Anil K. Sen, J.
1. This is an appeal from an original decree. The plaintiff in a suit for declaration that she is the ultimate beneficiary in respect of the suit property and for an injunction restraining the defendant from alienating or encumbering the said property, is the appellant in this appeal. The suit was dismissed by the learned Judge, 4th Bench, City Civil Court at Calcutta and the decree of dismissal dated February 28, 1974, in Title Suit No. 707 of 1972 is the subject-matter of challenge in this appeal. The suit property is the undivided 1/3rd share in premises No. 23, Ram Mohan Saha Lane, P. S. Burtolla, Calcutta. That premises is the dwelling house of the co-sharer owners.
2. Certain facts are not in dispute and those may be set out briefly as follows:--
The suit property that is the 1/3rd share in the aforesaid dwelling house was inherited in equal shares by two brothers Baidya Nath and Asutosh. In or about the year 1920 Baidya Nath died very young leaving behind the defendant Kalidasi Dassi as a child widow. By the Will executed by Baidya Nath, he bequeathed all his properties including his 1/6th share in the aforesaid dwelling house in favour of his brother Asutosh but subject to a provision that his widow Kalidasi would have a right of residence in the dwelling house, as aforesaid, during her lifetime. The Will further provided that apart from being properly maintained by Asutosh, the widow will get a monthly allowance of Rs. 20/- out of the estate and in the event the widow does not live with Asutosh in the dwelling house she would be entitled to a sum of Rs. 40/- per month towards her maintenance. There was a direction in the Will to the effect that Asutosh must set apart a sum of Rs. 12,000/- invested in Government securities for the purpose of meeting the expenses for the widow's maintenance and monthly allowance out of the income thereof. The widow, the defendant in the present suit had been living in the dwelling house and Asutosh throughout his lifetime maintained her. Asutosh, however, failed to set apart the above sum of Rs. 12,000/- or any sum out of which the widow could be maintained. Towards the end of his life Asutosh became apprehensive and repentant and on January 18, 1972, executed a deed of settlement in favour of the defendant Kali-dassi Dassi, inter alia, providing : 'AND WHEREAS the Settlor is now desirous of making some arrangement whereby his obligations under the aforesaid terms of settlement and the last Will and Testament of Baidya Nath Bhar deceased aforesaid can be carried out to some extent after his death. NOW THIS DEED WITNESSETH that in consideration of the reservations of the premises stated above the Settlor doth hereby grant assign and convey unto the Trustee all that the undivided one-third share vested in the Settlor in premises No. 23. Ram Mohan Saha Lane ..... TO HOLD the same for the benefit of herself, the trustee during her lifetime who shall be the sole beneficiary also under this Deed of Settlement on condition that upon the death of the Trustee the only daughter of the Settlor, namely Maya Rani Basak or her heirs shall be entitled to the said undivided one-third share in the said premises No. 23, Ram Mohan Saha Lane, Calcutta-6 PROVIDED HOWEVER that in the event of the said premises No. 23, Ram Mohan Saha Lane, Calcutta-6 or the undivided one-third share thereof hereby conveyed to the trustee is sold under orders of Court or is acquired by any public authority the proceed shall be held by the Trustee for her maintenance and she shall be entitled to spend the income as well as the corpus for her own maintenance and after her death if any residue is left thereof the same shall belong to Srimati Maya Basak the daughter of the Settlor or her heirs PROVIDED FURTHER HOWEVER that in case the Trustee finds that incumbent and imperative to sell the said undivided one-third share which is hereby conveyed to the Trustee for her own maintenance during her lifetime she shall have the right and power to dispose of and encumber the same without any reference to anyone else and defray the costs of her own maintenance out of the income us well as the corpus.'
3. Asutosh died shortly after the execution of the aforesaid deed of settlement on Feb. 1, 1972. Asutosh's widow died within a month from the death of Asutosh's death leaving behind the plaintiff, their only daughter to be the heir and legal representative of Asutosh. The plaintiff instituted the aforesaid suit as against her aunt Kalidasi Dassi on the allegation that after the death of her father she was ready and willing to pay a sum of Rs. 40/-per month to the defendant for her maintenance as was being paid by her father during his lifetime. She actually sent a sum of Rs. 120/- being the maintenance for 3 months, namely, January to March 1972, by money order which the defendant refused to accept. According to her, she apprehended that defendant refused to accept the maintenance offered by her with a view to encumber the suit property and ultimately sell it off for arrears of maintenance though she had no right to do so. The plaintiff claimed that she is the ultimate beneficiary under the deed of settlement dated January 18, 1972, as aforesaid, and be-ing entitled to the property is seriously prejudiced by the wrongful acts of the defendant in not accepting the maintenance offered by her and there is every possibility of her being deprived of the property in which she has a vested interest under the deed of settlement. On these allegations she instituted the above suit on the prayers referred to hereinbefore.
4. The defendant Kalidasi Dassi contested the suit by tiling a written statement. She strongly disputed the claim of the plaintiff that she was entitled to a sum of Rs. 40/- per month only as maintenance and pleaded that under the Will of her husband she was to be properly maintained. She admitted having received a sum of Rupees 40/- per month from Asutosh for some time taking into consideration the position that Asutosh having squandered his inheritance became indigent and was aged and ailing. She, however, pleaded that even Asutosh in paying the aforesaid sum of Rs. 40/-used to bear other expenses of fuel, electricity, clothing, medicines etc., for the defendant, and as such, it cannot be claimed that the sum of Rs. 40/- per month would be sufficient maintenance for her, more so, when after Asutosh's death she has to bear additional expenses like rates and taxes, electricity charges and repairing costs of the suit property. She admitted having refused to accept the sum of Rs. 120/-sent to her by money order but she claimed that she refused to do so because the plaintiff had no legal obligation to maintain and the amount sent by her can hardly be proper maintenance in any view. On the deed of settlement she took the defence that she during her lifetime was the sole beneficiary having every right to alienate or encumber the suit property for the purpose of meeting the needs of her maintenance from the income as well as the corpus thereof. She denied that the plaintiff had got any vested interest and pleaded that she has merely a contingent interest only in respect of the residue that may be left back by her. On the pleading, as aforesaid, the defendant claimed that the suit is not maintainable and further pleaded a bar under Sections 34 and 39 of the Specific Relief Act.
5. Pending the suit, the defendant Kalidasi Dassi entered into an agreement to sell the suit property with one of the other co-sharers of the said dwelling house. The plaintiff filed an application for temporary injunction and though an ad interim injunction was granted the court ultimately decided to dispose of the application for injunction along with the suit.
6. At the trial, the learned Judge framed the following issues:--
1. Is the suit maintainable as framed?
2. Is the suit bad for defect of parties?
3. Is the suit barred under Sections 34 and 39 of the Specific Relief Act?
4. Has this court jurisdiction to entertain this suit?
5. Is the plaintiff's alleged interest in the suit property subject to the right of the defendant to sell or encumber the same to meet the needs for her proper maintenance?
6. What should be the amount of proper maintenance of the defendant?
7. Is the plaintiff entitled to get the declaration prayed for?
8. Is the plaintiff entitled to get permanent injunction restraining the defendant from encumbering or selling the suit property?
9. To what relief, if any, is the plaintiff entitled?
7. Parties adduced evidence, both oral and documentary. On such evidence, the learned Judge proceeded to consider issues 1, 3 and 5 before the other issues. Interpreting the deed of settlement, the learned Judge came to the conclusion that the interest created in favour of Mayarani, the plaintiff was merely a contingent interest. He held as such because of two reasons given by him. The first reason assigned by the learned Judge is that reading the first portion along with the two provisos it was left with Kalidasi to utilise not only the income but also the corpus in case the property is acquired by the State or even to sell or encumber the property and use the proceed thereof all for her maintenance so that what Mayarani is to get is clearly uncertain. The learned Judge observed: 'Her interest could be vested upon non-happening of a contingency and, therefore, the interest as long as Kalidasi lived was contingent in nature.' The second reason given by the learned Judge again on the interpretation of the deed is that when the settlement provided that on the death of Kalidasi the property or the residue would belong to Mayarani or her heirs, the interest created in favour of Mayarani must be contingent as it is dependent upon an uncertain event of her surviving Kalidasi. Having come to the conclusion that the interest created in favour of Mayarani is a contingent one, the learned Judge concluded that the plaintiff is not entitled to either any declaration or injunction as prayed for as no such prayer can be granted in view of the provision of Sections 34 and 39 of the Specific Relief Act. Issues 2 and 4 were not pressed and were decided in favour of the plaintiff and so far as issue No. 6 is concerned, the learned Judge concluded that the same does not arise for consideration. Issues 7 and 8 were answered against the plaintiff as according to the learned Judge the plaintiff is not entitled to any of the relief prayed for. The suit was accordingly dismissed. Hence, the appeal by the plaintiff.
8. Mr. Mitter appearing on behalf of the plaintiff/appellant has strongly assailed the finding of the learned Judge to the effect that under the deed of settlement the interest created in favour of the plaintiff Mayarani was merely a contingent one. Referring to the material part of the deed, Mr. Mitter has strongly contended that the settlor made a grant of maintenance in favour of the defendant and the interest in her favour was merely a life estate. The remainder, according to Mr. Mitter, was given to Mayarani and her interest therein was a vested Interest. So far as the provisos are concerned, according to Mr. Mitter those provisos merely vested a power to use the corpus in one case and to encumber or alienate the property and then use the proceeds thereof in the other but limited for the purpose of her maintenance only. According to Mr. Mitter, vesting of such a power did not extend the life interest nor did it render the interest in favour of Mayarani in respect of the residue contingent. It is true, according to Mr. Mitter, that in the event the defendant was to exercise her powers and use the cor-pus for her maintenance what was otherwise vested in Mayarani might be divested but that did not derogate from the fact that the interest in respect of the residue was a vested interest in favour of Mayarani. So far a? the second reason given by the learned Judge is concerned. according to Mr. Mitter. the residue had been vested in Mayarani with a provision for gift over in favour of her heirs in the event of her death which conies squarely within the last part of the explanation to Section 19 and does not derogate from the grant being the grant of a vested interest in the residue.
9. Lastly it has been contended by Mr. Mitter that even assuming the plaintiff MayaranL to have a mere contingent interest in the estate left by her father still she had a right to get a declaration of such an interest and prevent the waste thereof by the life estate holder, namely, Kalidasi. This aspect, Mr. Mitter contends has been totally overlooked by the learned trial Judge when upon his finding that the plaintiff has merely a contingent interest in the estate the learned Judge dismissed the suit on the ground that the plaintiff is not entitled to any declaration or injunction in view of the provisions of Sections 34 and 39 of the Specific Relief Act.
10. During the pendency of the suit, as indicated hereinbefore, the plaintiff apprehended that the defendant Kalidasi, on the authority of the power vested in her by the Deed of Settlement of her father is going to sell off her father's l/3rd share in the suit property and obtained an order of injunction restraining the defendant from encumbering or transferring the said share in the suit property till the disposal of the suit. The suit was disposed of on February 28, 1974, and the defendant Kalidasi sold off the said 1/3rd interest on March 11, 1974, notwithstanding the fact that the plaintiff had earlier filed an application on March 4, 1974, praying for stay of operation of the judgment and decree in order to enable her to file an appeal and obtain an order of injunction from the appellate court. In view of the said subsequent development we have, on the prayer of the appellant, added the transferees as parties-respondents to this present appeal in view of the assignment by the defendant Kalidasi in their favour. Such transferees have appeared to contest the appeal.
11. Mr. Chatterji appearing on behalf of the contesting respondents has strongly contended that the learned Judge in the trial court came to a correct conclusion that the interestcreated in favour of the plaintiff by the Deed of Settlement of her father was merely a contingent interest. As such, Mr. Chatterji has contended that she was not entitled to maintain any suit on the reliefs claimed by her. Mr. Chatterji has contested each of the points raised by Mr. Mitter.
12. We have carefully considered the rival contentions put forward before us. In our view, the Deed of Settlement has to be read as a whole for determining the nature of the grant envisaged therein. Reading the document as such we feel no hesitation in accepting the contention of Mr. Mitter that the grant in favour of Kalidasi was a maintenance grant. Under it she is to hold the property during her lifetime for her own maintenance and on her death the same would devolve upon the plaintiff Mayarani or her heirs as may be surviving her. No doubt under the two provisos referred to hereinbefore Kalidasi was vested with the power to sell off the undivided l/3rd share in the suit property and spend the corpus as well but that was only for the purpose of providing her own maintenance and not otherwise. Such a power in our view does not enlarge the life interest sought to be created in favour of Kalidasi for her maintenance. But even then we are not in a position to accept the contention of Mr. Mitter that the remainder was vested in the plaintiff Mayarani. Though strong reliance is placed by Mr. Mitter on the Explanation to Section 19 of the Transfer of Property Act, we are unable to construe the grant to mean vesting of the remainder in Mayarani subject to a defeasance clause. When the grant provides that upon death of Kalidasi 'The only daughter of the settlor, namely, Mayarani or her heirs shall be entitled to the said undivided 1/3rd share', it contemplated that Mayarani must survive Kalidasi in order to be entitled to the remainder. Accrual of the interest in her favour being dependent upon an uncertain event of her surviving the life estate holder Kalidasi it cannot but be said that the interest created in her favour by the grant was a contingent interest. Construing a grant on similar terms which provided 'On the death of the last surviving widow, the daughter of the late Raja or failing her the next heirs of the late Raja, if any, will inherit the property', the Privy Council in the case of Mohitai v. S. Sundaram AIR 1936 PC 131 held that 'No gift is expressed in favour of the daughter until the death of the last surviving widow and no right vested in her until she survived that period.' In our view in the present case the heirs of Mayarani do not come in, if Mayarani predeceases Kalidasi, as her heir inheriting the vested interest in her favour but they come in as independent grantees under the grant itself if only all or any of them survives Kalidasi. In our view, the learned trial Judge correctly interpreted the grant in this respect and the decision in the case of Ram Chandra v. Jagdeshwari Prasad AIR 1937 Pat 247 well supports the conclusion. The plaintiff's claim of vested interest in the estate left by her father under the Deed of Settlement must, therefore, fail.
13. The next point raised by Mr. Mitter assumes importance on our findings made hereinbefore as to the nature of the interest created in favour of Mayarani by the grant. The learned trial Judge has no doubt dismissed the suit on the view that since the interest of Mayarani is contingent, and as such, uncertain she is not entitled to claim any of the reliefs claimed in the suit. Reliance has been placed on Sections 34 and 39 of the Specific Relief Act. In our view, however, the learned Judge was not right in his conclusion that merely because the plaintiff's interest in the property is contingent she is not entitled to any relief. Construing Section 42 of the old Specific Relief Act which corresponds to Section 34 of the Specific Relief Act, this court in the case of Tarak v. Anukul, (1945) 49 Cal WN 716 pointed out that a right to property though signifies an existing right of the plaintiff such right need not necessarily be a right which is vested. 'No declaration can possibly be made on the basis of a chance or a mere hope entertained by the plaintiff but a person having even a contingent right in a property may sue for a declaration, though the court in exercise of its discretion may refuse to make such declaration if it considers the claim to be too remote or that the declaration given would be ineffectual or abortive. The question, therefore, really is not one of jurisdiction but one of discretion to be exercised by the court.' In our view there exists a just cause for Mr. Mitter to complain that the learned Judge in the present case totally overlooked this aspect when he proceeded to think that once he found the plaintiff's interest to be contingent the reliefs claimed by her must necessarily fail. Mr. Mitter had rightly drawn our attention to the decision of the Privy Council in the case of Raj Shatranjai v. Raj Bahadur Singh (1950) 77 Ind App 98 wherein the Privy Council restored a decree passed by the learned Subordinate Judge declaring the plaintiff's contingent interest in the remainder by observing 'It is clear that it was competent for him to do so under Section 42 of the Specific Relief Act.'
14. Here, in the present case though the interest of Mayarani may be contingent on her surviving the defendant Kalidasi, her interest is not far too remote. Moreover, the circumstances which led to the filing of the suit show that the plaintiff apprehended that the defendant Kalidasi is likely to sell of the property with a view to defraud all her interest in the remainder. She was, therefore, suing for declaration of her right, title and interest in the property even if such interest is contingent and to prevent a waste by the life estate holder which may result in depriving her of such interest. In our view, therefore, she was entitled to prefer a claim on the reliefs prayed for and we shall, therefore, consider the evidence how far she is entitled to the reliefs so claimed.
15. So far as the relief of declaration is concerned, on our findings hereinbefore she is not entitled to any declaration that she is absolutely entitled to the property. She may be entitled to a mere declaration that she has a contingent interest in the remainder which would mature only in the event she survives Kalidasi, the life estate holder. But such a declaration can be given only if on facts such a declaration is not ineffectual. On the grant in favour of Kalidasi it is well established that the grantor in making the maintenance grant in favour of Kalidasi gave her the power to sell off the grantee's undivided 1/3rd share if such sale is necessary for defraying the costs of her maintenance. The evidence well establishes that the subject matter of the grant is 1/3rd share of the grantor in the homestead of the co-sharers which fetches no income at all. Such evidence further shows that the property being the undivided residential house, other co-sharers would not allow any part of it to be let out for realising any income out of it. No doubt Mr. Mitter had strongly contended that when the plaintiff herself was agreeable to meet the necessary costs for Kalidasi's maintenance and she offered to do so Kalidasi had no occasion to sell off Asutosh's 1/3rd share in the said property. On this point, however, we find that the plaintiff never offered to pay the entire cost of maintenance to Kalidasi. She was insisting on paying a sum of Rs. 40/- on the ground that when her father during his lifetime was paying the said amount to Kalidasi towards her maintenance that sum alone she is entitled as the costs of her maintenance. It was never her case in course of the trial that she was agreeable to meet all the necessary costs for Kalidasi's maintenance. No doubt Asutosh, father of the plaintiff during his lifetime used to pay Rs. 40/- per month to Kalidasi but according to the evidence of Kalidasi apart from the said amount paid to her Asutosh used to defray many other expenses for fuel, clothings, daily offerings to deities, tiffin, pilgrimage and other things. In our view, however, it is wholly immaterial what was the amount that was being paid by Asutosh since in his grant he has not limited the maintenance to Rs. 40/- a month. When in the grant he clearly provided that the widow Kalidasi would have a life interest in his share in the property for meeting the needs of her maintenance and when the grant further provided that she would be at liberty to sell off the property and use the corpus for such maintenance, the grantor really intended that Kajidasi would be entitled to meet all her just needs for her maintenance out of the estate. On the evidence on record, it cannot be disputed for a moment that when Kalidasi had no other income, a sum of Rs. 40/- per month would be no maintenance to her. In such circumstances, she was within her rights to reject the offer of Rs. 40/- per month and sell off the property for meeting her needs. In that view, we feel no hesitation in holding that on the facts, the plaintiff is not entitled to any of the reliefs prayed for by her. She is not entitled to any declaration because on the facts such a declaration would be ineffectual.
16. In the result, the appeal fails and is dismissed. There would be no order for costs.
B.C. Chakrabarti, J.
17. I agree.