A remote reversioner can sue to set aside an alienation by a limited heir only if the next reversioner refuses without sufficient cause to institute proceedings, or has concurred in the set 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.

Narayan, J.

1. 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 plain-tiffs 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 Bayabhaga 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 land-lord 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.

3. The learned Subordinate Judge has granted a declaration to the effect that this surrender will not be binding against the plaintiffs after the lifetime of the widow, defendant 4, his finding being that the surrender was not for legal necessity.

4. 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 at 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.

5. 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 ladys 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