Judgement

Appeal from a judgment and decree of the High Court (January 29, 1914) reversing a decree of the Subordinate Judge, Third Court, Patna.

The litigation related to the property of one Deonarayan Singh, deceased, and arose under the following circumstances. Four brothers, Mahipat, Saligram, Het Narayan, and Drigpal, who were governed by the Mitakshara law, were at one time joint-owners of family property, but were all dead at the date of the suit. Saligram was succeeded by his only son, the said Deonarayan, and the property was then partitioned. Deonarayan died leaving a widow, Jaibasi Koer, and a daughter, Sakalbati Koer, who were the third and fourth respondents. The appellant Saudagar

26 Law Rep. 45 Ind. App. 21 ( 1917- 1918)

Saudagar Singh V. Pardip Singh 127

was the only son of Mahipat. Het Narayan died childless. Drigpal had three sons, namely, Jagdip, who died during the litigation, and the respondents Pardip Narayan and Barhamdeo.

On April 25, 1906, Jaibasi Koer and Sakalbati Koer executed a tamliknama, or deed of gift, by which they absolutely conveyed to Saudagar the property which had belonged to Deonarayan, and put him into possession.

The sons of Drigpal in 1908 instituted the present suit against Saudagar, Jaibasi Koer, and Sakalbati Koer. The plaintiffs prayed for a declaration that the ladies had no right to execute the tamliknama, and that the appellant Saudagar had acquired no title thereunder. They also claimed possession, but that claim was abandoned upon the appeal to the High Court.

The appellant by his written statement contended that the plaintiffs had no cause of action. He alleged that Drigpal was only a half-brother of Saligram and that he, the appellant, was the only reversionary heir. He contended that the effect of the tamliknama was to make him absolute owner of the properties according to the principle of acceleration, and that the plaintiffs had not, and could not in future have, any right in it.

The Subordinate Judge dismissed the suit on the ground that the plaintiffs had no cause of action during the life of Jaibasi Koer and Sakalbati Koer ; he, however, found as a fact that Drigpal and Saligram were brothers of the whole-blood, the plaintiffs consequently being presumptive heirs equally with Saudagar.

The plaintiffs appealed to the High Court, limiting their appeal to a claim for a declaration that the tamliknama of April 25, 1906, was not valid, nor operative against them after the deaths of Jaibasi Koer and Sakalbati Koer.

The High Court (Stephen and Mullick JJ.) agreed with the finding of fact, and made the declaration as prayed. In the course of their judgment they said " the fact that such a declaration must be founded upon reasons that would support a declaration that the plaintiffs are heirs to Deonarayan, were it open to us to make such a declaration, cannot shut them out from their right to a declaration as to the validity of the document in question."

1917. Oct. 19. Sir Erle Richards, K.C., and Dunne, K.C., for the appellant. In substance the object of the appeal to the High Court was to obtain a declaration that the plaintiffs were presumptive heirs equally with the present appellant. Under these circumstances a declaratory decree should not have been made Kathama Nachiar v. Dorasinga Tever (( 1875) L. R. 2 I. A. 169.); Janaki Ammal v. Narayanasami Aiyer. (L. R. 43 I. A. 207.) The suit contemplated by s. 42 of the Specific Relief Act is one on behalf of all the reversioners, impeaching a transaction as against those who may eventually become heirs Venkataranarayana Pillai v. Subbammal. (( 1915) L. R. 42 I. A. 125.) The present suit was not of that nature. [Reference was also made to Maynes Hindu Law, 8th ed., pars. 647, 648.]

De Gruyther, K.C., and Parikh, for the first and second respondents, were not called upon.

The judgment of their Lordships was delivered by

LORD PARKER OF WADDINGTON. Their Lordships do not consider it necessary to call upon counsel for the respondents