SUNKARA RAMIAH Vs. SUNKARA SUBBAMMAH

JUDGEMENT

(1.) The plaintiffs are the reversionary heirs entitled to the estate of one Ramiah after the death of the 1st defendant who is his widow. The 2nd defendant is Ramiah s daughter s daughter. On the 6th May 1906, the second defendant, who was a minor, through her guardian the 1st defendant executed a mortgage-deed of certain property, alleged to form part of Ramiah s estate in favour of the 3rd and 4th defendants. The plaintiffs ask for a declaration which may substantially be stated to be of their reversionary right to the property unaffected by the mortgage in favour of the 3rd and 4th defendants. The defendants contended that the 1st defendant had orally transferred the property to the 2nd defendant s father long before 190S and that the alienation by the 2nd defendant in 1906 could give no cause of action to the plaintiff for a declaratory suit. This plea has been upheld by the lower Courts and the suit has been dismissed. The plaintiff prefers this second appeal. We are of opinion that the view of the lower Courts cannot be upheld. For the purpose of this second appeal, we must take the facts stated in the plaint to be true, and the case as laid in the plaint is that the 1st defendant, while she was entitled to hold the estate as a Hindu widow, indirectly alienated the suit mortgage lands by executing the mortgage deed as guardian of the 2ad defendant. According to Section 42 of the Specific Relief Act, a reversioner is entitled to institute a suit to have his reversionary right Io the property held by a Hindu widow declared in certain cases. It is contended that such right exists only when the widow herself has made an alienation. We cannot agree. The Section does not restrict the right to declaratory relief to cases of alienation by the widow. It mast be taken to confer a right of action on reversioners to have their reversionary right declared whenever any act done by the widow jeopardises their right. In this case the widow has by acting as the guardian of the 2nd defendant in executing the mortgage actively concurred in the alienation. She has done an act which might prejudicially affect the right of the reversioners. It might affect it quite as much as a formal alienation made by her. It is argued that her concurrence in the alienation does not amount to any denial by her of the plaintiff s right or any act which would jeopardise their rights. We cannot appreciate this argument. Her act amounts to an affirmation that the property was not part of Ramiah s estate at the date of the alienation, but belonged to the 2nd defendant and to an active participation in alienating it as the 2nd defendant s property. The 3rd and 4th defendants by taking the mortgage and asserting its validity deny the right of the plaintiffs and the 2nd defendant does so by adopting the act of the 1st defendant and thereby asserting that the property belongs to her. The case in Sheoraji v. Ramjas Pandey 33 A. 430 : 9 Ind. Cas. 501 : 8 A.L.J. 454 shows that the right to declaratory relief exists where any act prejudicial to the estate is done by the widow. The case in Ganga Ghulam v. Tapeshri Prasad 26 A. 606 does not help the respondent as it merely decided that reversioners are not bound to institute a suit under Section 42 when a document affecting their rights is executed by a stranger and that they may do so when any further steps are taken which would also amount to a denial of their rights.

(2.) It is unnecessary to consider whether i the plea that the 1st defendant had transferred her right long before the mortgage is made good by evidence, that would be an answer to the plaintiffs suit for a declaration that the mortgage will not affect their rights.

(3.) The decrees of the lower Courts are reversed and the suit remanded to the Court of first instance for disposal on the merits.