GUMANAN Vs. JAHANGIRA

JUDGEMENT

(1.) THIS is an appeal by the defendants in a suit for a declaration which arose on the following state of facts. One Tota died, leaving him surviving a widow Musammat Gumanan and a daughter named Musammat Khajani. THIS daughter has been married, presumably since her father s death, and is now the mother of an infant son named Surju. Before the birth of the daughter s son, the nearest reversioners under the Hindu Law, after the life estate of the widow and of the daughter, were two persons named Tulshi and Jahangira. They are distant male agnates, according to the pedigree set up in the plaint, and are equal in decree, their grandfathers having been own brothers. Musammat Gumanan has contracted a second marriage (the parties belong to the Jat caste) with Tulshi, one of the aforesaid reversioners, and has borne him children. She has now executed a deed of gift of one-half of her late husband s estate in favour of her sons by Tulshi. Jahangira brought the suit out of which this appeal arises for a declaration that this alienation will not bind him after the death of the widow. In the plaint as filed the existence of Musammat Khajani and her son, Surju, was simply ignored. The defendants made it a part of their defence that even after the life estates of the widow and the daughter came to an end, the next heir to the estate would be Surju, son of Khajani, and neither the plaintiff Jahangira nor his alleged joint reversioner Tulshi, The parties were at issue upon various questions of fact in the Court below. On the one band the defendants put the plaintiff to proof of the pedigree set up by him. On the other hand the plaintiff alleged that Musammat Khajani was not the daughter of Tota at all. It seems to have been suggested that she was a daughter of Tulshi by a former wife, whom he had married before he contracted his union with Musammat Gumanan. These questions of fact have been determined by the learned Subordinate Judge in the sense already stated, and the parties before this Court are not prepared to contest these findings of fact. The appeal is based, therefore, upon a single question of law, the contention being that Jahangira should not be permitted to maintain the suit, seeing that he is not the presumptive reversioner to the estate of Tota in the presence of the daughter s son, Surju. Since the decision of their Lordships of the Privy Council in Rani Anand kunwar v. Court of Wards 6 C. 764 : 8. C.L.R. 381 : 8 I.A. 14 : 4 Shome L.R. 78 : 4 Sar. P.C.J. 195 : 5 Ind. Jur. 161; Rafique and Jackson s P.C. No. 63 : 3 Ind. Dec. n. s.) 495, this question of law may be regarded as having been definitely settled. The right to maintain a suit of this sort does not belong to any one who may have a possibility of succeeding to the estate of inheritance held by the widow for her life. As a general rule the suit must be brought by the presumptive reversionary heir. It may be brought by a more distant heir, if these nearer in the line of succession are collusion with the widow or have proceeded themselves from interfering. These principles were applied by a Bench of this Court in a case very similar to the present, that of Meghu Rai v. Ram Khelawan Rai 19 Ind. Cas. 814 : 11 A.L.J. 382 : 35 A. 326, and this decision seems to be clearly in favour of the defendants-appellants and against the view taken by the Court below. The learned Subordinate Judge founded his decision on the case of Raja Dei v. Umed Singh 13 Ind. Cas. 632 : 34 A. 2O7 : 9 A.L.J. 158. That case would be on all fours with the present if the gift by Musammat Gumanan had been in favour of the minor Surju, son of Musammat Khajani. It could then have been said that the donee was precluded from suing to contest the validity of the gift and that a more distant reversionary heir was entitled to come forward and assert his rights. On the facts now before us, the only arguable plea which can be taken on behalf of the plaintiff-respondent is based upon the fact of Surju s minority. THIS, however, in no way precludes the bringing of a suit by a next friend on his behalf. In the plaint itself there is no suggestion of collusion on the part of the minor, or of the minor s mother as his natural guardian. Their interest is simply ignored. On this state of facts the plaintiff cannot claim the benefit of the exceptions recognised by their Lordships of the Privy Council to the general principle that the suit for a declaration of this sort must be brought by the presumptive reversionary heir. THIS appeal, therefore, must succeed. We allow it accordingly and setting aside the decree of the Court below dismiss the plaintiff s suit with costs throughout.