumptive reversioner (second defendant) was colluding with the first defendant.
15. A declaratory decree is a matter of discretion vide Doorga Persad Singh v. Doorga Konwari I.L.R. (1879) Calc. 190 and we think that the District Judge exercised a sound discretion in refusing to give the plaintiff the relief sought in his plaint, seeing that there is already one and there may in time be more than one preferential heir to him.
16. This second appeal is dismissed with costs (one set). In the District Munsif's Court the plaintiff succeeded on the issue as to adoption and to a great extent on other issues. We direct each party to bear his own costs in the Court of First Instance and that the order of the Lower Appellate Court as to costs of the first appeal do stand.