9th July 1906.

and the assignee is entitled to recover possession of the property and contest the validity of the title of the person in possession subject to the same rules which could have been enforced by the assignor.

Jhoki Ram v. Malik Kadir Bakhsh (1), Achal Ram v. Karim Husain Khan (3), Tota v Abdulla Khan (*), and Mouladad v. Ram Gopal (*), referred to.

Further appeal from the decree of C. L. Dundas, Esquire, Divisional Judge, Hoshiarpur Division, dated 10th August 1903.

Sukh Dial, for appellants.

Ohani Lal and Ganga Ram, for respondents.

The judgment of the learned Judge was as follows:

LAL CHAND, J.--The facts of this case are given in full in the judgments of the lower Courts and need not be recapitulated. Briefly the suit is for possession of 17 kanals originally owned by one Ram Singh, who transferred the whole of his property to defendants by a deed of gift, dated 2nd January 1886. Mutations followed, but apparently the donees did not at once obtain actual possession of any portion of the property conveyed by gift, as Ram Singh retained possession of 17 knals now in dispute and the remaining land was held in possession by a previous mortgagee. Ram Singh died in 1891 when defendants took possession of 17 kanals now in dispute. He left certain collateral heirs, Dheru and others, who on 4th January 1394 sold his estate to Rai Devi Singh, plaintiff-appellant. Devi Singh, having redeemed the previous mortgage from Gopal, has now in conjunction with Dheru and others, the collaterals of Ram Singh, sued for possession of 17 kanals held by defendants. The first Court found against the gift and held that Dhera and others, the collaterals of Ram Singh, were entitled to a decree against defendants, but inasmuch as Devi Singh was the representative of the heirs of Ram Singh by his sale and they could after obtaining possession by decree put Devi Singh in possession, Devi Singh was entitled to obtain a decree for possession. A decree for possession was accordingly passed in Devi Singh's favour. This decree was set aside on appeal by the Divisional Judge. In further appeal to this Court on the question of bar by limitation the names of Dheru, &c., were removed from the record on their own application and the case was remanded. The Divisional Judge on remand has now dismissed the claim on the ground that Devi Singh being left sole plaintiff on the record has no locus standi to contest the validity of the

gift in defendants' favour being himself a stranger to the family. In support of his view the Divisional Judge has principally relied on certain dicta in Mouladad v. Ram Gopal ('). It is contended for the vendee appellant that the sale was not of an expectancy but of land which by inheritance had at the time become vested in the vendors though possession was held by defendants, and further that in any case a decree having already been passed in his favour with consent of Ram Singh's heirs, who were competent to challenge the gift and joined as plaintiffs, the decree so passed could not be set aside on account of their subsequent withdrawal from the suit.

For the respondents it is contended that the collateral heirs who never obtained possession were in the same position as reversioners during the life-time of a widow and that Deri Singh vendee could not obtain a decree for possession without challenging the gift which he was not competent to do being a stranger to the family. Certain passages in Tota v. Abdulla Khan (2) and Mouladad v. Ram Gopal (1) were relied upon in support of this contention.

For appellant reliance was placed on Jhoki Ram v. Malik Kadir Bakhsh (3) and Achal Ram v. Kazim Husain Khan (4), for contending that plaintiff-appellant as an assignee of a chose in action was competent to claim possession. The question raised is not entirely free from difficulty. If the powers of a childless proprietor to alienate ancestral property without necessity were absolutely limited as those of a widow there would be very little difficulty in coming to a decision. The assignee of the reversionary heir after widow's death would be in a position to ignore the alienation and sue for the estate unless it is proved by the alienee that the alienation was made for necessity, for a widow is absolutely incompetent to alienate without necessity whether any reversionary heirs existed or not. But the status of a childless proprietor as regards power to alienate ancestral property is no way analogous to that of a widow. If there are no male lineal descendants of the common ancestor from whom the property was received in inheritance the childless proprietor is competent to alienate even without necessity. In his case therefore the restraint to alienate without necessity is not absolute but contingent and the alienation made by him without necessity is not void but only voidable by the male lineal descendants of the common ancestor. It would thus

childless

appear that in a suit to recover an estate left by a proprietor it is necessary for the plaintiff to allege that the alienation made is not binding on him. He cannot absolutely ignore it as it is not void even if made without necessity, but only voidable at his instance. The right to object no doubt is conferred on a collateral heir under the Customary Law, but can such heir after devolution of inheritance transfer the same to a stranger to the family? This was doubted in Mouladad v. Ram Gopal (1), though the matter was not definitely decided. But I am not convinced that he cannot. It is not open to denial that a collateral beir after devolution of inheritance can sue for the estate, object to the alienation which may be set up by the adverse party and in case of success can transfer in favour of a stranger the decree so obtained or the property itself after obtaining possession in execution. Similarly he may assign his interest wholly or partially before suit if he has no funds to sue, join as a co-plaintiff with the assignee, object as such to the alienation made by the childless proprietor and if successful may transfer the decree to the assignee or share the property with him. It is hardly conceivable that any valid objection could be raised against such procedure. If this is permissible why he cannot assign whole of his interest to a stranger including all its necessary incidents, one of these being the right to object to the alienation and authorize the assignee expressly or by implication to sue in his own name only. There seems to be no reason why he cannot. The right transferred is but a mere expectancy and the sale itself is controllable under Customary Law by the reversionary heirs of the assignor. There is therefore no apparent ground why it should be insisted that the assignor, although he has wholly parted with his interest in the estate, should formally be joined as a co-plaintiff in the suit. The inheritance having already devolved the heir is competent to alienate it to a stranger subject to the veto of his own reversionary heirs which may or may not be exercised. And suppose the alienation in dispute made by the childless proprietor was in favour of a stranger then is there any reason why another stranger to the family who derives his title from the actual heir should not be competent to object to the alienation and receive the property alienated? To hold otherwise would virtually result in depriving the true heir if devoid of funds from receiving his inheritance or deriving any

(1) 22 P. R., 1900

benefit from it. I am therefore inclined to hold that appellant
Devi Singh as assignee of the actual heir was competent to
object to the gift set up by defendants. But the present appeal
is maintainable on another ground also. In this case the true
heirs did actually join as co-plaintiffs with Devi Singh. They
successfully objected to the gift made by Ram Singh and then
assented to a decree being passed in favour of Devi Singh, which
was done. In their cross-objections before the Divisional Judge
they claimed a decree in their own favour only in case it was not
maintained in favour of Devi Singh. Can this all be undone
because they subsequently withdrew from the case when it was
pending in the Chief Court on a question of bar by limitation
I think not.

Their subsequent withdrawal from the case cannot affect the decree already obtained, and this view is supported to a certain extent by Achal Ram v. Kazim Husain Khan (1), where the coplaintiff who was the true heir withdrew from the suit even before decree was passed, but his withdrawal was not held to affect the assignee's right to carry on the suit and obtain a decree. I therefore hold that the lower Appellate Court was not justified in reversing the decree of the first Court on the ground that Devi Singh being left sole plaintiff on the record had no locus standi to contest the gift. I accept the appeal, reverse the order of the lower Appellate Court and remand the case under Section 562, Civil Procedure Code, for decision on the merits. Court fee on appeal will be refunded and other costs will be costs in the case.

Appeal allowed.

No. 12.

Before Mr. Justice Chatterji, C.1.E.

GANDU SINGH,-(PLAINTIFF),-PETITIONER,

Versus

NATHA SINGH AND OTHERS,-(DEFENDANTS), --RESPON

DENTS.

Civil Revision No. 139 of 1906.

Suit for possession of ghair-mumkin land attached to a well-Land suitAppeal-Punjab Tenancy Act, 1887, Section 4 (1)—Revision-Pouer of Chief Court to revise findings on facts relating to question of jurisdiction.

Held, that a suit for possession of ghair-mumkin land outside the abadi and attached to a well upon which khurlis are built and bhusa is stacked 8 a land suit as defined in Section 4, sub-section (1) of the Punjab

(1) 1. L. R., XXVII All., 271, P. C.

REVISION SIDE.

15th June 1906.

Tenancy Act, 1887, and that therefore the course of appeal is to the
Divisional Court and not to the District Court.

Held, also, that the Chief Court is fully competent to consider on the revision side the correctness of an Appellate Court's findings on the facts relative to the question of jurisdiction of that Court to entertain the appeal.

Roebuck v. Henderson (') referred to.

Petition for revision of the order of Lala Kesho Das, District
Judge, Amritsar, dated 18th October 1905.

Sheo Narain, for petitioner.

Gurcharan Singh, for respondents.

The judgment of the learned Judge was as follows:CHATTERJI, J.-The only point for consideration by me is whether the District Judge had jurisdiction to hear the appeal, or in other words whether the suit is a land suit or an unclassed

one.

Mr. Gurcharan Singh objects that I have no power to question the finding of the District Judge, that the land is not land as defined in Section 4, clause 1, of the Punjab Tenancy Act, 1887, but I am of opinion that I have that power and must have it in order to be able to exercise my revisional functions. I have to decide whether the District Judge had jurisdiction, and in order to do this I must have power to go into all the matters pertaining to the conditions of cognizance by the lower Court of the appeal decided by it. This seems to be a self-evident proposition, vide remarks in Roebuck v. Henderson (1) at page 158. I therefore over-rule the objection.

Coming now to the merits of the question, I am of opinion after a due consideration of the authorities and the definition given in the Tenancy Act that the land is land within the meaning of Section 4, clause 1 of that Act. The definition is not very clear on all points, but I find that the land is outside the abadi, and is attached to a well. It has a khasra number which shows that it was measured at Settlement, and it is proved that it is duly entered in the jamabandi in 1892-93. Defendants, Mangal, &c., are entered in the cultivators' column. It appears in the jamabandi of 1903 and 1904 as land of their ownership, and mutation of names took place in their favour on 15th June 1904, it has all along been shown in the revenue records. It has khurlis and is entered as ghair-mumkin, and bhusa is

(1) 54 P. R., 1896.