I agree with the lower Court, that the plaintiff's suit ought to fail, but I am not prepared to agree with its reasoning. There is the finding here, which is not attacked, that the plaintiff is the step-sister's son of Akka Naicker, the last maleholder. His widows are still alive and in view of the recent Full Bench decision in Appeal No. 443 of 1930, there can be no doubt that the case is governed by the Hindu Law of Inheritance (Amendment) Act, 1929; but it is unnecessary to decide whether a step-sister's son is among the heirs intended to be benefited under S. 2 of that Act. I proceed upon the assumption that while a sister's son comes within that section, a step-sister's son does not; but how does that make any difference here? Under the Hindu Law, as unaffected by and independent of the Act mentioned above, a step-sister's son, though a remote heir, is in the line of succession. [Subbaraya v. Kylasa and Mullah's Hindu Law VIII Edition page 46]. Granting then that the plaintiff is not the nearest but a remote reversioner, the question arises, does the suit lie or not? The 5th defendant is the sister of the last maleholder and defendants 3 and 4 are her sons. The sale impeached was made in favour of the 3rd defendant and it is alleged in the plaint that it was brought about by one of the widows of the last maleholder acting in collusion with defendants 3, 4 and 5. True, the plaintiff does not expressly say in his plaint that he has brought the suit in his capacity of a remote reversioner; but there are sufficient allegations in it, which bring the case within the rule, that when the nearest reversioner has colluded with the limited heir whose act is impeached or has precluded himself by his conduct from suing, the suit may be brought by a remote reversioner. I am prepared, therefore, differing from the lower Courts, to view the plaint in that light. But still, in my opinion, the plaintiff ought not to be granted any relief in this suit. It is discretionary with the Court to grant or not a declaratory decree; that is the effect of S. 42 of the Specific Relief Act. The suit was brought in 1930 and the alienation attacked is a sale which was made in 1920 and that again depends upon the validity of a mortgage created in 1909. The question is simply, would the Court, in the exercise of a sound judgment, grant a declaration in respect of a transaction which was 21 years old on the date of the plaint: I may observe that the mortgage of 1909 was in favour of Audiappa, the husband of the 5th defendant and the father of defendants 3 and 4 and that he had died by the date of the suit. The plaintiff, when he filed it, was 54 years old and what possible reason could he have had for deferring action for such a long period? On this ground the lower Court's judgment dismissing the suit is upheld and the Second Appeal is dismissed. In the circumstances, I make no order as to costs.
Leave to appeal is refused.
N.R.RAppeal dismissed.