1. This is an appeal of Mst. Mankuwar against the decree of declaration.
2. Asaram, the porosities, owned 4 village shares. He died on 17th January 1947, leaving his mother Mst. Bodhani, respondent 1, brother of Uderam, respondent No. 2, and widow Mst. Rambati, respondent No. 3, On his death, the Tahsildar mutated the name of the appellant, jointly with that of Mst. Rambati, as co-proprietors of the village share. Mst. Bodhani and Uderam, therefore, used them for a declaration that the appellant was not the legally married wife of Asarara and had thus no interest in his property. The Courts below allowed the suit. The lower appeal Court also added a further declaration that the order of the Tahsildar did not affect the reversionary rights of the plaintiff.
3. In Dhirajkuwar v. Lakhansingh, 1957 MP LJ 137: ((S) AIR 1957 MP 38) (A), a division Bench of this Court, to which I was a party, has held that since the enactment of the Hindu Succession Act, 1956, reversionary rights as known to the Hindu Law stand abrogated. The declaration added by the first appeal Court cannot, therefore, be maintained.
4. The suit is governed by Section 42 of the Specific Relief Act, 1877, which is in these terms :
'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 : A trustee of property is a 'person interested, to deny' a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.'
This provision contemplates the following conditions .
1. That the plaintiff is entitled (i) to any legal character or (ii) to any right as to any property; and
2. That the defendant is a person who denied or is interested to deny his title to such character or right.
If these conditions are satisfied, the plaintiff need not ask for any further relief than a mere declaration, but the Court shall not make any such declaration if he, being able to seek further relief than a mere declaration of title, omits to do so.
5. Before the enactment of the Specific Reliet Act, suits for declaration were governed by the provisions of the Civil Procedure Code. Section 15 of the Code of 1859, which came up for consideration In the case of Fyz Ali Sadut Alikhan v. Abdul Gunny, 11 Beng LR 203 (PC) (B), was in these terms :
'No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and, it shall be lawful for the Civil Courts to make binding declaration of right without granting consequential relief.'
Similar provision was contained in Section 19 of the earlier Act of 1854, which was the subject of interpretation before the Supreme Court in Rajcoomarie Dossee v. Nobocomar Muilick (Boulonis, Reports). These two provisions were in terms of Section 50 of 15 and 16 Vict. c. 86. In both the decisions cited above, the judicial view on the English Statute was 'followed, namely, that a declaratory decree cannot be made unless plaintiff would be entitled to consequential relief if he asked for it. This view was confirmed in Kathama Matchiar v. Dorasinga Tever, 2 Ind App 169 (PC) (C), after a through review of all the cases. Their Lordships of the Judicial Committee summed up the position thus :
'It appears, therefore, to their Lordships that the construction which must be put upon the clause in question is, that declaratory decree cannot be made unless there, be a right to consequential relief capable of being had in the same Court for in certain cases in some other Court. They admit the qualification introduced by the case of Fyz Ali (B)'.'
6. The law governing suits for bare declaration is now codified in Section 42 of the Specific Relief Act It is, as observed in Deokali Koer v. Kedar Nath, ILR 39 Cal 704 (D), immaterial, whether it is a precise reproduction of the provision contained in the Civil Procedure Code of 1859 and the English Law, or is based more upon Scotch than upon English practice, for we have to be guided by its provisions as they are expressed.
7. This section came up for consideration before the Judicial Committee in Sheoparsan Singh v. Hamnandan Prasad Narayan Singh, 43 Ind App 91: (AIR 191.6 PC 78) (E). In that case, the plaintiffs claimed a declaration that they are 'the next reversioners to the estate of the late Bachu Singh according to Hindu Law' and 'therefore entitled to his estate in case of an intestacy after the death of the defendants second party''. It was found that Bachu Singh had disposed of his estate by a will.
The question, therefore, arose whether the plaintiff were entitled to a bare declaration as regards their reversionary rights. Their Lordships, after holding that the Court's power to make a declaration without more is derived from Section 42 of the Specific Relief Act and regard must, therefore, be had to its precise terms, observed that a plaintiff coming under this section must be entitled to a legal character or to a right as to property.
This condition was not held to apply to the case on the ground that there was already a testamentary disposition of the property. So far as the case of Kathama Natchiar (C), was concerned, their Lordships referred to it only for the purpose of showing that the suit by the coparceners have been entertained by the Courts ex necessitate re and that the question therein to be discussed is solely between the reversioner and the widow and not between him and a third party.
The warning conveyed in Sree Narain Mitter v. Sreemutty Kishen Soondery Dassee, IA Sup Vol. 149 at p. 162 (PC) (F), that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation, which was affirmed by their Lordships, does not define the scope of Section 42 of the Specific Relief Act. The effect of the decision in the case of Sheoparsan Singh (E), therefore, only reiterates the conditions embodied in Section 42 of the Specific Relief Act and does nothing more.
8. The question as to the scope of Section 42 of the Specific Relief Act came up for consideration before their Lordships of the Lahore High Court in Abdul Karim v. Sarraya Begam, AIR 1945 Lah 266 (FB) (G). It was observed therein that on the plain language of Section 42, there is no justification for assuming that a suit for a declaration as to a certain status claimed by the plaintiff cannot be maintained unless the declaration sought will confer on the plaintiff an immediate right to some property.
Accordingly it was held that the declaration of the legitimacy of a child of a muslim governed by the Mohammedan Law could be made on the ground that the question of its legitimacy carries with itself important legal incidents in the shape of the right to claim maintenance or succession.
9. It would appear from this case that a suit for a mere declaration affecting one's legal character is maintainable even if there is no present danger to the rights of the parties. All that is necessary is that there should be such a danger when a change affecting their rights takes place in future. The interpretation placed by their Lordships of the Privy Council in the earlier cases under the Civil Procedure Code is not now useful because the question as to one's right to a bare declaration has to be decided with reference to the express terms of Section 42 of the Specific Relief Act.
No question arises in this suit as to whether where a merely declaratory decree has the effect of giving present right as well, the suit should be held to fall under Section 42 of the Specific Relief Act, or e.g. under Section 9, or Order 7, Rule 7, of the Civil Procedure Code : See Md. Manjural Haque v. Bisseswar Banerjee, AIR 1943 Gal 361 (H). It is not, therefore, necessary to discuss this point.
10. The mutation order in the instant case was passed under Sub-section (1) or Section 49 of the C. P. Land Revenue Act, 1917. Sub-section (4) thereof provides that such an order is not evidence of title relating to the disputed property or any interest therein. The rights of the parties have, therefore, remained unaffected thereby, and as the plaintiffs have only a bare chance to succeed, they have no title to any right as to any property.
On another ground also, they have no title to any such right. Section 14 of the Hindu Succession Act provides that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner and not a limited owner. The property in this case is really possessed by Mst. Rambati although she is sharing it with Mst. Mankuwar.
As she is a full owner, no person on the list of heirs can intervene during her lifetime even though her title to the property may be lost by prescription. The plaintiffs, therefore, cannot complain even if Mst. Mankuwar's possession is without her consent. Section 42 of the Specific Relief Act, so far as it relates to the title to any right as to any property cannot, therefore, be invoked by the plaintiff.
11. The question, therefore, is whether the suit for a mere declaration that Mst. Mankuwar is not the legally married wife of Asarani, is maintainable under Section 42 of the Specific Relief Act. It is no doubt true that in the case of Abdul Karim (G), the person challenging the legitimacy of the child was its mother's own husband but it does not appear necessary that the plaintiff's legal character itself should be denied, for even where by assertion of a certain relationship with the deceased, the defendant claims to be a preferential heir, the plaintiff's position on the list of heirs is likely to be affected when the succession opens out.
Therefore, if the natural devolution of the property is likely to be changed by the status which the defendant claims, there appears to reason why the plaintiff should not be entitled to clear the doubt, when fresh evidence is available on the point.
12. In the instant case, there is a danger to the inheritance of the property in, case Mst, Rambati dies before she has lost her right by prescription, unless' the status of Mst. Mankuwar is decided. It is immaterial in this connection that Mst. Mankuwar would not become entitled to the status of a lawfully wedded wife by mere assertion. For, unless her real relationship is established when the evidence is available, there would be danger of the matter being wrongly determined after it has disappeared by lapse of time.
It would, therefore, be equitable to hold that the plaintiffs have the right to a declaration regarding her status even though no further relief is available to them. This view is consonant with the decision of a Division Bench of this Court in Purashottam v. Suryabhan, F. A. No. 42 of 1949| (Nag) (I), to which Sen J. and myself were parties, wherein we had held that a person who was first on the list of heirs had the right to challenge the validity of an adoption made by a Hindu widow even after the enactment of the Hindu Succession Act.
13. In the view that I have taken, the declaration on the basis of title to a right as to the property in the suit cannot be given to the plaintiff after the enactment of the Hindu Succession Act. The additional declaration made by the first appeal Court is, therefore, cancelled. The declaration that Mst. Mankuwar is not the legally married wife of Asaram is not affected by that enactment and is affirmed.
14. Subject to the modification as above, the appeal fails and is dismissed but in the circumstances of the case, there shall be no order as to costs.