This appeal came on for hearing in the first instance before Wallis, C.J, and Kumaraswami Sastriyar, J., who made the following Orders of Reference to a Full Bench.—

Wallis, C.J:— This is an appeal from the decision of the Subordinate Judge of Guntur giving the plaintiff a declaration that the sale-deed executed by the second defendant, the widow of the last male owner, in favour of the third defendant, was void beyond the lifetime of the second defendant and did not affect the reversionary rights of the plaintiff and the first defendant. The plaintiff who is now one of the next reversioner was not born until more than twelve years after the date of jibe alienation, and in these circumstances the Subordinate Judge has held that he was within time under article 120 read with section 7 of the Limitation Act, as his right to sue accrued at the date of birth. The cases referred to by the Subordinate Judge—Govinda Pillai v. Thayammal(1), Veerayya v. Gangamma(2), and Narayana v. Rama(3)—are authorities for this view and have been followed quite recently in T.R. Venkata Row v. T.V. Tuljaram Row(4). On the other hand Mullapudi Ramayya v. Mullapudi Ramayya(5) is to the contrary effect, as is also the opinion expressed by the Full Bench in Chiruvolu Punnamma v. Chiruvolu Perrazu(6), which has been followed in the subsequent cases in Krishnier v. Lakshmiammal(7), in Ramanna v. Annamma(8) and in Subbamma v. Madi Reddi(9).

The recent decisions of the Privy Council in Venkatanarayana Pillai v. Subbammal(10) and in Janaki Ammal v. Narayanasami Aiyer(11), that the reversioner's suit in these cases is a representative suit in which he represents not only himself but the whole body of possible reversioners of whom the one who happens to be the nearest surviving on the death of the widow will succeed to the estate appears to necessitate a reconsideration of this question which has occasioned so much disagreement in this Court with a view of finally settling it if possible in the light of their Lordships' recent decision.

As pointed out by the Full Bench in Chiruvolu Punnamma v. Chiruvolu Perrazu, the view that the reversioner's suit might be regarded as a representative one and the decision as binding on the other reversioners was put forward, but without deciding it, by Sir Barnes Peacock in Brojo Kishoree Dassee v. Sreenath Bose, and again by the same high authority in the Full Bench case decided about the same time in Nobin Chunder Chunderbutty v. Issur Chunder Chuckerbutty, in which he deals with the representative character of the widow in possession, and holds that the next reversioners were not only bound by decrees obtained against her without fraud or collusion, but that in the Limitation Act of 1859 the words ‘cause of action’ referred not to a new came of action accruing to the reversionary heirs personally and individually but to the cause of action which accrued to the heir as representative for the time being of the deceased, Jackson, J., expressed the opinion that, after the decision in the Shivagunga Case that the decrees against the widow were binding on the reversioners, it was impossible to escape the position that an adverse possession which barred the widow would also bar the heirs. Phear, J., also expressed the opinion that, under the Limitation Act of 1859, the cause of action of the reversionary heirs was the same as that of the widow, and Macpherson, J., concurred merely pointing out that, where the widow had precluded herself from suing for possession by her own act, the reversioner's cause of action for possession did not arise until her death, a view which is embodied in article 142 of the Limitation Act of 1871.

Applying these principles, and without further discussing them, Jackson, J., sitting with Glover, J., held in Pershad Singh v. Chedee Lall that the reversioner's cause of action for a declaration that the widow's alienation was not binding on the estate accrued at the date of the alienation and was not revived in favour of the plaintiffs in the suit who had since been born and attained majority. The same view was held by the Bombay High Court in Bhikaji Apaji v. Jagnath Vithal where it was held that the suit must be brought within six years from the date of the conveyance under section 1, clause 16, of the Act of 1859. This decision was referred to with approval by the Privy Council in Rani Anand Kunwar v. The Court of Wards, and the Bombay Court has adhered consistently to this view.

It is next necessary to refer to certain subsequent dicta of the Privy Council which have sometimes been relied on in this Court as rulings that decisions in suits by reversioners are not binding on other reversioners. With reference to a suit governed by the Act of 1859, though instituted after the coming into force of the Act of 1871 Sir James Colville delivering their Lordships' judgment in Jumoona Dassya v. Bamasoondari Dassya reserved the question whether a decree in a suit by a next reversioner questioning an adoption would bind any reversioner except the plaintiff or bind the adopted son as between himself and any body but the plaintiff. It was unnecessary to decide the point, and the representative character of the reversioner's suit was not considered. In Doorga Persad Singh v. Doorga Konwari, Sir Barnes Peacock delivering their Lordships' judgment found that the plaintiff was not the next reversioner, and as one of the reasons for not giving him a declaratory decree observed that if the suit should be decided in favour of Joy Munghul, the alienee from the widow, it might not he final in his favour because the plaintiff might the in the lifetime of the widow and the estate might never come to him.

This observation may have been made with reference to the dictum of Sir James Colville, and, having regard to the view already referred to which Sir Barnes Peacock had expressed in India, I do not think he intended to intimate any opinion of his own that the decree would not be binding. This is confirmed by the fact that he went on to point out that there were in existence persons who might be able to prove a preferential title to the widow herself as well as the plaintiff and who would not be bound by any decision in the suit to which they were no parties. A reversioner may be allowed to represent all possible reversioners who come after him, but there is not the same reason for allowing him to represent persons who claim in priority to the widow as well as to himself.

Lastly in Isri Dut Koer v. Mussumat Hansbutti Koerain, a suit by the reversioner questioning an alienation by the widow, their Lordships referred to the reason given by the lower Court for refusing a declaratory decree, that the decision might after all not be binding on the actual reversioners and observed

“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 of law as probably to deter either party from disputing it.”

I do not think these diota amount to more than cautious reservations by their Lordships on a point which was not before them for decision. In any case they were obiter and were made without reference to the representative character of the reversioners' suit as now established an aspect of the question which was not referred to. The ruling of their Lordships in Mussummat Chand Kour v. Pertab Singh that when the nearest reversioner sued and allowed the suit to be dismissed for default the decree would not bar other reversioner from suing does not appear to me to involve the present question. Unfortunately the question never came directly before their Lordships for decision, and I think the difficulties in this Court have been largely occasioned by treating these dicta as authority for the proposition that the decision in a reversioner's suit questioning as alienation by the widow is not binding on subsequent reversioners. Now that the representative character of the reversioner's suit is established, I do not think these dicta preclude us from holding that the decision in a representative suit must be binding as between the persons who are represented and the opposite parties in the suit.

All the cases in this Court on which the Subordinate Judge has relied, Govinda Pillai v. Thayammal, Veerayya v. Gangamma, Narayana v. Rama and T.R. Venkata Row v. T.V. Tuljaram Row, to which may be added Abinash Chandra Mazumdar v. Harinath Shaha which follows Govinda Pillai v. Thayammal will be found to proceed upon the authority of the decision of the Full Bench of the Allahabad High Court in Bhagwanta v. Sukhi. In that case, Strachey, C.J, rested his opinion on the ground that; the reversioners in such a suit do not represent the whole body of reversioners;

“If” he observed, “the nearest reversioner could be held, as the Hindu widow has been held, to represent fully the whole estate, it would no doubt follow that the limitation which would bar that reversioner would bar other reversioners, just as a decree passed against the nearest reversioner would in that case operate as res judicata against the more remote. But, so far as I know, that has never been held to be the relation in which one reversioner stands to another.”

That is the relation in which the nearest reversioner stands to the others under the recent decision, and therefore the decision of the Full Bench in Bhagwanta v. Sukhi and the cases which followed it can no longer be considered as of authority on this question.

As I have already said, Bashyam Ayyangar and Moore, JJ., in Mullapudi Ratnam v. Mullapudi Ramayya held that a declaratory suit questioning an alienation by the widow was finally barred unless brought within twelve years from the date of the alienation (article 125). In Ayyadorai Pillai v. Solai Ammal Subrahmanya Ayyar and Davies, JJ, took the same view with regard to a reversioner's suit during the widow's lifetime to question an adoption holding it finally barred unless brought within six years from the date of the adoption. In Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib, Subrahmanya Ayyar and Boddam, JJ., in deference to the Privy Council dicta to which I have referred and also relying on Bhagwanta v. Sukhi, felt bound to overrule the contention that in a suit by a presumptive reversioner questioning an alienation he represents the whole body of possible reversioners, and that consequently on the death of the plaintiff-reversioner the right of continuing the suit survives to the next presumptive reversioner. This is one of the decisions expressly overruled by the Privy Council in Venkatanarayana Pillai v. Subbammal.

In Bombay the representative character of the reversioner's suit has all along been recognized. In this Court the first attempt to assert it was made by Subrahmanya Ayyar and Sankaran Nayar, JJ., in their order of reference in Chiruvolu Punnamma v. Chiruvolu Perrazu. The question was whether a decision in a suit by a reversioner questioning an adoption was binding on another reversioner. A Full Bench of five Judges answered it in the affirmative after examining the question with regard to limitation as well as to res judicata. They felt a difficulty, in the face of the Privy Council dicta to which I have already referred, in holding that the decision in a reversioner's suit to question an alienation was binding on subsequent reversioners, but they laid down that in such a suit the next reversioner represents the other reversioners (page 401). On this basis they proceeded to refer at pages 407-410 to the question of limitation as regards a reversioner's suit to question an alienation during the lifetime of the widow, and expressed the opinion that it was barred if not brought within twelve years from the date of the alienation. Having regard to the fact that the opinion of the Full Bench as to the representative character of the reversioner's suit has since been confirmed by the Privy Council, I think the opinion of the Full Bench on the question now before us, though it may be said to have been obiter, is entitled to great weight.

In China Veerayya v. Lakshmi Narasamma, and in Arunachalam v. Vellaya, the Full Bench decision was not held to overrule the decision in Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib that reversioner's suit to question an alienation abates on the death of the plaintiff and cannot be continued by the other reversioners, although that decision proceeded on the express ground that the suit was not a representative one. It was also held not to affect the present question in Veerayya v. Gangamma and in Narayana v. Rama.

In this state of things a reversioner died while his suit questioning an adoption was pending in appeal before the Privy Council, and this Court reported that according to its decisions the surviving reversioner could not be allowed to continue it. It thus became necessary for their Lordships to decide whether the reversioner's suit was a representative suit or not. The Full Bench decision of this Court in Chiruvolu Punnamma v. Chiruvolu Perrazu was cited on the one side and Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib, Govinda Pillai v. Thayammal, China Veerayya v. Lakshmi Narasamma and Arunachalam v. Vellaya were referred to on the other. Their Lordships decided that in suits to question-adoptions and alienations the reversioner sues in a representative capacity on behalf of himself and other reversioners.

Their Lordships observed that the respondents relied on certain decisions of the Madras High Court which, they contended, established that adjudications in suits brought by next reversioners questioning transactions by the widow during her lifetime were not res judicata as against contingent reversioners, and that consequently

“on the death of the presumptive reversioner the others have each, in order of succession, a separate right of suit, and cannot claim to prosecute an action brought by the deceased reversioner as they do not derive their right through him.”

This contention was rejected by their Lordships. They considered the representative character of the reversioner's suit, whether to question an alienation or an adoption, so clear that the test of res judicata applied in some of the decisions of this. Court could be treated as irrelevant, and they therefore abstained from any pronouncement on these decisions. If, however, the suit be a representative suit, the idea that the decision may not be binding as between the parties represented in the suit and their opponents appears to me almost to involve a contradiction in terms. I have sought to show that the decisions referred to proceed on inferences drawn from certain observations in Privy Council cases which were rather in the nature of reservations on points not before Court than of obiter dicta, and that even considered as dicta they do not; express the considered opinions of their Lordships with reference to the representative character of these suite. Now that the representative character of the suit is established, we must, I think, hold the decision binding on those who are represented in it whether born or unborn.

It, also, follows I think that, as pointed out by the Full Bench, the cause of action of all the reversioners is the same and arises on the date of the alienation, and that the question dealt with in Rani Anand Kunwar v. The Court of Wards, as to when a remote reversioner is to be allowed to sue is merely a question as to which reversioners should have the conduct of the suit which is instituted on a cause of action common to all.

In the opinion of the Full Bench, though the point did not arise for decision, having regard to the fact that the presumptive reversioner sues not on his own behalf alone but on behalf of all other possible reversioners as well, the language in which the suit is described in column (1) of article 125 is large enough to include a suit in which, owing to exceptional circumstances, a reversioner other than the nearest reversioner is allowed to be the plaintiff and have the conduct of the suit, and in this view the article applies to all suits by reversioners to question alienations during the widow's lifetime.

If this be not so, they were of opinion that article 120 must be applied, and that, as one cause of action arises to the whole body of reversioners on the date of alienation, and they have no separate causes of action, their right to sue must be deemed to accrue within the meaning of article 120 on the date of the alienation. This would appear to be in accordance with the policy of the legislature, which might on the one hand have allowed the nearest reversioners to sue for declaratory relief at any time during the lifetime of the widow, or on the other hand have prescribed that the adoption or alienation must be questioned if at all within a fixed period from the date of its taking place, but has taken a middle course and, whilst allowing the reversioners to wait if they choose, until the widow's death, has permitted them to sue during her lifetime for declaratory relief within a prescribed period only. The object no doubt was to afford an inducement to bring these declaratory suit?, which are in the nature of suite to perpetuate testimony, while the recollection of the facts is still fairly fresh, and this object will be to a great extent defeated if each reversioner as he becomes the nearest is to have a fresh starting point of limitation.

In this view, the present suit is barred, but as there are decisions the other way, at least one of which is subsequent to the decisions of the Privy Council in Venkatanarayana Pillai v. Subbammal, and in Janaki Ammal v. Narayanasami Aiyer, I would refer to Full Bench the question whether the present suit is barred by limitation.

Kumaraswami Sastriyar, J.:— I agree to the question being referred to the Full Bench.

On this Reference:—

V. Ramadas for the appellants.—The suit is barred by limitation. There is only one cause of action for all the reversioners born and to be born, to question the alienation and if for any reason the existing reversioners neglect to sue in time, after-born reversioners also are barred by limitation. A reversioner's suit to set aside an alienation is only a representative suit on behalf of all. I rely on the arguments urged in favour of this view in the Order of Reference. See Venkatanarayana Pillai v. Subbammal, Janaki Ammal v. Narayanasami Aiyer, Chiruvolu Punnamma v. Chiruvolu Perrazu, Rangamma v. Narasimhachariyulu, Raja of Palghat v. Raman Unni, Aiya Ramalinga Mudali v. Arumuga Mudali, Chand Kour v. Partab Singh, T.R. Venkata Row v. T.V. Tuljaram Row, Bapanna Venkatasubbarayudu v. Bapanna Ratnamma and Muthusami Mudaliar v. Masilamani Mudaliari.

P. Narayanamurthy for the respondents: The suit is not barred. Each reversioner has an independent right; Venkatanarayana Pillai v. Subbammal at page 414(1) and Rani Anand Kunwar v. The Court of Wards. These show when a remote reversioner gets his right to sue. The cause of action or all reversioners may be one but the right of each to sue may arise at different times; Govinda Pillai v. Thayammal, Veerayya v. Gangamma, T.R. Venkata Row v. T.V. Tuljaram Row and Arula Guruviya v. Arula Venkatannah.

[Court.—How does this case differ from one where a whole community has a right?]

There each of them has an independent right to sue on the same date. Reference was made to Jhandu v. Tarif and Abinash Chandra Mazumdar v. Harinath Shaha. Article 125 does not apply to this case as on the data of alienation my client was not born and could not have sued, the first and the third columns of the article must be read together; see the judgment of Abdub Rahim, J., in Mulla Vittil Seeti Kutti v. K. M. K. Kunhi Pathumma at the time of this suit the plaintiff was a minor.

V. Ramadas was not called on to reply.

The Court expressed the following Opinions:—

Sadasiva Ayyar, J.:— The facts out of which the question of law referred to this Full Bench arises may be shortly stated thus:

Butchayya, a Hindu, died in 1890. The second defendant, his anther, inherited his properties with the rights and powers of a female hair. She sold the plaint properties in 1891 to the third defandant. The than presumptive reversioner, plaintiff's witness No. 1, who was entitled at once to sue for a declaration on behalf of the whole body of successive presumptive reversioners (including the third defendant) failed to bring such a suit within the twelve year allowed to him by article 125 of the Limitation Act, that is, within November 1903. The third defendant who was benefited by the second defendant's alienation would, of course, not bring any such suit. Meanwhile, the plaintiff and the first defendant (minors even at the date of this suit) were born to Butchayya's step-sisters and they on their birth became nearar presumptive reversioners than even plaintiff's witness No. 1. The plaintiff having been born in July 1910, brought this suit to avoid the alienation, in October 1915 within six years of his birth. The short question referred to the Full Bench is whether this suit is barred by limitation.

To enable us to solve this question, arguments were addressed to us on the following questions:—

1. (a) When a Hindu widow makes an alienation voidable against the ultimate reversionary heir at her death or remarriage, does a single cause of action for a declaration of its invalidity arise at once to be availed of by the next presumptive reversioner by bringing a suit on behalf of the whole body of successive reversioners till the opening of the reversion, and, in case the next presumptive reversioner by collusion or other act precludes himself from availing himself of that single cause of action, to be availed of by the next reversioner in the order of succession and so on, the suit whenever brought being based on the same single cause of action?

(b) Is article 125 the only article applicable to the suit based on such single cause of action, if 1(a) is answered in the affirmative, or

2. do several causes of action arise at different times to several reversioners when each preceding reversioner has lost his right to bring and conduct such a suit through collusion or other similar acts? (I shall use the word ‘reversioner’ for brevity as including a set of reversioners standing on an equal footing as among themselves).

3. (a) If each successive reversioner gets a new cause of action, does that cause of action spring up not only when the previous reversioner loses his right by collusion, etc., positive act, but also when such right is lost by laches and consequent bar by limitation?

(b) If (2) and 3 (a) are answered in the affirmative, what is the period of limitation and what is the article of the Limitation Act governing suit by the succeeding reversioner?

4. Where a new reversioner comes into being for the first time by natural birth or by adoption (a) who gets preference by modern Hindu Law in respect of the status of presumptive reversionership over other persons who till then formed the body of reversioners or (b) who becomes entitled to sue by reason of collusion, etc. [see questions 2 and 3 (a)], does a fresh cause of action arise in the new reversioner so coming into being as above entitling him to bring a suit for declaration of the invalidity of the alienation?

5. If (4) is answered in the affirmative, what is the period of limitation for the suit by the new reversioner and what is the governing article of the Limitation Act?

(It will be seen from the facts of this case that it falls under the heading 4 above and that only questions 4 and 5 directly arise in this case.)

My Lord the Chief Justice in his well considered Order of Reference (if I may be permitted to say so with respect) expresses his strong inclination to answer questions 1(a) and 1(b) in the afirmative (that is, that there is only one cause of action arising on the date of the alienation to be availed of on behalf of all the body of reversioners in a single representative suit and that cause of action is governed by article 125) and to answer questions 2 to 4 in the negative. I entirely agree with the said conclusions and the reasons given for such conclusions. I shall shortly consider the decisions of this Court from Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib, downwards in which observations inconsistent with the above conclusions occur. Those decisions are Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib, Govinda Pillai v. Thayammal, Veerayya v. Gangamma, China Veerayya v. Lakshmi Narasamma, Arunachalam v. Vellaya, Narayana v. Rama and T.R. Venkata Row v. T.V. Tuljaram Row.

As regards Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib, Arunachalam v. Vellaya and Chinna Veerayya v. Lakshmi Narasamma, the law laid down in those three cases to the effect that when the next presumptive reversioner who has brought a suit to set aside an alienation dies, the suit abates finally and the next man entitled to stand as presumptive reversioner cannot carry it on but ought to bring a fresh suit of his own, has been directly overruled by the decision of their Lordships of the Privy Council in Venkatanarayana Pillai v. Subbamma, the dicta laid down in which have been confirmed by their Lordships in Janaki Ammal v. Narayanasami Aiyer and though the above three cases of this Court were quoted before their Lordships by the counsel for the respondents in Venkatanarayana Pillai v. Subbammal to support his contentions, he was unsuccessful.

In Govinda Pillai v. Thayammal, the learned Judges answered the question 3 (a) to the effect that even the loss of the right to sue by the bar of limitation through the laches of previous sets of reversioners would vest a new cause of action in a reversioner of a succeeding class, that if the latter was not in existence at the date of alienation, a new cause of action vested in him at his birth (question 4) that he had six years under article 120 from when his cause of action arose and if that six years expired before he attained majority, he was entitled under section 7 of the Limitation Act to three years from his attaining majority to bring his suit. I am convinced in my mind that the reasons given for the conclusions in Govinda Pillai v. Thayammal decided by Davies and Benson, JJ., are inconsistent with the reasons given in the unanimous and fully considered opinion of the Pall Bench of five Judges of this Court (including the same learned Judges, Davies and Benson, JJ.) in Chiruvolu Punnamma v. Chiruvolu Perrazu, Sir S. Subrahmanya Ayyar as the Officiating Chief Justice being a member of the Bench which made the reference to the Full Bench consisting of Sir Arnold White, C.J, Subrahmanya Ayyar, Davies, Benson and Moore, JJ. The Full Bench case in Chiruvolu Punnamma v. Chiruvolu Perrazu, was no doubt a suit by a reversioner to set aside an adoption, while that in Govinda Pillai v. Thayammal was one to set aside an alienation by the widow, but as pointed out in Chiruvolu Punnamma v. Chiruvolu Perrasu and by their Lordships of the Privy Council in Venkatanarayana Pillai v. Subbammal there is no distinction in principle between the two kinds of suits “as regards the position of the plaintiffs.” Both Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib and Govinda Pillai v. Thayammal are referred to in the Full Bench decision in Chiruvolu Punnamma v. Chiruvolu Perrazui, both in the arguments and in the judgment at pages 399 and 400 and 410 and though it is not expressly said that they are dissented from, the whole reasoning (see pages 400 and 410) indicates in my opinion that they were not approved of.

As regards Veerayya v. Gangamma, I agreed with Sundaba Ayyar, J., in the judgment pronounced by him that notwithstanding Chiruvolu Punnamma v. Chiruvolu Perrazu the decisions in Sakyahani Ingle Rao Sahib v. Bhavani Bozi Sahib and Govinda Pillai v. Thayammal were still good law because there were several dicta of the Privy Council to the effect that one reversioner did not claim through another as regards suits to set aside alienations. We thought that those dicta constrained us to decide cases of suits to set aside alienations differently from the way in which they ought to be decided if the principles enunciated in Chiruvolu Punnamma v. Chiruvolu Perrazu were logically applied.

In Narayana v. Rama there are certain obiter observations by me approving of Veerayya v. Gangamma the decision itself in Narayana v. Rama being one dismissing the suit on the ground that the plaintiff-reversioner was estopped from questioning the alienations.

In T.R. Venkata Row v. T.V. Tuljaram Row there is again an obiter dictum (at page 36) that a minor not born on the date of an alienation gets an independent cause of action from the date of his birth notwithstanding that there were nearer reversioners who by collusion with the widow or by having allowed 12 years to elapse from when they were entitled to come in as plaintiffs did not or could not attack the alienation. The suit in that case also was dismissed on a wholly independent ground, namely, that the Courts had a discretion to grant the declaratory relief and that case was not a proper one to grant such relief.

As regards the dicta of the Privy Council which were relied on in several cases in the other High Courts (I shall not refer to those cases in detail) and in this Court even after the decision in Chiruvolu Punnamma v. Chiruvolu Perrazu, I entirely agree with my lord in his observations about them in his Order of Reference; and as I am not likely to add to the cogency and she strength of the arguments found in the said observations by putting them in my own language, I shall certainly not attempt to do so. Considering the outstanding fact of

“the 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” see Venkatanarayana Pillai v. Subbammal.

I think it is impossible to hold that several suits could legally be maintained founded on such an identical interest and involving the same questions of law and fact so far as the dispute about the validity of an alienation is concerned. The inconveniences of holding otherwise have been cogently pointed out in the Full Bench decision in Chiruvolu Punnamma v. Chiruvolu Perrazu, . The act complained of is “to the common detriment” of the body of reversioners as a whole just as the relief sought is intended for their common benefit: see Venkatanarayana Pillai v. Subbammal. If several suits are allowed to be brought so that the matter once sued on with the then presumptive reversioner as plaintiff could be litigated over and over again “to the detriment and injury of all parties, the position of affairs would become almost intolerable” as when the adjudications in favour of or against a Karnavan as such were denied before Vasudevan v. Sankaran, to have a binding character with reference to the other members of the farwad and led to such a position. The justice and expediency of making adjudications in such cases final as far as possible, is manifest, and if the whole existing body of reversioners both near and remote can be made parties (as has been now settled) and the conduct of the suit can be allowed by the Court to any of them on sufficient grounds [just as it was taken away on appeal from the plaintiff and given to other worshippers in the Kamudi Temple Case], there is no injustice whatever in applying article 125, so far as a suit for the declaration of the invalidity of an alienation by a female heir is concerned and in farther holding that there should be only one representative suit brought in the interest of all the reversioners, though the Court in its discretion will, as a rule, not allow a remoter reversioner to institute and have the conduct of such a suit except on sufficient grounds such as collusion, acts amounting to estoppel, gross laches, risk of the disappearance of necessary evidence, reasonable danger of the right to sue becoming barred by limitation if the remoter reversioner is not allowed to institute the suit and so on).

If such is not the rule, article 125, evidently intended to I discourage belated declaratory suits, might as well be removed from the statute of limitations. If the second contingent reversioner can wait for nearly six years after the first presumptive reversioner is barred, the third contingent reversioner again for nearly six years after the second is barred and so on and if newly born reversioners can wait till nearly three years after each attains majority to bring a suit notwithstanding that living reversioners failed during fifty years after the alienation to bring such a suit or even failed in suits brought by them before the new plaintiff was born, the object of article 125 is almost wholly defeated.

The argument based on the supposed injustice of barring a man's right of suit before be is even born does not impress me. If the unborn future members of a whole community (say a Vadagalai community, as in the illustration suggested by my learned brother Oldfield, J., in the course of the argument) could be barred from the exercise of a vital mode of worship by limitation owing to the long established adverse acts of a rival community, I do not see why the failure of existing members of a body to bring a representative suit for the benefit of unborn members also should not bar such unborn members; see also Muhammad Amir v. Sumitra Kuar.

It must be remembered that even the very first presumptive reversioner has only a possibility of succeeding or spes successionis: Bahadur Singh v. Mohar Singh and Amrit Narayan Singh v. Gaya Singh. In conceding a right of suit to persons possessing an interest of this defeasible character, the case law provided a very exceptional remedy and (if I may be permitted to say so with respect) an anomalous remedy. It must also be remembered that under the more ancient and liberal Hindu Law, a wife as heir of her husband succeeding as his remaining half and a mother sue ding to her son who was her own flesh and blood had full and absolute rights of ownership; and it is only mediæval pious text interpolators and reactionary commentators with low views of women's position and morals that took advantage of texts intended for the chivalrous protection of the properties of women by men, a vedic text about women being nirindryas (whose meaning was twisted and perverted beyond recognition) and mere moral precepts to widows as to the conduct of noble Sadhwees that had made a female heir almost a trustee for the future and unascertained reversioner who might happen to be the heir of her husband or her son at her death instead of making the inheritance pass to her own heirs, I confess that I have no sympathy whatever with these problematical reversioners and unless the law compels me to do so, I am not inclined to unduly favour them. It was argued that because the heir at the death of the widow is allowed under article 141 a period of twelve years from her death to recover possession of the alienated property, there is no harm in allowing numerous declaratory suits also during her lifetime to different persons without any reference to the lapse of time since the date of alienation. Apart from the difference between a declaratory suit and a suit for possession, the alienee has in a suit for possession brought against him by the ultimate heir after several years the advantage of the rulings of the Privy Council that the evidence of the necessity for and of the inquiries made about the necessity for a longstanding alienation should be considered indulgently in favour of the validity of the alienation.

Lastly it seems to me that it is a glaring anomaly that while an alienee from a mortgagee or even a trustee is protected after twelve years from the date of the alienation under article 134 while an alienee even from a minor's guardian is protected after three years from the date of the minor's attaining majority under article 44, when even a son supposed to have equal rights with his father in the ancestral property if he is born after an alienation by his father cannot acquire by birth any right to attack that alienation, a reversioner with a spes successionis and not born till several years after an alienation by a female heir should have twelve years from the date of the death of the Hindu female heir (who has certainly greater rights of ownership than a guardian or a trustee) to sue for possession of a property alienated by her, say more than sixty years before her death. I am wholly unable to understand why the legislature should have been so very solicitous about such remotely contingent interests. If the legislature decides against a recent proposal made in the Local Legislative Council to allow Courts to grant sanctions to alienations by widows so as to make the title of the alienee thereafter unquestionable, I hope that article 141 would at least be modified by the addition of a clause “or 24 years from the date of the alienation not declared invalid by decree in an appropriate suit; whichever term first expires.” The first column of the article might also be made clear by confining its operation to Muhammadans governed by Hindu law through custom. In Garikipati Paparayudu v. Rattamma. I stated

“the very object of allowing a suit by a contingent reversioner has been unfortunately, if I may be permitted to say so, defeated to a very large extent by the decisions which are binding on us to the effect that a decree passed in favour of or against such a reversioner is not binding on a remoter reversioner, I might be permitted to hope that the legislature would see fit to enact that the decree in a suit bona fide brought and litigated by the then nearest reversioner is binding on the remoter reversioners.”

I am glad that the recent pronouncement of the Privy Council in Venkatanarayana Pillai v. Subbammal, has the effect of overruling the decisions which I referred to in the above passage. But so far as suits for possession on the death of the female heir are concerned, the assistance of the legislature is still necessary.

In the result, I would answer the questions (la) and (lb) formulated by ma in the affirmative, and questions (2) and (4) in the negative. Questions (3a), (3b) and (5) do not arise on these negative answers to the other questions. As regards the question directly referred to us, I agree with the answer in the affirmative suggested in the judgment of my Lord.

Coutts Trotter, J.:— The history of the case law on this subject in this Presidency has been so exhaustively reviewed by the learned Chief Justice in his Order of Reference that no useful purpose would be served by covering the same ground. The only point we have really to determine is whether the decision of the Privy Council in Venkatanarayana Pillai v. Subbammal, concludes the question referred to us. That decision was cited in a later decision of the Privy Council Janaki Ammal v. Narayanasami Aiyer, as expounding the law on the subject and establishing the doctrine that a reversionary heir appealing to the Court for the conservation of the property does so in a representative capacity. In Venkatanarayana Pillai v. Subbammal a reversioner brought a suit to set aside an adoption by a widow. Pending an appeal to His Majesty in Council be died. The Privy Council decided that his grandson might be brought on the record as appellant in his place and that the appeal did not abate by reason of the death of the original appellant. The decision was based on the express; ground that the suit was a representative one and enured for the benefit of the whole class of reversioners. It seems to me impossible to escape from the logical conclusion that, if it enures for the benefit of all, it must equally enure to the detriment of all. As the learned Chief Justice says in his Order of Reference, to hold otherwise would almost be a contradiction in terms. One sentence in their Lordships' judgment was pressed upon us by Mr. Narayanamurthi as indicating that their Lordships did not mean to question the right of each reversioner as he became nearest in succession to litigate his own claims unhampered and unaffected by anything done or left undone by his predecessors in the line of succession. The sentence appears on page 414 of Venkatanarayana Pillai v. Subbammal and is worded as follows:—

“The right to relief on the part of the reversioners exists severally in order of succession, and arises out of one and the same transaction impugned as invalid and not binding against them as a body.”

The right to relief in the sense of the right to obtain possession of the property no doubt exists in order of succession, but I take their Lordships' judgment to mean that the right to relief of a declaratory nature against the transaction impugned arises simultaneously and jointly for all the reversioners at the moment the act is done. It follows in my judgment that if a reversioner who is competent to do so challenges an alienation or an adoption unsuccessfully or fails to challenge it within the period allowed by the law of limitation, the result is binding on his successors in the reversion. The argumentum ab-in-convenienti is pressed upon us, that so to decide would open the door to fraudulent and collusive actions between the widow and the nearest reversioner bartering away the rights of subsequent reversioners. I think the answer to be that proof of such fraud and collusion would at once invalidate the result which was sought to be achieved. It appears to me that the hardship of allowing an alienee or an adopted son to be harassed by an endless series of suits by successive reversioners each raising the same point and each more difficult to meet with the lapse of time is infinitely greater.

The result is that in my opinion, the present suit is barred; and that Govinda Pillai v. Thayammal, Veerayya v. Gangammal, Narayana v. Rama and T.R. Venkata Row v. T.V. Tuljaram Row, are no longer law.

Ayling, J.:— I would answer the question in the affirmative, and concur in the judgment of Coutts Trotter, J.

Oldfield, J.:— I desire to express no opinion except on the question directly referred to us; and I would answer it in the affirmative for the reasons given by Coutts Trotter, J. in his judgment.

Seshagiri Ayyar, J.:— The case law is fully discussed in the Order of Reference made by the learned Chief Justice. I entirely agree with the conclusion he has come to I shall only refer to two or three cases and to the Limitation and the Specific Relief Acts to make my position clear. It is not denied that the object of a suit by a reversioner for a declaration either that the adoption is invalid or that the alienation is void beyond the lifetime of the alienor, is to perpetuate testimony. The party suing gets no immediate benefit. It very often happens that the ultimate benefit of the declaration is enjoyed by somebody else.

It is clear therefore that the nature of the suit is to obtain a pronouncement not for the personal benefit of the plaintiff nor for obtaining any immediate relief to himself. The right of suit is given by section 12 of the Specific Relief Act which has been framed according to Mr. Collett, once a judge of this Court and who has written a commentary upon the Act, upon the basis of the Scotch Law. According to the English Law a declaration of right was obtainable only as introductory to some other relief which the Chancery Court proceeded to award: see Robert Fischer v. Secretary of State for India in Council. But apparently under the Scottish action of declarator, declaratory actions were entertained for making a matter clear which was then doubtful although no immediate relief was expected or granted. Very likely it is this principle of the law of Scotland that has been accepted by the framers of the Indian Code. It is clear that the right of suit is given only with a view of dispelling a cloud which may attach to the title when the life-estate ends. The fact that in India widows in possession of their husband's properties have been found to alienate them in favour of strangers to the prejudice of the possible claimants at the and of a long period of suspense might have induced the legislature to give to the reversioners a right of suit, while the evidence was still available and fresh, to contest the action of the widow, leaving it to the actual heir on the death of the widow to avail himself of that relief before taking possession of the property. Prima facie therefore it may be taken that the right agitated is not an individual right but a corporate right.

Mr. Narayanamoorthi strongly relied upon the course of decisions beginning with Rani Anand Kunwar v. The Court of Wards for the proposition that the right possessed by each reversioner is a several or individual right and not a common right. In my opinion these decisions do not help the learned vakil. What was decided in these cases was that if the immediate or presumptive reversioner does not sue to perpetuate the testimony a remoter reversioner can institute such a suit. It must be remembered that in such suits the presumptive reversioner is almost invariably impleaded as a defendant. The suit is really one brought on behalf of the person who is unwilling to litigate the matter. We are familiar with cases wherein a trustee of a temple does not take action when he should and his co-trustee or the beneficiary, as the case may be, brings a suit impleading the unwilling trustee as a defendant. In such cases it is act an individual right possessed by the co-trustee or the beneficiary that is being contested in Court; it is the right belonging to the trust itself that is really litigated. In England there are cases where the cestuis que trustent have been compelled to use the name of the trustee in suits brought by the beneficiaries. Similarly a suit brought by a remoter reversioner which ought to have been instituted by the presumptive reversioner is not an action which is special to himself but is one in which he is interested along with the defaulting reversioner. Therefore I do not think that the cases from Rani Anand Kunwar v. The Court of Wards leading up to Jhandu v. Tarif are any authority for the proposition that each reversioner has a separate right.

There can be no doubt that the cause of action is one and the same. But, what was strenuously argued was that the right of suit upon the single cause of action is different in the case of each reversioner. Reliance was placed for this proposition upon a sentence in the judgment of the Judicial Committee in Venkatanarayana Pillai v. Subbammal. At page 414 their Lordships observe:

“The right to relief on the part of the reversioners exists severally in order of succession, and arises out of one and the same transaction impugned as invalid and not binding against them as a body.”

I do not understand this sentence to lay down that the suit for declaration is not in respect of a right common to a body of persons. The reference to rights existing severally may be explained as indicating that the remoter reversioners can themselves be plaintiffs; “the order of succession” only suggests that it is not every remote reversioner that can come to Court without asking persons before him to undertake the task of getting their common right vindicated. I do not think that this sentence can be construed in the way the learned vakil contended for.

The decision of the Committee on the other hand lays down definitely that the reversioners as a body have a common interest and that the right litigated is a joint right. It is stated in page 412:

“It is the common injury to the reversionary rights which entitles the reversioners to sue.”

And again at the top of page 413 it is stated:

“There remains 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.”

The next point for consideration is, granted it is a joint right and that any conclusion come to in a suit brought by one of the reversioners will be binding upon the others also, does it follow that the failure to institute a suit by the reversioners precludes others from suing for such a relief. Section 13, explanation 6 to the Civil Procedure Code, enunciates the principle of res judicata where action has been brought to vindicate a right common to the plaintiff and to others. Notwithstanding the statement in the judgment of the Privy Council in Venkatanarayana Pillai v. Subbammal that a consideration of the question of res judicata is irrelevant, I hold with the learned Chief Justice that it is impossible to resist the conclusion that if the right litigated is a common right and if that litigation has been honestly conducted the other reversioners are affected by the bar of res judicata. This is the logical result of the decision of the Judicial Committee. The next step may be reached by the application of the principle contained in section 7 of the Limitation Act. The principle of that section is that if there are some persons in existence who are adults who could have safeguarded the common rights of themselves and of others similarly situated, the failure of the persons who are to litigate the right will start the cause of action not only against themselves but also against persons in similar circumstances. In my opinion the general principle of law implied in this section is applicable to the case of reversioners.

The last argument of Mr. Narayanamurthi related to the construction of article 125 of the Limitation Act. In terms, that article applies only to the presumptive reversioner. I was rather inclined to think that the suggestion contained in the Full Bench decision in Chiruvolu Punnamma v. Chiruvolu Perrazu at the top of page 409 that the words:

“Hindu… who if the female died,”

etc., in the article would comprehend for the purposes of the article, a remote reversioner allowed by law to sue in his stead, was somewhat far-fetched; but it seems to me on further consideration that if a remote reversioner has only the conduct of the litigation not for himself but on behalf of the body of reversioners and for the benefit of the person who is entitled to recover when the succession opens, there is nothing wrong in holding that the article is applicable not only to the presumptive reversioner but also to the remote reversioners as well. If my suggestion that the remote reversioner is really suing in the name of the presumptive reversioner is right, the article is clearly applicable. The proper way to look at these suits is to regard the plaintiff reversioner as being entrusted with the conduct of litigation on behalf of a body of persons: ordinarily, the nearest reversioner is the person most competent to conduct it: he has the right of preference; but circumstances may show that the position of dominus litis should be taken away from his hands and should be entrusted to another. That in my opinion is the true principle underlying suits by remote reversioners. At present I am rather doubtful whether the residuary article 120 is applicable to suits by remote reversioners. There is an observation about it in Venkata Bow v. Tuljaram Row but as that decision has gone up to the Privy Council, it is not necessary to discuss the question any further.

Mr. Narayanamurthi then argued that even supposing article 125 applied to remote reversioners, it cannot apply to a person who was not in existence on the date of the alienation. I am inclined to agree with him in this contention. The articles in the Limitation Act must be construed reasonably, and if a cause of action accrues at a time when a person was not born, he must not be affected by it. But I do not think that conclusion really affects the matter. The law must be taken to have intended to provide only for cases of persons who were in existence on the date of the alienation or adoption.

As I stated at the outset, the main object is to perpetuate testimony and that object can be gained ordinarily by persons who were alive at the date of the alienation and who were capable of bringing before the court circumstances showing that the alienation is not binding. The rights of the actual heir are not jeopardised. It looks from the language of article 125 as if the legislature considered it sufficient to give this extraordinary relief of declaration only to persons alive on the date of the alienation. The decision in Veerayya v. Gangammal is exactly in point and I think it was rightly decided. The obiter dicta contained in the judgments of the Judicial Committee in the various cases referred to by Mr. Narayanamurthi have been explained away by the learned Chief Justice, and I do not wish to add anything to that discussion. I would, for the reasons given, answer the question in the affirmative.

N.R