BIGNA KUER Vs. RADHA PRASAD RAI

JUDGEMENT

(1.) 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.

(2.) 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/s. Court of Wards (1881) 6 Cal 764, Meghu Rai V/s. Ram Khelawan Rai (1913) 35 All 826 and Sita Saran V/s. Jagat . 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/s. 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.

(3.) 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.