Sakyahani Ingle Rao Sahib vs Bhavani Bozi Sahib and Others

In this case the Plaintiff alleging himself to be the sister''s son of Ekojee the deceased husband of the first Defendant and the nearest reversioner

sued to set aside certain alienations made by first Defendant. The Subordinate Judge being of opinion that the Plaintiff had failed to establish the

legitimacy of his mother dismissed the suit. The Plaintiff appealed and pending the appeal died. His son Petitioner in Civil Miscellaneous Petitioner

No. 996 of 1902, asserting that he is the next reversioner applied to carry on the appeal and his petition was allowed without notice to the

opposite party by the Registrar.

On behalf of the first Respondent (first Defendant) the widow a preliminary objection has been taken to the effect that the alleged right on which

the suit was based was personal to the Plaintiff even assuming that he was the reversioner and that such right having ceased with the Plaintiff''s

death the appeal abates. On behalf of the Petitioner it was urged that a suit by a presumptive reversioner, if he is the sole presumptive reversioner

or by all the presumptive reversioners is one in which such Plaintiff or Plaintiffs represent the whole body of possible reversioners and consequently

the right of suit must be taken to survive to those who are presumptive reversioners at the death of the deceased Plaintiff and the Petitioner was

therefore entitled to prosecute the appeal.

The weight of authority in our opinion is clearly in favour of the contention on behalf of the first Respondent. So far as the opinions expressed by

the Judicial Committee are concerned the observations of their Lordships in Isri Hut Koer v. Mussumut Ransbutti Koerain ILR IndAp 150 at p.

157 and in Mussummat Chand Kour v. Partab Singh ILR IndAp 156 cited for the Respondent are clearly to the effect that adjudications in suits

by reversioners to set aside alienations by a qualified proprietor will not bind reversioners who are not actual parties to the litigation. The decision

of the Alahabad High Court in Chhiddu Singh v. Durga Dei I.L.E. 22 All. 382. is a direct ruling upon the point. The reasoning in the Full Bench

case of Bhagwanta v. Sukhi I.L.B. 22 All. 33 and in Gannamaneedi Audilakshmi v. Gannamaneedi Verkatramayya S.A. No. 746 of 1901

(unreported) is also to the same effect. The decision in Ayyadorai Pillai v. Solai Ammall ILR Mad. 405 would however seem to be not quite

reconcilable with the second appeal just referred to but even there suits for setting aside alienations are treated as cases in which a reversioner,

such as a daughter would not be entitled to represent remoter reversioners. Now, as to the contention on behalf of the Petitioner it is to be

observed that the learned vakil does not go so far as to argue that whenever a reversioner sue and there is an adjudication such adjudication would

be binding upon every other reversioner. He limits the supposed representative character of the suits only to those instituted by the sol presumptive

reversioner or all the presumptive reversioners. Now if there is any reason for holding that suits for setting asid alienations are to be treated as

representative suits at all why should there be such a limitation. The principle of finality o litigation which alone could be the foundation of the rule,

would apply equally to suits by remote reversioners when once they are allowed to institute and carry on such suits.

There is no analogy between the case of widows and other qualified female holders entitled to present possession of property and the case of

reversioners, presumptive or otherwise, whose right are absolutely contingent. The vested right to the estate and possession in the case of the

former renders it necessary and proper to invest them with the right to bind those who may come in succession to them by any adjudication duly

made in litigation to which they were parties. Having regard to the peculiar position of reversioners who possess no more than a contingent right

there would not be enough warrant to treat any one reversioner as having sufficient interest to bind others who do not join in the litigation and there

is absolutely no authority to support the ingenious distinction put forward on behalf of the Petitioner. Stress was laid upon the form of the

declaration granted in such cases according to the decisions in Shurut Chunder Sein v. Muthooranath Pudateck 7 W.R. (0.R.) 303 Brojo Kishoree

Dassee v. Sreenath Bose 9 W.R. (C.R.) 463 and other similar cases. That form of declaration seems to have been adopted to present any

supposition that the declaration in any way affected the right of the alienee during the lifetime of the alienor to what was transferred in circumstances

not rendering the alienation valid beyond the lifetime of the alienor. Even if it were otherwise, those cases cannot, in the face of the later authorities

above referred to be understood as being sufficient to support the view contended for. Illustration E to Section 42 of the Specific Relief Act., to

which our attention was drawn must of course be read with Section 43 and when so read points to the same conclusion.

We must therefore hold that the right to sue in the case was a personal right and ceased with the death of the Plaintiff. The appeal abates and the

Respondents are entitled to their costs out of the estate of the deceased. The Civil Miscellaneous Petition No. 334 of 1903 asking to have the

name of the Petitioner in Civil Miscellaneous Petition No. 996 of 1902 removed and to declare that the appeal has abated is allowed.