Seshagiri Aiyar, J.
1. Plaintiffs sue for a declaration that a will said to have been made by their brother, the deceased husband of the defendant, authorising her to adept a boy was never executed. The defendant pleaded in limine that such a suit is incompetent. The Subordinate Judge dismissed the suit; the only question in appeal is whether this decision is right.
2. The diversity of judicial opinion on the construction of Section 42 of the Specific Relief Act is so great that I have resolved upon confining my citations to the cases decided in Madras and to the decisions of the Privy Council. If I may say so with respect the consideration of this question has been rendered difficult by mixing up two distinct issues. Section 42 of the Specific Relief Act, while indicating the character of the right which may be declared by a court of law, leaves it to the discretion of such court to grant or refuse the relief claimed. In arguments addressed to courts and not infrequently in decisions also, the question of the right of suit has been mixed up with the question of exercising discretion in regard to the relief.
3. If I had only the language of the section to guide me, I would have little hesitation in holding that suits like the present are within Section 42 of the Act. There can be no doubt that the plaintiffs are entitled to protect their alleged legal right of surviving co-parceners to their deceased brother's estate. It must also be admitted that the defendant is denying that character by setting up the will which if true would deprive the two plaintiffs of a third of their property. There is a further consideration in seeking the aid of. Section 42, a plaintiff may consider that if time elapses the pretensions of the defendant who is interested in denying the plaintiff's title may gain momentum and may in the course of years render the task of refuting those pretensions very difficult. In fact as I said in Naganna v. Sivanappa I.L.R. (1904) M. 1102 Whenever a cloud is cast or attempted to be cast on the title of a plaintiff, he is entitled to come to court under Section 42.
4. It may be that in many instances the apprehended danger or the cloud on title may be of such a shadowy character and so flimsy, that the court in its discretion might refuse to grant the relief prayed for. But that is no ground for saying that the suit is not maintainable.
5. There have been numerous instances in which notwithstanding an undoubted right to litigate courts have refused in their discretion to grant relief. The object to be borne in mind in such cases is to see that the machinery of the court is not utilized for unnecessarily harassing the defendant.
6. With these preliminary observations, I shall proceed to consider the decisions bearing on the section. In Madras there are cases which held that where the plaintiff is not likely to be immediately affected the suit should be dismissed as incompetent. Apparently the old English doctrine which prevailed before the enactment of the Specific Relief Act to the effect, that a declaratory decree ought not to be made unless there is a right to some consequential relief which if asked for might have been given by the court have been accepted as a correct interpretation of Section 42 of the Act. In Kathama Nachiar v. Dorasinga Thevar Shoe Singh Rai v. Dakho and Law Reports Indian Appeals, (Supplemental Volume) 149 and 165, the Judicial Committee enunciated this view with reference to cases which arose before the passing of the Specific Relief Act, In Madras even after the Act, that view was adopted. Nurdin v. Atuvudin I.L.R. (1889) M. 134 is one of this class. The decision which the Subordinate Judge has relied on viz., Sreepada Venkataramanna v. Sreepada Ramalakshmamma I.L.R. (1911) M. 592 belongs to the same category. On the other hand we have Govinda Pillai v. Thayammal I.L.R. (1904) M 57 and Chinnasami Mudaliar v. Ambalavana Mudaliar I.L.R. (1908) M. 48 which seem to take a broader view of the section. It is true in the latter case, an adoption was set up; but apparently no hostile act followed upon the setting up of the adoption. In Putanna alias Keshava Bhatta v. Rarnakrishna Sastri I.L.R. (1909) M. 195 the learned Judges held that the relief under Section 42 is not restricted to cases covered by illustrations E and F to that section, and granted a declaration that a will alleged to have been made by the last male owner was never made. There are three recent Madras cases which may be shortly noticed. In Ramkrsihna v. Narayana I.L.R. (1914) M. 80 all that was laid down was that Section 42 is not intended to enact a declaration in respect of personal contract. In Ramachandra Row v. Secretary of State for India I.L.R. (1915) M. 808 Mr. Justice Ayling with Mr. Justice Tyabji held that a declaration can be given against an order debarring a person from acting as a vakil to another in a village court, My learned colleague there said that even if the suit may not be covered by the Specific Relief Act, the relief can be granted. These are the only Madras cases which need be considered.
7. Now as regards the Privy Council cases, reliance was placed by both the parties on Pirthi Pul Kunwar v. Guman Kunwar I.L.R. (1890) C. 933 The real decision in that case was that in the exercise of the discretion vesting in the Court below it had rightly refused to grant the prayer. It was a suit in which the son's widow in possession sued for a declaration that an adoption by the father's widow was void and ineffectual. The Judicial Committee did not say such a suit would not the. They said that they saw no reason to interfere with the discretion exercised by the court below. In Janaki Ammal v. Narayanaswami Aiyar (1915) L.R. 43 IndAp 207 : 31 M.L.J. 225 : I.L.R 39 M. 634 which was relied on by Mr. Narasimha Row, it was pointed out that a cause of action with which the plaintiff came to court, namely waste by the widow, having been found to be untrue, it was not open to the plaintiff to ask that his right as reversioner to succeed at some future time should be declared. In the last but one paragraph of the judgment it is said that if the plaintiff came to court for a bare declaration of his rights without alleging that there was any infringement of such a right the court would reject such a suit, and the fact that a false cause of action was alleged in the plaint was no ground for deciding the contingent title of the plaintiff. I do not think that this decision helps the respondent. In another Privy Council case Sheoparsan Singh v. Ramnandan Singh (1914) L.R. 43 IndAp 91 Sir Lawrence Jenkins sounds a note of warning against the machinery of the court being abused by suits under S. 42 of the Specific Relief Act. Here again it was decided that a mere declaration of the right of the plaintiffs to succeed at some future time should not be granted. In Saudagar Singh v. Pardhip Narayan Singh (1917) 34 M.L.J. 67 Lord Parker in delivering the judgment of the Judicial Committee says 'It appears to their Lordships to be clear on this section that where any deed is executed, the result of which may be to prejudice the interests of the reversionary heirs, those heirs, though still reversionary and though they may never get any title because events may preclude them from doing so, may have a declaration as to the effect of the deed.'' Applying that principle to the present case, it may be said, that where a will is set up the result of which may be to prejudice the interest of the plaintiffs though ultimately the adoption referred to in the will may not take place, the plaintiffs are entitled to the declaration they have claimed. In my, opinion this latter pronouncement of the Judicial Committee which is binding on us is decisive of the question; and if I may say so with the greatest respect, gives effect to the true intent of Section 42 of the Specific Relief Act.
8. An examination of some of the Madras cases to which I have referred notably Nurdin v. Allavuddin I.L.R. (1889) M. 134 and Sreepada Venkatramana v. Sreepada Rama Lakshmamma I.L.R. (1911) M. 592 tends to show that where there is no possibility of immediate injury flowing from a contemplated act, deed, or other instrumant, the courts should not allow a suit to be instituted. With all respect I should like to point out that instead of saying that a suit does not lie under such circumstances, it would be more correct to say that courts should not grant relief in such cases. Nurdin v. Allavuddin and Sri Pada Venkataramana v. Rama Lakshmamma I.L.R. (1911) M. 592 are really instances of cases in which the courts in their discretion would have been justified in refusing the relief : and I do not think any harm will be done by interpreting them in the way I have indicated.
9. In the present case it may be open to the lower court to find on hearing the evidence that the allegations are not of such a character as to compel the court to grant the relief. In my opinion the conclusion come to, that the suit is not within the meaning of S. 42 of the Specific Relief Act is wrong. I would therefore reverse the decree of the Subordinate Judge and remand the suit for disposal on the merits. Costs to abide the result.
10. I am in entire agreement with the conclusion arrived at by my learned brother, whose judgment I have had the advantage of perusing, and to which I can add little. It seems to me that the defendant in this case (widow of plaintiff's undivided brother) was interested in setting up and utilising the power to adopt contained in her late husband's alleged will--in other words in denying plaintiff's right of succession by survivorship to the whole joint family property. In such circumstances, the present suit would appear to be under S. 42 of the Specific Relief Act. I can see nothing in the section to justify the view which seems to have been taken by the learned Judges in Sreepada Venkataramana v. Sreepada Ramalakshmanna (1911) I.L. 35 M. 592 and having regard to the other rulings quoted in my learned brother's judgment, and in particular of the spirit of the latest Privy Council case (Saudagar Singh v. Pardhit Narayan Singh (1917) 34 M.L.J. 67. I think we are justified in declining to follow it. It seems to me that there can be no question of the expediency of allowing the genuineness of such documents as the present to be tested as early as possible. The difficulty of ascertaining the truth tends in almost every case to increase with the lapse of time. We have recently heard arguments in a case in which an adoption was made, based on a disputed authority to adopt said to have been given 28 years before. A view of the law which in such a case precludes the possibility of determining the facts as to the alleged authority until so late is one which I should be both to adopt unless compelled by irresistible reasoning to do so.
11. I concur in the order proposed by my learned brother.