LALTA PRASAD Vs. DWARKA PRASAD

JUDGEMENT

(1.) This is a plaintiff's second appeal. The suit out of which this appeal arises was instituted by the plaintiff appellant for a declaration that a sale deed executed by one Mt. Renka Kunwar on 18 March 1935 is null and void and ineffectual as against the plaintiff, the next reversioner. The last male holder of the property in suit was a man named Bansidhar, who died about 22 years before the suit, leaving a widow Mt. Eenka Kunwar. The sale deed in question was executed by Mt. Eenka Kunwar in favour of defendants 1 and 2. These defendants contested the suit alleging that the alienation was for legal necessity and alleging further that the. plaintiff was not the next reversioner. The trial Court dismissed the suit, and that decree has been affirmed by the learned Judge of the lower appellate Court. The lower appellate Court finds that the plaintiff is not the next reversioner as alleged by him; the next reversioner is a man named Chandra Shekar. And since the plaintiff came to Court on the specific allegation that he was the next reversioner the learned Judge relying upon a decision of this Court in Sita Saran V/s. Jagat has held that the plaintiff has no right of suit. Learned Counsel for the plaintiff appellant challenges that decision.

(2.) There is a pedigree at page 8 of our paper-book, which will show the relationship between the plaintiff and Bansidhar and with other members of the family with whom we are not concerned. It is an admitted fact that Bansidhar had a sister by name Mt. Makhni, but it will be observed that the lady's name finds no place in the pedigree attached to the plaint. Mt. Makhni married a man named Atal Behari who also married two other wives. Mt. Makhni had a son Chandra Shekar; and his name also finds no place in the pedigree. The reason which the plaintiff advanced for not having mentioned Chandra Shekar was that he was not the son of Mt. Makhni, but was born of one of the other two wives of Atal Behari, and that he had been adopted by Bankey Behari, a brother of Atal Behari. Apparently he was shown in the khasra of 1331 Pasli as the adopted son of Bankey Behari, but Bankey Behari himself has denied having adopted this boy and the finding of the Court is that he was not adopted by Bankey Behari, who moreover was not competent to adopt the boy inasmuch as the latter was an orphan. There is a further finding of fact that Chandra Shekar is Atal Behari's son by Mt. Makhni. It is thus clear that, although the plaintiff sued on the specific allegation that he was the next reversionary heir, he was in fact a remoter reversionary heir, the next reversionary heir being Chandra Shekar. It appears that Chandra Shekar came into Court and stated that he had concurred in the alienation and learned Counsel for the plaintiff-appellant pleads that in the circumstances the plaintiff should be allowed to maintain the suit. In Rani Anand Kunwar V/s. Court of Wards (81) 6 Cal 764 at p. 772, we find the following observation of their Lordships of the Privy Council: Their Lordships are of opinion that although a suit of this nature may be brought by a contingent reversionary heir, yet that, as a general rule, it must be brought by the presumptive reversionary heir, that is to say, by the person who would succeed if the widow were to die at that moment. They are also of opinion that such a suit may be brought by a more distant reversioner if. those nearer in succession are in collusion with the widow, or have precluded themselves from interfering . It cannot be the law that any one who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession however remote. The right to sue must, in their Lordships opinion, be limited. If the nearest reversionary heir refuses, without sufficient cause, to institute proceedings or if he has precluded himself by his own act or conduct from suing, or has colluded with the widow, or concurred in the act alleged to be wrongful, the next presumable reversioner would be entitled to sue . In such a case, upon a plaint stating the circumstances under which the more distant reversionary heir claims 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.

(3.) These observations were cited by a Bench of this Court in Sita Saran V/s. jagat where it was held that, where a plaintiff sues as next reversionary heir, it is improper to read into the plaint an allegation that he is bringing the suit as a distant reversioner on the ground that the nearer reversioners have either precluded themselves from bringing the suit or have refused to do so. The same observations of the Privy Council were also mentioned by another Bench of this Court in Deoki V/s. Jwala Prasad where the learned Judges of this Court expressed the opinion that the instances mentioned by the Privy Council as to when the next presumable reversioner can sue were not intended to be "absolutely exhaustive," and they held that a suit cannot fail merely on the technical ground that a female with a life estate, who is an intervening reversionary heir, has not been impleaded, when the relief sought is really for her benefit. Now, in the present case, as we have already seen, the plaintiff deliberately suppressed the fact of Bansidhar having had a sister at all and he made no mention of that sister's son. That is to say, the plaintiff came to Court on the false allegation that he was the next reversioner. The finding is that Chandra Shekar is the son of Mt. Makhni, and having regard to the close relationship between the plaintiff and Bansidhar it is inconceivable to us that the plaintiff should have been unaware of the fact that Chandra Shekhar was the son of Mt. Makhni and should have believed him to be the son of one of Atal Behari's other wives. Had the plaintiff disclosed in the pedigree that Bansidhar had a sister and had he stated in his plaint that a son was born to that sister and was alive and had attested and concurred in the deed of alienation, but that there were entries in the khasra indicating that this son had been adopted into another family and had therefore ceased to be the next reversioner, in such circumstances the Court might well have exercised its discretion in favour of the plaintiff and allowed him to maintain the suit after impleading Chandra Shekar as a defendant. But he did none of these things. What he did was to suppress the fact that there was or could be any reversionary heir intervening between himself and Mt. Renka Kunwar. In the circumstanoes we are of opinion that the suit has been rightly dismissed and we accordingly dismiss this appeal with costs.