1. This is an appeal by defendants 4 and. 7 and the principal contention urged before us on their behalf is that defendants 4 to 7 should not have been impleaded in this suit nor any declaration made to their prejudice. The question, arises under the following circumstances.
2. One Bapu Reddi who admittedly owned most of the suit properties died on 28th July, 1922, leaving him surviving two widows Ammalu Ammal and Narasammal and a daughter by the former named Balambal. The two widows seem to have divided the property between themselves a few months after Bapu Reddi's death and Narasammal died in May, 1930. Ammalu Ammal and Balambal are defendants 2 and 3 in this suit.
3. Defendants 4 to 7 are gnatis who would inherit the estate of Bapu Reddi after Balambal, should she happen to die sonless, but in September, 1926, Balambal adopted the plaintiff and this event practically defeated the chances of defendants 4 to 7 succeeding to the estate. The plaint suggests that defendants 4 to 7 have accordingly been putting it forward that Bapu Reddi was not the last male holder and that a posthumous son was born to him on 31st July, 1922, and died a few hours after birth. If this is true, it might exclude the second and third defendants as also the plaintiff from succession and let in defendants 4 to 7 as persons entitled to possession immediately on Narasammal's death. This version had been put forward by the present fourth defendant in a written statement (Ex. V) filed by him on 12th March, 1927, in O.S. No. 73 of 1927 on the file of the Tirukoilur Munsif's Court.
4. Narasammal herself was putting forward a claim of absolute right to the properties which she took in the division between herself and her co-widow and she based that claim on a will alleged to have been left by Bapu Reddi. She executed a mortgage of some of these properties in favour of the eighth defendant, a relation of hers on 12th August, 1926, and on 25th July, 1928, she executed a registered will devising to her brother, the first defendant, all the properties that she had obtained in the division.
5. This suit was filed by the plaintiff on 15th August, 1930, asking in the first instance for a declaration that the will in favour of the first defendant and the mortgage in favour of the eighth defendant are not binding on-the plaintiff as reversioner. Defendants 4 to 7 were impleaded on the strength of a general allegation in paragraph 10 of the plaint that they were (he junior paternal uncles' sons of the deceased and are proper and necessary parties to this suit. No reference was then made to the claim put forward on behalf of defendants 4 to 7 that Bapu Reddi was not the last male holder, and that they themselves were entitled to succeed to the estate on Narasammal's death.
6. In the written statement filed by defendants 4, 5 and 7 it was alleged in para 4 that on Narasammal's death defendants 4 to 7 had become heirs, and the plaintiffs had no cause of action to sustain the suit. Reference was made in para 5 to Bapu Reddi's son being the last male owner. In para 10, it was also averred:
To the suit as conceived these defendants are unnecessary parties. They are not even proper parties. The plaintiff's suit is designed to shut out the title of defendants 4 to 7 though it is ostensibly for getting a declaration in plaintiff's favour.... This suit is caused to be filed by a remote reversioner without sufficient reasons. The suit is thus liable to be dismissed.
7. As regards the will and the mortgage relied on by defendants 1 and 8, defendants 4 to 7 supported the plaintiff in the contention that the transactions are not binding on the estate. In para 5, the fourth defendant set up his own title to some of the suit properties.
8. By an amendment of the plaint the D-schedule properties were brought into the suit, plaintiff claiming that they too belonged to Bapu Reddi's estate, while the fourth defendant claimed independent title to them and also pleaded adverse possession. By a further amendment made on 31st August, 1933, without any objection from the defendants, plaintiff was allowed to add para 10 (a) to the plaint, referring to the version of defendants 4 to 7 that Bapu Reddi's alleged posthumous son was the last male owner and the defendants 4 to 7 had therefore become entitled to the possession of the estate on Narasammal's death. The prayer was also amended by adding a declaration that Bapu Reddi was the last male holder of the suit properties, that no posthumous son was born to him, and that the plaintiff is fife nearest male reversioner to the estate.
9. The learned Subordinate Judge has found that no posthumous son was born to Bapu Reddi, that defendants 4 to 7 are not therefore entitled to succeed to the estate, and that the plaintiff is the presumptive reversioner entitled to succeed to the estate after the death of defendants 2 and 3. The dispute as between the plaintiff and defendants 1 and 8 was compromised under an arrangement whereby part of Narasammal's properties was retained by these defendants and the other part was given up to the plaintiff. The decree of the lower Court embodied this compromise and as between plaintiff and 4 to 7 defendants it declared that
the birth and the death of a posthumous son to Bapu Reddi is not true and that the plaintiff is the presumptive reversioner to the estate of Bapu Reddi.
10. Founding himself on the observations of the Judicial Committee in Kathama Nachiar v. Dorasinga Tevar (1875) L.R. 2 IndAp 169 (P.C.) and Sheoparsan Singh v. Ramnandan Prasad Singh (1916) 31 M.L.J. 77 : L.R. 43 IndAp 91 : I.L.R. 43 Cal. 694 Mr. Krishnaswami Iyer contended that the kind of declaratory suit permitted to a Hindu reversioner is only of a very limited scope, intended to call into question transactions improperly entered into by the widow, that the question in such suits is solely between the reversioner and the widow and that the reversioner cannot by bringing such a suit get as between him and a third party an adjudication of title which he could not get without it. In dealing with this contention, we must repeat, what has frequently been pointed out before, that observations regarding the scope or maintainability of declaratory suits contained in Judgments pronounced before 1877 should not be taken literally after the enactment of Section 42 of the Specific Relief Act. It must also be remembered that even Section 42 of the Specific Relief Act has been declared not to be exhaustive of the circumstances in which a person may ask for declaratory relief. The illustrations appended to that section no doubt refer to certain well-known classes of suits; but there is no justification for limiting the scope of the section by reference to the illustrations. An examination of the more recent pronouncement of the Judicial Committee and of the Indian High Courts will show that in dealing with declaratory suits, the Courts have in recent years laid stress hot So much on the question of their maintainability as on that of the propriety and utility of granting relief by way of declaration. Cf. Bobbd Padmanabhudu v. Bobba Buchamma : (1918)35MLJ144 , Surayya v. Annapurnamma (1919) I.L.R. 42 Mad. 699, and Muthukumarasami Mudaliar : (1927)53MLJ601 , Harinarayana Mudaliar : (1927)53MLJ601 .
11. In dealing with suits by reversioners, a distinction has been drawn between i relief in respect of the individual or personal title of the particular plaintiff and relief claimed for the benefit of the body of reversioners represented by the presumptive reversioner. Relief of the former kind has generally been refused on the ground that an anticipatory declaration of the kind may be rendered valueless by future events; but relief of the latter kind is not open to the same objection, especially after the recognition of the representative character of a reversioner's suit and of the consequent applicability of the rule of res judicata even in favour of or as against the actual reversioner, who might not have been a party to the presumptive reversioner's suit. If this distinction is borne in mind, there will be little difficulty in reconciling the apparent conflict of cases or in deciding which line of authority governs the present case.
12. In Janaki Ammal v. Narayanasami Aiyer (1916) 31 M.L.J. 225 : L.R. 43 IndAp 207 : I.L.R. 39 Mad. 634 (P.C.), there was, on the findings, nothing but the plaintiff's individual right that could be declared in his favour. In Sheoparsan Singh v. Ramnandan Prasad Singh (1916) 31 M.L.J. 77 : L.R. 43 IndAp 91 : I.L.R. 43 Cal. 694 (P.C.), there was no reversionary interest at all to furnish the basis for a suit because a Probate Court had declared that the last male owner had left a will. The other observations in the judgment must be understood as only warning the courts against the possible abuse of the provisions relating to declaratory relief. On the other hand, it will be noticed that in Saudagar Singh v. Pardip Narayan Singh (1917) 34 M.L.J. 67 : L.R. 45 IndAp 21 : I.L.R. 45 Cal. 510 (P.C.) the suit was only in form directed against an act of the widow. The substantial question decided in the case was whether the propositus was related by full blood or only by half blood to the plaintiff's ancestor; on the answer to this question depended the determination of the issue, whether the contesting defendant alone was the reversioner or the plaintiffs also were reversioners. Their Lordships saw no objection to the real question in dispute between the parties being adjudicated on in that litigation; they say
that must always be the case...because it is only in virtue of the persons claiming the declaration being reversionary heirs, and therefore presumptively entitled, that the declaration is made.
13. The present case is very similar. The plaintiff undoubtedly had a cause of action to sue for a declaration that the mortgage deed and the will executed by Narasammal should not affect the interests of the reversioners; The fact that the plaintiff subsequently settled the dispute with the first and eighth defendants does not seem to us to justify the suggestion of the appellants that that portion of the suit was a sham fight merely intended to give the plaintiff a semblance of a cause of action. No such suggestion was made in the written statement. Narasammal left a registered will and she had put forward a claim to an absolute estate as early as 1927. The suit was therefore rightly laid. In such a suit the plaintiff could always be called upon to establish his status as a reversioner and the defendants could set up the title of another claimant by way of jus tertii. An issue relating to the plaintiff's status is therefore a proper and indeed a necessary issue in such cases. The question is whether such an issue should have been tried only as between the plaintiff and defendants 1, 2, 3 and 8 or could the defendants 4 to 7 whose title is the alternative title, have also been impleaded in the suit. If in the first instance these defendants had contented themselves with the objection to their inclusion in the suit, the Court might have removed them from the record; but when they set up a positive plea that they had become owners of the suit property on Narasammal's death, the Court could not reasonably evade the issue as to plaintiff's status as a reversioner, and there can be little doubt as to the advantage of trying it in the presenceof defendants 4 to 7. The joinder of a prayer for relief against them may be open to possible objection on the ground of misjoinder; but the terms of Order 1, r. 4, Civil Procedure Code are now so wide that there will be little substance in the objection to the joinder. Hence it is that the appellants take the objection that plaintiff has no right to claim any relief against the defendants 4 to 7.
14. It may be conceded that the decision in Greeman Singh v. Wahari Lall Singh (1881) I.L.R. 8 Cal. 12, supports the appellant's contention but the wide language employed by Mitter, J., in that case has been dissented from in Gangayya v. Mahalakshmi (1886) I.L.R. 10 Mad. 90, and Manmatha Nath Biswas v. Rohilli Moni Dasi (1904) I.L.R. 27 All. 406. The distinction relevant to the application of Section 42 of the Specific Relief Act is, not that between vested and contingent rights (as suggested by Mitter, J.), but that between a suit for a declaration of the reversionary, title of the plaintiff and a suit< for the protection and preservation of the reversionary estate; See Balumkund Lal v. Musammat Sohano Kueri (1928) I.L.R. 8 Pat. 153. It was pointed out in Puttanna alias Keshava Bhatta v. Ramakrishna Sastri (1906) 17 M.L.J. 374 : I.L.R. 30 Mad. 195 that such protection is not limited to protection against acts of the widow and the same principle was applied in Balmukund Lal v. Musammat Sohano Kueri (1928) I.L.R. 8 Pat. 153 at 159. In Puttanna alias Keshava Bhatta v. Ramakrishna Sastri (1906) 17 M.L.J. 374 : I.L.R. 30 Mad. 195 Subramanya Iyer and Benson, JJ., held that a presumptive reversioner could sue for a declaration against devisees claiming under an alleged will of the last male owner. In Balmukund Lal v. Musammat Sohano Kueri (1928) I.L.R. 8 Pat. 153 at 159 the learned Judges held that in a presumptive reversioner's suit the Court could legitimately decide the question whether the propositus died divided or undivided from his coparceners. They observed : 'although the Court ought not to declare that the plaintiffs will be entitled to succeed...the Court may properly declare that Nandkumar was separate from his nephews and that he left an estate capable of being inherited by his heirs'. This is substantially what has been done in the present case by the learned subordinate judge. In Ram Pershad Chowdry v. Jokhoo Roy (1884) I.L.R. 10 Cal. 1003 the question in dispute between the parties was very similar to that raised in the present case vis., as to who should be deemed to be the last holder, though there was the added feature in that case that the limited owner put the real claimant in possession and supported his claim. The decision in Rama Rao v. The Raja of Pittapur (1918) 36 M.L.J. 169 : I.L.R. 42 Mad. 219 dealt with the ease on the footing that the only declaration asked for was 'that the plaintiffs and not the Raja are the next reversioners of the deceased'. Even in such a case Sir John Wallis based his decision only on the ground of the futility of the declaration and on the rule of practice against making such a declaration. Seshagiri Aiyar, J., emphasised the distinction between the plaintiffs' individual; 'right or legal character in his own right' and his right as representing the entire body of reversioners'. In Surayya v. Subbamma : (1919)37MLJ405 Napier. J., (with whose judgment on this point Sadasiva Aiyar J., concurred) expanded the view that a presumptive reversioner, when looked at in the character of a representative of the body of reversioners, has a ' legal character 'within the meaning of Section 42 of the Specific Relief Act; and if that character is disputed or denied by another, there is no reason why the case should not be held to fall within the section. The decision in Latchamma v. Appanna : AIR1921Mad710 is the logical result of the application of the above principle and the true ratio of the decision should not be allowed to be obscured by the fact that in that case the dispute as to the plaintiffs' status was raised by the limited owner herself. In the words of Phillips, J., the suit will be maintainable whenever it is one 'to establish the identity of the last male holder and thereby to ascertain in which family are to be found the general body of reversioners.'
15. On the question of fact as to whether a posthumous son was born to Bapu Reddi, we see no reason to differ from the conclusion of the learned Subordinate Judge. Even if the matter rested only on conflicting oral evidence, we should be slow to differ from the learned Subordinate Judge's appreciation of the evidence. In this case the documentary evidence and the probabilities are decidedly in favour of the plaintiff's version. It would appear from Ex. D that within a few days of Bapu Reddi's death it was stated that his younger wife was then only four months pregnant. It is impossible to accept appellant's present story in the face of this statement.
16. As to the form of the decree, we have considered whether it is necessary or worth while to retain in the decree itself a reference to the question of the alleged birth of a posthumous son to Bapu Reddi. It is true as pointed out in Veerammal v. Kamu Ammal (1915) 2 L.W. 850 that it is not usual to embody a decision on such points in the decree. But in the particular circumstances of this case it seems to us better on the whole to leave the decree as it is. The appeal fails and is dismissed with costs of the plaintiff, first respondent.