Bigna Kuer and Others vs Radha Prasad Rai

Dhavle, J.—This is an appeal by the defendants in a suit brought by the plaintiff as the nearest reversioner for a declaration that the kobala executed by defendant 1, widow of the last male Hindu holder, jointly with defendants 2 and 3, in favour of defendants i and 5, was of no effect against the reversioner after the death of the widow. The lower Courts have concurrently found that the plaintiff is not the nearest reversioner of the husband of defendant 1. They have also concurrently found that the kobala was a sham transaction. They have further concurrently accepted the genealogy set up by the defence, which makes defendants 2 and 3 the nearest reversioners and the plaintiff a remoter reversioner.

The trial Court dismissed the suit on the ground that the plaintiff was not the nearest reversioner. The lower Appellate Court has decreed the suit on the ground that defendants 2 and 3, the nearest reversioners, had colluded with defendant 1 and thus precluded themselves from maintaining an action for a declaration.

It has been contended on behalf of the defendants-appellants that the footing on which the plaintiff brought this suit, namely that he was the nearest reversioner having failed, no relief should have been given to him on the footing that though he is a remote reversioner, he is entitled to a declaration because the nearer reversioners have precluded themselves from obtaining similar relief. In support of this contention, the learned advocate has referred to Rani Anand Kunwar v. Court of Wards (1881) 6 Cal 764, Meghu Rai v. Ram Khelawan Rai (1913) 35 All 826 and Sita Saran Vs. Jagat and Others, . Learned Counsel who appears for the plaintiff-respondent has endeavoured to distinguish these cases relied on for the appellants; and the distinction, it seems to me, is plain without really being very material. In Rani Anand Kunwar v. Court of Wards (1881) 6 Cal 764 for instance, there was no allegation that the nearer reversioners bad precluded themselves from suing to set aside the adoption.

At the same time the principle that was laid down by Sir Robert Collier was that when the next presumable reversioner is entitled to sue,

in such a case, upon the plaint stating the circumstances under which the more distant reversionary heir claimed 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.

This clearly requires a claim made by the distant reversionary heir as such. In the present case the plaintiff did not sue on that footing at all. On the contrary, he submitted a genealogy which made him the next reversionary heir, and in para. 5 of the plaint he called himself the reversionary heir and defendants 2 and 3 "mere strangers." It is true that in the next paragraph he spoke of the collusion of defendants 2-5 with defendant 1; but we cannot take it from this that the intention was to say that the nearer reversionary heirs had precluded themselves by their collusion, for, according to the plaint, defendants 4 and 5 are no relations at all, and as to defendants 2 and 3, the plaintiff''s case was that they were mere strangers.

In the Allahabad cases referred to by the learned advocate for the appellants, there seems to have been difficulty caused in reading into the plaint a claim to sue as a remote reversionary heir by the fact that some of the nearer reversionary heirs were not parties. In the present case the persons who have been found to be the nearest reversionary heirs are undoubtedly on the record; but it must be remembered that plaintiff brought them on the record as mere strangers. Notwithstanding their presence on the record therefore I am disinclined to read into the plaint a claim for a declaration on the footing that the plaintiff, though not the nearest reversionary heir, was entitled to sue for a declaration because the nearer reversionary heirs had colluded with the widow. The lower Appellate Court in allowing the plaintiff a declaration has referred to three cases: Jhandu v. Tarif AIR (1914) PC 34, Mt. Deoki Vs. Jwala Prasad and Bandhan Singh Vs. Mt. Daulata Kuar and Another, . Learned Counsel for the plaintiff-respondent has however not been able to urge that any of these cases supports the proposition that a plaintiff who sues as the next reversionary heir may be given a declaration on the footing that though he is not the next reversionary heir, heirs nearer than he have precluded themselves from suing. This concludes the appeal.

A cross objection has been preferred by the plaintiff against the refusal of the trial Court to give him an opportunity to meet a document Ex. C, the certified copy of a plaint, filed on behalf of the defence at the time of trial.

The lower Appellate Court considered that the trial Court ought to have given the plaintiff that opportunity. The document was however merely put in to corroborate the genealogy set up by the defendants, and the finding of the lower Appellate Court is:

However apart from this document, I think I should accept the oral evidence of the witnesses, examined for the defence and I agree with the learned Munsif and hold that the oral evidence as adduced on behalf of the defence should be accepted in preference to that of the plaintiff and these clearly indicate that defendants 2 and 3 are really nearer reversioners than the plaintiff.

Mr. Mahabir Prasad has contended that this finding of the lower Appellate Court in favour of defendants 2 and 3 being nearer reversioners than the plaintiff is coloured by the view of that Court as regards the law applicable; but I have quoted the finding in extenso and find it impossible to read any such consideration into it. It is a finding of fact and makes it perfectly dear that even apart from Ex. C the lower Appellate Court did on the evidence before it, come to the conclusion that defendants 2 and 3 are nearer reversioners than the plaintiff. This finding is binding in second appeal.

The result is that this appeal is allowed, and the suit of the plaintiff, respondent dismissed with costs in all Courts. The cross-objection is dismissed. Leave to appeal is refused.