Sadasiva Aiyar, J.
1. The facts out of which the question of law referred to this Full Bench arises may be shortly stated thus:
2. Butchayya, a Hindu, died in 1890. The 2nd defendant, his mother, inherited his properties with the rights and powers of a female heir. She sold the plaint properties in 1891 to the 3rd defendant. The then presumptive reversioner P.W. No. 1, who was entitled at once to sue for a declaration on behalf of the whole body of successive presumptive reversioners (including the 3rd defendant), failed to bring such a suit within the twelve years allowed to him by Article 125 of the Limitation Act, that is, within November 1903. The 3rd defendant who was benefited by the 2nd defendant's alienation would, of course, not bring any such suit. Meanwhile, the plaintiff and the 1st defendant, (minors even at the date of this suit), were born to Butchayya's stepsisters and they on their birth became nearer presumptive reversioners than even P.W. No. 1. The plaintiff, having been born in July 1910, brought this suit to avoid the alienation in October 1915 within six years of his birth. The short question referred to the Full Bench is whether this suit is barred by limitation.
3. To enable us to solve this Question, arguments were addressed to us on the following
1(a) When a Hindu widow makes an alienation voidable against the ultimate reversionary heir at her death or re-marriage, does a single cause of action for a declaration of its invalidity arise at once to be availed of by the next presumptive reversioner by bringing a suit on behalf of the whole body of successive reversioners till the opening of the reversion, and, in case the next presumptive reversioner by collusion or other act precludes himself from availing himself of that single cause of action, to be availed of by the next reversioner in the order of succession and so on, the suit whenever brought being based on the same single cause of action
1(b) Is Article 125 the only Article applicable to the suit based on such single cause of action if 1(a) is answered in the affirmative, or
(2) do several causes of action arise at different times to several reversioners when each preceding reversioner has lost his right to bring and conduct such a suit through collusion or other similar acts? ([ shall use the word 'reversioner' for brevity as including a set of reversioners standing on an equal footing as among themselves]).
3(a) If each successive reversioner gets a new cause of action, does that cause of action spring up not only when the previous reversioner loses his right by collusion, etc.,--positive act, but also when such right is lost by laches and consequent bar by limitation
3. (b) If (2) and 3(a) are answered in the affirmative, what is the period of limitation and what is the Article of the Limitation Act governing a suit by the succeeding reversioner
4. Where a new reversioner comes into being for the first time by natural birth or by adoption (a) who gets preference by modern Hindu Law in respect of the status of presumptive reversionership over other persons who till then formed the body of reversioners or (b) who becomes entitled to sue by reason of collusion, etc. [see questions 2 and 3(a)], does a fresh cause of action arise in the new reversioner so coming into being as above entitling him to bring a suit for declaration of the invalidity of the alienation
5. If (4) is answered in the affirmative, what is the period of limitation for the suit by the new reversioner and what is the governing Article of the Limitation Act?
4. (It will be seen from the facts of this case that it falls under the heading 4 above and that only questions 4 and 5 directly arise in this case).
5. My Lord the Chief Justice in his well considered Order of Reference (if I may be permitted to say so with respect) expresses his strong inclination to answer questions 1(a) and 1(b) in the affirmative, (that is, that there is only one cause of action arising on the date of the alienation to be availed of on behalf of all the body of reversioners in a single representative suit and that that cause of action is governed by Article 125) and to answer questions 2 to 4 in the negative. I entirely agree with the said conclusions and the reasons given for such conclusions. I shall shortly consider the decisions of this Court from Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib 27 M. 588 downwards in which observations inconsistent with the above conclusions occur. Those decisions are Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib 27 M. 588, Govinda Pillai v. Thayammal 14 M.L.J. 209, Gazzala Veerayya v. Gazzala Ganamma 16 Ind. Cas. 839: (1912) M.W.N. 912, Kommeneni Chinna Veerayya v. Kommeneni Lakshminarasamma 15 Ind. Cas. 213 : 11 M.L.T. 184, Arunachellam Pillay v. Vellaya Pillay 15 Ind. Cas. 461 : (1912) M.W.N. 897, Narayana Aiyar v. Rama Aiyar (1913) W N 588 and Venkata Row v. Tuljaram Row 38 Ind. Cas. 270 : (1917) M.W.N. 30.
6. As regards Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib 27 M.A 588, Arunachellam Pillay v. Vellaya Pillay 15 Ind. Cas. 461 : (1912) M.W.N. 897 and Kommeneni Chinna Veerayya v. Kommeneni Lakshminarasamma 15 Ind. Cas. 213, the law laid down in those three cases, to the effect that when the next presumptive reversioner who has brought a suit to set aside an alienation dies, the suit abates finally and the next man entitled to stand as presumptive reversioner cannot carry it on but ought to bring a fresh suit of his own, has been directly overruled by the decision of their Lordships of the Privy Council in Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298 : 17 Bom. L.R. 4, the dicta laid down in which have been confirmed by their Lordships in Janaki Ammal v. Narayanasami Aiyar 37 Ind. Cas. 161 : 20 M.L.T. 168: (1916) 2 M.W.N. 188 : 18 Bom. L.R. 850 : 43 I.A. 207 and though the above three cases of this Court were quoted before their Lordships by the Counsel for the respondents in the case of Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298: 17 Bom. L.R. 4 to support his contentions he was unsuccessful.
7. In Govinda Pillai v. Thayammal (I) the learned Judges answered the question 3(a) to the effect that even the loss of the right to sue by the bar of limitation through the laches of previous sets of reversioners would vest a new cause of action in a reversioner of a succeeding class, that if the latter was not in existence at the date of alienation, a new cause of action vested in him at his birth, (question 4) that he had six years under Article 120 from when his cause of action arose and that if six years expired before he attained majority, he was entitled under Section 7 of the Limitation Act to three years from his attaining majority to bring his suit, I am convinced in my mind that the reasons given for the conclusions in Govinda Pillai v. Thayammal 14 M.L.J. 209 decided by Davies and Benson, JJ., are inconsistent with the reasons given in the unanimous and fully considered opinion of the Full Bench of five Judges of this Court (including the same learned Judges, Davies and Benson, JJ.) in Chiruvolu Punnamma v. Chiruvolu Perrazu 1 M.L.T. 183, Sir S. Subramania Aiyar as the Officiating Chief Justice being a member of the Bench which made the reference to the Full Bench consisting of Sir Arnold White, C.J., Subramania Aiyar, Davies, Benson and Moore, JJ. The Full Bench case of Chiruvolu Punnamma v. Chiruvolu Perrazu 1 M.L.T. 183 was no doubt a suit by a reversioner to set aside an adoption, while that of Govinda Pillai v. Thayammal 14 M.L.J. 209 was one to set aside an alienation by the widow, but as pointed out in Chiruvolu Punnamma v. Chiruvolu Perrazu 29 M. 390 : 1 M.L.T. 183 and by their Lordships of the Privy Council in Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298, there is no distinction in principle between the two kinds of suits as regards the position of the plaintiffs.' Both Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib 27 M. 588 and Govinda, Pillai v. Thayammal 14 M.L.J. 209 are referred to in the Full Bench decision in Chiruvolu Punnamma v. Chiruvolu Perrazu 1 M.L.T. 183 both in the arguments and in the judgment at pages 399 and 400 and 410 and though it is not expressly said that they are dissented from, the whole reasoning (see pages 400 and 410) indicates in my opinion that they were not approved of.
8. As regards Gazzala Veerayya v. Gazzala Ganamma 16 Ind. Cas. 839 : (1912) M.W.N. 912, I agreed with Sundara Aiyar, J., in the judgment pronounced by him that notwithstanding Chiruvolu Punnamma v. Chiruvolu Perrazu 1 M.L.T. 183, the decisions in Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib 27 ML. 588 and Govinda Pillai v. Thayammal 14 M.L.J. 209 were still good law because there were several dicta of the Privy Council to the effect that one reversioner did not claim through another as regards suits to set aside alienations. We thought that those dicta constrained us to decide cases of suits to set aside alienations differently from the way in which they ought to be decided if the principles enunciated in Chiruvolu Punnamma v. Chiruvolu Perrazu 1 M.L.T. 183 were logically applied.
9. In Narayana Aiyar v. Rama Aiyar 20 Ind. Cas. 626 there are certain obiter observations by me approving of Gazzala Veerayya v. Gazzala Ganamma 16 Ind. Cas. 839, the decision itself in Narayana Aiyar v. Rama Aiyar 20 Ind. Cas. 626: (1913) A. W N 588 being one dismissing the suit on the ground that the plaintiff reversioner was estopped from questioning the alienations.
10. In Venkata Row v. Tuljaram Row (1917) M.W.N. 30 there is again an obiter dictum (at page 36 Page of (1917) M.W.N that a minor not born on the date of an alienation gets an independent cause of action from the date of his birth, notwithstanding that there were nearer reversioners who by collusion with the widow or by having allowed 12 years to elapse from when they were entitled to come in as plaintiffs did not or could not attack the alienation. The suit in that case also was dismissed on a wholly independent ground, namely, that the Court had a discretion to grant the declaratory relief and that that case was not a proper one to grant such relief.
11. As regards the dicta of the Privy Council, which were relied on in several cases in the other High Courts (I shall not refer to those cases in detail) and in this Court even after the decision in Chiruvolu Punnamma v. Chiruvolu Perrazu 1 M.L.T. 183, I entirely agree with my Lord in his observations about them in his Order of Reference; and as I am not likely to add to the cogency and the strength of the arguments found in the said observations by putting them in my own language, I shall certainly not attempt to do so. Considering the outstanding fact of 'the identity of interest on the part of the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of their rights' [Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298: (1915) M.W.N. 555, I think it is impossible to hold that several suits could legally be maintained founded on such an identical interest and involving the same questions of law and fact, so far as the dispute about the validity of an alienation is concerned. The inconveniences of holding otherwise have been cogently pointed out in the Full Bench decision in Chiruvolu Punnamma v. Chiruvolu Perrazu 1 M.L.T. 183. The act complained of is 'to the common detriment' of the body of reversioners as a whole, just as the relief sought is intended for their common benefit [see Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298: 19 C.W.N. 641 If several suits are allowed to be brought so that the matter once sued on with the then presumptive reversioner as plaintiff could be litigated over and over again 'to the detriment and injury of all parties, the position of affairs would become almost intolerable' as when the adjudications in favour of or against a Karnavan as such were denied before Vasudevan v. Sankaran 7 M.L.J. 102 to have a binding character with reference to the other members of the tarwad and led to such a position. The justice and expediency of making adjudications in such cases final as far as possible is manifest, and if the whole existing body of reversioners, both near and remote, can be made parties (as has been now settled) and the conduct of the suit can be allowed by the Court to any of them on sufficient grounds (just as it was taken away on appeal from the plaintiff and given to other worshippers in the Mamudi temple case), there is no injustice whatever in applying Article 125, so far as a suit for the declaration of the invalidity of an alienation by a female heir is concerned, and in further holding that there should be only one representative suit brought in the interest of all the reversioners, though the Court in its discretion will, as a rule, not allow a remoter reversioner to institute and have the conduct of such a suit except on sufficient grounds (such as collusion, acts amounting to estoppel, gross laches, risk of the disappearance of necessary evidence, reasonable danger of the right to sue becoming barred by limitation if the remoter reversioner is not allowed to institute the suit and so on.)
12. If such is not the rule, Article 125, evidently intended to discourage belated declaratory suits, might as well be removed from the Statute of Limitations. If the second contingent reversioner can wait for nearly 6 years after the first presumptive reversioner is barred, the third contingent reversioner again for nearly 6 years after the second is barred and so on, and if newly born reversioners can wait till nearly 3 years after each attains majority to bring a suit, notwithstanding that living reversioners failed during 50 years after the alienation to bring such a suit or even failed in suits brought by them before the new plaintiff was born, the object of Article 125 is almost wholly defeated.
13. The argument based on the supposed injustice of barring a man's right of suit before he is even born does not impress me. If the unborn future members of a whole community (say a Vadagalai community, as in the illustration suggested by my learned brother Oldfield, J., in the course of the argument) could be barred from the exercise of a vital mode of worship by limitation owing to the long established adverse acts of a rival community, I do not see why the failure of existing members of a body to bring a representative suit for the benefit of unborn members also should not bar such unborn members [see also Muhammad Amir v. Sumitra Kuar 24 Ind. Cas. 97.
14. It must be remembered that even the very first presumptive reversioner has only a possibility of succeeding or spes successionis [Bahadur Singh v. Mohar Singh 29 I.A. 1 and Amrit Narayan Singh v. Gaya Singh 44 Ind. Cas. 403: (1918) M.W.N. 306. In conceding a right of suit to persons possessing an interest of this defeasible character, the case-law provided a very exceptional remedy and (if I may be permitted to say so with respect) an anomalous remedy. It must also be remembered that under the more ancient and liberal Hindu Law, a wife as heir of her husband succeeding as his remaining half and a mother succeeding to her son who was her own flesh and blood had full and absolute rights of ownership; and it is only medieval pious text interpolators and reactionary commentators with low views of women's position and morals that took advantage of texts intended for the chivalrous protection of the properties of women by men, a Vedic text about women being Nirindryas (whose meaning was twisted and perverted beyond recognition), and mere moral precepts to widows as to the conduct of noble Sadhwees that had made a female heir almost a trustee for the future and unascertained reversioner who might happen to be the heir of her husband or her son at her death instead of making the inheritance pass to her own heirs. I confess that I have no sympathy whatever with these problematical reversioners and unless the law compels me to do so, I am not inclined to unduly favour them. It was argued that because the heir at the death of the widow is allowed under Article 141 a period of 12 years from her death to recover possession of the alienated property, there is no harm in allowing numerous declaratory suits also during her lifetime to different persons without any reference to the lapse of time since the date of alienation. Apart from the difference between a declaratory suit and a suit for possession, the alienee has in a suit for possession brought against him by the ultimate heir after several years the advantage of the rulings of the Privy Council that the evidence of the necessity for and of the inquiries made about the necessity for a long standing alienation should be considered indulgently in favour of the validity of the alienation.
15. Lastly it seems to me that it is a glaring anomaly that while an alienee from a mortgagee or even a trustee is protected after 12 years from the date of the alienation under Article 184, while an alienee even from a minor's guardian is protected after three years from the date of the minor's attaining majority under Article 44, when even a son supposed to have equal rights with his father in the ancestral property if he is born after an alienation by his father cannot acquire by birth any right to attack that alienation, a reversioner with a spes successionis and not born till several years after an alienation by a female heir should have 12 years from the date of the death of the Hindu female heir (who has certainly greater rights of ownership than a guardian or a trustee) to sue for possession of a property alienated by her, say more than 60 years before her death. I am wholly unable to understand why the Legislature should have been so very solicitous about such remotely contingent interests. If the Legislature decides against a recent proposal made in the Local Legislative Council to allow Courts to grant sanctions to alienations by widows so as to make the title of the alience thereafter unquestionable, I hope that Article 141 would at least be modified by the addition of a clause 'or 21 years from the date of the alienation not declared invalid by decree in an appropriate suit; whichever term first expires.' The first column of the Article might also be made clear by confining its operation to Mahomedans governed by Hindu Law through custom. In Garikipati Paparayudu v. Garkipati Rattamma 17 Ind. Cas. 508 I stated, 'the very object of allowing a suit by a contingent reversioner has been unfortunately, if I may be permitted to say so, defeated to a very large extent by the decisions which are binding on us, to the effect that a decree passed in favour of or against such a reversioner is not binding on a remoter reversioner. I might be permitted to hope that the Legislature should see fit to enact that the decree in a suit bona fide brought and litigated by the then nearest reversioner is binding on the remoter reversioners,' I am glad that the recent pronouncement of the Privy Council in Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298 : 17 Bom. L.R. 4 has the effect of overruling the decisions which I referred to in the above passage. But so far as suits for possession on the death of the female heir are concerned, the assistance of the Legislature is still necessary.
16. In the result, I would answer the questions (la) and (1b) formulated by me in the affirmative, and questions (2) and (4) in the negative. Questions (3a), (3b) and (5) do not arise on these negative answers to the other questions. As regards the question directly referred to us, I agree with the answer in the affirmative suggested in the judgment of my Lord.
Coutts Trotter, J.
17. The history of the case -law on this subject in this Presidency has been so exhaustively reviewed by the learned Chief Justice in his Order of Reference that no useful purpose would be served by covering the same ground. The only point we have really to determine is whether the decision of the Privy Council in Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298 concludes the question referred to us. That decision was cited in a later decision of the Privy Council Janaki Ammal v. Narayanasami Aiyer 37 Ind. Cas. 161 : 20 M.L.T. 168 : (1916) 2 M.W.N. 188, as expounding the law on the subject and establishing the doctrine that a reversionary heir appealing to the Court for the conservation of the property does so in a representative capacity. In Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298 : (1915) M.W.N. 555 a reversioner brought a suit to set aside an adoption by a widow. Pending an appeal to His Majesty in Council he died. The Privy Council decided that his grandson might be brought on the record as appellant in his place and that the appeal did not abate by reason of the death of the original appellant. The decision was based on the express ground that the suit was a representative one and enured for the benefit of the whole class of reversioners. It seems to me impossible to escape from the logical conclusion that, if it enures for the benefit of all, it must equally enure to the detriment of all. As the learned Chief Justice says in his Order of Reference, to hold otherwise would almost be a contradiction in terms. One sentence in their Lordships' judgment was pressed upon us by Mr. Narayanamurthi as indicating that their Lordships did not mean to question the right of each reversioner, as he became nearest in succession, to litigate his own claims unhampered and unaffected by anything done or left undone by his predecessors in the line of succession. The sentence appears on page 414 of the Indian Law Reports 38 Madras [Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298: (1915) M.W.N. 555 and is worded as follows: The right to relief on the part of the reversioners exists severally in order of succession, and arises out of one and the same transaction impugned as invalid and not binding against them as a body.' The right to relief in the sense of the right to obtain possession of the property no doubt exists in order of succession, but I take their Lordship's judgment to mean that the right to relief of a declaratory nature against the transaction impugned arises simultaneously and jointly for all the reversioners at the moment the act is done. It follows in my judgment that if a reversioner who is competent to do so challenges an alienation or an adoption unsuccessfully or fails to challenge it within the period allowed by the Law of Limitation, the result is binding on his successors in the reversion. The argumentum ab inconvenienti is pressed upon us, that so to decide would open the door to fraudulent and collusive actions between the widow and the nearest reversioner bartering away the rights of subsequent reversioners. I think the answer to be that proof of such fraud and collusion would at once invalidate the result which was sought to be achieved. It appears to me that the hardship of allowing an alience or an adopted son to be harassed by an endless series of suits by successive reversioners, each raising the same point and each more difficult to meet with the lapse of time, is infinitely greater.
18. The result is that, in my opinion, the present suit is barred; and that Govinda Pillai v. Thaymmal 14 M.L.J. 209, Gazzala Veerayya v. Gazzala Ganamma 16 Ind. Cas. 839 Narayana Aiyar v. Rama Aiyar 20 Ind. Cas. 626: (1913) A. W N 588 and Venkata Row v. Tuljaram Row 38 Ind. Cas. 270 : (1917) M.W.N. 30 are no longer law.
William Ayling, J.
19. I would, answer the question in the affirmative, and concur in the judgment of Coutts Trotter, J.
20. I desire to express no opinion except on the question directly referred to us; and I would answer it in the affirmative for the reasons given by Coutts Trotter, J., in his judgment.
Seshagiri Aiyar, J.
21. The case law is fully discussed in the Order of Reference made by the learned Chief Justice. I entirely agree with the conclusion he has come to I shall only refer to two or three cases and to the Limitation and the Specific Relief Acts to make my position clear. It is not denied that the object of a suit by a reversioner for a declaration either that the adoption is invalid or that the alienation is void beyond the lifetime of the alienor is to perpetuate testimony. The party suing gets no immediate benefit. It very often happens that the ultimate benefit of the declaration is enjoyed by somebody else.
22. It is clear, therefore, that the nature of the suit is to obtain a pronouncement, not for the personal benefit of the plaintiff nor for obtaining any immediate relief to himself. The right of suit is given by Section 42 of the Specific Belief Act, which has been framed according to Mr. Collett, once a Judge of this Court and who has written a commentary upon the Act, upon the basis of the Scotch Law. According to the English Law a declaration of right was obtainable only as introductory to some other relief which the Chancery Court proceeded to award. See Robert Fischer v. Secretary of State 3 C.W.N. 361 :8 Ind. Dec. 192. But apparently under the Scottish action of declarator, declaratory actions were entertained for making a matter dear which was then doubtful although no immediate relief was expected or granted. Very likely it is this principle of the Law of Scotland that has been accepted by the framers of the Indian Code. It is clear that the right of suit is given only with a view of dispelling a cloud which may attach to the title when the life estate ends. The fact that in India widows in possession of their husbands' properties have been found to alienate them in favour of strangers to the prejudice of the possible claimants at the end of a long period of suspense, mighty have induced the Legislature to give to the reversioners a right of suit, while the evidence was still available and fresh, to contest the action of the widow, leaving it to the actual heir on the death of the widow to avail himself of that relief before taking possession of the property. Prima facie, therefore, it may be taken that the right agitated is not an individual right but a corporate right.
23. Mr. Narayanamurthi strongly relied upon the course of decisions beginning with Rani Anand Kunwar v. Court of Wards 8 C.L.R. 881; Rafique & Jackson's P.C. No. 363 : 3 Ind. Dec. 495 for the proposition that the right possessed by each reversioner is a several or individual right and not a common right. In my opinion these decisions do not help the learned Vakil. What was decided in these cases was that if the immediate or presumptive reversioner does not sue to perpetuate the testimony, a remoter reversioner can institute such a suit. It must be remembered that in such suits the presumptive reversioner is almost invariably impleaded as a defendant The suit is really one brought on behalf of the person who is unwilling to litigate the matter. We are familiar with cases wherein a trustee of a temple does not; take action when he should, his cotrustee or the beneficiary, as the case may be, brings a suit impleading the unwilling trustee as a defendant. In such cases it is not an individual right possessed by the co-trustee or the beneficiary that is being contested in Court; it is the right belonging to the trust itself that is really litigated. In England there are cases where the cestui que trustent have been compelled to use the name of the trust in suits brought by the beneficiaries. Similarly a suit brought by a remoter reversioner, which ought to have been instituted by the presumptive reversioner, is not an action which is special to himself but is one in which he is interested along with the defaulting reversioner. Therefore I do not think that the cases from Rani Anand Kunwar v. Court of Wards 8 C.L.R. 881; Rafique & Jackson's P.C. No. 363 : 3 Ind. Dec. 495 leading up to Jhandu v. Tarif 27 Ind. Cas. 892: 19 C.W.N. 197: (1915) M.W.N. 394 are any authority for the proposition that each reversioner has a separate right.
24. There can be no doubt that the cause of action is one and the same. But what was strenuously argued was that the right of suit upon the single cause of action is different in the case of each reversioner. Reliance was placed for this proposition upon a sentence in the judgment of the Judicial Committee in Venkatanarayana Pillai v. Sibbammal 29 Ind Cas. 298 : (1915) M.W.N. 555 their Lordships observe: The right to relief on the part of the reversioners exists severally in order of succession, and arises out of one and the same transaction impugned as invalid and not binding against them as a body.' I do not understand this sentence to lay down that the suit for declaration is not in respect of a right common to a body of persons. The reference to rights existing severally may be explained as indicating that the remoter reversioners can themselves be plaintiffs; 'the order of succession' only suggests that it is not every remote reversioner that can come to Court without asking persons before him to undertake the task of getting their common right vindicated. I do not think that this sentence can be construed in the way the learned Vakil contended for.
25. The decision of the Committee on the other hand lays down definitely that the reversioners as a body have a common interest and that the right litigated is a joint right. It is stated on page 412: 'It is the common injury to the reversionary rights which entitles the reversioners to sue.' And again at the top of page 413 Pages of 38 M.--Ed. it is stated: 'There remains the outstanding fact of identity of interest on the part of the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of their rights.'
26. The next point for consideration is, granted it is a joint right and that any conclusion come to in a suit brought by one of the reversioners will be binding upon the others also, does it follow that the failure to institute a suit by the reversioners precludes others from suing for such a relief? Section 11, explanation 6 to the Civil Procedure Code, enunciates the principle of res judicata where action has been brought to vindicate a right common to the plaintiff and to others. Notwithstanding the statement in the judgment of the Privy Council in Venkatanarayana Pillai v. Subbammal 29 Ind Cas. 298 : 19 C.W.N. 641 : (1915) M.W.N. 555 that a consideration of the question of res judicata is irrelevant, I hold with the learned Chief Justice that it is impossible to resist the conclusion that if the right; litigated is a common right and if that litigation has been honestly conducted, the other reversioners are affected by the bar of res judicata. This is a logical result of the decision of the Judicial Committee; the next step may be reached by the application of the principle contained in Section 7 of the Limitation Act, The principle of that section is that if there are some persons in existence who are adults who could have safeguarded the common rights of themselves and of others similarly situated, the failure of the persons who are sui juris to litigate the right will start the cause of action not only against themselves but also against person in similar circumstances. In my opinion the general principle of law-implied in this section is applicable to the case of reversioners.
27. The last argument of Mr. Narayanamurthi related to the construction of Article 125 of the Limitation Act.' In terms, that Article applies only to the presumptive reversioner. I was rather inclined to think that the suggestion contained in the Full Bench decision in Chiruvolu Punnamma v. Chiruvolu Perrazu 1 M.L.T. 183 : 16 M.L.J. 307 that the words 'Hindu... who if the female died,' etc, in the Article would comprehend, for the purposes of the Article, a remote reversioner allowed by law to sue in his stead, was somewhat far-fetched; but it seems to me on further consideration that if a remote reversioner has only the conduct of the litigation not for himself but on behalf of the body of reversioners and for the benefit of the person who is entitled to recover when the succession opens, there is nothing wrong in holding that the Article is applicable not only to the presumptive reversioner but also to the remote reversioner as well. If my suggestion that the remote reversioner is really suing in the name of the presumptive reversioner is right, the Article is clearly applicable. The proper way to look at these suits is to regard the plaintiff reversioner as being entrusted with the conduct of litigation on behalf of a body of persons: ordinarily, the nearest reversioner is the person most competent to conduct it: he has the right of preference; but circumstances may show that the position of dominus litis should be taken away from his hands and should be entrusted to another. That, in my opinion, is the true principle underlying suits by remote reversioners. At present I am rather doubtful whether the residuary Article 120 is applicable to suits by remote reversioners. There is an observation about it in Venkata Row v. Tuljaram Row 38 Ind. Cas. 270 : (1917) M.W.N. 30, but as that decision has gone up to the Privy Council, it is not necessary to discuss the question any further.
28. Mr. Narayanamurthi then argued that even supposing Article 125 applied to remote reversioners, it cannot apply to a person who was not in existence on the date of the alienation, I am inclined to agree with him in this contention. The Articles in the Limitation Act must be construed reasonably, and if a cause of action accrues at a time when a person was not born, he must not be affected by it. But I do not think that that conclusion really affects the matter. The law must be taken to have intended to provide for cases of persons who were only in existence on the date of the alienation or adoption,
29. As I stated at the outset, the main object is to perpetuate testimony and that object can be gained ordinarily by persons who were alive at the date of the alienation and who were capable of bringing before the Court circumstances showing that the alienation is not binding. The rights of the actual heir are not jeopardised. It looks by the language of Article 125 as if the Legislature considered it sufficient to give this extraordinary relief of declaration only to persons alive on the date of the alienation. The decision in Gazzala Veerayya v. Gazzala Ganamma 16 Ind. Cas. 839 is exactly in point and I think it was rightly decided. The obiter dicta contained in the judgments of the Judicial Committee in the various cases referred to by Mr. Narayanamurthi have been explained away by the learned Chief Justice, and I do not wish to add anything to that discussion. I would, for the reasons given, answer the question in the affirmative.