FATEH MOHAMMAD KHAN Vs. GURBUX SINGH

JUDGEMENT

(1.) This Letters Patent appeal is directed against the judgment of a learned Single Judge of the Lahore High Court. The facts of the case need be shortly stated. One Haidar sold a certain piece of land to Gurbakhsh Singh on 14 August 1939 for Rs. 6000. Fateh Mohammad, who claimed to be Haidar's collateral in the third degree, brought the usual suit for a declaration that the land being ancestral and the sale being without consideration and necessity it did not affect the plaintiff's reversionary interests. The suit was resisted on the grounds inter alia that the sale was for consideration and necessity and Fateh Mohammad's suit was speculative, because Haidar's son and collaterals, nearer than Fateh Mohammad, were alive and his chances of succession to the property in case Haidar died were very remote. The Subordinate Judge rejected the second contention. As regards the first contention, he held that necessity had been proved only for Rs. 399 out of the total consideration. Accordingly he granted the plaintiff a declaratory decree that the sale would not affect his reversionary rights except to the extent of Rs. 399. Gurbakhsh Singh after having unsuccessfully appealed to the Senior Subordinate Judge preferred a second appeal to the Lahore High Court. The learned Single Judge of that Court set aside the decree merely on the ground that the suit was speculative.

(2.) Mr. Amar Nath Grover, who appears for the custodian of Fateh Mohammad's property, who is now an evacuee, contended that the learned Single Judge after having held that Fateh Mohammad had a right to maintain the action, notwithstanding the fact that Haidar's sons and nearer collaterals were alive, had erred in dismissing the suit. His contention was that according to the statutory law, Fateh Mohammad had the right to sue for a declaration and to dismiss the suit on the ground of its being speculative is to go counter to the provisions of the law which gave Fateh Mohammad that right. The learned Single Judge has disposed of this point with the following observations: Section 6 of Punjab Act II of 1920 has a bearing on the competency of the suit alone and not on the question whether the suit should be decreed or not, even if it was competent. A declaration is a discretionary relief and it is well settled that in suitable circumstances, it may be withheld by Courts. It is on this principle that the authorities quoted by learned Counsel for the appellant really proceed, although there is no express mention of this principle in the body of those rulings. In every case, therefore, it is to be considered with reference to the circumstances of that case, whether a plaintiff should be non-suited on the ground that his suit was purely speculative or not. I am inclined to agree with the learned Judge that the question whether or not a plaintiff has a right to bring a suit to set aside an alienation is different from the question whether a suit even if maintainable should be dismissed, because it is speculative. I also agree that the decision of the question whether the declaratory relief, which is discretionary with the Court, should or should not be refused must depend upon the facts and circumstances of each case. What has to be determined is whether there is any justification for refusing that relief in the present case. It is true that Haidar has two sons but they are both minors. It is also true that Fateh Mohammad's father, Kamal, is alive and naturally he is a nearer collateral of Haidar's than Fateh Mohammad himself. But it is conceded that he colluded in the sale and thus deprived himself of the right to challenge it by a suit. Kamal had another brother of the name of Nawab Din, but both sides are agreed that he is now dead. This means that Haidar's two minor sons and Kamal stand between Fateh Mohammad and succession to Haidar's property. Now, it is well settled that if the nearest reversioner is a minor or he has colluded in the alienation the remoter reversioner can bring the suit. It is because of this principle that Fateh Mohammad's right to maintain the present action was recognised by the Courts below and it is not even urged before us that the view taken by them is wrong. If the desirability of granting the plaintiff the relief claimed by him is to be decided independently of his locus standi to bring the suit, it was the defendants duty to show that there existed certain reasons other than the existence of Haider's sons and Kamal on account of which the relief should be refused. I have no doubt that in this the defendants have failed and the only ground on which the suit has been thrown out is that because Haider's son and Kamal intervene between Haider and the plaintiff his suit is speculative. Had the position of the vendee been that, there were certain other reasons and circumstances than the existence of the two minor sons of the alienor and Kamal, that made it improper for the discretionary relief to be granted, the condition would have been different but when we are asked to exercise our discretion against the plaintiff on the very grounds, which cannot deprive him of his right to maintain this action, in my judgment it is tantamount to taking away with one hand what is given with the other.

(3.) The learned Single Judge relied upon two cases. The first is Girdhari and others V/s. Mam Chand and Ors. A.I.R. 1924 Lab. 646. In that case, the alienor had three sons and all of them were minors. The plaintiff who brought the suit to set aside the alienation was the vendor's collateral in the fifth degree. The learned Judges while accepting the contention that the suit was speculative made the following observations: This contention is, in our opinion, well founded and must prevail. It is admitted on behalf of the respondent that the alienor, Niadar, has 3 sons living who are nearer in order of succession than the plaintiff, but it is urged that they are minors and that the plaintiff is entitled to sue as next friend in order of succession to them. A large number of authorities have been cited in support of this proposition and reliance is placed on para 67 of Rattigan's Customary Law which lays down that where a nearer reversioner is precluded from suing or colludes with the alienor a more remote reversioner is entitled to maintain the action. This is, however, not the ease here. This is a purely speculative claim, the respondent only having a bare possibility of succeeding and nothing more, and we have therefore no hesitation in holding that he has no locus standi. With all deference, I am not able to appreciate the reasoning given by the learned Judges and my opinion is that to hold that a collateral of the vendor who has a right to maintain an action in the presence of the vendor's sons who are minors should be non-suited on the ground that his suit is speculative merely because of the existence of those very minor sons, is virtually to hold that no such right exists.