1. The Lower Appellate Court has dismissed the suit on the pleadings on the grounds that (1) it is barred under Order II, Rule 2 of the Code of Civil Procedure (2) that it is not maintainable as framed.
2. The material facts are as follows:-The plaintiffs claim the suit property and are in possession of it as reversioners of Nagisetti. The (1st and 2nd) defendants husband and wife, have also been claiming it as reversioners, but under a different title derived from one Veeranna. In O.S. No. 651 of 1910 the 1st defendant obtained a decree against the 2nd defendant for a declaration of his title as Veeranna's reversioner, her mother having been the last person in possession of the property. In O.S. No. 298 of 1911 the present plaintiffs obtained a decree against the present defendants declaring their right as reversioners of Nagisetti to certain properties other than those now in suit. O.S. No. 651 was pending, when O.S. No. 298 was filed but was decided before it.
3. The objection to the suit with reference to Order II, Rule 2 is based on the fact that the properties now sued for were in the defendant's possession, when O.S. No. 298 was filed, but have, as the plaintiffs allege come into their own possession subsequently. The plaintiffs' suit is for a declaration that the decree in O.S. No. 651 was collusive and has no effect so far as they and the suit properties in their hands are concerned; and the contention is that they should have asked for their relief in O.S. No. 298 and therefore cannot ask for it now. The learned District Judge argued that because they were out of possession of these as well as the other properties for which they did sue their cause of action is available for both, and they should have sued for possession of the whole estate. But they are not suing now on any cause of action, directly connected with possession since they have succeeded in enforcing their right to it Otherwise, Their present cause of action, the alleged cloud on their title, created by the decree in O.S. No, 651, is a distinct grievance which moreover arose after O.S. No. 298, was filed, and therefore could not have been pleaded in it. In these circumstances there can be no objection to the plaintiffs claiming now what they could not have claimed before. This objection is accordingly invalid.
4. This conclusion affects the learned District Judge's argument regarding the maintainability of the suit because he explained plaintiff's failure to ask for what he considered the appropriate relief, a general declaration of their title, by reference to his finding that Order II, Rule 2 debarred them, from doing so. This application would however have in any case been useless because their suit, as brought, must necessarily have involved their establishing (1) their title, since their right to sue must be conditional on their establishing it, and (2) other particular facts entitling them to have the decree declared of no effect.
5. The more serious objection to the suit is stated by the learned District Judge, as being that the ' decree in O.S. No. 651 cannot and does not purport to bind the plaintiff and that they cannot ask the court to grant a bootless declaration in respect of a matter, which is self-evident.' Before dealing with the correctness of this conclusion, I observe that no authority has been shown for treating it, as the learned District Judge has done, as negativing the right to sue directly and 'not merely as ground for the exercise of the Court's discretion to refuse the declaratory relief asked for. It is in fact relevant only as the latter.
6. That the decree in O.S. No. 651 binds only the parties to it, the defendants, is of course self-evident. But it does not follow that the declaration asked for by the plaintiffs regarding it will be without effect. For it will enable them, if they obtain it, to frustate the efforts, which the 1st defendant may be expected to make to obtain delivery of the property in execution against the 2nd defendant and prevent their being lent, if the 1st defendant is successful to regain possession by an application under Order XXI, Rule 100, of the Code of Civil Procedure or perhaps eventually by a suit. It is relevant that the 1st defendant's pleading in no way disclaims his right to take such action. Vide Thakurain Jaipal Kunwar v. Bhaiya Indar Bahadur Singh (1901) L.R. 31 I. A. 67. For he alleged the validity of his decree and of his title under Veeranna, denying the validity of the plaintiff's title under Nagisetti. And apart from this indication of the defendants' intentions the presumption must be against them, since they are in no better position than the holder of an instrument alleged to be void, of whom it has been said ' If an instrument ought not to be used or enforced, it is against conscience for the party holding it to retain it, since he can only retain it for some sinister purpose.' (Vide Story's Equity Jurisprudence, 13th Ed. I. 10) and this is not to be restricted to transactions, to which the plaintiff is a party. For the. learned author proceeds 'if it is a negotiable instrument, it may be used for a fraudulent and improper purpose to the injury of a third party.
7. Most of the decisions relating to declarations deal with claims to relief in that form in order to the protection of an existing title against repetition of direct denials of it, which have already taken place, and turn on the plaintiff's possession of an interest, entitling him to sue or on the possibility of his asking for consequential relief; and they are not of assistance here, where it must be assumed that the plaintiffs have title and possession and there can be no question of their duty to ask for the latter. Here the sole question is whether the possible danger to be averted by a declaration asked for is so clear and immediate that the court should use its discretion to grant it. The cases do not suggest any test of general application, but have been decided on the particular circumstances of each; and it is natural that this should be so. It is then possible only to consider how the court's discretion was exercised in those, the circumstances of which resemble most clearly those before us.
8. In the case of the Rajah of Pachati (1879) L.R. 2 I. A. 83 it was observed that plaintiff could not have a declaration for future use in consequence of a mere assertion, which might (for all that appeared) have been oral but that one might have been granted if he had been applying for the cancellation of a deed impugning his title: and in Kathama Nachiar v. Dorasinga Thevar (l875) L.R. 2 IndAp 169 the court, whilst refusing a declaration, when the defendant had merely carried hostility by granting power of attorney to an agent in order that he might assist in frustating the plaintiffs claim to a Zemindari, said that its decision would not preclude his impeaching any actual decision of the succession to his prejudice. In Chinnasami Mudaliar v. Ambalavana Mudaliar I.L.R. (1905) M. 18 a declaration was granted regarding an adoption, though it had not been alleged by any party to it in any proceedings by or against the plaintiff. In Harendralal Rai Chowdry v. Nawab Salimalla Bahadur (1910) Cri.L.J. 336 the court made a declaration regarding a revenue sale, though the plaintiff was not the defaulter, and observed ' It has been suggested that plaintiff might have waited, till his title was challenged. In our opinion he was not bound to wait, till he actually found himself in jeopardy. It is perfectly true that the cloud on his title must be cast, before he can ask for its removal, he must allege and prove hostility on the part of the defendants, for no court will move on purely speculative grounds ' and held that the sale had been brought about to annul the encumbrances of the tenure-holders, of whom the plaintiff was one, and that he was therefore entitled to relief None of these cases in which the court interfered or would have interfered, was stronger than the present.
9. I refer next to two cases, in which the facts were very similar to those now in question. The defendants in each were the persons responsible for a ' sale under a mortgage decree, to which the plaintiff was not a party, of property, which he claimed and of which he was in possession. It is not a valid ground of distinction that in those cases the danger apprehended was a delivery after a sale whilst here it is one under a decree. For in them also the delivery would be made without notice to the plaintiff. In one of these cases, Deo Kali Koer v. Kedar Nath I.L.R. (1912) C 704 it was said that' none of the declarations claimed were expressed as declarations of the plaintiff's right to property and that, ' though the proposition at which he aimed, might be in some measure involved in those declarations, that was not what is sanctioned by Section 42.' This would, it might have been supposed, have been reason for dismissing the suit for declaration alone. It was however treated only as entailing that the plaintiff had implicitly asked for an injunction and must pay court fee for that relief. In these circumstances it is not clear what the court intended to lay down in the statement quoted, and I therefore prefer to follow Shivram Chintamani v. Jivu (1888) I.L.R. 13 B 34 in which it was held that, when the plaintiffs title was denied in proceedings, to which he was a stranger, he was entitled to sue and need not wait till he was dispossessed.
10. Lastly Viziasami Tevar v. Sasivarna Tevar I.L.R. (1905) M 560 has been much relied on by the defendants for the position that a declaration should not be granted, when the transaction to be declared invalid would on plaintiff's own allegations be but a brutum fulmen against him. That decision turned mainly on the vexatious nature of the plaintiff's suit and the court's inherent right to prevent abuse of its process by dismissing it. But, so far as it proceeded on the ground referred to, it is distinguishable from the case before us. There the court recognised that if the party alleging an adoption pretended that the conditions, which would validate it, existed, the person affected by it should be allowed to impeach it, but it held that the adoption attacked by the plaintiff was so totally nugatory from his point of view that it would be futile to make it the subject of judicial investigation. Here the decree between the defendants will be in no way nugatory with reference to the plaintiff's right, notwithstanding that they were not parties to it. For, as already pointed out, the court will have no choice but to order a delivery under it and will have no right to hear the plaintiff's objection before doing so. In the one class of cases it cannot be supposed that, the court would act on the transaction at all; in the other it is clear that it would be able and likely to do so to the prejudice of a third party, the plaintiff, until it could hear him. I may point the distinction by reference to Grey v. Mathias (1800) 5 Vesey. Junior. 286 and Bromly v. Holland (1802) 7. Vesey. 3 the court observing in the latter ' It is not just to consider the instrument, merely having regard to the question whether the demand can be directly founded on. it, for an instrument, which apparently though not really, (which must be shown by circumstances de hors) creates an incumbrance, may by being produced defeat the ends of justice .... I do not go the length that, if it is clear that no use can be made of the instrument, that is ground enough for the equitable jurisdiction to take it out of the possession of the party who can make no use of it beneficial to himself; but, if a use may be made of it, prejudicial to another, I should have an inclination to transfer the possession of it.
11. The law standing thus, I hold that the lower Court might properly on proof of the plaintiff's allegations, use its discretion to grant the declaration they claim. The appeal must therefore be allowed and the lower Court's decree set aside, the appeal being remanded for read mission and disposal on the merits in the light of the foregoing.
12. Costs in this Court will be costs in the case.
Seshagiri Iyer, J.
13. The facts in this Second Appeal are fully stated in the Judgment of my learned colleague which I have had the advantage of reading. I shall deal very briefly with the two questions of law which were argued before us.
14. The first suit was based on the title of the plaintiffs to succeed as reversioners and it admittedly did not include the present property. If the plaintiffs sued upon the same title to recover possession of the plaint property there is no doubt that Order II, Rule 2 would be a bar. But they got possession afterwards, and their present complaint is that the defendants are setting up a false title to it which has necessitated their seeking the aid of the Court. If the contention of the respondents were to prevail, it would involve this viz., that a plaintiff claiming to recover possession of the property must also pray that he should be protected against all possible violations of his right in future in respect of that property. It would be futile to file a suit of that nature, and the Court would have rejected it at once. The lower appellate Court was therefore wrong in holding that the suit was barred by Order II, Rule 2.
15. The more important 'question which the Judge has dealt with in less detail relates to the maintainability of the suit under Section 42 of the Specific Relief Act. I do not agree, with his view of the averments in the plaint. He is apparently inclined to hold that if the plaintiffs sued for a declaration regarding their title, the suit would lie; but he reads the plaint as not asking for such a declaration. Reading prayers (1) and (2) of the plaint I have no doubt that the plaintiffs ask for declarations that the property in suit belongs to them as the reversioners of Nagisetty, that the defendants have no manner of title thereto, and that the decree collusively obtained behind their backs by the 1st defendant against defendants 2 and 3 is not binding on them. The real point for decision is whether a suit of this nature is competent, I shall refer very briefly to the history of the legislation which resulted in the enactment of Section 42 of the Specific; Relief Act as that will show what classes of cases the legislature intended to bring within its operation. As was pointed out by Wilson J. in Bhjendra Bhuson Chatterjee v. Trigunanath Mookerjee I.L.R. (1882) C. 761 under the English law a suit for a bare declaration did not lie, unless the party suing could show that he was entitled to some further relief as a result of the declaration. This rule of English Law was in force as a rule of equity and good conscience in this country, until the enactment of Section 15 of Act VIII of 1859; that section ran thus:-'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 declarations of right without granting consequential relief.' Even after this section, the earlier decisions were to the effect, following the principle of English Law already referred to that, unless there was a right to some consequential relief which if asked for, might have been given by the same Court, or unless it was required as a preliminary to obtaining reliefs in some other Court, the Courts should refuse to grant a bare declaration See Kathama Nachiar v. Dorasinga Tevar Sheo Singh Rai v. Mussumut Dahko (I.L.R. 1878) All. 668 Sree Narain Mitter v. Sreemuthy Kishen Soondery Dossee (1873) 11 Beng. L.R. 171. The Specific Relief Act was afterwards passed which undoubtedly widened the scope of the remedy. Under Section 42 of that Act the plaintiff has only to show that he has some legal character or some right to property, and that his opponent is either denying or interested in denying such legal character or title. The object of the section is really to perpetuate and strengthen testimony regarding the title of the plaintiff so that adverse attacks upon it may not weaken it. The policy of the legislature is not only to secure to a wronged party possession of the property taken away from him, but also to see that he is allowed to enjoy that property peacefully. In other words, if a cloud is cast upon his title or legal character he is entitled to seek the aid of the Court to dispel the cloud.
16. What we have to consider in this case is whether the decree obtained by the 1st defendant against the 2nd defendant denies the plaintiff's title to this property. It has been said that it is not the function of the Court to enunciate abstract truisms of law; following that reasoning it may be argued that as the fraudulent decree can in no way affect plaintiff's rights, the Court should not lend itself to. the task of declaring what is obviously indisputable. But although the decree may not affect plaintiff's rights in presenti it is evidence which if allowed to stand may result at some future in disturbing the plaintiff's title. I think that is a sufficient grievance which the Courts should remedy under Section 42 of the Specific Relief Act.
17. Coming to decided cases, in Nurdin v. Allavuddin I.L.R. (1888) M. 134 a patta was antedated and affixed to the plaintiff's house. The learned Judge held that this was not an infringement of the plaintiff's title and that he has no cause of action to sue; this case, sounds as if it were an echo of the rulings under Section 15 of Act VIII of 1859. The decision in Vijayasami Thevar v. Sasivarna Thevar I.L.R. (1905) M. 560 cannot be explained away on the same ground. It lays down that it is not every fabrication of evidence that would enable a plaintiff to come before a Court of law to claim a declaration. But the learned Judges who decided this case were parties to the decision reported in Nurdin v. Allavuddin I.L.R. (1888) M. 134. In the latter case, an adoption was set up which had not the immediate effect of injuring the plaintiff's title. The adoptee was creating evidence which might at. some future lime throw doubt upon the plaintiff's title. The learned Judges held that that was a proper case for granting a declaration under the Specific Relief Act, Thus, so far as Madras is concerned, the latest authority is in favour of the position that wherever evidence is being created which might ultimately result in disturbing the title of the plaintiff he will have a cause of action to sue under Section 42. The decision of the Judicial Committee in Prithi Pal Kunwar v. Guman Kunwar I.L.R. (1890) C. 933 looks on the face of it as if it is opposed to the view taken in Chinnasami Mudaliar v. Ambalavana Mudaliar I.L.R. (1905) M. 48. In that case a taluqdar died leaving a son and a widow, and this son afterwards died leaving a widow who succeeded to the estate. It was held by the Privy Council that the suit of the widow in possession for a declaration that an adoption made by her mother-in-law was invalid should be dismissed. Sir Barnes Peacock in delivering the judgment of the committee referred with approval to the statement of law contained in Sree Narain Mitter v. Sreemathy Soondary Dossee (1873) 11 Beng. L.R. 171 and stated that 'All that is suggested by the learned Counsel on the part of the appellant in support of a declaratory decree is this; that at some time or another after the death of the present plaintiff the person who according to the plaintiff's contention is not an adopted son may by some means, either by act of the Government or otherwise obtain possession as an adopted son.' This was held not to be a sufficient ground for granting the declaration prayed for. Reading the judgment carefully I am of opinion that what the Judicial Committee intended to lay down was that it was a matter of discretion in such cases whether a declaration should be granted or not. The decision cannot be regarded as lying down that a suit to avert a possible apprehended danger will not lie.
18. I therefore agree in the conclusion of my learned colleague that the suit is maintainable.