Suppan Ambalagaran vs Neelamegam, and others

Govinda Menon, J.—The disputed property was the self acquisition of one Muthuveera who died some years ago leaving behind him his

widow defendant 1 and a daughter, defendant 2. It is alleged that after the death of Muthuveera the first married one Pulaniyandi and their son is

defendant 3, defendant 4 being the wife of defendant 3. The plaintiffs are the minor sons of defendant 2 and they are suing for a declaration that the

settlement deed, Ex. R. 1, dated 14-4-1937 executed by defendant 3 in favour of defendant 4 is not valid and binding on the plaintiffs after the

death of defendants 1 and 2. The plaintiffs are the nearest reversioners to the estate of Muthuveera being his daughter''s son and entitled to

succeed to the property on the death of defendants 1 and 2.

The Court of first instance held that Ex. B. 1 will not be binding on the plaintiffs'' and also the suit property belongs to the estate of Muthuveera.

It further held that the plaintiffs are entitled to the property as presumptive reversioners to the estate of Muthuveera after the death of defendants 1

and 2.. The appeal to the lower appellate Court by defendant 3 did not meet with any success and hence, the second appeal by defendant 3.

Mr. G. R. Jagadeesa Iyer for the appellant does not seriously contest the finding of the lower Courts that the properly'' in question was the

absolute property of Muhuveera but his main argument is that the suit as warned is not maintainable. A feeble attempt was made to contend that

there was no clear finding by the lower appellate Court regarding the remarriage of defendant 1 with Palaniyandi after the death of Muthuveera and

if there was really a valid marriage, then the question whether defendant 1 would forfeit her rights to the property should also be considered; but

when once the question of the ownership of the property is decided, it is absolutely irrelevant as to whether there was really a valid marriage

between Palaniyandi and defendant 1 after the death of Muthuveera. In any event On the finding that the property is at present in the possession of

defendant 3 in whom there is no valid title, what has to be decided is whether the suit as framed is maintainable or not.

After the filing of the second appeal defendant 1 died and defendant 2 as the daughter of Muthuveera will be entitled to have a life estate in the

properties in question.

Under Art- 141, Limitation Act a period of 12 years after the death of the last female holder is prescribed for filing a suit for recovery of

possession of immoveable property. This article was introduced for the first time in the Act 9 of 1871 laying down that for bringing a suit the

reversionary heir was allowed a period of 12 years after the death of the widow.

For the purpose of the present suit, Art. 141, Limitation Act may be said to lay down the same thing though by the amendment of this article in

190S it was made applicable both to Hindus and Muhammadans. Mr. Jagadeesa Iyer contends that prior to 1871 if a trespasser got into

possession of the property adversely to the widow and he continued to hold on for a period of more than 12 years then the reversioner would have

lost all his right to the property even though the reversionary heir had no right to possession during the lifetime of the widow.

It is to remedy this defect that a new article was introduced in the Limitation Act for the first time in 1871 and therefore after that introduction the

reversioner can wait for a period of 12 years for filing a suit against the trespasser who had entered into possession of the property adversely to the

widow. In these circumstances it is urged that a suit for declaration is not maintainable because the plaintiffs have a right to recover possession of

the property within 12 years of the death of defendant 2. It being now established that the property was the self acquisition of Muthuveera

defendant 3, son of defendant 1 by the second husband has no claim whatever to the suit properties, and his possession would therefore be

nothing more than that of an absolute stranger. When, therefore, there is no danger to the inheritance of the plaintiffs a suit for a declaration like the

one now filed is unsustainable and the reliefs given would be absolute surplusage.

Learned counsel further relies upon the observations of the Judicial Committee in - ''Janaki Animal v. Narayanaswami Iyer'', AIR 1916 P. C. 117

(A) in support of his contention that a declaration that a person is entitled to succeed to the estate after the death of the life estate holder is not

sustainable. My attention was also invited to a very early case of the Calcutta High Court dated 6-6-1871 reported in - Mt. Suraj Bansi Kunwar

v. Mahipat Singh''. 16 Suth WR 18 (B). where the learned Judges held that a mere execution and registration of a deed as between strangers,

without any ulterior act directed against a Hindu widow in possession or against the reversionary heir of his possession cannot give the latter any

cause of action or entitle him to ask for a declaratory decree.

What happened in that case was that the plaintiff claiming to be the nearest reversioner of the widow of one Nund Lall sued for a declaration of his

title and for setting aside a deed between two persons- The plaintiff admitted that the executants of the documents had no possession. On this

ground the learned Judges held that there was no alienation or waste by the widow herself affecting the plaintiff''s right as reversioner and the mere

execution of a deed or registration of it as between strangers without any ulterior act directed against the plaintiff or his possession or against the

widow and her possession can in no way give the plaintiff a cause of action at the time the suit was filed. I do not think that this decision can in any

way help the appellant.

It two strangers enter into a transaction without in any way interfering with the possession of the widow or the rights of the reversioner how a suit

for a mere declaration that such a document is invalid is maintainable is not understandable.

Learned counsel for the appellant states that the statement in para. 1 of the decree of the Court of first instance, namely, that the settlement deed

dated 14-4-1947 executed by defendant 3 in favour of defendant 4 shall not be binding on the plaintiffs, is a declaration similar to the one which

the learned Judge of the Calcutta High Court refused in 16 Suth WR 18 (B), but the difference between the two declarations is very material.

Whereas in the Calcutta case there was no attempt made to interfere with the possession of the widow or in any way tarnish or throw a cloud on

the title of the reversioner so far as the present suit is concerned defendant 3 claims the property as the owner and it was on that footing that the

settlement was made. In such circumstances I do not see any comparison between the facts of the Calcutta case and those of the present case.

Another decision on which Mr. Jagadeesa Iyer relied is - Munnu Lal, Minor, Through Ram Lal Vs. Raja Ram and Others, , where two Judges of

the Allahabad High Court held that a declaratory suit by a reversioner during the lifetime of the widow that he will be entitled to get the property on

her death is not maintainable. On a perusal of that report it is found that what was discountenanced by the learned Judges was a mere declaration

that a person is entitled to succeed as reversioner to the estate of another when the same is held by the widow as a life estate holder. How this

decision applies to the facts of the present case has not been properly explained.

In - ''Ramaswami Naik v. Thayammal'', 26 Mad 488 (D) , the facts show that the property in dispute belonged to the last male holder whose

widow ought to have been in possession of the same but did not get it and that it had been in the occupation of the defendants as trespassers. The

plaintiffs as reversioners sued for a declaration that the alienation of the property was not binding on them after the death of the widow, the life

tenant. Though the suit as framed was for a declaration that the alienation is not binding, the finding was that there was no alienation but that the

defendants were occupying the property as trespassers. On these facts the question that arose for consideration was whether a suit for declaration

was maintainable or not. Benson and Bhashyam Aiyangar JJ. assumed that a suit can be laid but they were of the opinion that a suit for declaration

brought more than six years after the death of the last male holder was barred by limitation.

It is difficult to see how the point that came up for decision in that judgment can be applied to the facts of the present case. All that the learned

Judges decided was that a suit for a mere declaration brought more than six years after the cause of action has accrued was barred by limitation. In

my view Mr. Jagadeesa Iyer''s contention does not derive any support from this decision also It has therefore to be seen what are the basic

principles on which a Suit for a declaration may be filed by a reversioner during the lifetime of the widow.

In Mayne''s Hindu Law (Edn. 11) in paras. 678, 679 and 680 the learned author discusses the various lands of declaratory suits. During that

discussion the following passage is seen.

During the life of ''the limited owner the reversioner can sue to remove that which would be a bar to his title when it vested in possession. The

commonest suits which are brought by reversioners are suits for a declaration that an alienation or surrender made by the limited owner is invalid or

that an adoption which is set up is invalid or never in fact took place. The next reversioner can either institute such a declaratory suit or wait till the

widow''s death and sue for the recovery of the property.

But Mr. Jagadeesa Iyer contends that in the present case there is no alienation by the widow or her daughter but that a stranger has trespassed into

the property; but whatever be the cause of action to the presumptive reversionary heir the point seems to be somewhat bereft of authority. There

are certain observations in canes and in text books which would show that it is open to a presumptive reversioner to file a suit for a declaration in

cases when the trespasser against the widow is not entitled to hold possession of the property.

In the text book on principles of Hindu Law by J. C. Ghose (Edn. 3 Vol. 1 at p. 281) the learned author observes as follows:

The reversioner may sue the widow and a third party who has dispossessed her for restoration of the property to the widow.

The authority cited is - ''Shamasundari Chowdrain v. Jumoona Chowdrain'', 24 Suth WR 86 (E). In - Shankaebhai Dajibhai Vs. Bai Shiv, Marten

C. J. cites the authority of Mulla''s Hindu Law, Edn. 6, p. 217 for a similar proposition. The statement in Mullah''s Hindu Law is to this effect:

In the case, however, of a trespasser the next reversioner would at once be entitled to sue if the widow did not take any steps to recover

possession. In Mayne''s Hindu Law Edn. 11, at p- 806, the learned author observes: in one case the widow had given up the estate to a third

party, under threat of legal proceedings and refused to have anything to do with the assets. It was held that the reversioners might sue the widow

and the third party to have the possession restored to proper custody, and that a manager should be appointed to collect, account for, and pay into

Court, the assets to be held for the ultimate benefit of the heirs who should be entitled to succeed at the. death of the widow. The authority cited

for this proposition is 24 Suth WR 86 (E). Reference is also made to the decision in Gogula Venkanna Vs. Gogula Narasimham and Others, and

Shankaebhai Dajibhai Vs. Bai Shiv, .

Mr. Jagadeesa Iyer contends that the right of the reversioner to sue for such a declaration and for possession to be given to the widow would have

been justified before the introduction of Art. 141, Limitation Act but subsequent to that such a suit cannot lie, It seems to me that this argument is

unacceptable. In Gogula Venkanna Vs. Gogula Narasimham and Others, Wallis C. J. referred to the decision in - ''Nohin Chunder v. Issur

Chunder'', 9 Suth WR 505 (H) and to the later decision in - ''Radha Mohan v. Ramdas'', 3 BLR 362 (I). before the enactment of the present Art.

141 that the next reversioners were entitled to have the immoveable property of the estate abandoned by the widow reduced into possession and

to put a manager in charge of them. This case is authority for the proposition that as regards the immoveable corpus of the estate, also it is open to

reversioners to file a suit praying that some immovable corpus may be so reduced into possession and handed over to a receiver appointed in the

suit subject to any question of limitation; transferees from the widow without consideration may be made to replace any part of the immoveable

corpus of the estate of the last male holder which can be traced to their hands on the equitable principle recently applied in - ''Sinclair v.

Proughham, 1914 A.C. 398 (J) which imposes upon people into whose hands the property of other persons has come without consideration, the

duty of a accounting for it and restoring it.

It is therefore, clear that 3 Beng LR 362 (I) should not be restricted to the facts and circumstances which arose before the enactment of Art. 141,

Limitation Act.

For the respondents Mr. T. S. Vaidyanatha Iyer referred to various passages in a recent judgment of the Supreme Court reported in- Natvarlal

Punjabhai and Another Vs. Dadubhai Manubhai and Others, where their Lordships agreeing with die Calcutta decisions and disagreeing with the

Madras cases filed that when a Hindu widow surrenders her life estate it is not really an act of alienation by her of her rights in favour of the

reversioner because the reversioner does not derive his title from her bet derives Iris title from the last male holder as his successor-in-law and

therefore the reversioner can immediately bring in a suit for recovery of possession of the property illegally alienated by the widow without waiting

for the death of the widow.

The trend of the Madras decisions had been It; the effect that if the widow alienates the properties and then surrenders her estate the alienee is

entitled to continue to remain in possession of the property until the death of the widow and that the reversioner can claim the same only after her

death. It was held by their Lordships of the Supreme Court that this view is unsustainable.

There are also observations in the Judgment to the effect that the rights acquired by adverse possession by the trespasser against the widow are

available only against the widow and not against the reversioners. I am of the opinion that the observations in this case do not render any assistance

for decision on the question whether a suit for a declaration will lie or not.

The other decision which has been brought to my notice is -- Desu Reddiar and Another Vs. Srinivasa Reddi by next friend Subba Reddiar and

Others, ). where it was held that in dealing with suits by reversioners a distinction has to be drawn between reliefs in respect of the individual or

personal title of the particular reversioner (plaintiff) and reliefs claimed for the benefit of the body of reversioners represented by the presumptive

reversioner.

It has been pointed out that reliefs of the former kind have generally been refused on the ground that an anticipatory declaration of the kind might

be rendered valueless and nugatory by future events but reliefs of the latter kind are not open to the same objection and they are allowed.

In the instant case the relief sought for should be of the latter kind because what is asked for is a declaration that the property belongs to the estate

of Muthuveera and that the settlement deed executed by defendant 3 unauthorisedly in favour of defendant 4 is invalid. The finding by the lower

Courts is that the property belongs to Muthuveera and that defendant 3 is holding it adversely to the widow.

The decision in AIR 1916 P. C 117 (A) cannot stand in the way of the grant of a declaration as prayed for by the plaintiffs. As I do not find

anything illegal in the declaration given by the lower Courts and as the same was intended to prevent illegal acts of the widow likely to cause

jeopardy to the estate by imperiling the reversionary rights of the plaintiffs the suit as framed is maintainable. The second appeal fails and is

dismissed with costs. No leave.