SRYAMLAL Vs. BHAGWANTI BAI

JUDGEMENT

(1.) THIS second appeal under section 100 of the Code of Civil Procedure is at the instance of the defendants challenging the decree, granting declaration in favour of the plaintiff No. 2 to the effect that the plaintiff No.2, being next reversioner, the defendants are not entitled to retain possession of the suit land after the death of plaintiff No. 1. passed by the Lower Appellate Court by reversing the judgment and decree of the trial Court dismissing his suit, as not maintainable at the instance of plaintiff No.2 for such bare declaration so long as plaintiff No.1, having life -time interest, was alive.

(2.) THE peculiar feature of this case is that plaintiff No.1. Bhagwantibai, daughter of Shivram had herself pleaded in the plaint that she lost her rights of possession of the suit land due to adverse possession of the defendant for more than 12 years. But by passing of Hindu Succession Act, 1956, the plaintiff No.1 became entitled to recover possession of the suit property from the defendants. The plaintiff No. 2 claimed declaration that he was entitled to succeed the property of Shivram, being his daughter's son; and the defendants were not entitled to retain possession beyond the life time of plaintiff No. 1. So far as the claim of the plaintiff No. 1 is concerned it had no basis, when admittedly, she had lost possession over the suit property for more than 12 years before coming into force of Hindu Succession Act in 1956 and when she was not possessed of any property, it was not possible for her to contend that after the passing of the New Act, she became entitled to claim possession of such property even though she was not in possession of the same at the time of coming into force of the New Act and had already lost her claim due to adverse possession by the defendants for about more than 12 years. The trial Court dismissed the suit on the ground that since plaintiff No. 1 had no case for claiming possession in view of the admitted position regarding adverse possession of the defendants and the plaintiff No.2, being only a next reversioner, he had no cause of action to institute or maintain the suit only for the bare declaration that he would be entitled to recover possession after the death of plaintiff No. 1. The lower Appellate Court, however, reversed the judgment and decree and partially decreed the suit by granting declaration that plaintiff No.2 would be entitled to recover possession after the death of plaintiff No.1 and the defendants will not be entitled to retain possession beyond the life -time of plaintiff No.1. It was held by the Lower Appellate Court that the possession of the defendants, adverse to the limited owner plaintiff No.1, could not prejudice the rights of the next reversioner plaintiff No.2.

(3.) THUS , the only question which remains to be decided is regarding the maintainability of suit for declaration at the instance of plaintiff No. 2 filed during the life time of plaintiff No.1, the limited owner, It is evident that the present suit was not against any alienation by the limited owner, nor was there any case of claiming injunction restraining any waste and damage to the property. Suit for declaration may be of three kinds: (i) suits for declaration of plaintiff's reversionary right; (ii) suits for declaration that the alienation by the limited owner is not binding; and (iii) suits by the next reversioner even during the life time of the limited owner for claiming injunction against the waste and damage apprehended to the property so that the property may be kept intact. It would suffice to observe that the suits, as covered by item No. (1) above are not maintainable. The mere presumptive reversionary heir, who has mere possibility of succession or spes succession is upon the death of the limited owner, is not entitled to maintain a suit for declaration of his presumptive reversionary rights; the reason being that the actual succession will depend upon the state of things existing when the limited owner dies. But in case of the suits covered by items Nos. 2 and 3 above, the position is different. Though it may not be obligatory upon the, reversioners to bring such suits in the sense that alienation by the limited owner could not deprive them of their rights to recover possession of the property alienated after the death of the limited owner, they can maintain a suit for declaration that the alienation made will not be binding and get the cloud cast on their rights as next reversioner clear. Similar will be the position in cases where the property in question is in danger of being wasted. In such cases also, the next reversioner could file a suit and obtain a decree for injunction if the Court is satisfied that there was positive and cogent reason for apprehending such damage or waist to the property.