TMI Blog1921 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... s is so, not because one reversioner must in that case be deemed to claim through another, but because the reversioner who sues represents the others and Explanation VI of Section 11 of the Code of Civil Procedure comes into operation. In the Full Bench case of Bhagwanta v. Sukhi ILR (1899) All. 33 all that was held was that one reversioner did not claim through another. There are, no doubt, certain observations of the learned Chief Justice in his judgment in that case which are favourable to the appellant, but they cannot be followed in view of the opinion recently expressed by their Lordships of the Privy Council, The whole question has been fully discussed by my learned colleague and all that I need say is that I agree with him. In these circumstances we must dissent from the decisions in which a contrary view has been held and must rule that it is not open to the appellant to dispute the correctness of the decision in the former case and to show that the mortgage made by the widow was for valid necessity. 3. Speaking for myself, I am inclined to hold that the sale which took place at the instance of Kishan Prasad was a sale of the rights and interests of the widow such as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aja of Dumraon was a co-sharer and liable jointly there for to Government, it was recovered from him. On the 18th of May, 1893, he sued her in the Revenue Court to recover what he had paid and obtained a simple money decree for ₹ 505-5-4 on the 29th of January, 1894. In execution of his decree a portion of the estate was attached and advertised for sale. Dhanai Ojha, the presumptive reversioner, intervened to save the property. He petitioned the Collector and asked to be granted a lease for 12 years, offering to pay off the decree and to furnish security. The Collector approved, but Musammat Audha Kunwar did not agree, Accordingly, on the 25th of December, 1899, she borrowed ₹ 1,000 from Kishan Prasad and mortgaged the estate to him, Out of this sum she paid ₹ 587 to satisfy the Raja's decree. There is no evidence to show what necessity if any, there was for borrowing the balance of the ₹ 1,000, As this debt was not paid, Kishan Prasad sued and obtained a decree for sale on the basis of the mortgage on the 31st of March, 1903, There upon Dhanai Ojha, the presumptive reversioner, at once sued for a declaration that the alienation by the widow was without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h appeals and the second arises only in appeal No. 17 of 1919. No other points are pressed before us. On the main question, that of legal necessity, the respondents raise the plea that the former decision and decree of the 21st of June, 1904, obtained by Dhanai as against the widow and Kishan Prasad, is binding on the parties and this Court cannot now go behind it; and as it was there in hold that the transfer to Kishan Prasad was not binding on the estate after the death of the widow, the reversioners are now entitled to possession. 12. These appeals came before a Bench of this Court, and the Judges who constituted that Bench, being of opinion that the ruling in Chhiddu Singh v. Durga Dei ILR (1900) All. 382 was no longer good law by reason of the pronouncements of their Lordships of the Privy Council in the cases of Venkatanarayana Pillai v. Subbammal ILR (1916) Mad. 406 and Janaki Ammal v. Narayanasami Aiyer IRL (1916) Mad. 634 referred these appeals for decision by a larger Bench. The decision in Chhiddu Singh v. Durga Dei ILR (1900) All. 382 is no doubt in favour of the appellants and against the contention of the respondents. In that case Balu Singh was the last male owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be binding as res judicata in the case of a now reversioner. The plea was raised before their Lordships that they should exercise their discretion and refuse to grant the declaration sought by the presumptive reversioner, on the ground that a part of the case raised a difficult point of law, the decision of which, though involving expense and delay, might not after all be binding upon the actual reversioner. Their Lordships remarked that this reasoning did not apply to the case before them, and then continued; nor is it reality conceivable that the decision will be fruitless, because the question of law is of such a nature that its decision, though not binding as res judicata between the widows and a new reversioner, would be so strong an authority in point as probably to deter either party from disputing it. 13. It seems that it is the portion italicized that the Bench of this Court took to be a strong expression of opinion. We cannot agree that their Lordships intended to say or did say any more than that the decision, even if it was not binding as res judicata, would be so strong an authority in point as probably to deter either party from disputing it. They nowhere expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Janaki Ammal v. Narayanasami Aiyer ILR (1916) Mad. 634 It has now held that in this class of case also the presumptive reversioner's suit is a representative suit on behalf of all the reversioners. It seems to us obvious that such a suit, if genuine and properly fought out, is one the true purpose of which is the protection of the interests of the person or persons who may eventually turn out to be the heir or heirs, and that the position of the plaintiff in both these two classes of suits is exactly the same. 17. Similarly, in the fourth class of suit to restrain waste, the plaintiff reversioner brings his suit in a representative capacity to protect the interests of all the reversioners and also those of the person or persons who may eventually turn out to be the actual heir or heirs. In the case of Venkatanarayana Pillai v. Subbammal ILR (1915) Mad. 406 their Lordships of the Privy Council remark as follows: The Indian law, however, permits the institution of suits in the life-time of the female owner for a declaration that an adoption made by her is invalid or an alienation effected by her is not binding against the inheritance. 18. They then point to the diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recognized by a Court of Law as having a right to demand that the estate be kept free from waste and free from danger during its enjoyment by the widow or other owner for life. But a reversionary heir thus appealing to the court truly for the conservation and just administration of the property does so in a representative capacity so that the corpus of the estate may pass unimpaired to those entitled to the reversion. The law on this subject was recently expounded, in the judgment of this Board delivered by Mr. Ameer Ali in Venkatanarayana Pillai v. Subbammal ILR (1915) Mad. 406. This representation is in law founded upon a different set of considerations from those which would seek to stamp the character of reversionary heir on one individual. The latter operation attempted during the enjoyment of the life estate would necessarily be premature and might, as stated, be futile. The former is justified by the considerations of keeping the estate intact for the person to whom as reversionary heir it shall ultimately and at the proper time be determined that the estate shall go. 22. We have quoted at length from these two decisions because it seems to us clear that, according to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fs there in sue, the logical conclusion at which the Court must arrive is that a former decision, whichever way it may be, is binding as between the transferee and the actual reversioner when the widow dies, provided that the matter has been fully and genuinely contested. Our attention has been called to the decision of a Bench of this Court in Darbari Lal v. Govind Ram ILR (1921) All. 514 which has adhered to the decision in Chhiddu Singh v. Durga Dei ILR (1900) All. 382. This decision does not recommend itself to us. We do not think that sufficient attention has been paid there in to the Privy Council rulings to which we have referred, Here also we note that in Bombay the representative character of the reversioner's suit has all along been recognized. The appellant has acquired at auction the right, title and interest of Kishan Prasad in the share in mauza Pachrokia, which he put to sale in execution of his decree against his judgment-debtor. In view of the decision of the 21st of June, 1904, Kishan Prasad's rights came to an end on the death of Musammat Audha Kunwar and the plaintiffs are entitled to recover possession. 25. There remains the question of grove No. 576 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led courts to infer that the adjudication in such suits would bind all the subsequent reversioners. In Jumoona Dassya, Chowdhrani v. Bamasoonderai Dassya Chowdhrani ILR (1876) I.A. 72 their Lordships laid stress on the peculiar nature of the suit, in which the plaintiff, upon a remote and contingent interest, comes into court not only to destroy the title of a person in possession of an estate, but to destroy his civil status. In Rajendro Nath Holdar v. Jogendro Nath Banerji (1871)I.A. 07 it was pointed out how unjust it might be after long lapse of time to deprive him of the status which an adopted son has acquired in the family into which he has been introduced. In Jagadamba Chowdhrani v. Dakhina Mohun (1886) I. A. 84 the desirability of allowing only a moderate time within which such delicate and intricate questions as those involved in adoption should be brought into dispute was emphasized. Sir Barnes Peacock in Brojo Kishoree Dassee v. Sreenath Boss (1868) 9 W.R.C.R. 463 even thought that it had been decided by the Privy Council that such a decree is binding upon the reversionary heirs in Ranee Surnomoyee's case 2 W.R., P.C., 13. That case, however, decided nothing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Bhavani Bozi Sahib ILR (1904) Mad. 588. 28. The whole aspect of the question has now been completely altered by the recent pronouncement of their Lordships of the Privy Council in Venkatanarayana Pillai v. Subbammal I.L.R.(1915) Mad. 406 emphasizing that a suit by a reversioner to set aside an alienation is also a suit brought by the presumptive reversioner in a representative capacity and on behalf of all the reversioners. The act complained of is to their common detriment just as the relief sought is for their common benefit , and that there is the outstanding fact of identity of interest on the part of the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of 'their rights. This opinion has been reiterated in Janaki Ammal v. Narayanasami Aiyer ILR (1916) Mad. 634. 29. In view of such a clear pronouncement as to the true nature of the suit, inferences from certain remarks in cases in which the point did not directly arise have no longer any weight: vide Varamma v. Gopaladasayya ILR(1918) Mad. 659. The main basis of the distinction having disappeared, in my judgment the decision in a suit to set aside an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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