JUDGMENT
1. This is a plaintiff's appeal and arises out of a suit for declaration that a dead of gift dated the 15th December 1926, executed by Mt. Sartaji and Mt. Abbiraji, who were arrayed as defendants 3 and 4 respectively, in favour of Mt. Sahdei defendant No. 1 and Mt Dulari, defendant No. 2 was invalid, ineffectual and null and void as against the reversionary rights of the plaintiffs. The property covered by the deed of gift admittedly belonged to a man named Sheo Mangal, who died leaving two sons named Kandhai and Bhagwati. Mt. Sartaji is the widow of Kandhai and Mt. Abhiraji is the widow of Bhagwati. Mt. Sahdei, defendant No. 1 was the daughter of Kandhai and Mt. Dulari defendant No. 2 is the daughter of Bhagwati. It has been found by the lower appellate Court that Bhagwati and Kandhai were separate from each other and its finding has not been and could not be challenged in the appeal before us. It has further been found by the lower appellate Court that Kandhai died leaving a son Ram Niwas and Bhagwati at the time of his death left a son named Ram Sunder. Both Ram Niwas and Ram Sunder died before the dead of gift assailed by the plaintiffs. On the death of Ram Niwas Mt. Sartaji sue-ceeded to the property of Ram Niwas and on the death of Bam Sunder Mt. Abhiraji similarly succeeded to the property of Ram Sunder. It is clear therefore that both Mt. Sartaji and Mt. Abhiraji had a life interest in the properties in dispute.
2. The plaintiffs, on the finding recorded by the lower appellate Court, are reversioners to the estate of Ram Niwas and Ram Sunder. They impugn the validity of the deed of gift inter alia on the ground that Mt. Sartaji and Mt. Abhiraji, having only a life interest in the properties covered by the deed of gift, were not competent to alienate the same and as such the deed of gift could not prejudicially affect their reversionary rights. The other allegations contained in the plaint need not be noticed in this judgment as those allegations cannot be held to be proved in. view of the categorical findings on questions of fact recorded by the lower appellate Court noted above. Mt. Sahdei and Mt. Dulari the donees resisted the plaintiff's suit on the ground amongst others that they, as the sisters of Ram Niwas and Ram Sunder respectively, were under the Hindu Law Amendment Act, Act 2 of 1929 entitled to succeed to the property inherited by Mt. Sartaji after their death and therefore, the plaintiffs were not the nearest reversioners of Ram Niwas and Ram Sunder and were not entitled to the reliefs sought by them. A similar defence was put forward by Mt. Sartaji and Mt. Abhiraji. The other pleas raised by them are, in view of the findings of the lower appellate Court, of no importance so far as the decision of the present appeal is concerned. The trial Court overruled the pleas urged in defence and decreed the plaintiff's suit. All the four defendants named above filed an appeal in the lower appellate Court. During the pendency of the appeal in that Court Mt. Sahdei died and then by an application dated the 3rd May 1930, the pleader for the appellants asked for 15 days' time to file an application for substitution of names. The time prayed for was presumably granted. On the 19th May 1930 an application was filed on behalf of the defendants in the lower appellate Court praying that Mt. Sahdei's name be removed from the array of the defendants. It was stated in the application that the names of the remaining three defendants should continue in the array of the appellants and that "there is no other heir of the deceased."
3. On the findings noted above the lower appellate Court was of the opinion that the aforesaid donees would under Act 2 of 1929 succeed to the estate of Ram Niwas and Ram Sunder after the death of their respective mothers and as such, the plaintiffs could not be the immediate reversioners of Ram Sunder and Ram Niwas and were not entitled to maintain the suit. In view of this finding it reversed the decree of the trial Court and dismiss. ed the plaintiff's suit. It also was of the opinion that the plaintiffs were estopped from denying the title of Mt. Abhiraji to the property in dispute. In view of the finding that Bhagwati was separated from Mt. Sartaji, there cannot be the least doubt that on the death of Ram Sunder Mt. Abhiraji succeeded to a mother's estate so far as the property of Bam Sunder is concerned and, therefore the question of estoppel has become a question of academicals interest. The lower appellate Court did not in the course of its judgment take note of the fact that Mt. Sahdei had died prior to the decision of the appeal by it and wrongly assumed that the plaintiffs were not the nearest reversionary of Kandhai and were not entitled to big estate after Mt. Sartaji's death. It is argued by the learned Counsel for the appellants that as Mt. Sahdei is dead the plaintiffs are the nearest reversioners to the estate of Kandhai and therefore they are entitled to the declaration sought for by them at least qua the estate of Kandhai.
4. On the other hand it is argued by the learned Counsel for the respondents that the alienation made by Mt. Sartaji being by means of a deed of gift and being an alienation for consideration, the suit filed by the plaintiffs for declaration that the deed of gift was void after the lifetime of Mt. Sartaji was not maintainable and that the declaration sought for by them could not be granted. In support of this contention reliance is placed on certain observations contained in the judgment of this Court in Raghunath Baraie v. Jainarain Baraie A.I.R. 1932 All. 661. We have given due consideration to the contention of the learned Counsel for the respondents and have come to the conclusion that in the circumstances of the present case the deliration prayed for by the plaintiffs [should not be refused so far the property owned by Kandhai is concerned, provided that Mt, Sahdei left no son and the plaintiffs are the nearest reversioners of Kandhai. It is true that the grant of a declaratory relief is entirely in the discretion of the Court, but the discretion has to be exercised on certain well recognised principles and with reference to the varying circumstances of each case. No hard and fast rule can be laid down as to the circumstances in which the discretion to grant a declaratory relief in suits of the present description should or should not be exercised. In the case before us the trial Judge had exercised his discretion in favour of the plaintiffs. The lower appellate Court interfered with the exercise of that discretion by wrongly assuming that the plaintiffs were not the immediate reversioners of Kandhai. It is manifest therefore that the discretion exercised by the trial Court was interfered with by the lower appellate Court on a misapprehension of facts. We are further impressed by the fact that many pleas embodied in the written statement were based on wrong allegations, e.g., it was denied by the defendants that Ram Niwas and Ram Sunder were song of Kandhai and Bhagwati respectively. It was further pleaded by the defendants that the deed of gift was executed with the knowledge and consent of the plaintiffs. All these contentions of the defendants remained entirely unsubstantiated. Having regard to these pleas urged in defence which involve questions of fact we are of the opinion that, on the ascertainment of the true facts, the declaratory relief prayed for by the plaintiff's qua the estate of Kandhai, should not in the circumstances of the present case be denied to them.
5. It is however suggested by the learned Counsel for the respondents that it is possible that Mt. Sahdei may have left a son and if the son is alive he would according to Act 2 of 1929 be the nearest reversioner to the estate of Kandhai after Mt. Sartaji's death. If it be a fact that Mt. Sahdei left a son we would be slow to interfere with the decision of the lower appellate Court for the simple reason that in that case the plaintiffs would not be the nearest reversioners to the estate of Kandhai. As regards the property belonging to Bhagwati the appeal of the plaintiffs is without substance. Mt. Dulari undoubtedly is the next reversioner entitled to the property of Bhagwati after Mt. Abhiraji's death. If she survives Mt. Abhiraji, independently of the deed of gift, she would be entitled to succeed to Bhagwati's property under Act 2 of 1929 and, in the event of her leaving a son, the son shall get the property as an absolute owner. The plaintiff's right therefore to the property of Bhagwati is dependent on contingencies that may or may not occur. We therefore are of the opinion that the lower appellate Court was right in refusing to grant a declaratory decree qua Bhagwati's property to the plaintiffs. Before we finally decide this appeal we must have a finding from the lower appellate Court on the following issue:
Did Mt. Sahdei leave a son at the time of her death and, if so is the son still alive?
6. The finding must be returned to this Court within two months from today's date. On receipt of this finding ten days will be allowed for objections. Parties shall be allowed to adduce further evidence. In remitting this issue we have not lost sight of the allegation contained in the application dated 19th May 1930, but it is possible that the deed of gift being jointly in favour of Mt. Sahdei and Mt. Dulari, the pleader for the appellants may have filed that application believing that even if Mt. Sahdei left a son at the time of her death it was unnecessary to implead him as a party to the appeal.