RATAN SINGH Vs. ANANT SINGH

JUDGEMENT

(1.) 1. This appeal arises out of a suit instituted by the plaintiffs as next reversioners of defendant 1, who has a widow's estate in certain property. They allege that she has executed a fictitious receipt for about Rs. 5,000 in favour of defendants 2 and 3; that in a suit oh this receipt a decree for about Rs. 8,000 has been passed against defendant 1; and that in execution of that decree an eight annas malguzari share in mauza Wara forming part of the above property has been attached. They therefore ask : (a) That it be declared that the above receipt is false and fictitious and has been executed to defeat the plaintiffs' rights ; (b) that it be declared that the plaintiff's are entitled to inherit the above property ; (c) that the above decree be declared null and void and be set aside ; and (d) that the above property be declared to be not liable to attachment and sale in execution of the above decree. The lower Court dismissed the suit on the ground that the plaintiffs had sued in their personal and not in their representative capacity.

(2.) IT is clear that the plaintiffs are not entitled to a declaration that they are the heirs, as held by the lower Court, or to any declaration that the receipt is false and fictitious, and that the decree is null and void. Those are matters between, defendant 1 and the other defendants. It is possible that the debt may be paid out of income, and that there will be no infringment of the next reversioners' rights. The finding of the lower Court that the suit must fail because it has not been brought in a representative capacity cannot, I think, be upheld. In Venkatanarayana Pillai v. Subbammal AIR 1915 PC 124, where the plaintiff brought a suit to set aside an adoption and for a declaration that it did not affect his interest in an estate to which he claimed to be the next reversionary heir, their Lordships of the Privy Council held : Such a suit brought by the presumptive reversioner is in a representative capacity and on behalf of all the reversioners. The act complained of is to their common detriment just aa the relief sought is for their common benefit.

(3.) THE claim however for a declaration that the property is not liable to attachment and sale must, in my opinion, fail as premature. In Mt. Ujaria v. Roshanlal AIR 1920 Nag 202, where a Hindu widow stated that she wished to give a four annas share in a village to each of three persons and to retain the remaining four annas share for her maintenance, and mutation was effected accordingly, it was held that there had been no transfer of title and that there was no transfer therefore to be declared void as against the plaintiff. Again in Jagey Ram v. Richhpal AIR 1929 Lah 90 it was held that an attachment itself gives no cause of action for a suit by reversioners inasmuch as no title passes in virtue of the attachment, nor is any charge created upon the property. Mr. Shareef for the appellant has referred to the statement in para. 3065, Edn. 3 of Gour's Hindu Code to the effect that a reversioner may restrain an heiress, as well as her intended alienee, from proceeding with an alienation. In support of that proposition Mr. Shareef has cited the decisions in Balbhadra v. Bhowani (1907) 34 Cal 853, Suraj Mal v. Nathwa AIR 1923 All 161 and Mt. Zaibunnissa v. Irshad Hussain, . In the first of these cases a deed of gift had been executed, which, Judges held, cast a cloud on the reversioner's title and therefore entitled him to a declaration ; in the second case a mortgage had been executed, which obviously may entitle the reversioner to a declaration; and the third case has no relevance whatever. In the present case it is possible that the property now attached will never be actually put up to sale or that nothing more than the widow's interest in the property will be sold, and I am of opinion that there has as yet been no infringement of the plaintiff's rights. I therefore hold that the declaration sought by the plaintiffs is premature and should not be granted. The appeal fails and is dismissed with costs.