JUDGMENT
1. The parties to this appeal are descended from a common ancestor except defendants Nos. 2 and 6. One Saheb Rai Shukul, as the pedigree given at page 9 of the paper-book will show, had three sons, namely, Debi Din, Bhawani Din and Jeorakhan. We are concerned here with the descendants of Bhawani Din and Jeorakhan only. The plaintiffs in the present case are two of the grandsons of Bhawani Din and the defendants with the exception of defendants Nos. 2 and 6 are the descendants of Jeorakhan, Jeorakhan died more than 45 years prior to the institution of the suit leaving him surviving a widow Musammat Sita Kunwar and three daughters Musammat Makhan Kunwar, Musammat Rani Kunwar and Musammat Tulsha Kunwar. Jeorakhan had adopted one of his nephews, namely, Sheva Das, who predeceased him. Sheva Das left two children; a son and a daughter called Balgobind and Musammat Bakhta Kunwar respectively. Balgobind predeceased Jeorakhan, Musammat Bakhta Kunwar is the mother of Balbhadar Prasad, defendant No. 3, who is one of the appellants before us. Musammat Makhan Kunwar had a son Mangli Prasad, who died leaving him surviving two sons named Gargi Din and Brij Nandan. They are defendants Nos. 4 and 5 in the suit and appellants Nos. 2 and 3 before us. Musammat Rani Kunwar was defendant No. 1 and was a party to this appeal as a respondent but we are told that she is dead now. Musammat Tulsha Kunwar had a son named Durga Prasad, who died leaving him surviving a daughter called Chiti, who is no party to the suit.
2. Jeorakhan owned some immoveable property. He had shares in the villages Patari, Merakhpur and Madarpur. In 1852 he and two other persons purchased the equity of redemption of the village of Said Alipur. In January 1870 be executed a deed of gift of his shares in the villages Patari and Merakhpur in favour of his three daughters and his granddaughter Musammat Bakhta Kunwar. He retained Madarpur and. the equity of redemption in Said Alipur. After his death mutation of names was effected in favour of his widow Musammat Sita, Kunwar in respect of the villages Madarpur and Said Alipur. Musammat Sita Kunwar died within a year or two of her husband's death. After her death a dispute arose between her daughters and her granddaughter Musammat Bakhta Kunwar on the one side and the descendants of Bhawani Din on the other. The latter claimed the share of Jeorakhan in Madarpur and his right of redemption in Said Alipur under an oral Will from Musammat, Sita Kunwar. On the other hand, her daughters and her granddaughter claimed the property on the same ground, that is, an oral Will from Musammat Sita Kunwar in their favour. The mutation of names was allowed to the daughters and the grand-daughter of Musammat Sita Kunwar, but we cannot say now on the materials on the record on what ground the order of mutation was made. No copy of that order has been produced.
3. After the mutation order in favour of the ladies, the name of each of them was entered in respect of a one-fourth share and each of them enjoyed the property separately. Musammat Makhan Kunwar died about 1875 and after her death, the name of her son, Mangli Prasad, was entered in the revenue papers in respect of her one fourth share. On the death of Mangli Prasad in 1900, the names of his two sons Gargi Din and Brij Nandan were entered in respect of the same property in the revenue papers. Musammat Bakhta Kunwar died about 1883 and the name of her ton Balbhadar Prasad was entered in her place in the revenue papers. Musammat Tulsha Kunwar died some time in 1907 and the name of her son Durga Prasad was substituted for her name in the revenue records. Durga Prasad died oh the 24th of October 1915 and instead of his daughter's name being entered in his place, the name of his cousin Narain Prasad was recorded in the government papers on the allegation that he was the adopted son of Musammat Tulsha Kunwar. He is defendant No. 2. In 1911 Gargi Din, Brij Nandan, Musammat Rani Kunwar, Durga Prasad, Narain Prasad and Balbhadar sued to redeem the mortgage of Said Alipur. It should be observed here that the mortgage was oreated in 1847 and that it was a usufructuary mortgage for Rs. 1,700. The above-mentioned persons stated in their plaint that their ancestor Jeorakhan had with two others purchased the equity of redemption of the mortgagor and that they as heirs of Jeorakhan were entitled to redeem the mortgage It was further stated that in case it was found that they, i.e., Gargi Din, Brij Nandan, Durga Parshad and Balbhadar, were not the legal representatives of Jeorakhan and could not sue as such for redemption, Musammat Rani Kunwar who represented the full rights of her father could maintain the action. Moreover, Gargi Din, Brij Nandan, Narain Prasad and Balbhadar had purchased the rights of one of the sons of Roshan Khan, a co-purchaser with Jeorakhan of the equity of redemption, and could, therefore, join in the suit. The claim was contested but a decree was passed in favour of all the plaintiffs on the 27th of June 1911. The redemption money was paid and mutation was effected in favour of the then plaintiffs on 30th March 1912.
4. On 6th of May 1914, Gargi Din executed a deed of simple mortgage in favour of Lala Bala Prasad, defendant No. 6 in respect of an eight-annas share in Mahal Mangli Prashad in Mauza Madarpur. On the 8th of December 1915 Prag and Puttan, two of the grandsons of Bhawani Din and grand-nephews of Jeorakhan, instituted the suit out of which this appeal has arisen asking for three declarations, viz., that:
(a) It may be declared that Narayan Prasad is not the adopted son of Musammat Tulsha Kunwar. The entry of the name of Narayan Prasad, defendant No. 2, in the revenue papers, on the basis of the statement of Musammat Rani Kunwar dated the 11th of April 1915, and those of Narayan Prasad, dated, the 9th of March 1915 and the 14th of May 1915, respectively, in place of that of Durga Prasad, in respect of the Zemindari shares, detailed below, i.e., an 8-pie share in Mauza Said Alipur, Mahal Badri Prasad, a 2-anna share, with reference to village and 16-anna share with reference to Mahal in Mauza Madarpur Tassadduq Ali, Mahal Tulsha Kunwar, and a 21/4-pie share in Mauza Bagahi, Mahal Badri Singh, and all the proceedings and the Order directing the mutation of names to be effected in favour of Narain Prasad after the death of Musammat Rani Kunwar, may be declared to be null and void and ineffectual as against the right of the plaintiffs as the reversioners of Jeorakhan Shukul:
(b) It may be declared that the mortgage-deed, dated and registered on the 16th of May 1914, executed by Gargi Din, defendant No. 4, in favour of Bala Prasad, would become null and void and ineffectual, after the death of Musammat Rani Kunwar as against the right of the plaintiffs as the reversioners of Jeorakhan Shukul.
(c) It may be declared that after the death of Musammat Rani Kunwar the (mutation) proceedings and the order for mutation of names in favour of defendants Nos. 1 to 5, and also in favour of Durga Prasad, deceased, passed by the Revenue Court on the 30th March 1912, on its basis of a decree for redemption, dated the 27th of June 1911, and the deed for delivery of possession, dated the 8th December 1911, filed in Suit No. 484 of 1910, of the Court of the Subordinate Judge of Cawnpore (Chhita and Rani Kunwar and others versus Kundau Lai and others) will become null and void and ineffectual as against the rights of the plaintiffs as the reversioners of Jeorakhan Shukul.
5. For the defence several pleas were advanced in bar of the claim. It was urged on behalf of the defence that:
1. Plaintiffs have no cause of action for the present suit.
2. The claim is barred by limitation.
3. After the death of Musammat Sita Kunwar the property in suit was divided between her daughters and granddaughter with the consent of the next reversioners and that division is binding and effectual.
4. The property in suit devolved on the daughters and the grand-daughter under an oral Will of Jeorakhan and they took it as full owners.
5. Plaintiffs should pay the proportionate amount of redemption money and costs of the redemption suit. The learned Subordinate Judge disallowed the objections for the defence and decreed the claim. Three of the defendants, namely, Balbhadar Prasad, son of Bakhta Kunwar, and Gargi Din and Brij Nandan, sons of Mangli Prasad and grandsons of Makhan Kunwar, have preferred this appeal. They challenge the decree against them on the grounds mentioned above. Before proceeding to consider the arguments on behalf of the appellants we must note first that the objections of the latter are directed against reliefs Nos. 2 and 3. It is conceded that the appellants are not concerned in, and do not challenge, relief No. 1--which relates to Narain Prasad's alleged adoption and his getting possession of part of the properly in suit on the death of Durga Prasad. The decree in favour of the plaintiffs with regard to relief No. 1 will, therefore, stand even if the appellants make out a case with regard to the other reliefs.
6. We take up the plea of the want of cause of action first. The arguments for the appellants are different in respect of each of the two pleas Nos. 2 and 3. It is contended that the plaintiffs have no right to complain of the redemption suit, inasmuch as it was for the benefit of the estate and it did not in any way invade or injure their rights as reversioners.
7. It appears that Musammat Rani Kunwar, the sole surviving daughter of Jeorakhan, had joined with her as plaintiffs in the suit Durga Prasad, Balbhadar, Gargi Din and Brij Nandan on the allegation that they also were the legal representatives of her deceased father. It was also stated in the plaint that in case the Court was of opinion that the said four persons were not the legal representatives of Jeorakhan, Musammat Rani Kunwar herself could maintain the action. Another allegation in the plaint was that Balbhadar and Gargi Din with some others had purchased the rights of one of the sons of Roshan Khan, a co-purchaser of the equity of redemption with Jeorakhan. The plaintiffs in the present case have based their cause of action on the allegation made in the plaint of the redemption suit with regard to Balbhadar and others being the legal representatives of Jeorakhan. The appellants' contention that the said plaint also contained the allegation that Musammat. Rani Kunwar alone could maintain the suit and that Balbhadar and Gargi Din had purchased the rights of Roshan Khan's son is of no force, as the judgment and the decree in the redemption suit have not been filed and we cannot say in what capacity the decree was passed in favour of Balbadhar and others. It is not denied that after the decree in the redemption suit and the redemption of the property possession was obtained and mutation of names effected in favour of Balbhadar, Durga Prasad, Gargi Din and Brij Nandan. If the decree for redemption was passed in favour of Musammat Rani Kunwar alone as the legal representative of Jeorakhan, and in favour of Balbhadar and Gargi Din as purchasers from Roshan Khan's son, why then were the names of Durga Prasad and Brij Nandan entered in the revenue papers and how did they get possession of the redeemed property? We think that the proceedings subsequent to the redemption decree show that at least as far as Durga Prasad and Brij Nandan are concerned, the decree was interpreted to mean that they had obtained it as legal representatives of Jeorakhan on the allegations made in the plaint and obtained possession as such. The conduct of Musammat Rani Kunwar, in joining strangers as co-plaintiffs with her, on the ground that they were her father's legal representatives and giving them possession over part of the redeemed property, distinctly amounted to an invasion of the interests of her father's reversioners. The plaintiffs in the present suit have, therefore, in our opinion, a cause of action in respect of relief No. 3.
8. The main attack is, however, directed against relief No. 2, which relates to the mortgage created by Gargi Din in favour of Bala Prasad, defendant No. 6, on 16th May 1914. It is argued that a reversioner is entitled to complain of the act of a Hindu female, who has a limited estate, if her act is beyond the authority given to her by the Hindu Law and injuriously affects his rights. He can ask for a declaration that it will be null and void as against him after her death and if the act is in the nature of waste, she can be restrained by injunction from committing it in future. But if the reversioner chooses to pass by a transfer made by her which he considers unjustifiable and which injuriously affects him, he cannot question the alienation made by her transferee. No cause of action accrues to him on the second transfer, though the female tenant be alive at the time. She is no party to the second transfer and a reversioner can complain only of the dealings with the property of a female with a limited interest if her dealings are unjustifiable and injurious to his interests. The only case, it is said, in which a reversioner has a right of action against the transferee of a female with a limited, estate is when the transferee commits waste. In the present case the giving of mortgage by Gargi Din cannot be said to be an act of waste. In support of this contention the following authorities are relied upon:
Hindu Woman's Estate (Siroya), pages 288-291; Trevelyan's Hindu Law, page 500; Kamavadhani Venkata Subbaiya v. Joysa Norasingappa 3 M.H.C.R. 116, Mata Din v. Sheikh Ahmad Ali 13 Ind. Cas. 976 : (1912) M.W.N. 183 : 34 A. 213 : 23 M.L.J. 6 : 16 C.W.N. 338 : 11 M.L.T. 145 : 9 A.L.J. 215 : 15 C.L.J. 270 : 14 Bom. L.R. 192 L.R. 192 : 15 O.C. 49 : 39 I.A. 49 (P.C.).
9. The passages in the first mentioned work at pages 288 and 291 are as follows: "When a Hindu widow is no party to the alienation impeached by reversioners they ate not entitled to a declaration that the alienation is void and does not bind them", page 288.
10. "A reversioner is entitled to restrain unlawful acts of a stranger holding under the widow," page 291, Clause 9.
11. The first passage given at page 288 is a reproduction word for word from Mata Din v. Sheikh Ahmad Ali 13 Ind. Cas. 976 : (1912) M.W.N. 183 : 34 A. 213 : 23 M.L.J. 6 : 16 C.W.N. 338 : 11 M.L.T. 145 : 9 A.L.J. 215 : 15 C.L.J. 270 : 14 Bom. L.R. 192 L.R. 192 : 15 O.C. 49 : 39 I.A. 49 (P.C.)
12. The report does not give the name of the case, the judgment of the Court, the facts of the case and the allegations on which the reversioners sought relief or what reliefs were sought. It does not appear whether the note in the report refers to an opinion expressed on an issue distinctly raised in the case or was a mere obiter dictum. The second passage relied upon by the appellants refers to the right of a reversioner to restrain the unlawful acts of a stranger, that is, to one of the remedies of a reversioner. It does not necessarily imply that an alienation by a stranger holding tinder a Hindu widow gives no cause of action to the reversioner. Another learned writer on Hindu Law (a Hindu himself) has expressed a contrary opinion. After discussing the rights of a reversioner he says that: "it will thus be seen that the next immediate reversioner can sue for a declaration that an alienation by a widow or other limited owner or that an alienation by an assignee from her or that an act which is injurious to the estate of the reversioner is voidable at his instance except during the widow's lifetime" vide Ramkrishna Hindu's Law, Volume II, page 297).
13. Trevelyan's Hindu Law is cited to show that tire learned author nowhere says that a reversioner has a right of suit in respect of a transfer made by the assignee or the transferee from a Hindu widow; all that the learned author lays down is that the reversioner can sue in respect of an act of waste committed by the transferee. Reliance is placed on the passage at page 501 under the heading of "Suit to restrain waste." The case of Kamavadhani Venkata Subbaiya v. Joysa Narasingappa 3 M.H.C.R. 116 is an authority for the proposition "that a reversioner can sue to restrain a transferee from a Hindu female from injuring the property." The point under discussion here was not raised in that case, nor is it mentioned by Trevelyan.
14. We cannot find in any of the cases or dicta cited before us definite authority for the proposition that an alienation by the transferee from a Hindu female in possession with a limited estate or by a stranger in possession holding under her does not furnish the nearest reversioner with a cause of action for a declaratory suit; and in view of the language of Section 42 of the Specific Belief Act we are not prepared to bold that such a suit is not maintainable.
15. It cannot be denied that the nearest reversioners have a "right" to the property of the last male owner. The expression "right" includes all rights, present, future, vested or contingent, and, as illustration (e) to Section 42 itself shows, the right of a reversioner under Hindu Law. It may be that this latter right is nothing more than a spes successionis and incapable of transfer but it is still recognised as a right the denial of which may furnish a cause of action for a suit under Section 42 of the Specific Relief Act.
16. Of course it does not follow that because a plaintiff in a suit under Section 42 can show a cause of action, the Court must necessarily give him relief by declaration. The granting of the relief is a matter of discretion. The lower Court in the exercise of its discretion under the circumstances of the present case has thought it fit to grant the relief with regard to the mortgage created by Gargi Din, Having regard to the pleadings in the case--(the appellants having set up a title in the daughters and the granddaughter of Jeorakhan, wholly inconsistent with and adverse to the rights of the plaintiffs as reversioners)--we consider we should not be justified in interfering with the decree of the lower Court passed in the deliberate exercise of the discretion with which it is vested by law. We do not think that the discretion was exercised by the lower Courts wrongly or arbitrarily. Our view is not without authority--vide Jaipal Kunwar v. Indar Bahadur Singh 26 A. 238 (P.C.) : 31 I.A. 67 : 8 C.W.N. 465 : 6 Bom. L.R. 495 : 14 M.L.J. 149 : 8 Sar. P.C.J. 625 : 7 O.C. 239, Ram Autar Dube v. Badal Pandey 17 Ind. Cas. 586. We, therefore, reject the contention for the appellants.
17. The second objection for the appellants is that the claim is barred by limitation. It is argued that a right to sue accrued to the plaintiffs on the following occasions on all of which they were alive:
1. The admission of Musammat Bakhta Kunwar to a share in the property in suit, i.e., in 1873;
2. The mutation of names in favour of Mangli Prasad on the death of his mother Makhan Kunwar in 1875;
3. The mutation of names in favour of Balbhadhar on the death of his mother in 1885;
4. The mutation of names in favour of Gargi Din and Brij Nandan on the death of Mangli Prasad in 1900.
18. It is contended that Article 125 of the Limitation Act, which prescribes 12 years as the period within which a reversioner can bring a suit to have an alienation made by a limited owner declared invalid against him, applies to the case. The plaintiffs, it is said, in order to evade the Statute of Limitation, have based their claim on the dates of the adoption, the redemption suit and the mortgage by Gargi Din, ignoring the acts of the daughters of Jeorakhan which really affected the interests of the plaintiffs adversely. The object of the suit is to challenge the acts of the daughters of Jeorakhan by disputing the subsequent acts of those holding under them. In support of the contention the following cases are cited:
Jaggi v. Pirthi Pal A.W.N. (1894) 134, Kunwar Bahadur v. Bindraban 26 Ind. Cas. 737 : 37 A. 195 : 13 A.L.J. 196.
19. We are unable to accede to the contention for the appellants. The cases relied upon are not in point. The plaintiffs have not based their cause of action on acts done on the occasions mentioned above--nor do they admit that any alienations or transfers were made by the daughters of Jeorakhan. Moreover, Jeorakhan's daughters could deal with their father's property in their lifetime and give the whole or part of it to persons not entitled to it for their lifetime only. In the present case if they gave some property to some members of the family whom they wanted to support and provide for, they could do so for the period of their lives. In our opinion the plaintiffs were not bound under the law to seek a declaration in respect of the admission of Bakhta Kunwar or her son, or Makhan Kunwar's son or grandsons to the enjoyment of some portion of the property as long as one of Jeorakhan's daughters was alive. Nor are the plaintiffs barred under the Statute of Limitation from seeking the declarations which they seek now because they omitted to challenge the above-mentioned acts of Jeorakhan's daughters. Article 125 provides for the case of a reversioner who seeks to challenge the alienation made by a Hindu female or other limited owner.
20. In the present case, none of the acts complained of is an alienation by a female with a limited estate. The Article of the Limitation Act applicable to the present case is Article 120 and the suit has been brought within sis years of the acts of the defendants that are objected to. We, therefore, bold that the claim of the plaintiffs is not barred by limitation.
21. The third point raised on behalf of the appellants is that when a transfer is made with the consent of the reversioners the transferees obtain an unassailable right and title. On the death of Musammat Sita Kunwar the reversioners to Jeorakhan were her daughter's sons, viz., Mangli Prasad and Durga Prasad. It is argued that the daughters of Sita Kunwar in admitting Musammat Bakhta Kunwar to a share and getting her name entered in respect of 1/4th of the property virtually transferred it to her, that Mangli Prasad and Durga Prasad raised no objection at the lime and that we must presume that they consented to the transfer. Again on the death of Makhan Kuar, the reversioners to Jeorakhan were Durga Prasad and Mangli Prasad. The property entered in her name went to her son Mangli Prasad; Durga Prasad made no objection, and the argument is that it mast be presumed that be consented to the transfer. On the death of Mangli Prasad the property standing in his name went to his sons and no objection was raised by Durga Prasad or the surviving daughters of Jeorakan. Balbhadar succeeded to his mother's property in the same way. Musammat Maknan's grandsons and Musammat Bakhta's sons are, it is said therefore, in rightful possession and their title is good and cannot be questioned. They are the appellants in the present case and the claim against them must fail. No evidence has been shown to ns in support of the statement that the three daughters of Jeorakhan gave a one-fourth share of the property to his grand daughter Musammat Bakhta Kunwar in 1871 with the consent of the then presumptive reversioners Mangli Prasad and Durga Prasad. We have not got before us the mutation file of that time nor any papers to show whether any objections were or were not made by Mangli Prasad and Durga Prasad. We cannot presume their consent from the absence of evidence in the case. The same remarks apply to the obtaining of possession of Mangli Prasad, his sons and Balbhadhar Prasad over a portion of the property in Question. We, therefore, disallow the contention of the appellants.
22. The fourth contention for the appellants is that the oral Will in favour of the three daughters of Jeorakhan and his granddaughter Musammat Bakhta Kunwar is proved. It is argued that the probabilities are in favour of such a Will, Jeorakhan was annoyed with his cousins and nephews because they had fought with him about the mutation of names on the death of Sheva Das. It was for that reason that he gifted more than one-half of his property to his three daughters and his grand daughter. He would naturally be inclined to leave the rest of his property to them also. The manner in which the property was dealt with by the daughters of Jeorakhan is also pressed in argument to show that there must have been an oral Wilt of the kind alleged on behalf of the defence. The statements of three witnesses, who were produced in the lower Court, are also relied upon in support of the Will, The fact, that Jeorakhan had a dispute with his cousins and nephews, may have disposed him to give away the major portion of this property to his daughters and his grand daughter. It may be that he may have had a desire that the rest of his property should go to the same person in the end, but the question we have to decide is whether, as a matter of fact, he did make an oral Will. The statement of one Sheo Sahai, who was a nephew of Jeorakhan, being the son of his brother Debi Din, is on the record. He was examined in the mutation proceedings in 1871 after the death of Musammat Sita Kunwar. He mentions no oral Will of Musammat Sita Kunwar or of Jeorakhan in favour of Jeorakhan's daughters but, on the other hand, deposes to an oral Will of Musammat Sita Kunwar in favour of the nephews of Jeorakhan. The disposition of the property by the daughters and the granddaughter of Jeorakhan seems to have been made for the sake of convenience and out of mutual understanding. The conduct of the daughters and the granddaughter of Jeorakhan would not go to prove the alleged Will. The oral evidence for the appellants is quite worthless. Jagan Nath, one of their witnesses, does not depose that Jeorakhan made an oral Will bequeathing the property to his daughters and grand daughter. What he says is that Jeorakhan before his death suggested to his wife Masammat Sita Kunwar that she should make a gift of the property to her daughters and grand daughter. The three witnesses for the appellants are at variance as to the time, place and the words spoken by Jeorakhan. It is impossible to hold on their evidence that Jeorakhan made an oral Will as is alleged by the defence. We agree with the lower Court and find that the alleged oral Will has not been proved.
23. The last point that remains to be considered is that which is mentioned in the 5th ground of appeal. The appellants contend, and we think rightly, that before the plaintiffs get possession of their shares of Mouza Said Alipur they should pay proportionate costs of the redemption suit and of the redemption money. The amounts of both will have to be determined at the time when the plaintiffs come to ask for possession. Subject to this observation we uphold the decree of the lower Court. The appeal fails and we dismiss it. We allow costs to the plaintiffs-respondents, including in this Court fees on the higher scale.