1. Ist defendant in O. S. No. 25 of 1966 on the file of the Court of the Principal District Munsif, Kurnool, is the appellant. The Ist respondent-plaintiff sued for declaration of his right to receive half or in the ratio of 29:30 in the amount that may be collected by the Ist defendant from the defendants 2 to 12 on the pronote Ex. B-1 executed by one P. Vengal Reddy on July 22, 1961 in favour of the Ist defendant for a sum of Rs.24,000 /-.
2. The plaintiff and the Ist defendant are brothers who constituted a Hindu joint family up till January 25, 1957, when they devided. One P. Venkata Ranga Reddy the maternal uncle of the plaintiff and the Ist defendant, was indebted to their family on two promissory notes executed by him for sums of Rs. 12,000 /- and Rs. 11,600 /- on 28-6-1952 and 10-7-1952 respectively in favour of the Sit defendant. The aforesaid Venkata Ranga Reddy was in great financial difficulties. At the time of the partition between the plaintiff and the Ist defendant, according to the plaintiff, the pronote for Rs. 12,000 /- was provisionally allotted to the Ist defendant and the other for a sum of Rs. 11,600 /- was taken provisionally to the plaintiff's half share. According to the plaint case, there was an agreement between the plaintiff and the Sit defendant on the advice of their mother ( P. W. 6 ) and others who were present at the time of the partition, to devide equally the amount that might be collected in future from Venkata Ranga Reddy's family in respect of the two aforesaid promissory notes. No amount could be realised from late Venkata Ranga Reddy during his life time; but, however, P. Vengal Reddy, the brother of late Venkata Ranga Reddy, executed Ex. B-1 for a sum of Rs. 24,000 /- in the name of the Ist defendant after giving up the interest. P. Vengal Reddy also died without paying any amount due and payable by him under Ex. B-1. The defendants 2 and 3 have executed a promissory note in favour of the Ist defendant for a sum of Rs. 28,320 /- in respect of which the plaintiff seeks for declaration of his half share.
3. The Ist defendant resisted the claim of the plaintiff contending inter alia that the division of the promissory notes referred to earlier was not tentative or provisional, but was final and there was no agreement to devide the amount that might be collected from the family of late Venkata Ranga Reddy and Ex. B-1 was executed by Vengal Reddy on account fresh borrowing from him and the plaintiff is not entitled for any share therein. It was further urged that the suit is misconceived and not maintainable.
4. The plaintiff examined himself as P. W. 7 in addition to P. Ws. 1 to 6 and filed Exs. A-1 to A-7 in support of his case. The Ist defendant was examined as D. W. 5. Defendants 2 and 3 have been examined as D. Ws. 1 and 2. D. Ws. 3,4,5 and 7 have been examined on behalf of the Ist defendant who filed Exs. B-1 to B-4 in support of his defence. The defendants other than the Ist defendant supported the claim of the plaintiff.
5. The trial Court, on consideration of the entire evidence, oral and documentary, found that the agreement set up by the plaintiff between himself and the Ist defendant at the time of partition that they should equally share the amount realised, if any, under the two promissory notes dated 28-6-1952 and 10-7-1952 executed by late Venkata Ranga Reddy in favour of the Ist defendant, the then manager of the joint family, was true and the allotment of one promissory note to each at the time of the partition, was provisional and tentative. It was further held that the consideration for Ex. B-1 was not cash borrowed by Vengal Reddy from the Ist defendant on the date of its execution, but the consideration was the two time-barred promissory notes dated 28-6-1952 and 10-7-1952 and the suit for declaration was maintainable and the plaintiff was entitled to the declaration as prayed for.
6. On appeal to the District Court, Kurnool, the findings of the trial Court were upheld and the decision was affirmed. Hence this Second Appeal.
7. Sri N. Ramamohana Rao, the learned counsel for the appellant, pressed upon me the following two contentions ;
(1) The findings of the courts below that there was an agreement between the plaintiff and the Ist defendant at the time of the partition that they should devide equally the amount that might be recovered or collected from the family of late Venkata Ranga Reddy in respect of the promissory notes executed by him in favour of the Ist defendant , is vitiated is not considering the admissions of P. W. 2 and others and the recitals in Ex. A-1 the partition list and Ex. B-1.
(2) The frame of the suit for declaration of the plaintiff's right to receive his share in the amount that might be collected by the Ist defendant under the promissory note Ex. B-1, is misconceived and the declaration of a right arising out of a contract which only affects the pecuniary relationship of the parties is not permissible under Section 42 of the Specific Relief Act.
8. Sri R. V. Subba Rao, the learned counsel for the Ist respondent contended contra.
9. Upon the respective contentions of the parties, the following two questions arise for decision:
(1) Whether the finding of the Courts below that the agreement as set up by the plaintiff was true and binding on the Ist defendant, is vitiated or preserve as contended by the appellant or perfectly valid as urged by the Ist respondent ?
(2) Whether the present suit for declaration that the plaintiff is entitled to receive his half share of the amount that might be ultimately collected, is or is not maintainable under Section 42 of the Specific Relief Act, 1877 ( Section 34 of the new Specific Relief Act ) ?
10. I shall first take up the first question. Whether there is an agreement as pleaded by the plaintiff or no agreement as argued by the Ist defendant, is a question of fact. This Court will not normally interfere with a finding of fact, under Section 100 of the Code of Civil Procedure, unless it is perverse or not supported by any material, oral and documentary, adduced by the parties and have believed the case set up by the plaintiff and disbelieved the evidence of the Ist defendant and his witnesses. On a reading of the judgments of the Courts below, I am unable to agree with Mr. Ramamohana Rao that the finding is perverse or not supported by any material on record justifying my interference in this second appeal. The evidence of P. W. 6 the mother of the plaintiff and the Ist defendant, has been accepted by both the Courts. She was definite that at the time of the partition, she had advised her sons, the plaintiff and the Ist defendant, each to take provisionally one time-barred promissory note executed by her brother Venkata Ranga Reddy who was in great financial difficulties and divide equally any sum that might be recovered in respect of those promissory notes from the family of the members of late Venkata Ranga Reddy. At the time of her evidence, she was living at Kurnool with her daughter and there is nothing on record to discredit her evidence. Nor can it be said that she was supporting the plaintiff and was inimically disposed of towards the Ist defendant. P. Ws. 3 and 4, who are the creditors of the family and have nothing to do with the Ist defendant or the plaintiff. Amply corroborate the testimony of P. W. 6. Nothing has been elicited in their cross-examination to discredit their testimony. The evidence has been supported by P. W. 2 who was related to the plaintiff and the Ist defendant. He also says that the subsequent execution of Ex. B-1 was fir the benefit of the plaintiff and the Ist defendant. The plaintiff's case was also supported by defendants 2 and 3 who were examined as D.Ws. 1 and 2 . The submission of Mr. Ramamohana Rao that the admission of P. W. 2 that it was understood that each of the plaintiff and the Ist defendant should realise the amount to him under the respective promissory note was not properly considered by the Courts below, is without force. Both the Courts below have adverted to this piece of evidence and have arrived at a conclusion that the plaintiff's case relating to the agreement was true and binding on the Ist defendant.
11. The next piece of evidence, on which strong reliance has been placed by Mr. Ramamohana Rao, is the recital in Ex. A-1, which runs thus :-
Firstly, the partition lists were not registered. There was no regular deed of partition which was registered. Hence, the recitals in Ex. A-1 cannot safely be held to be admissible in evidence. The partition lists are admissible for collateral purposes and to show the factum of division and the allotment of specific properties and their subsequent possession. That apart, the Courts below have considered the effect of the aforesaid recital and the positive evidence adduced by D. W. 7 who is closely related to the Ist defendant, and the other witnesses examined on behalf of the Ist defendant. For all the reasons stated, I am satisfied that the finding arrived at by the Courts below in this regard is perfectly valid and justified and there is no ground for my interference in this second appeal.
12. I shall now turn to question No. 2 relating to the maintainability of the suit. The answer to the question turns upon the provisions of Section 34 of the Specific Relief Act, 1963 which are in pari materia with those of Section 42 of the old Act. Section 34 of the Specific Relief Act, 1963 reads thus :-
'Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation: xx xx xx xx xx xx
Section 34 invests the Civil Court with discretion to entertain a suit for declaration of status or legal right to property. Any person entitled to any right as to any property may institute a suit against any one denying, or interested to deny, his title to such right. The Court, in such a case, may make a declaration, in exercise of its discretion, that he is so entitled although the plaintiff need not ask for any further relief. The proviso to Section 34 makes it abundantly clear that the Court shall not make such declaration in favour of a plaintiff who has omitted to seek further relief than a mere declaration of title, if he is entitled to do so. It is convenient to refer to a few leading cases dealing with the scope of Section 42 of the old Specific Relief Act.
13. In Nawab Humayun Begum v. Nawab Shah Mohammad Khan, AIR 1943 PC 94, the expression ' other relief ' used in the proviso to Section 42 of the old Specific Relief Act was construed to be other relief against the defendant himself against whom the declaration was sought. Therein, a suit was instituted by the plaintiff against her husband, his son and two banks with whom certain sums of money had been deposited on fixed deposit receipt and in respect of which the claim was brought by her for a declaration that they were her property and her husband's. Though at the time of the institution of the suit, the amount of the contract was not due, but subsequently when amount was due and payable, the banks filed an application expressing their willingness to pay the same to whomsoever the Court should decide had the title. It was held that the plaintiff was entitled to a declaration against her husband as there was no other relief she could properly claim against him because the money was in the banks and it was not possible to make any other claim against her husband except for a declaration.
14. In Deo Kuer v. Sheo Prasad Singh, : 3SCR655 , the Supreme Court had to consider the maintainability of a suit for declaration of title to certain property which was attached under Section 145 of the Criminal Procedure Code. It was held that the property was attached by the Criminal Court under Section 145 of Criminal Procedure Code and hence, it was not necessary for the plaintiff therein to seek for the further relief of delivery of possession except for declaration of title to property. The property was in custodia legis and hence, it was found to be not necessary for the plaintiff in the suit for declaration of title, to ask for the possession of such property from the defendant who was neither in possession nor competent to deliver possession. The learned Judge, Sarkar, J., ( as he then was ) who spoke for the Court, observed thus :
'The suit for a declaration without a claim for the relief of delivery of possession would still be competent in the view taken in the cases earlier referred to, which is, that it is not necessary to ask for the relief of delivery of possession where the defendant is not in possession and is not able to deliver possession, which, it is not disputed in the case when the property is under attachment under Section 145 of the Code. '
15. I shall now deal with the cases referred to by Mr. Ramamohana Rao. The first case that requires consideration is Ramakrishna Pattar v. Narayana Pattar, ILR 39 Mad 80 = ( AIR 1915 Mad 584 ). In that case, a suit for declaration that the plaintiff who was a purchaser of the rights of a subscriber to a half-ticket in a kuri, was held to be not maintainable. The plaintiff therein had purchased the rights from the second defendant who was the subscriber to a half-ticket in kuri started by the Ist defendant as its proprietor. As the plaintiff sought to have a declaratory relief in respect of rights arising out of a contract which would affect only the pecuniary relationship between the parties to the contract, the suit was held to be not maintainable. That case is distinguishable on facts from the present case.
16. The decision of the Allahabad High Court in Mahabir Jute Mills v. Firm Kedar Nath, : AIR1960All254 does not advance the plea of the appellant herein. Therein, a suit for declaration that no contract was subsisting and the plaintiff was not liable for damages for it breach, was held to be not maintainable. When once there was no contract, the plaintiff could not seek for a declaration. It was ruled therein that declarations about the pecuniary liability of persons were not contemplated under Section 42 of the Specific Relief Act, 1877 as they donot amount to declarations about legal character or any right to property.
17. The other case relied upon by the appellant is Nathu Ram v. Mula, AIR 1937 Lah 25. In that case, a suit in respect of rights arising out of contract affecting only pecuniary relationship was held to be not maintainable under Section 42 of the Specific Relief Act, 1877. The plaintiff therein had asked for contribution of the monies which he, as the defendant's surety, would be liable to pay. In those circumstances, it was ruled that such a suit does not come under Section 42 of the Specific Relief Act, 1877 as it affects the pecuniary relationship between the parties to the contract.
18. All the cases cited on behalf of the appellant do not support his plea. The legal position on the scope of Section 34 of the Specific Relief Act, 1963 may be summed up thus :
Where any person is entitled to institute a suit denying, or interested to deny, his title to a right, the Court, in its discretion, is empowered to make a declaration that he is so entitled although the plaintiff has not asked for any other relief. The plaintiff must be incompetent at the time of the institution of such declaratory suit to ask any further relief relating to the delivery of possession of property or recovery of any sum of money. If, at the time of the declaratory suit, the plaintiff could successfully seek for the other relief of delivery of possession or recovery of money, it is not permissible for him to seek only for a declaration without asking for the other requisite relief. The further relief that he can seek in addition to the declaration of title must be only against the same defendant but not against any other person. It cannot be said that the Court has no jurisdiction to entertain such a suit provided the requisite conditions specified in Section 34 of the Specific Relief Act, 1963 are satisfied. The Court has to exercise the discretion vested in it judiciously but not arbitrarily.
19. On the application of the aforesaid principles, I shall presently consider whether the suit in the instant case is or is not maintainable. Admittedly, on the date of the suit, no amount could be recovered from the Ist defendant. The Ist defendant, on that date, was only having a promissory note executed by the defendants 2 and 3 for themselves and on behalf of the members of the family in favour of the Ist defendant for a sum of Rs. 28,320 /-. The promissory note debt was indisputably not recovered by the Ist defendant by the date of the suit. There was still a possibility of recovery of the aforesaid promissory note debt. The very argument set up by the plaintiff being that he would be entitled to half or in the ratio of 29:30 in the amount that might be collected by the Ist defendant from the defendants 2 to 12 under the pronote, he could not successfully seek for any further relief of recovery of his half share from the Ist defendant. He could at best seek for a declaration of his right for the recovery of the same as and when it would be recovered by the Ist defendant from the other defendants. It is not the case of the Ist defendant that on the date of the suit, the plaintiff could have asked for any further relief other than the declaration of his right. He, however, contends that the plaintiff could have awaited till the realisation of the promissory note debt by him from the other defendants and thereafter filed a suit for the recovery of his share on payment of the requisite court-fee and he should not be permitted to maintain the present suit as it amounts to a declaration of title based on a contract which only affects the pecuniary relationship of the parties. This submission cannot be given effect to. As pointed out earlier, the provisions of Section 34 of the Specific Relief Act, 1963 permit the present suit for declaration of the plaintiff's right to his share in the suit promissory note debt although he may be entitled for the actual recovery of his share only as and when it was recovered. It was stated before me by Mr. R. V. Subba Rao that the Ist defendant has, in fact, subsequent to the filing of the present suit, filed a suit against the other defendants. In that suit, the present plaintiff was added as the 12th defendant and a decree was given to the Ist defendant herein, who was the plaintiff therein, subject to the right of the 12th defendant therein, i.e., the plaintiff herein, to receive half the decretal amount that would be collected by the plaintiffs from defendants 1 to 11 therein under the promissory note. For all the reasons, my answer to the second question is in the affirmative and is in favour of the plaintiff-Ist respondent and against the appellant.
20. This second appeal, therefore, fails and is dismissed with costs. No leave.
21. Appeal dismissed.