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Uday Chandra Paul and ors. Vs. B.H. Parmar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Reported inAIR1941Cal153
AppellantUday Chandra Paul and ors.
RespondentB.H. Parmar and ors.
Cases ReferredLtd. v. Gopalpur Tea Co.
Excerpt:
- .....pay rs. 500 per annum as royalty which would be a first charge upon the colliery.2. in the present suit the plaintiffs-appellants alleged that fraud had been practised upon them by the defendant, that the former suit had been instituted without their knowledge, that the husband of defendant 1 in the present suit had contrived to get the former suit instituted with the assistance of papers which had been used, as vakalatnamas, but upon which he had obtained the signatures of the appellants at a time when those papers were blank. the learned subordinate judge found that there had been no fraud, but held that the plaintiffs were entitled to a declaration that the solenama embodied in the decree in the earlier suit was inoperative and not binding upon the parties for want of registration.....
Judgment:

Khundkar, J.

1. This appeal arises out of a suit in which the plaintiffs who are the appellants here prayed for a declaration that a decree based upon a solenama was illegal, fraudulent, inoperative and void, and for an order that the said decree be set aside. The material facts are as follows : The plaintiffs-appellants who are four in number are the darputnidars of a mouza known as mouza Bendi. In 1894 their predecessors granted a mining lease of this mouza to one Mr. White who subsequently transferred his rights to defendant 2. On 2nd August 1935 the plaintiffs by a registered deed of conveyance transferred to defendant 1 their right to receive royalty for the years 1930 to 1946. Later, defendant 1 executed a deed of agreement by which she undertook to pay to the plaintiffs a certain proportion of the royalty for the years 1930 to 1946. In 1937, a suit for the recovery of royalty was instituted against defendants 2 and 3. The plaintiffs in that suit were the four plaintiffs-appellants and defendant 1 in the suit out of which this appeal arises. The suit was compromised and a decree was passed embodying the solenama. The minimum royalty payable under the original lease was Rs. 80 per annum, but, under the terms of the solenama, the defendants agreed to pay Rs. 500 per annum as royalty which would be a first charge upon the colliery.

2. In the present suit the plaintiffs-appellants alleged that fraud had been practised upon them by the defendant, that the former suit had been instituted without their knowledge, that the husband of defendant 1 in the present suit had contrived to get the former suit instituted with the assistance of papers which had been used, as vakalatnamas, but upon which he had obtained the signatures of the appellants at a time when those papers were blank. The learned subordinate Judge found that there had been no fraud, but held that the plaintiffs were entitled to a declaration that the solenama embodied in the decree in the earlier suit was inoperative and not binding upon the parties for want of registration under Section 49, Registration Act. The defendants appealed and the plaintiffs filed a cross-objection in which they prayed for a declaration that the decree was void on the ground of fraud. The learned District Judge who heard the appeal upheld the finding of the learned subordinate Judge that there had been no fraud, but he also held that the learned subordinate Judge had not acted in the proper exercise of his discretion under Section 42, Specific Relief Act, in granting the declaration just referred to. He accordingly reversed the order of the learned subordinate Judge and dismissed the suit. The only point urged in the present appeal on behalf of the appellants is that they are entitled to the declaration which was granted by the learned subordinate Judge. Mr. Mukherji has, in support of this contention, invited our attention to para. 10 of the plaint which is in these terms:

The plaintiffs further state that the aforesaid solenama not being signed, executed and registered according to law is for all reasons void and inoperative and no decree can be passed on its basis.

3. Mr. Mukherji has contended, that the declaration granted by the learned subordinate Judge was within his discretion, and that in any event the exercise of that discretion was not a matter with which the lower appellate Court should interfere. In support of this contention, Mr. Mukherji has cited the following cases: Isri Dut Koer v. Mt. Hansbutti Koerain ('84) 10 Cal 324 was a decision of the Privy Council in an appeal which arose out of a suit brought during the life of a Hindu widow by the presumptive heir, entitled on her death to the possession of the property in which she held her limited estate, to have an alienation by her declared to operate only for her life. The High Court on appeal held that the plaintiff was not entitled to the declaration prayed for, for reasons which Ainslie J. stated as follows:

It seems to me that we ought not to allow this suit to be protracted and great additional expense to be incurred, when it is quite possible that the widows or one of them may survive the plaintiffs, so that the estate may never vest in them and the decision arrived at may prove no bar to further litigation.

For the purposes of this appeal it is sufficient to say that the Court will not, in a declaratory suit, decide intricate questions of law, when no immediate effect and possibly no future effect can be given to its decision, and when the postponement of the decision to the time when there may be before the Court some person entitled to immediate relief (if the decision is in favour of the plaintiff) will not prejudice his rights in any way.

4. Mr. Mukherji has relied upon a passage in the decision of their Lordships of the Privy Council which appears at page 333 of the report:

But their Lordships think that a strong case of inexpediency should be shown for refusing declaratory relief to classes of persons expressly recognised by the law as suitors for such relief.

5. That however is not a complete statement of the principle of their Lordships' decision which goes on to state:

They do not say that there may not be such a case, but they cannot find it here. The only reason assigned for refusing relief on the ground of discretion is that part of the case raises a difficult point of law, the decision of which, though involving expense and delay, may after all not be binding upon the actual reversioners. That may be a reason more or less weighty according to circumstances....If the defendants had in the first instance objected to declaratory relief and had taken the opinion of the subordinate Judge on that point, there would then have been more ground for refusing relief in order to save expense and litigation. But they did not do that. They disputed the whole case of the plaintiff. An important issue of fact, and two important issues of law, were decided by the first Court in the plaintiff's favour. After all this it comes very late for the Court above to reverse the action of the Court below on the ground of discretion and in order to save further litigation and expense.

6. In our judgment, the decision just referred to is no authority for the contention raised in the appeal before us. In the case relied on, the defendants had not objected to the declaratory relief in the trial Court, and the question was raised for the first time in appeal in the High Court which refused the relief in order to prevent protraction of the litigation and further expense. Mr. Mukherji next relied on the language of a portion of the headnote in Partab Singh v. Bhabuti Singh ('13) 17 CWN 1165 which reads as follows:

Held that Section 42, Specific Relief Act, did not apply to a suit by P and A for a declaration that the decree in B's suit was not binding on them and to have the decree in their own suit set aside.

7. The only justification for this wording is a passage in the decision of their Lordships of the Privy Council at p. 1172 of the report which is in the following terms:

The Judicial Commissioner and the First Additional Judicial Commissioner having differed in opinion on the point of law as to whether Section 42, Specific Relief Act 1877, applied to the case, directed that the appeal should be laid before the Second Additional Judicial Commissioner under Section 98, Civil P. C., 1908. The Second Additional Commissioner did not apparently confine himself to a consideration of the point of law with which alone he had under Section 98, Civil P. C., 1908, jurisdiction to deal, he apparently agreed with the opinion of the First Additional Judicial Commissioner that Section 42, Specific Relief Act, 1877, applied, and held that the appeal should be allowed and the suit should be dismissed with costs in both Courts.

8. The decision of their Lordships was that the appellants P and A should have a decree setting aside the decree in their suit and declaring that the agreement of compromise and the decree in the suit of B were not binding upon them. Even though the declaration prayed for was granted we do not find it possible to read into this decision the implication of the headnote that the Privy Council held that Section 42, Specific Relief Act, did not apply. Mr. Mukherji then drew our attention, to a passage in the judgment in 8 ALL Sant Kumar v. Deo Saran ('86) 8 All 365 at p. 374 in which Mahmood J., stated:

I hold that, so long as a Court of first instance possesses jurisdiction to entertain a declaratory suit, so long as that Court entering into the merits of the plaintiff's case arrives at right conclusions, and awards a declaratory decree, such a decree cannot be reversed in appeal simply because the discretion has been improperly exercised. I know that in saying this I am laying down a strong proposition of law....

9. The principle of that decision so far as it related to section 42, Specific Relief Act, is accurately summarized in the concluding portion of the headnote at p. 366:

The awarding of declaratory relief, as regulated by Section 42, Specific Relief Act, is a discretionary power which Courts of equity are empowered to exercise with reference to the circumstances of each case and the nature of the facts stated in the plaint, and the prayer of the plaintiff; that so long as a Court of first instance possesses jurisdiction to entertain a declaratory suit, and entering into the merits of the case arrives at right conclusions and awards a declaratory decree, such a decree cannot be reversed in appeal simply because the discretion has been improperly exercised; and that such improper exercise of discretion under Section 42, Specific Relief Act, has no higher footing than that of an error, defect or irregularity, not affecting the merits of the case or the jurisdiction of the Court, within ,the meaning of Section 578, Civil P. C.

This does not imply that even in cases where the discretionary power to award declaratory relief has been exercised wholly arbitrarily, and in a manner grossly inconsistent with judicial principles the Court of appeal would have no power to interfere.

10. In our judgment, it is the last sentence that is of importance for the purposes of the appeal before us. Can it be said that the discretion to award declaratory relief was exercised by the trial Court in a manner not grossly inconsistent with judicial principles? The plaintiffs prayed in the first instance for a declaration that the compromise decree was void on the ground of fraud. Fraud has been negatived by both the Courts below, but the trial Court granted the plaintiffs a declaration that the solenama not being registered under the law is not binding upon the plaintiffs under Section 49, Registration Act. It should be noted that the solenama embodied the terms of the lease, and the solenama itself was merged in the decree. The effect of the trial Court's decision therefore is that the lease embodied in the decree not having been registered is not binding upon the plaintiffs under Section 49, Registration Act. Now that section is in the following terms:

No document required by Section 17 or by any provision of the Transfer of Property Act 1882, to be registered shall (a) affect any immovable property comprised therein or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chap. II, Specific Relief Act 1877, or as evidence of part performance of a contract for the purposes of Section 53A, T. P. Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.

11. The declaration granted by the trial Court that the solenama is not binding upon the plaintiffs under Section 49 of the Registration Act, amounts to no more than saying that the legal consequences of non-registration enumerated in Section 49 attach to the decree in which the solenama is embodied. It is not a declaration that the decree is void, because, it may still be received as evidence of a contract in a suit for specific performance, or as evidence of part-performance of a contract for purposes of Section 53A, T. P. Act, or as evidence of any collateral transaction not required to be effected by a registered instrument. In Sreenarain Mitter v. Kishan Soondery Dassee ('73) 11 Beng LR 171 it was held that it is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not under all the circumstances of the case to grant the relief prayed for. This case was cited with approval in Lankapara Tea Co., Ltd. v. Gopalpur Tea Co., Ltd. ('36) 63 Cal 1008 In the latter case, the reliefs which the plaintiff had prayed for included certain declarations based on the rights of the plain. tiff as the lower riparian owner, and the disabilities of the defendant as the upper riparian owner in respect of a river. With respect to these reliefs the trial Court's direction was as follows:

The plaintiff's right to have the free and natural flow of the Pugli river through its original and natural course be declared, and it be declared that defendants 1 and 2 have no right to interfere with the right subject to the terms of the compromise with defendant 1; and subject to the compromise between the plaintiff and defendant 1 it be declared that defendants 1 and 2 have no right to erect bunds etc., in the bed of the Pugli, to narrow down the bed or divert the waters of the Pugli from its original and natural course, or to obstruct the free and natural flow of the Pugli through its original and natural course.

12. On appeal this Court held that it was not prepared to support the bare declaration for more reasons than one. One of the reasons was that the declaration was unnecessary because it purported merely to recite the law such as the learned Judge understood it to be, and was not likely to be of any real utility to the plaintiff; for in a future suit which he might have to institute, should any fresh obstruction be caused, this declaration he would have without any difficulty, the moment he showed that he was a lower riparian owner and that there had been no contract which precluded him from his rights as such. Now, it seems to us that the declaration granted by the learned subordinate Judge in the present case was virtually a statement of the legal consequences of non-registration under Section 49, Registration Act, of the lease embodied in the compromise decree and we are of the opinion that such a declaration is not contemplated by Section 42, Specific Relief Act, and that the lower appellate Court acted rightly in reversing the decree of the learned trial Court. This appeal accordingly fails and is dismissed with costs. The hearing fee is assessed at two gold mohurs.

Lodge, J.

13. I agree.


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