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Aisa Siddika and ors. Vs. Bidhu Sekhar Banerjee and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.633
AppellantAisa Siddika and ors.
RespondentBidhu Sekhar Banerjee and ors.
Cases ReferredUmatul Batul v. Nauji Kuar
Excerpt:
specific relief act (i of 1877), section 42, proviso - con sequential relief--injunction. - .....prima facie binding upon him. if, therefore, such decrees were allowed to be executed pending the suit for declaration, the result would be that a mere declaratory decree in favour of the plaintiff would not be of any value to him. similarly, in the case of krishna das v. hari charan 14 c.l.j. 47; 15 c.w.n. 825; 10 ind. cas. 865 the decision of the settlement officer had authorised the defendant to collect rent from the tenants, and, the plaintiff found it necessary to ask not merely for a declaration, but also for an injunction to restrain the defendant from interfering with the property. the case before us is of an entirely different character. the plaintiffs are not parties to the decree obtained by the mortgagee defendant against their husbands; they are in no way bound by that.....
Judgment:

1. This is an appeal on behalf of the plaintiffs in a suit for a declaratory decree, which has been dismissed on the ground that under Section 42 of the Specific Relief Act, they were able to seek further relief than a mere declaration and had failed to do so. The case for the plaintiffs is that the property in dispute is wakf, that the second and third defendants, who are the husbands of the plaintiffs and Mutwalis of the property, have, in violation of the trust, executed a mortgage in favour of the first defendant, that the mortgagee has sued to enforce his security and obtained a decree and that he is about to realise the decree by the sale of the property. The plaintiffs, therefore, seek for a declaration that the subject-matter of the litigation is wakf (wherein they are interested as beneficiaries under the wakfnama), that the mortgage is null and void and that the decree based therein cannot be validly executed so as to affect the disputed property. This declaration the plaintiffs seek against the defendants, who are interested to deny the right of the plaintiffs as beneficiaries of an inalienable wakf, because two of them have mortgaged it as their private property and the other has accepted and enforced the mortgage on the same footing. The defendants, resist this claim on the merits and also on the ground that the suit is barred under the proviso to Section 42 of the Specific Relief Act. The Courts below have given effect to the contention last mentioned and dismissed the suit.

2. On behalf of the appellants, it has been argued that the plaintiffs were not able to seek farther relief than mere declaration within the meaning of proviso to Section 42 and that, consequently, the suit as framed is maintainable. In support of this proposition, reliance has been placed upon the cases of Ratnamasari v. Akilandammal 26 M. 291; 13 M.L.J. 27; Lokenath Surma v. Kashab Ram, Doss 13 C. 147; Gour Mohun Gouli v. Dinonath Karmokar 25 C. 49; 2 C.W.N. 76; Sethurayar v. Shanmugam Pillai 21 M. 353; 7 M.L.J. 279 and Kunj Bihari v. Keshavlal 28 B. 567; 6 Bom. L.R. 475. In answer to this argument, it has been contended by the decree-holder respondent that the plaintiffs could ask for an injunction to restrain the decree-holder from proceeding with the execution of his decree and that, consequently, the suit as framed falls within the mischief of the rule embodied in the proviso to Section 42. In support of this view, reliance has been placed upon the cases of Umatul Batul v. Nauji Kuar 6 C.L.J. 427; 11 C.W.N. 705; Thakur Prasad v. Punkal Singh 8 C.L.J. 485 and Krishna Das v. Hari Charan 14 C.L.J. 47; 15 C.W.N. 825; 10 Ind. Cas. 865. In our opinion, the contention of the appellants is well-founded and must prevail.

3. The reasonable construction of the proviso to Section 42 is that the further relief which the plaintiff is bound to claim is such relief as he would be in a position to claim from the defendant in an ordinary suit by virtue of the title which he seeks to establish or of which he prays for a declaration, Abdulkadar v. Mahamed 15 M. 15 and Fakir Chand v. Anunda Chunder 14 C. 586. To take one illustration, if a plaintiff has lost possession of his property, he cannot be permitted to ask for a declaratory decree, because it would be competent to him to join therewith a suit for recovery of possession; he ought not to be allowed to seek the full measure of relief piecemeal, namely, first, a declaration of title, and, next, ejectment in a suit for recovery of possession. This was ruled in the cases of Ganpatgir Bholagir v. Ganpatgir 3 B. 230 and Chokalingapeshana v. Achiyar 1 M. 40. The question, therefore, whether the plaintiff is able to seek further relief than a mere declaration of title, must depend upon the circumstances of the particular case. In Lokenath Surma v. Keshab Ram Doss 13 C. 147 it was held that no declaration of title could be claimed, because the only consequential relief possible was a declaration of title as against the person in actual occupation of the land. On the other hand, the cases of Umatul Batul v. Nauji Kuar 6 C.L.J. 427; 11 C.W.N. 705 and Thakur Prasad v. Punkal Singh 8 C.L.J. 485 indicate that where it is necessary for the plaintiff, in order that he may have complete effective relief, to ask for an injunction in addition to a declaration of title, a pure declaratory suit cannot be maintained. In the two cases mentioned, the decrees assailed by the plaintiff as fraudulent had been obtained against, him; they might be voidable, but till set aside, they were prima facie binding upon him. If, therefore, such decrees were allowed to be executed pending the suit for declaration, the result would be that a mere declaratory decree in favour of the plaintiff would not be of any value to him. Similarly, in the case of Krishna Das v. Hari Charan 14 C.L.J. 47; 15 C.W.N. 825; 10 Ind. Cas. 865 the decision of the Settlement Officer had authorised the defendant to collect rent from the tenants, and, the plaintiff found it necessary to ask not merely for a declaration, but also for an injunction to restrain the defendant from interfering with the property. The case before us is of an entirely different character. The plaintiffs are not parties to the decree obtained by the mortgagee defendant against their husbands; they are in no way bound by that decree. Their case is that the second and third defendants were not competent to execute a mortgage of inalienable wakf property, and that, consequently, the decree obtained by the mortgagee is null and void and wholly ineffectual to affect the mortgaged premises in any way. The plaintiffs seek this declaration in their character as beneficiaries under the trust; but as they are admittedly not entitled to possession at the present time, they cannot sue in ejectment, as was possible in the case of Kunhiamma v. Kunhunni 16 M. 140. But it is suggested that they may ask for a perpetual injunction to restrain the decree-holder from executing his decree, and, a prayer for injunction is unquestionably a prayer for consequential relief as explained in Umatul Batul v. Nauji Kuar 6 C.L.J. 427; 11 C.W.N. 705 and recognised in Marsh v. Keith (1860) 1 Dr. & Sm., 342; 30 L.J. Ch. 127; 6 Jur. (N.S.) 1182; 3 L.T. 498; 9 W.R. 115; 127 R.R. 133 No doubt, a prayer for injunction is a prayer for consequential relief, but still the question remains whether the plaintiffs are bound to ask for an injunction in this case; in our opinion, this question must clearly be answered in the negative. It is plain that even if the decree-holder proceeds with execution, in spite of the present suit, the purchaser can take only the right, title and interest of the judgment-debtors. But, if the case for the plaintiffs be true, the judgment-debtors have no alienable interest in the property at all; consequently, notwithstanding the sale, the position of the plaintiffs will remain unaffected. The plaintiffs cannot, therefore, be compelled to ask for consequential relief in the shape of an injunction: Sobha Pandey v. Sahodra Bibi 5 A. 322; A.W.N. (1883) 49 and Unni v. Kunchi Amma 14 M. 26. The Court will not throw out a suit on the ground that it is barred by the proviso to Section 42 unless it is satisfied beyond all doubt that the plaintiff ought to seek further relief and yet has claimed nothing beyond a declaration of title. In the case before us, we are not prepared to hold, for the reasons assigned, that the plaintiffs should seek further relief than a mere declaration; the view we take does not in any way militate, against the principles explained in Umatul Batul v. Nauji Kuar 6 C.L.J. 427; 11 C.W.N. 705.

4. The result is that this appeal is allowed, the decrees of the Courts below set aside and the case remanded to the Court of first instance in order that the questions raised in all the issues (except the third which we have decided) may be determined. The costs of this appeal will abide the result.


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