SITA SARAN Vs. JAGAT

JUDGEMENT

(1.) This second appeal arises from a suit brought by certain reversioners to the estate of one Sheo Sampat deceased for a declaration that a deed of gift executed by Mt. Khatrani, the widow of Sheo Sampat, in favour of her grandson, Godari, (now deceased) and some mortgage deeds, based upon it, are bad and ineffectual against the plaintiff. Other reliefs were also prayed for in the plaint with which we are not now concerned. The following genealogical table will show the relations of the parties Concerned:

(2.) The facts are sufficiently related in the judgment of the Court below, and they need not be repeated here. It has been found that the property concerned was not joint family, property but was the personal property of Sheo Sampat, who was separate from the plaintiffs. It has also been found that the plaintiffs are not the nearest reversioners to Sheo Sampat, because there intervened at the time when the suit was filed, Mt. Umraoti, a daughter of Sheo Sampat, and her minor son Barhamdeo Pande. The decree given by the lower appellate Court which upheld the decision of the trial Court, in favour of the plaintiffs, has been challenged in second appeal only on the ground that the plaintiffs, as remoter reversioners, had no right to sue.

(3.) The circumstances in which a remoter reversioner may sue for a declaration in the presence of a nearer reversioner have been described in the well-known decision of their Lordships of the Privy Council in the case of Rani Anand Kunwar v. The Court of Wards on behalf of Chandra Shekhar [1881]16 Cal. 764. After remarking that, as a general rule, a suit of this nature must be brought by the presumptive reversionary heirs, their Lordships go on to say: 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.... 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.