Collaterals have no right to sue to challenge an adoption or alienation made by a person during his lifetime in respect of non-ancestral property.

Weston, J.

1. This is a second appeal from a decision of the District Judge, Hissar, upholding a decree of the Senior Subordinate Judge, Hissar, decreeing the plaintiffs suit for declaration that the adoption of defendant No. 2 Kishori Lal by defendant No. 1 Arjan was not proved and a gift of land made about the time of the adoption was merely a gift made on account of the adoption and therefore failed when the adoption failed.

2. The facts found were that on the 4th of January 1948 a report was made to the Patwari by Arjan reciting that Arjan has adopted Kishori Lal, he has given possession of land and that appropriate entries may be made. On the 17th of February 1948 Arjan executed a formal deed of adoption in favour of Kishori Lal and this deed was registered. On the 10th of August 1948 mutations were sanctioned in favour of Kishori Lal both of agricultural land of which Arjan was the owner and occupancy rights possessed by Arjan in other lands. The present suit which was filed on the 2nd of May 1949 is by three collaterals in the fourth degree. Their case was that the land was ancestral and they sued for declaration that the adoption was never performed and that the gift also failed and was otherwise not binding upon them. Both Courts below have held that the property of Arjan both in land and in occupancy rights is not ancestral property. Both Courts held that the adoption was not proved and that the gift was made on account of the adoption and not independently to Kishori Lal. The plaintiffs therefore were granted the declaration which was sought by them.

3. It is clear by reason of the Punjab Tenancy Act that in respect of the occupancy rights Kishori Lal could claim title only by virtue of the adoption and not by virtue of the gift. The defendant Kishori Lal who contested the suit had in his written statement disputed the right of the plaintiffs to sue and an issue No. 1A was struck at his request-- "1A. Have the plaintiffs a right to sue?" The contest between the parties as to the ancestral or non-ancestral nature of the property seems to have obscured this issue and there has been no consideration by the Courts below of the question which obviously arises, namely whether, when it has been found that the property is non-ancestral, the plaintiffs who happen to be the nearest heirs of Arjan have any right to sue during the lifetime of Arjan to challenge either the adoption made by him or any alienation made by him. The Courts below in fact seem to have proceeded on the basis that the plaintiffs are reversioners.

4. The term reversioner, however, is used in Hindu Law to describe the heirs of the last full owner entitled to succeed to the estate of such owner on the death of a widow or other limited heir, and clearly the plaintiffs are not reversioners. Mr. Pandit for the plaintiff-respondents has argued against this objection on two grounds. He first of all claims that the suit is one which falls within the scope of Section 42 of the Specific Relief Act, and secondly he claims that even if it does not, Section 42 is not exhaustive of all types of declaration which may be given, and in any event as the argument against maintainability of the suit has been argued for the first time in second appeal this objection should not now be entertained.

5. On the question of the suit falling within the scope of Section 42 of the Specific Relief Act, on the finding that the land is non-ancestral it seems to me impossible to say that the plaintiffs are persons having any legal rights. They are merely heirs of a person who is alive. He is free to dispose of his property as he desires and the plaintiffs have no right whatever to control or restrain his actions in any way in the matter of disposal by sale, gift, will or otherwise. The Illustrations to Section 42 show that the form of suit covered by the section is to be extended to suits by reversioners seeking declaration against alienations made by the limited holder of the est