AI Structured Summary
Not yet generated for this judgment
Judgment
John Wallis, C.J.—This is an appeal from an order striking out the name of the first Defendant on a petition under Order I, Rule 10, for the
amendment of the plaint. No separate appeal is provided under the Code from orders passed under this rule, but in this case the Subordinate
Judge decided to strike out the first Defendant''s name on the ground that the plaint disclosed no cause of action against him and ordered the suit to
be dismissed as against him. In these circumstances I think the order comes within the definition of a ''decree'' and is appealable as such. The facts
are these. The fourth Defendant is the widow of a junior member of the Pittapur family and the Raja of Pittapur, the first Defendant, has recently
brought a suit as next reversioner of the property in her enjoyment for a declaration that an adoption made by her is invalid. The widow, as one of
her defences, contested the Raja''s claim to be the next reversioner and denied that he was related to her deceased husband. The present Plaintiffs,
who also deny the Raja''s relationship and claim to be themselves the next reversioners to the estate in the hands of the widow, sought
unsuccessfully to be made parties to that suit for the purpose of establishing as against the Raja that they are the next reversioners. Having failed in
that attempt they then instituted the present suit against the Raja and the widow for a declaration that the Raja, the first Defendant, is not the
nearest reversioner or a reversioner at all of the husband of the fourth Defendant and for a further declaration that the adoption of the second
Defendant by the fourth Defendant was invalid. The second and fourth Defendants in their written statement have not challenged the Plaintiffs''
claim to be the next reversioners, and indeed it is their case in the suit brought against them by the Raja that the Plaintiffs and not the Raja are
entitled to that character. In these circumstances it is clear that the Raja is not a necessary party to the suit as between the Plaintiffs and the widow
and the adopted boy, and that the suit against him cannot be supported, unless it be held, as argued, that the Plaintiffs are entitled to maintain a
separate suit against the Raja for a declaration that the Plaintiffs and not the Raja are the next reversioners of the deceased and that the latter is not
entitled to usurp the character of next reversioner. Mr. C.P. Ramaswami Ayyar argued that the Plaintiffs are persons entitled to the lawful character
of next reversioners within the meaning of Section 42 of the Specific Relief Act, and that they are entitled under that section to bring a declaratory
suit against the first Defendant who questions it. The granting of the relief under that section is discretionary with the Court, and it appears to me
that there is a settled rule of practice against the grant of such relief when the only question for decision is which of two persons is entitled to the
character of next reversioner at the date of the institution of the suit, a decision which may serve no useful purpose as both the claimants may be
dead and a different person entitled to succeed when the succession actually opens. In the most recent case, Saudagar Singh v. Pardip Narayan
Singh I.L.R.(1918) Cal. 510 Lord Parker of Waddington delivering the judgment of the Judicial Committee stated that the point was simply
whether under the practice prevalent in India such a declaration, that is, a declaration u/s 42, ought to have been made. In the present case, I think
the Subordinate Judge was right in holding that it ought not. Mr. Ramaswami Ayyar argued that the fact that the Raja had brought a suit in the
character of next reversioner made a difference, but his client has refrained no doubt advisedly from praying by way of consequential relief for an
injunction restraining the Raja from prosecuting the other suit. Whatever grounds the Plaintiffs may have had for asking to be made parties
Defendants in the other suit, a matter not now before us, they ought not, in my opinion, to be allowed either by reason of that failure or on any
other grounds to maintain the present suit against the Raja and the Subordinate Judge was right in dismissing it. The Appeal fails and must be
dismissed with costs.
Seshagiri Ayyar, J.
I am of the same opinion. This appeal raises some interesting questions. The Plaintiffs who are the Appellants sued for a declaration that the first
Defendant is not the nearest reversioner to the estate of one Raja Venkata Rao and that he is not entitled to conduct any proceedings in respect of
the said estate and for a further declaration that the adoption of second Defendant made by the fourth Defendant to her husband, the said Venkata
Rao is not valid. The late Raja of Pittapur had a brother named Raja Venkata Rao. The latter, before his death, it is alleged, gave his wife, the
fourth Defendant, authority to adopt a son. She adopted the brother of the Plaintiffs. The first Defendant is the present owner of the Pittapur
zamindari. On the death of the last zamindar his status as Aurasa son of the zamindar was challenged. The High Court and the Judicial Committee,
without expressing any opinion on this question, held that under the will of the previous zamindar the first Defendant was entitled to the estate as
persona designate This was in 1899. The Privy Council decision is reported in I.L.R (1899) Mad. 383 --Ed. In O.S. No. 55 of 1915 the present
first Defendant brought a suit for a declaration that the present fourth Defendant was not entitled to adopt a boy to her husband. The present
Plaintiffs intervened and wanted to be made parties to that suit. Their application was dismissed. In revision the High Court refused to interfere.
That suit is now being tried. In substance the present Plaintiffs'' contention is that as the first Defendant is not the Aurasa son of the late zamindar,
he is not the nearest reversioner to the estate of Raja Venkata Rao and that consequently he has no right to bring a suit to declare that the adoption
by Raja Venkata Rao''s widow is invalid. The Subordinate Judge in a carefully written judgment came to the conclusion that the first Defendant''s
name should be struck out and that the prayer against him should be deleted. Against that order this appeal has been preferred.
A preliminary objection was taken by the learned Advocate-General against the maintainability of the appeal. His contention is that the order of
the Subordinate Judge comes under Order I, Rule 10, Clause (2) of the CPC and that no appeal is provided against it under Order XLIII. In a
way the conclusion of the Subordinate Judge may be said to come within Order I, Rule 10. But what we have to see is the substance of the order
and not the form of it. In his order the Subordinate Judge examines the right of the Plaintiffs to bring a suit like the present one and concludes,
having regard to certain authorities which he has quoted, that such a suit would not lie. In my opinion this is an adjudication determining the rights of
the Plaintiffs to bring a suit of this nature; and his order is a ''decree'' as defined in Section 2, Clause 2 of the Code of Civil Procedure, There is one
other answer to this preliminary objection. I am disposed to agree with Mr. C.P. Ramaswami Ayyar who appeared for the Appellants that unless
the removal of the Plaintiff or Defendants leaves the suit intact Order I, Rule 10, Clause (2), cannot apply. In this clause the words are:
The Court may order that the name of any party improperly joined whether as Plaintiff or Defendant be struck out.
That is to say, the impropriety is in introducing a party who has no connexion with the reliefs claimed in the plaint. Moreover Order I, Rule 10,
Clause (2), does not relate to the deletion of reliefs but only to the striking out of parties. Consequently where a substantial right has been
adjudicated upon and where the party''s name has been struck out not on the ground that a suit against him would not lie and where a substantial
relief claimed in the suit has been ordered to be deleted, I am of opinion that the Court has ""conclusively adjudicated the rights of the parties with
regard to a matter in controversy"" and that therefore the order of the Subordinate Judge is a decree. The preliminary objection must therefore be
overruled.
On the merits, very elaborate arguments were addressed to us on both sides. It is now settled that a reversioner has no personal right of action.
If he happens to be the next reversioner or if he is able to prove that the next reversioner has neglected his rights, he is given a right of action as
representing the entire body of the reversioners. In other words, he has no individual rights or, in the language of Section 42 of the Specific Relief
Act, ""is not entitled to any legal character in his own right."" Therefore the first of the ingredients necessary to enable him to sue u/s 42 of the
Specific Relief Act is wanting.
Mr. Ramaswami Ayyar referred to some decisions of this Court as supporting his contention. In Bobba Padmanabhudu and Another Vs. Bobba
Buchamma, I pointed out that a suit by a reversioner for a declaration that his divided brother did not give authority to adopt as alleged by his
widow is maintainable. My conclusion was in accordance with the judgment of the Judicial Committee which I quoted, I do not think that any
observation of mine in that judgment lends support to the maintainability of the present suit. Reference was also made to Naganna v. Sivanappa
I.L.R.(1915) Mad. 1162 wherein I traced the history of actions u/s 42. Mr. Ramaswami Ayyar referred to the head-note which makes it appear
as if the suit was brought by a reversioner and contended that if a reversioner was allowed to sue for a declaration that a decree obtained by a
third party against property in the hands of the widow is not binding on him, the present suit is equally maintainable. In my judgment I pointed out
that the suit was not really one by a reversioner but by a person who had succeeded to the property on the death of the widow. In my judgment
the expression ''reversioner'' appears in one or two places. But the expression has not been employed as referring to the rights of persons before
succession opens to them but only as describing what their status was before the widow died. That decision therefore does not help the
Appellants. On the other hand there is the decision of the Judicial Committee in Janaki Ammal v. Narayanaswami Aiyer I.L.R.(1916) Mad. 634
which seems to be conclusive on the question now in dispute. In that case the suit was brought by a, reversioner for a declaration that the widow
was wrongfully wasting and alienating the property. In the first Court the allegations of waste and alienations were found against. But as there was
an issue whether the Plaintiff was a reversioner, the first Court gave a decree embodying such a declaration. On appeal to the High Court this
Court agreed with the lower Court that no acts of waste were proved and held that the declaration should remain. Before the Judicial Committee it
was contended for the Respondents that ""as next reversioner he was the proper person to sue for the protection of the estate and therefore he had
a ''legal right as to property'' within the meaning of Section 42 of the Specific Relief Act."" It is with reference to this contention that their Lordships
say in page 639:
And in their Lordships'' opinion the case must accordingly be treated as if the suit had been, directed simpliciter to a declaration of the Plaintiff''s
individual right. In the view of the Board it is not legitimate to give a Plaintiff under cover of a request for ''further relief'' after all the substantial
heads of a claim have failed greater right to obtain a declaration than he would have had if such a declaration had been asked directly and
unaccompanied by other and unfounded claims.
These observations are exactly in point. If the suit against the first Defendant is to be regarded simply as one for a declaration that the Plaintiffs
are the reversioners and not the first Defendant, the observations of the Judicial Committee leaves no room for doubt that such a suit would not be
maintainable. Mr. Ramaswami Ayyar sought to distinguish this case by arguing that this was not a case in which there were rival claimants to the
nearest reversionership. I do not think that this matters. In Janaki Amrnal v. Narayanaswami Aiyer I.L.R.(1916) Mad. 634 there was an issue
whether the Plaintiff was the nearest reversioner. The fact that the nearest reversionership was denied by the widow and not by another reversioner
is not a ground for distinction. I have already pointed out each reversioner has not an individual legal character. Mr. Ramaswami Ayyar referred to
the decision in Saudagar Singh Y. Pardip Singh I.L.R.(1918) Cal. 510 where a declaration as to the status of the nearest reversioner was
embodied in the decree. Lord Parker distinguishes the case in Janaki Ammal v. Narayanaswami Aiyer I.L.R (1916). Mad. 634 on the ground that
the declaration in the case before the Board was only incidental to the main relief given in the case. It is stated in the judgment:
It is quite true that it involves a finding that the Plaintiffs in this case are reversionary heirs but that must always be the case where a declaration is
made following the illustration (e) of the section, because it is only in virtue of the persons claiming the declaration being reversionary heirs, and
therefore presumptively entitled that the declaration is made.
In that case the substantial declaration was as to the validity of the document, and the declaration as to reversionership was really a part of the
main relief given in the case. I do not think this decision is any authority for the proposition that a bare declaration of the status as a reversioner lies
u/s 42 of the Specific Relief Act. I do not think it necessary to examine the other cases quoted at the bar. I think the decision of the Subordinate
Judge is right and this Appeal should be dismissed with costs.