ATMA RAM Vs. BENI PRASAD

JUDGEMENT

(1.) This is an appeal from the judgment of the High Court at Allahabad in the exercise of its powers of revision under S. 115, Civil PC and raises questions as to the High Court's interpretation of the section, and as to the claim of a next reversioner to carry on at his own expense a suit which had been filed by the Collector under the local Court of Wards Act as representing two widows for possession of the suit properties which were alleged to form part of the estate of their deceased husband, in consequence of the Collector having applied to withdraw the suit. The suit had been instituted by the Collector of Saharanpur under S. 55, United Provinces Court of Wards Act on behalf of Jaimala Kuer and Chando Kuer, who were the surviving widows of Janeshwar Das and are hereinafter referred to as the widows, to recover certain properties in possession of three of the defendants which were alleged to be part of the estate of their deceased husband.

(2.) The case made in the plaint was that the plaint properties had belonged to Dip Chand who died in 1907 and that on the death of his widow, Dhanni Kuer, who died on 20 Jannary 1920, Janeshwar, the husband of the widows and his brother Budri Das, who were Dip Chand's nearest reversioners, became entitled to succeed to the suit properties. Dip Chand had been adopted into their family, and it was alleged that his natural father Mukand Lal, who was his guardian had taken advantage of his minority and the minority of his widow, to put his other sons Atma Ram and Abhai Nardan, defendants 1 and 2, in possession of the suit properties. The suit was brought on behalf of the widows of Janashwar, one of the reversioners, safeguarding the rights of Phalwanti Kuer, the widow of Badri Das, the other reversioner who was impleaded as defendant 3.

(3.) The plaint was filed by the Collector on 20 January 1932, and on 19 April he applied that the case should be struck off as the Board of Revenue, which was the Court of Wards, had sanctioned the withdrawal of the suit. On the same day the widows put in an application to be substituted as plaintiffs. On 9 May, in compliance with the Court's order, the Collector filed through the Government Pleader his objection to the widows' application on the ground that they were debarred from suing under S. 55, Court of Wards Act, that the Collector as plaintiff had an absolute power of withdrawal under O. 23, R. 1, and that the widows were not proper or necessary parties under O. 1, R. 10. On the same day the widows joined with Beni Prasad, who claimed to be the nearest reversioner of their husband Janeshwar and his brother Badri, and entitled to succeed to their estates on the death of their widows, in filing a fresh application that they might be joined as plaintiffs and the conduct of the suit given to any one of them. This application was supported by a lengthy affidavit to which their Lordships do not propose to refer, seeing that the Collector was not served with a copy and had no opportunity of answering it, as the Subordinate Judge at once proceeded to hear arguments on all these applications and reserved judgment which he delivered two days later.