1. This is an appeal by the plaintiff from a decree of the District Judge of Noakhali, dismissing her suit on the preliminary ground that it was barred by Section 42 of the Specific Relief Act, 1877, and could not proceed in its present form because it was in substance a suit to cancel the will of her father Naba Kumar Roy, Chowdhuiy. The following facts are undisputed. One Raj Kamal Roy Chowdhury by his will dated 13th Magh 1265 left his property to his son Naba Kumar Roy Chowdhury and the child of which his wife was then pregnant, if it were a son. In the event of his son or both his sons, not living long the Testator empowered his wife to adopt two or three sons in succession. Raj Kamal died shortly after making his will in 1265 leaving his widow Ram Durga Deby Chowdhurani and his son Naba Kumar him surviving. The child born after Raj Kamal's death was a daughter. Naba Kumar thus became entitled to the property and in his turn made a will dated 2nd Jaista 1282 by which he conferred on his wife (defendant No. 2) power to adopt a son. He further purported to confirm the authority which his mother and his aunt Bhairabi Debya Chowdhurani might have to adopt sons to their respective husbands, namely his father Raj Kamal, and his uncle Krishna Mangal Roy Chowdhury. His wife (defendant No. 2) was then pregnant. If a son was born to him that son was to inherit. Naba Kumar further directed by Clause 7 of his will that if his aunt or mother adopted a son he should be regarded as his (the Testator's) brother and share equally in the family property with his begotten or adopted son. In default of any begotten son of his own or adopted son of his aunt, mother, or wife, or children of such adopted sons or anyone in the line of his grandfather, he bequeathed a small share of the property to his two sisters Brojeswari Debya and Moheshwari Debya and their sons, and the remainder to the family Thdkur. Naba Kumar died in 1282 shortly after making his will, and the plaintiff is his ' posthumous daughter. In 1284 Ram Durga purported to adopt one Chandra Kumar Roy Chowdhury as a, son to her late husband Raj Kamal Chandra Kumar died in 1296, and defendant No. 1 is his widow and heiress. The plaintiff's case is that the adoption cannot affect her rights as heiress of her father Naba Kumar, inasmuch as the property vested in her on her birth subject to the life-interest of her mother, defendant No. 2. The will of Naba Kumar is not mentioned in the plaint and the plaintiff has in answers to interrogatories denied that she had any knowledge of it until it was pleaded in the written statement of defendant No 1. Defendant No. 1 has, it is said, entered into possession of the property or a share of it wrongfully and with the consent and collusion of defendant No. 2. Plaintiff, accordingly, asks fora declaration of her title to the property left by Naba Kumar Roy Chowdhury subject to the life-interest of defendant No. 2 and for a declaration that the acts of ownership done by defendant No. 1 are inoperative as against her.
2. The District Judge has dismissed her suit, as above stated, holding that it was incumbent on the plaintiff to ask to have first the adoption of Chandra Kumar and, secondly, Naba Kumar's will set aside, before she could succeed in this suit.
3. In this view we think that the District Judge was clearly wrong. As pointed out by the Bombay High Court in Kunj Bihari Prasadji Purshottam Prasadji v. Keshavlal Hiralal 28 B. 567 Section 42 of the Specific Relief Act does not empower a Court to dismiss a suit merely because the plaintiff being able to seek further relief than a mere declaration of title omits to do so. It merely says that in such a case no Court shall make a declaration. If there is some relief which the plaintiff was able to seek but has not done so, an opportunity should certainly be given to the plaintiff to include that relief, conditionally (if necessary) upon her paying the additional Court-fees. The cases of Sakharam Krishna v. The Secretary of State for India Council 29 B. 19 and Kalabbai Bapuji Chudasama v. The Secretary of State for India in Council 28 B. 332 are to the same effect. It is obvious, therefore, that for that reason alone the case must be remanded to the District Court for a retrial. In this case, however, the facts of which are not unlike those in the case first cited, we are unable to see that as against defendant No. 1 the plaintiff was able to seek other relief at this stage. Her case is that she is the heiress of her father, and, subject to her mother's life-interest entitled to the property of which he died possessed. Her mother being still alive, she cannot claim possession. She is only entitled to have her rights declared. As for setting aside the adoption, it is immaterial to the plaintiff whether the adoption be set aside or not. What she maintains is that her rights are better than those of the alleged adopted son, because the adoption did not take place until the property had vested in her and that it could not be divested, and secondly, that the bequest in the will to the adopted son was void. The District Judge admits that there is some force in this contention but appears to think that the questions can be raised only if the plaintiff asks the Court to adjudicate upon the validity of the adoption. We see no necessity for such a cause. The questions properly arise in this suit as between the plaintiff and the defendant No. 1 and there is nothing to prevent the Court considering and determining them as incidental to the main decision in the suit, regarding the plaintiff's title.
4. So, too, with regard to the will, the Court may, and indeed must, construe it to see whether it is opposed to the plaintiff's case. It may be noted that probate was once granted of this will to Bhairabi and Earn Durga. Application was made to the District Judge for revocation of that probate on several grounds (1) that the will was a forgery, (2) that Naba Kumar was in fact a minor and (3) that both the executrices were dead. Revocation was ordered on the last ground, the other questions being left open (see appeal from Original Decree No. 384 of 1908, which we decided on the 23rd July last). We see no reason why the validity of the will so far as it affects the plaintiff's case against defendant No. 1 should not be inquired into in this suit. The plaintiff's claim to relief will not be thereby changed. She will be still suing only for a declaration. The only consequential relief that she could well ask for would be possession, and that relief is not open to her, on her case as she puts it, so long as her mother is alive.
5. The case of Thakoordeen Tewaree v. Nawab Syed Ali Hussein Elian 21 W.R. 340 : 13 B.L.R. 427 : 1 I.A. 192 on which the learned Pleader for the respondent relied appears to us to be distinguishable from the present. There the plaintiffs were seeking to set aside a deed executed by their mother through whom they claimed though they framed their prayer as for a declaration only.
6. In Joy Narain Giree v. Grish Chunder Mytee 22 W.R. 438 : 16 B.L.R. 172 the facts are not clearly stated, and it does not appear what the plaintiff actually sought. But apparently it was a similar case to that last cited, as Couch, C.J., remarked where a plaintiff asks to have a deed or will set aside,, there is a prayer for substantial relief.' That is not the case here. At the same time we may suggest that for the better determination of the question arising in this suit it would be advisable that the estate of the plaintiff's deceased father should be represented. The probate of the will having been revoked as above stated there is at, present no legal representative to be brought upon the record. The District Judge should consider whether it would not be advisable to. appoint an administrator pendente lite of that estate, unless before the hearing, letters of administration have been granted to some person. In that case that administrator might be made a party. For these reasons we think that the decree of the District Court must be set aside and the case remanded to that Court under Order XLI Rule 23 for trial on the merits.
7. The costs of this appeal to abide the result. We fix the hearing fee at 5 gold mohurs.