Darshan Kumari vs Kaushalya Devi

Claiming right through Khoju Ram, the appellant filed a suit for declaration to the effect that the sale deed executed by defendant No. 2 in favour

of defendant No. 1 dated 1471966 in respect of the house was null and void inoperative so far as the appellant was concerned. It was submitted

that the said Khoju Ram had executed a Will in favour of the plaintiff, defendant No. 2 and one Kasto. Suit house was assigned to defendant and

Kasto jointly. After the death of Kasto, her half share in the suit house was to devolve upon the plaintiff by operation of the provisions of the Hindu

Succession Act but defendant No. 2 instead of honouring the rights of the plaintiff, tried to defendant the same by selling the suit house and other

house. The plaintiff allegedly took timely action by filing a suit against defendant No. 2 for joint possession alongwith application for temporary

injunction restraining defendant No. 2 from alienating the suit house pending disposal of the suit. The temporary injunction was issued on 131986 It

was submitted that the said suit was compromised and a compromise decree was passed on 19111970 providing that both the houses referred to

in the plaint, including the suit house, shall be enjoyed by defendant No. 2 during her life time and after her death, the plaintiffappellant became the

owner of those houses. It was contended that defendant No. 2 as per the terms of the Will of Khoju Ram and the compromise decree had to

enjoy the other house previously owned by Khoju Ram only during her life time. Defendant No. 2 is stated to have executed a Will in respect of

the said house in favour of one Smt. Bimla Devi. The will is alleged to have been executed without any right which prompted the plaintiffappellant

to file the suit for declaration for cancellation of the will but when she obtained the copy of the will, she came to know about the sale deed, the

subject matter of the present litigation. It is submitted that defendant No. 2 had no right to alienate the suit house to any body as she was not the

absolute owner of the suit house The sale deed was alleged to be null and void so far as the plaintiff was concerned.

The suit of the plaintiff was resisted by the. Defendants on various grounds resulting in the framing of the following issues:

Whether defendant No. 2 was the sole owner of the suit house and was incompetent to alienate the disputed house? OPP

Whether the impugned sale deed has been executed by the person incompetent to do so because it has been executed during the pendency of

previous instituted suit as such is hit by the provisions of lispendis ? OPP

Whether the impugned sale deed is in violation of the terms of the alleged compromise decree dated 19111970 as such it is null and void so far

as the interests of plaintiff are concerned? OPP

Whether the suit is maintainable without the prayer of possession ? OPP

In case Issue No. 3 is proved in affirmative, whether the temporary injunction dated 131966 and the compromise decree dated 19111970 are

without jurisdiction and are not binding on defendant No. 1 ? OPD

Whether plaintiff is competent to file the suit being heir of deceased Khoju ? OPP

Whether defendant No. 2 is bonafide purchaser for value and is in possession as full owner ? OPD

In case issue No, 7 is proved whether the plaintiff has any right to challenge the impugned sale deed ? OPD

Whether the suit has not been properly valued for the purposes of court fee and jurisdiction ? OPD

Whether the suit is time barred and the court has no jurisdiction to try the same ? OPD

Relief?

Both the courts below dismissed the suit filed by the appellant against which the present appeal has been filed on the ground that the courts

below have not properly appreciated the evidence led and the law applicable in the case. It is submitted that the issues were not properly disposed

of on the basis of the evidence produced. The suit was wrongly held to be barred by time and that Mst. Nanki was not the absolute owner of the

suit house and could not alienate the property. The suit was also not barred under the provisions of Sec. 42 of the Specific Relief Act.

I have heard learned counsel for the parties and perused the record.

In proof of her case the plaintiff examined Mulkh Raj and Janak Singh as her witnesses besides getting her own statements recorded, Bansi Lal

and Charan Dass were examined as witnesses on be half of the defendants. Kaushalya Devi also appeared in support of her case. A certified copy

of the plaint from file No, 62 of 1967 was produced by the plaintiff and the original sale deed Ex. DA by the defendant. The trial Court decided

issues No, 1,2,3, 4,6,7,8 & 10 against the plaintiff. Issue No, 5 was held having become redundant. Issue No. 9 was decided against the

defendant.

Mr. Bakshi. learned counsel appearing for the appellant has submitted that the courts below wrongly decided issues against the appellant and

were not justified to held that simpliciter suit for declaration was not maintainable or the same was barred by time. It is submitted that on the death

of Khoju in the year 1962, Kasto and the plaintiff became entitled to own and possess the suit property and after the death of Kasto in the year

1965 the appellant could not have claimed possession to the exclusion of Mst. Nanaki when she filed the suit on 2291975. It is submitted that no

consequential relief was available to the appellant and the suit for declaration was the only remedy available to her for removing the cloud cast

upon her right where after she could have filed the suit either for joint possession of the property. Sec. 42 of the Specific Relief Act provides that

any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny.

his title to such character or right and the Court may in its discretion pass a decree for declaration that he is so entitled. It is, however, provided

that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. The

object of Sec 42 is merely to perpetuate and strengthen the testimony regarding the title of the plaintiff, to remove the cloud which might be cast

upon the legal character of the plaintiff and is designed. to make clear what is doubtful which it is necessary to make clear by placing a solid and

lasting foundations the testimony regarding the legal character and title lest the passage of time obliterate it or result in its disappearance. The relief

contemplated by Sec. 42 is a discretionary relief according to the circumstances of each case. No. distinct and comprehensive rule as to the right

of declaration can be laid down irrespective of the circumstances of the particular case. It is not a matter of absolute right for a party to seek a

declaratory decree which is discretionary with the Court and the discretion has to be exercised according to the peculiar facts of each case on the

basis of sound legal principles and ex debito justicea. The object of the proviso attached to Sec. 42 of the Act. is to prevent the multiplicity of the

litigation and casts a duty upon a litigant to claim further relief which is available to him consequent upon declaration. Further relief contemplated by

the proviso to See. 42 is such relief which flows directly and necessarily from the declaration sought and a relief appropriate to and necessary

consequent on the right or title asserted. It is ancillary relief to the main prayer made and not a relief in the alternative which, if insisted upon, should

be separately claimed or adjudicated. In simple words further relief means, additional relief which a plaintiff would be in a position to claim by

virtue of title he seeks to establish or be declared which should be appropriate to and consequent on the right asserted or denied. Such further

relief should be arising from the cause of action on which the plaintiff bases his suit for declaration. The proviso to section would not be applicable

where it is found not necessary for the plaintiff to ask for any consequential relief and where the declaration alone itself is sufficient to protect his

interests, no further relief need be asked.

It has been argued on behalf of the appellant that under the circumstances of the case no further relief consequent upon the declaration claimed was

available to the plaintiffappellant and the courts below were not justified in dismissing the suit. It is submitted that the relief of partition and joint

possession was not a consequential relief available to the plaintiff in the present litigation. In support of his contention Mr. Bakhshi has referred to

AIR 1936 Rangoon 316 to urge that no prayer for further relief by way of partition need be claimed in a suit for declaration to the effect that

certain properties were joint family properties between the panties to the suit. On the basis of this authority it is submitted in general terms that a

relief of partition and joint possession is not a consequential relief in a suit for declaration claiming the property to be joint. The argument of the

learned counsel is without any legal basis and the authority cited by him does not advance the case of the appellant. In that case the suit was

between the members of the joint family where admittedly no further relief was available to them. It was rightly held by Justice Mackney. ""In suit of

this nature each case has to be considered in itself and in its peculiar circumstances. Reference to other cases turning on the interpretation of the

proviso to Sec. 42 cannot be of much help unless the circumstances in those cases are identical with those in the suit. "" It. was further held: ""In a

suit for declaration that certain property is the joint property of a joint family consisting of the plaintiff and the defendants and that the plaintiff has a

certain share in it in which the plaintiff alleges that he is in possession of the property and that one of the defendants is holding out that it is not the

joint family property, is not barred by proviso to Sec. 42; although no further relief by way of partition is claimed, relief of partition in the

circumstances of the case is not a further relief but is a merely and entirely different right which it may not be necessary for the plaintiff under the

circumstances of the case to exercise for the time being.

In AIR 1921 Lahore, 307 it was held that a mere suit for declaration was maintainable where the land was in possession of tenant and neither

party was in possession.

In AIR 1935 Lahore, 795 it was held that a person with a mere naked possession cannot compel the owner to institute the suit for possession

where it is found that he was not possessed of the property owned by him. Where actual owner and another are in possession of a property, a suit

by them for a declaration without consequential relief was held competent.

A suit for determination of share of the members of the joint Mitakshra family in the family property and for a declaration that they were entitled

to enjoy such shares there in was held maintainable in AIR 1917 Patna 67.

The consensus of the authorities of various High Courts regarding the interpretation of proviso to Sec. 42 is that if on the basis of the pleadings

and circumstances of each cage some consequential relief irrespective of its nature is available to the plaintiff but not prayed for, the suit in that form

has to be held not maintainable. In the instant case, the courts below have, therefore, rightly held that the plaintiff despite being entitled to a further

relief consequent upon declaration failed to claim it, therefore, her suit was not maintainable in that form.

However, it has to be seen that if a suit for simpliciter declaration is held not maintainable and the plaintiff found entitled to a further relief within

the meaning of Sec. 42 of the Specific Relief Act, what course should be adopted by the Court while disposing of the lis. Whether the suit should

be dismissed or an opportunity should be afforded to the plaintiff to amend the plaint incorporating the further relief available to him under the

circumstances of the case? The object of Sec. 42, as discussed hereinabove, is not intended to punish the defaulting party but to avoid unnecessary

multiplicity of litigation and adjudicate all the disputes arising on the basis of the same cause of action in that litigation. Under such circumstances an

opportunity must be given to a party to seek the further relief which is held to be available to the plaintiff consequent upon the declaration. A

Division Bench of Punjab and Haryana High Court held in Union of India V. Pearl Hosiery Mills (AIR 1961 Panjab 28.) That if a further relief

available is not asked for, an opportunity should be given to the plaintiff to amend the plaint. Dealing with the procedure required to be followed

under such circumstances the Court held :

........ if it be held that this was a pure declaratory suit and a declaration could not be given under the proviso to Sec. 42 of the Specific Relief Act,

unless the plaintiff had asked for further relief which was open to him, the suit under the law could not be dismissed but the plaintiff would be given

an opportunity to amend his plaint so as to include the prayer for consequential relief. It was held by a Bench decision of this Court in Bhagat Singh

V. Satnam Transport C. Ltd. F. A. 189 of 1956 (AIR 1961 Punj. 278) in which I wrote the judgement, that

....... In a case where the plaintiff who is able to sue for further relief, omits to do so and sues for a declaration alone, and the proviso to Section

42 of the Specific Relief Act is attracted, the Court should not dismiss the suit but should give the plaintiff an opportunity to amend his plaint so as

to include a prayer for consequential relief, or face the possibility of the suit being dismissed. But if after an opportunity to amend the plaint has

been given to the plaintiff, he fails to avail that opportunity, then there is no alternative but to dismiss the suit.

Same view was taken by Calcutta High Court in AIR 1982 NOC 275.

Both the courts below after holding that the plaintiff was entitled to a further relief, however, chose not to give any opportunity to the plaintiff to

amend her plaint by incorporating the plea of further relief available to her consequent upon the declaration sought It was obligatory for the courts

below, therefore, to have afforded the appellant an opportunity to claim such further relief and on her failure, to pass the appropriate order

dismissing the suit or rejecting the plaint. The finding of the Courts below on issue No. 4 cannot be upheld and is accordingly setaside.

Further relief consequent upon declaration cannot be held to be the main relief prayed for by the plaintiff for the purposes of Limitation Act nor

the plaintiff can be afforded an opportunity to amend the suit in a manner prejudicial to the defendant amounting to taking away the right which

accrues to him on the lapse of time. It is not disputed that period of limitation for the suit for declaration even under the residuary Article 119 of the

Limitation Act is only 6 years from the date when the cause of action accrues to the plaintiff The appellant appears to have slept over her right and

did not exercise, due diligence seeking amendment of the plaint or getting the verdict of the Court at an early stage.' The suit of the plaintiff for mere

declaration was, therefore, rightly held by the courts below barred by time having filed admittedly after 6 years from the date when the right to file

the suit accrued to her on 1471966. The finding of the courts below on issue No. 10, is therefore, upheld, As the relief claimed by the plaintiff was

barred by time, or the relief of possession which has been held by the courts below to be available to her had become barred by time, at the time

of passing of judgement by the trial Court, no useful purpose would have been served by allowing the appellant to amend the plaint to incorporate

a relief regarding which the remedy stood already barred on account of the provisions of the Limitation Act.

No other point was urged before me.

Consequent upon decision of No. 10, the present appeal, which has no merit, is dismissed and the suit of the plaintiff is held to be barred by time.

No order as to costs.