Case: Radha Rani Bhargava Vs. Hanuman Prasad Bhargava

against the alienee either for a declaration that the alienation is void beyond her life-time or for possession of the alienated property.In the case of an alienation by a Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the life-time of the widow. They could wait until her death and the nsue the alienee for possession of the alienated property treating the alienation as a nullity without the intervention of any Court. See Bijoy Gopal Makherji v. Krishna Mahishi Debi, ILR 34 Cal 329 (333) (PC). To such a suit by the reversioners for possession of the property after the death of the widow, the heirs of the widow were not necessary parties. The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alienee in their absence. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time. The widow was usually added as a party defendant to such a suit.The widow was usually added as a party defendant to such a suit. The widow was certainly a proper party, but was she a necessary party to such a suit? On behalf of the appellant it is suggested that the widow is not a necessary party to the suit, and in this connection, reference is made to Illustration (e) to S. 42 of the Specific Relief Act, 1877.For the purposes of this appeal, it is not necessary to decide this broad question; it is sufficient to say that in the case of the death of the widow during the pendency of the declaratory suit, the heirs of the widow are not necessary parties to the suit. Though the widow was joined as a party to the suit, no relief was claimed against her personally. On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and the plaintiff can get effective relief against the alienee in the absence of the heirs of the widow. In view of the fact that on the death of the widow, the reversioners become entitled to possession of the property, in a proper case leave may be obtained to amend the plaint in the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a prayer for possession of the property. If the plaint were amended and the suit were converted into one for possession of the property, clearly the heirs of the widow would not be necessary parties to the suit. The fact that the plaint is not amended makes no difference. The plaintiff is entitled to continue the declaratory suit without joining the heirs of the widow as parties to the suit.8. As the reversioners were not entitled to the possession of the property at the time of the institution of the suit, the next reversioner could then sue for a bare declaration and the proviso to S. 42 of the Specific Relief Act, 1877 did not constitute a bar to the suit. The declaratory suit does not become defective because during the pendency of the suit, the reversioners become entitled to further relief. The next reversioner is entitled to continue the declaratory suit; but in the absence of an amendment of the plaint, a decree for possession of the property cannot be passed in the suit, and if the reversioners are to get any real benefit, they must institute a suit for possession of the property within the period of limitation.9.Had Mst. Bhagwati died during the pendency of the suit, her heirs would not have been necessary parties to the suit. The position is not altered because the suit has been dismissed on appeal by a decree of the High Court, and during the pendency of the further appeal to this Court, Mst. Bhagwati died, and the appeal against her has abated.The appeal against the surviving respondents has not abated, and we think that the appeal is not defectively constituted in the absence of the heirs of Mst. Bhagwati. In the appeal to this Court, Mst. Radha Rani asks for the identical relief which the original plaintiff sought in the suit. She can get effective relief in the appeal in the absence of the heirs of Mst. Bhagwati just as the original plaintiff could obtain the relief in the suit in their absence. The fact that the suit was dismissed by the High Court in the presence of Mst. Bhagwati makes no difference. In the suit, the plaintiff asked for the necessary relief against the alienees: Mst. Bhagwati was joined as a party to the suit, but no relief was claimed against her personally. The High Court dismissed the suit against the alienees. The appellant to this Court now seeks for a reversal of the High Court decree in the presence of the alienees. The reversal of the High Court decree in the absence of the heirs of Mst. Bhagwati would not lead to the passing of inconsistent and contradictory decrees. The High Court did not pass any decree in favour of Mst. Bhagwati. The success of this appeal cannot lead to the passing of a decree by this Court in conflict with any decree passed by the High Court in favour of Mst. Bhagwati. The cause of appeal in this Court survives against the surviving respondents, and the appeal can proceed to a final adjudication in the absence of the heirs of Mst. Bhawati.10. We hold that the appeal is not defective on account of the non-joinder of necessary parties. Civil Miscellaneous Petition No 2219 of 1964 is dismissed, save that we direct that the names of respondents Nos. 8 to 12 be struck off from the record.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. In this connection, it is necessary to consider whether the heirs of the widow were necessary parties to a suit against the alienee either for a declaration that the alienation is void beyond her life-time or for possession of the alienatedthe case of an alienation by a Hindu widow without legal necessity, the reversioners were not bound to institute a declaratory suit during the life-time of the widow. They could wait until her death and the nsue the alienee for possession of the alienated property treating the alienation as a nullity without the intervention of any Court. See Bijoy Gopal Makherji v. Krishna Mahishi Debi, ILR 34 Cal 329 (333) (PC). To such a suit by the reversioners for possession of the property after the death of the widow, the heirs of the widow were not necessary parties. The reversioners could claim no relief against the heirs of the widow and could effectively obtain the relief claimed against the alienee in their absence. Instead of waiting until her death, the next reversioner as representing all the reversioners of the last full owner could institute a suit against the alienee for a declaration that the alienation was without legal necessity and was void beyond her life-time. The widow was usually added as a party defendant to such a suit.The widow was usually added as a party defendant to such a suit. The widow was certainly a proper party, but was she a necessary party to such a suit? On behalf of the appellant it is suggested that the widow is not a necessary party to the suit, and in this connection, reference is made to Illustration (e) to S. 42 of the Specific Relief Act, 1877.For the purposes of this appeal, it is not necessary to decide this broad question; it is sufficient to say that in the case of the death of the widow during the pendency of the declaratory suit, the heirs of the widow are not necessary parties to the suit. Though the widow was joined as a party to the suit, no relief was claimed against her personally. On the death of the widow, the entire estate of the last full owner is represented by the plaintiff suing in a representative capacity on behalf of all the reversioners, and the plaintiff can get effective relief against the alienee in the absence of the heirs of the widow. In view of the fact that on the death of the widow, the reversioners become entitled to possession of the property, in a proper case leave may be obtained to amend the plaint in the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a prayer for possession of the property. If the plaint were amended and the suit were converted into one for possession of the property, clearly the heirs of the widow would not be necessary parties to the suit. The fact that the plaint is not amended makes no difference. The plaintiff is entitled to continue the declaratory suit without joining the heirs of the widow as parties to the suit.8. As the reversioners were not entitled to the possession of the property at the time of the institution of the suit, the next reversioner could then sue for a bare declaration and the proviso to S. 42 of the Specific Relief Act, 1877 did not constitute a bar to the suit. The declaratory suit does not become defective because during the pendency of the suit, the reversioners become entitled to further relief. The next reversioner is entitled to continue the declaratory suit; but in the absence of an amendment of the plaint, a decree for possession of the property cannot be passed in the suit, and if the reversioners are to get any real benefit, they must institute a suit for possession of the property within the period of limitation.9.Had Mst. Bhagwati died during the pendency of the suit, her heirs would not have been necessary parties to the suit. The position is not altered because the suit has been dismissed on appeal by a decree of the High Court, and during the pendency of the further appeal to this Court, Mst. Bhagwati died, and the appeal against her has abated.The appeal against the surviving respondents has not abated, and we think that the appeal is not defectively constituted in the absence of the heirs of Mst. Bhagwati. In the appeal to this Court, Mst. Radha Rani asks for the identical relief which the original plaintiff sought in the suit. She can get effective relief in the appeal in the absence of the heirs of Mst. Bhagwati just as the original plaintiff could obtain the relief in the suit in their absence. The fact that the suit was dismissed by the High Court in the presence of Mst. Bhagwati makes no difference. In the suit, the plaintiff asked for the necessary relief against the alienees: Mst. Bhagwati was joined as a party to the suit, but no relief was claimed against her personally. The High Court dismissed the suit against the alienees. The appellant to this Court now seeks for a reversal of the High Court decree in the presence of the alienees. The reversal of the High Court decree in the absence of the heirs of Mst. Bhagwati would not lead to the passing of inconsistent and contradictory decrees. The High Court did not pass any decree in favour of Mst. Bhagwati. The success of this appeal cannot lead to the passing of a decree by this Court in conflict with any decree passed by the High Court in favour of Mst. Bhagwati. The cause of appeal in this Court survives against the surviving respondents, and the appeal can proceed to a final adjudication in the absence of the heirs of Mst. Bhawati.10. We hold that the appeal is not defective on account of the non-joinder of necessary parties. Civil Miscellaneous Petition No 2219 of 1964 is dismissed, save that we direct that the names of respondents Nos. 8 to 12 be struck off from the record.