Narayan, J.:— This is an appeal by the defendants, and it arises out of a suit for a declaration that deed of surrender executed by a lady is collusive and inoperative and not binding against the plaintiffs who claim to be the reversionary heirs of one Sonu Singh Bhumij. The lands which are the subject of the suit belonged to the said Sonu Singh Bhumij, and Sonu died about 7 or 8 years before the institution of the suit leaving the plaintiffs who are his daughters by his first wife who had predeceased him, his second wife defendant 4, and a minor daughter named Rukni Bhumijani by his second wife. The family is governed by the Dayabhaga school of Hindu Law, and after the death of Sonu, defendant 4 came in possession of his properties as a limited owner. The case made by the plaintiffs is that on account of ill feeling between them and defendant 4, defendant; 4 surrendered the lands described in Schedule 2 of the plaint having an area of 70 bighas 2 kathas 14 dhurs in favour of the landlord, defendant 1, on 1-11-1944. Rs. 2999/- was realised as consideration from defendants 2 and 3, the agreement being that the lands would be settled by the landlord with them. Defendant 1 who is the ghatwal landlord applied to the Deputy Commissioner of Manbhum for permission to settle the lands with defendants 2 and 3, and in spite of an objection raised by the plaintiffs the surrendered land was settled with defendants 2 and 3. The actual settlement was made after the institution of this suit. The plaintiffs' contention is that the necessity mentioned in the deed of surrender is fictitious and that there was no legal necessity for incurring a debt or for making the surrender.
2. The suit was contested by defendants 2 and 3 on the pleas, firstly, that the plaintiffs being remote reversioners could not question the surrender or the alienation and, secondly, that the surrender was made for legal necessity. The learned Subordinate Judge has granted a declaration to the effect that this surrender will not be binding against the plaintiffs after the life time of the widow, defendant 4, his finding being that the surrender was not for legal necessity.
3. Defendants 2 and 3 have preferred this appeal against the decision of the learned Subordinate Judge, and the contentions urged on their behalf are, (1) that the suit as framed is not maintainable and (2) that the finding of the learned Subordinate Judge that the surrender is without any legal necessity is not fit to be sustained. It has further been pointed out that one of the daughters who is a widow having no male issue will be excluded from inheritance and therefore has no right to question the surrender.
4. I shall dispose of the second point first. The question of necessity is the most important question in this case, and if the plaintiffs are competent to maintain this suit, the only substantial question to be decided is as to whether the surrender is for legal necessity. It is manifest that the surrender was arranged so that defendants 2 and 3 may acquire this property and it cannot, therefore, be doubted that defendants 2 and 3 are mainly responsible for this transaction. The deed of surrender recites that because rent has fallen in arrears and the lady has run into debts, there is no other course open except to make a surrender in favour of the landlord who has agreed to make a settlement with defendants 2 and 3. The entire holding was of 84 bighas and odd, and out of that 70 bighas and odd was surrendered by the document, exhibit F. The document shows that the lady's husband had taken loans from these defendants 2 and 3 and that the defendants 2 and 3 had agreed to pay Rs. 2999/- as compensation. The landlord having agreed to settle the lands with the defendants 2 and 3 the lady surrendered the lands in his favour. The learned Subordinate Judge has rightly pointed out that there was no necessity for the surrender and that it was a most imprudent act on the part of the lady to have surrendered the large area of 70 bighas and odd. There are two very inconsistent statements in this document, and they are, (1) that the lady has been in possession of the lands directly and by settling the same with the tenants, and (2) that she has not been able to cultivate the lands and they are lying uncultivated. If the lands were lying uncultivated, or fallow, no tenant could take settlement of them, and obviously it is the first statement which appears to be correct. The rent payable for the lands was only Rs. 2/3/- and the proportionate rent for the lands surrendered has been mentioned in the document as Rs. 1/14/- only. It is impossible to Except the statement in the document that the lady was not able to pay this petty amount of rent.
5. Defendant 2 has examined himself, and he has tried to prove that defendant 4 had borrowed some paddy from him and defendant 3. Rs. 300/- is said to have been due to them on account of the value of paddy. He admitted in his cross-examination that he had got account books and that he used to lend about 100 to 200 maunds of paddy annually. But it is surprising that the amount of 40 maunds which he had advanced to defendant 4 is not entered in his account book at all. He further stated that there was an account bitten on a loose sheet of paper which he handed over to defendant 4 after accounting. These statements are absolutely incredible, and the witness cannot be regarded as a reliable and an honest witness. (After further considering the evidence his Lordship concluded). The learned Subordinate Judge was, therefore, perfectly justified in coming to the conclusion that there was no legal necessity for the surrender of Schedule 2 properties in favour of the landlord. The ‘khai khalasi’ documents had been executed for very small portions of the land, and it is not at all understandable why the lady thought of redeeming these ‘khai khalasi’ mortgages so soon after they had been executed. There is one document, exhibit H, which shows that a loan of Rs. 49/- had been taken by Sonu himself from one Rohini Saudagar, but for satisfying this petty loan of Rs. 49/- it was not necessary to surrender so much of land. As was pointed out by this court in — ‘Sant Prasaa Singh v. Charitar Singh’, A.I.R 1951 Pat 539 (A), (the judgment of which case had been delivered by me) a transferee from a Hindu widow has an exceptional and onerous position and he does not occupy the same position as any other transferee in whose favour certain presumptions will be raised under ordinary circumstances. It was further held in this case that a widow or limited heir has no power to grant a permanent lease, or a lease for a long term, so as to bind the reversion, unless it is justified by legal necessity, or it is for the benefit of the estate, or is made with the consent of the next reversioners, and the argument that a permanent lease was granted because some lands were lying barren and uncultivated can be of no vail. There is, therefore, no force in the contention of the appellants before us that the learned Subordinate Judge was wrong in holding that there was no legal necessity for the surrender.
6. The next point for consideration is whether the minor daughter of Surjamoni Bhumijani, defendant 4, is a necessary party to this suit. It was faintly suggested that the Deputy Commissioner also should have been made a party and that in his absence the patta granted to defendants 2 and 3 could not be challenged. This contention must be repelled, and I see no reason to hold that the Deputy Commr. was a necessary party to this suit. What appears to be manifest is that after an arrangement had been arrived at between these appellants and the lady she surrendered the land so that it might be settled with these appellants. The Deputy Commissioner's permission had to be obtained, and that permission was granted. The Deputy Commissioner is not interested in this transaction in the least, and the suit can certainly proceed without imp leading him as a party defendant. The only question is whether the minor daughter of defendant 4 was a necessary party to the suit. The law is now well settled that a remote reversioner can sue only if the next reversioner refuses without sufficient cause to institute proceedings, or has concurred in the act alleged to be wrongful, or has colluded with the limited heir, or is precluded from suing by his own act or conduct, or is from poverty not in a position to sue. The gist of the authorities on the point has been given in Section 207 of Mulla's Hindu Law. The case of — ‘Rani Anund Koer v. The Court of Wards’, 8 Ind App 14 (PC) (B) is regarded as a leading authority on the subject, and the following passage from their Lordships' judgment appears to be important for our present purpose:
“Their Lordships are of opinion that although a suit of this nature may be brought by a contingent reversionary heir, yet that, as a general rule, it must be brought by the presumptive reversionary heir, that is to say, by the person who would succeed if the widow were to the at that moment. They are also of opinion that such suit may be brought by a more distant reversioner if those nearer in succession are in collusion with the widow, or have precluded themselves from interfering. They consider that the rule laid down in — ‘Bhikaii Apaji v. Jagannath Vithal’, 10 Bom HCR 351 (C), is correct. It cannot be the law that any one who may have a possibility of succeeding on the death of the widow can maintain a suit of the present nature, for, if so, the right to sue would belong to every one in the line of succession, however remote. The right to sue must, in their Lordships' opinion, be limited. If the nearest reversionary heir refuses, without sufficient cause, to institute proceedings, or if he has precluded himself by his own act or conduct, from suing, or has colluded with the widow, or concurred in the act alleged to be wrongful, the next presumable reversioner would be entitled to sue: see — ‘Kooer Golab Singh v. Rao Kurun Singh’, 14 Moo Ind App 187 at page 193 (PC) (D). In such a case, upon a plaint stating the circumstances under which the more distant reversionary heir claims to sue, the Court must exercise a judicial discretion in determining whether the remote reversioner is entitled to sue, and would probably require the nearer reversioner to be made a party to the suit.”
7. The last sentence in the passage quoted above is especially to be noted, and in every case the Court has to exercise a judicial discretion in determining whether the remote reversions is entitled to sue without impleading the nearer reversioner. In — ‘Mt. Deoki v. Jwala Prasad’, A.I.R 1928 All 216 (E) their Lordships of the Allahabad High Court had to deal with this question, and after referring to — ‘Rani Anund Koer's case (B)’ they observed as follows:
“As the relief to be granted is a discretionary relief, it cannot be urged that the non-joinder of the nearest reversioner is, by virtue of Order I, Rule 9, of no consequence even when she may be prejudiced adversely by the result of the suit. All the same, a suit cannot fail merely on the technical ground that she has not been impleaded, although the relief to be granted is really to her benefit.”
8. The whole question, therefore, is whether on account of the nonjoinder of the nearest reversioner there is likelihood of any prejudice being caused to her. I fail to understand how if a relief can be granted which benefits her and benefits the estate to which she is the presumptive reversioner, it can be urged that on account of her non-joinder the suit should fail. No doubt, the Full Bench of the Madras High Court in — ‘Lakshmi Ammal v. Anantharama Ayyangsr’, AIR 1937 Mad 699 (FB) (P), directed the nearer reversioner to be made a party. Whatever might have been the reasons which led their Lordships to pass such an order in the Madras case I do not think that it would be a sound exercise of judicial discretion in this particular case to send it back for being retried after making the minor a party. The alienation in question has to be declared as not binding on the reversioner for reasons indicated above, and this sort of declaration benefits the estate and certainly benefits the nearer reversioner, that is, the minor daughter of defendant 4. It is obvious that these appellants had brought the lady under their clutches and had got a transfer made in their favour of a vast area of land for what in law cannot be regarded as a legal or a proper necessity. The transaction cannot stand for a moment the legal test, and if such a transaction is set aside, it is more for the benefit of the nearer reversioner than the remote reversioner. In this particular case, therefore, I do not consider it necessary to remand the case for being reheard after making the minor a party.
9. The learned Counsel for the respondents fairly conceded that there could not be any decree in favour of plaintiff 2 who is a widow having no issue. Daughters who are barren or are widows without male issue are excluded from inheritance. The decree passed by the learned Subordinate Judge should, therefore, be taken to be a decree only in favour of plaintiffs 1 and 3. With this modification only, I would dismiss this appeal with costs.
10. Ahmad, J.:— I agree.
B/V.S.B
11. Appeal dismissed.