Sital Raut and another vs Adalat Raut and others

Fazl Ali, J.—The circumstances giving rise to this appeal are briefly these: One Surujman Raut died leaving two widows Mt. Deorati and Mt. Markathi and in the year 1898 they executed two deeds of gift one in favour of Mt. Dhanwati, a daughter of Surujman Raut by his first wife Deorati, in respect of 5 bighas 7 kathas of land; and the other in Favour of Udit Raut, an agnate of Surujman in respect of the remaining property left by Surujman. Defendant 1 in this action is Mt. Dhanwati, the daughter of Surujman. Defendants Nos. 2 to 4 are the descendants of a brother of Udit Raut and are admittedly in possession of the properties which had been transferred to Udit under one of the deeds of gift. It is common ground that Mt. Dhanwati married three persons one after another, their names being Lobhi, Budhan and Ramballi. The plaintiff''s case in the plaint is that he is the son of Mt. Dhanwati by her second husband Budhan, that on the death of the two widows of Surujman Mt, Dhanwati became entitled to those properties also which the former had transferred to Udit; that the failure on the part of Mt. Dhanwati to recover possession of the properties from Udit or defendants 2 to 4 amounted to an alienation and that he was entitled to recover possession of those properties from defendants 2 to 4. The plaint concludes with a prayer for the following reliefs among others:

(1) That it may be determined by the Court that the property mentioned in Sch. 1 forms part of the estate of Surujman Raut, grandfather of the plaintiff; and that after the death of Mt. Markathi and Mt. Deorati, grandmothers of the plaintiff, defendants 2 to 4 had no right thereto and that defendant 1 had no right to allow defendants 2 to 4 to retain possession thereof. (2) That on the adjudication of the above facts, possession may be awarded to the plaintiffs over the property of defendant 1 by dispossessing defendants 2 to 4. Defendant 1 supported the plaintiff but defendants 2 to 4 contended that he was he was not the son of Mt. Dhanwati that he had no cause of action to bring the suit, that the suit was not maintainable and that it was barred by limitation. At the trial the lawyers appearing for the parties made certain admissions, the pleader for the plaintiff admitting that the plaintiff was not entitled to any of the reliefs prayed for except the declaration that ho was the daughter''s son of Surujman Raut and the pleader for the defendants admitting that the right of defendants 2 to 4 under the deed of gift executed by the widows of Surujman in favour of Udit Raut legally came to an end with the death of the widows in 1908 and the position of defendants 2 to 4 since that time became that of trespassers who were liable to ejectment by the next reversioner on the death of defendant 1.

The learned Subordinate Judge held that the plaintiff was the son of Mt. Dhanwati and gave a declaration to that effect, overruling the defendants'' objection that the plaintiff was not entitled to maintain a suit for such declaration. Defendants 2 to 4 have now preferred this appeal to this Court from the decree of the Subordinate Judge and it is contended on their behalf: (1) that the suit for a mere declaration is not maintainable; (2) that the suit is barred by limitation; and (3) that the Subordinate Judge has erred in holding that the plaintiff is the son of Mt. Dhanwati. In contending that the suit is not maintainable, the learned advocate for the appellant referred to S. 42, Specific Relief Act which runs as follows:

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 make therein a declaration that he is so entitled and the plaintiff need not, in such suit, ask for any further relief.

It is contended on behalf of the appellants that the present suit is not maintainable as in the plaint, there is neither any statement to the effect that the defendants had at any time denied the fact that the plaintiff was the son of Mt. Dhanwati nor has it been said in so many words that the defendants were interested in denying his title. Now, it is true that the plaint does not show that the defendants had ever denied the plaintiff''s title, but there can be no doubt from the facts of the case which are set out in the plaint that defendants Nos. 2 to 4 were interested in denying the plaintiff''s title and this is also apparent from the written statement of the defendants and from the attitude taken up by them during the trial. The learned advocate for the appellant relies upon the observation made by this Court in Nirmal Kumar v. Surjan Dusadh, 1929 Pat 433 = 123 I C 630 = 9 Pat 425 that in a declaratory suit a declaration claimed by the plaintiff will not be granted as a rule, unless it is shown that a cloud had been thrown on the title of the plaintiff before the suit was instituted. It is to be remembered that the plaintiff''s case is that the bulk of Surajman''s estate which should have been in the possession of his mother (who according to him is the rightful heir of Surajmarn) has passed into the hands of trespassers and it appears to me that on these allegations the plaintiff''s suit was clearly maintainable. In Mohesh Chandra Misra v. Nistarini Dassya, 1923 Cal 382 = 77 I C 576, a suit had been brought for a declaration that an ex parte decree and a sale in execution of that decree were fraudulent and it was argued on behalf of the defendants that there being no present danger to be averted by the declaration asked for and as no cloud had been thrown on the plaintiff''s title before the institution of the suit the suit was not maintainable. The learned Judges of the Calcutta High Court however rejected the contention, observing that it could not be suggested in the circumstances of the case that the defendant was not interested in denying the title of the plaintiff or that the plaintiffs had no business to bring ;him into Court. I am also not prepared to lay down any such rigid rule as I am asked to lay down by the learned advocate for the appellant that in determining whether the defendant is interested in denying the plaintiff''s title the Court can, in no circumstances, take into consideration the pleading of the defendant. It is enough to point out that in Jaipal Kunwar v. Indar Bahadur Singh (1904) 26 All 238 = 31 I A 67 = 8 Sar 625 (P C), their Lordships of the Privy Council did take into consideration the written statement of the defendant and while stating their reasons for refraining from interfering with the decision of the Courts in India observed:

When the appellants came to file their written statement, and thereby to define their position and put their own interpretation upon what had gone before there was no ambiguity left. It was made clear that they relied upon an alleged title in the first appellant inconsistent with any present or future rights of the respondent or any other reversionary heir.

In my opinion therefore the suit could not have been thrown out merely on the ground that the plaintiff had not stated in so many words in the plaint that defendants 2 to 4 had either denied or were interested in denying his title. A more serious contention which was advanced on behalf of the appellant was based upon what may be conceded to be a settled rule in this country that the Courts will not, at the instance of a presumptive reversioner, grant declarations which may be unavailing or premature, and reliance is placed in this connexion upon the decision of the Privy Council in Janakiammal v. Narayanaswami Aiyar, 1916 P C 117 = 37 I C 161 - 43 I A 207 = 39 Mad 634 (PC). In that case the plaintiff had brought a suit as a presumptive reversionary heir against a widow in possession of her husband''s estate with the avowed object of protecting the property and made charges against the widow of base misappropriation and other wrong dealings with the property, but as none of those charges were established, the Privy Council held that he was not entitled to a declaration of his right as a reversionary heir even though, his title had bean disputed in the suit. Lord Shaw who delivered the judgment in that case observed:

It follows from this state of the law that it is impossible to predicate at this moment who is the reversionary heir to the deceased proprietor. If the Court of law proceeded to make any declaration of right upon that subject, such a declaration would be subject to being rendered valueless by the development of events. It would not, after events had developed, be even of authority in regulating or declaring the rights of the present respondents as against any other claimant to the character of reversionary heir. A priori, accordingly a declaration of right granted at the present stage would appear to be stamped with something in the nature of futility.

and later his Lordship observed:

In their Lordships'' opinion the plaintiff-respondent was not entitled to such a declaration. Had waste of, or danger to the estate been established, the title of the plaintiff to bring those matters before the Court in his representative capacity as a possible reversionary heir would have been allowed, and a decree following upon the finding of fact of such waste or danger would have followed. But the whole of that part of the case has failed. And in their Lordships'' opinion the case must accordingly be treated as if the suit had been directed simpliciter to a declaration of the plaintiff''s individual right.

This decision must be read with another decision of the Judicial Committee in Saudagar Singh v. Pardip Narain Singh, 1917 P C 196 = 43 I C 484 = 45 I A 21 = 45 Cal 510 (P C), and in my opinion the principles laid down in nether of these cases seem to disentitle the plaintiff from getting the declaration which has been given in this particular case. In the present case there can be no doubt that the plaintiff is the person who would succeed to the estate of Surujman Raut on his mother''s death and it cannot be seriously argued that the passing of the bulk of the estate into the hands of persons who had no right to it did not involve any danger to the estate. Indeed the learned advocate for the appellant concedes that the plaintiff would have been entitled to a declaratory decree, if he had also asked for the further relief that the deed of gift executed by the two widows of Surujman Raut was not binding upon him. This relief was in fact substantially asked for by the plaintiff in his plaint and issue 6 was framed by the trial Court to the following effect: Issue 6:

Is the deed of gift, dated 1st March 1898, executed by Mt. Deorati and Markathi genuine and valid and is it operative, after their death and binding on the plaintiff ?

It appears however that the learned pleader for the plaintiff for some reason which is not apparent from the record admitted that the plaintiff was not entitled to any of the reliefs except the declaration that he was the daughter''s son of Surujman Raut. I find however that not with standing this admission the learned Subordinate Judge proceeded to deal with issue 6, and decided it in favour of the plaintiff, though in discussing the issue he once more referred to the admission of the plaintiff''s pleader that he was not entitled to any relief except the declaration as to his being the son of Mt. Dhanwati and also referred to the admission of the defendants'' pleader that defendants 2 to 4 had after the death of the two widows of Surujman, become trespassers and were liable to ejectment by the next reversioners of defendant 1. It is contended by the learned advocate for the respondents that it was in view of the latter admission made by the defendant''s pleader that the plaintiff''s pleader did not consider it necessary to press for any relief other than the one that has been granted by the learned Subordinate Judge.

However that may be, in the peculiar circumstances of the case and particularly in view of the admission made by the pleader for the defendants, it appears to me that the suit should not be thrown out on the technical ground that the plaintiff while asking for a declaration about his being the son of Mt. Dhanwati, did not press for the further relief that the deed of gift executed by the two widows of Surujman should be declared to be not binding upon him. There can be no doubt that if the plaintiff is the son of Mt. Dhanwati and if the property in question was that of Surujman Raut, the deed of gift executed by the two widows of Surujman would not be binding on the plaintiff. The learned advocate for the appellant tried, to argue that having regard to certain acts stated in the two deeds of gift, the properties which were the subject-matter of these deeds would appear to be not the exclusive properties of Surujman but also of Udit and Jata as members of the same joint family. However plausible this case may be, it was not put forward by defendants 2 to 4 in their written statement in which they did not traverse the allegation made by the plaintiff in his plaint that the properties which were the subject-matter of the gift were Surujman''s properties, but on the other hand founded their title on the deed of gift in favour of Udit Raut, stating that the widows of Surujman were competent to execute it and the deed in question was valid and had conferred an absolute right to the properties in dispute upon defendants 2 to 4. In my opinion it cannot be said in the circumstances of the case that the declaration sought by the plaintiff was futile.

It was also not premature, because according to the plaintiff the property was already in possession of persons who had no right to it and if the plaintiff had delayed the institution of the suit, the evidence which was available to him might have been lost and in any case if he instituted the suit, after the death of Mt. Dhanwati, his mother as is suggested by the learned advocate for the appellant he could not avail himself of the evidence of Mt. Dhanwati in proving that he is her son. It must also be remembered that the matter of granting a declaration claimed under S. 42, Specific Relief Act, is one within the discretion of the Court. So once the trial Court has in the exercise of the discretion vested in it under S. 42, Specific Relief Act, granted the declaration to the plaintiff under that section, the appellate Court should not, as a rule, reverse the decree, unless it finds that the discretion has been improperly exercised. This principle was emphasized by the Judicial Committee in Jaipal Kunwar v. Indar Bahadur Singh (1904) 26 All 238 = 31 I A 67 = 8 Sar 625 (P C), where their Lordships expressly stated that they were always slow to reverse the decision of the Courts below made in the deliberate exercise of a discretion entrusted to them by law. It appears to me therefore that the plaintiffs were entitled to maintain the suit and that this Court should not interfere with the decree passed by the Court below granting them the declaration which they had asked for.

The second question which was raised in this appeal was one of limitation and in this connexion the learned advocate for the appellant was at pains to point out that the suit could not escape the bar of limitation, because the plaintiff was not in existence at the time when the cause of action for the suit arose, that is to say, when the two widows of Surujman executed the deed of gift. It appears to me however that the question of limitation does not arise on the facts of the case. The learned advocate for the appellant sought to apply Art. 125, Limitation Act, to the present case but it does not clearly apply, because this suit has been instituted by the plaintiff after the death of Mt. Deorati and Markathi whose alienation is challenged in the suit. As was pointed out in Bhagwanta v. Sukhi, (1900) 22 All 33 = 1899 A W N 159 (F B), and as was also conceded by the learned pleader for the appellants in the Court below, the Article which is properly applicable to the present case in Art. 120, Lim. Act. Now, in this particular case the right to sue could not have accrued to the plaintiff before his birth and therefore under Art. 120, read with S. 6, Lim. Act, the plaintiff was clearly entitled to bring the suit within three years of his attaining majority. This view seems to be supported by Bhagwanta v. Sukhi, (1900) 22 All 33 = 1899 A W N 159 (F B) and Govinda Pillai v. Thayammal, (1905) 28 Mad 57 = 14 MLJ 209, in which it has been pointed out that a person who is a minor on the date of the alienation by a widow or is born subsequently during the life of the widow is entitled to the benefit of S. 6, Lim. Act.

Besides in a number of cases it has been held that the starting point of limitation under Art. 120, is the date on which the circumstances entitling the plaintiff to have his interest guarded first came to his knowledge. In the plaint it is stated that the plaintiff came to know, when he attained majority, that defendants 2 to 4 were in possession of the bulk of the estate of Surujman Raut and in any case it is evident that he could not have come to know those facts before his birth. It is clear therefore that he was entitled to bring the suit within, three years of his attaining majority. As to when he attained majority I find that the evidence given by the plaintiff as to his age and the date of his birth is almost one-sided and I have no doubt that the plaintiff''s version on this point must be accepted. As the learned Subordinate Judge points out, while the plaintiff has stated that he was born in the month of Magh 1336 Fasli Sambat, the defendants have not suggested any other date of his birth in their evidence.

The only point which remains to be considered is the question of fact, namely, whether the plaintiff is or is not the son of Mt. Dhanwati. In order to prove his case the plaintiff has examined not only Mt. Dhanwati herself, but also a number of witnessed belonging to the village to which his father Budhan admittedly belonged and their evidence apparently found favour with the learned Subordinate Judge. As a rule this Court is slow to interfere with the decision of the trial Court when it is based upon the oral evidence of witnesses who appeared before it to give their evidence, but in this particular case we have been taken through the entire evidence on the record and we are inclined to agree with the Subordinate Judges view that the evidence adduced on behalf of the plaintiff is much superior to that adduced on behalf of the defendants. In the first place one cannot overlook the fact that the plaintiff''s cage is supported by Mt. Dhanwati herself. Mt. Dhanwati''s evidence has been Criticized on the ground that she has made one or two statements on minor points which seem to be inaccurate and that her statement in cross-examination that she has two young sons living with her is not supported by any other evidence. The alleged inaccuracies however are so trivial that it will not serve any useful purpose to discuss them and the matter of the existence of two sons is irrelevant to the present enquiry. It may also be observed that although Mt. Dhanwati''s deposition was recorded on 19th December defendant 2 who gave his evidence on 20th December did not contradict Dhanwati on the question of her living with two other sons. It is argued that if the plaintiff had been the son of Dhanwati he would have accompanied her when she went to live with Ramballi whom she married after the death of Budhan. This argument though it deserves consideration does not appear to me to be decisive. The plaintiff was at least eight or nine years old by that time and Rambaran who appears to have been an agnate of Budhan and who is said to have taken him back to his father''s village may not have liked the boy to live with his mother after she had re-married. Besides the evidence discloses the fact that Dhanwati soon returned to Piparpatti and began to live with the plaintiff. I may here refer to two admissions made by D.W. 4 Jang Bahadur Raut who is a resident of Piparpatti where Budhan lived and where the plaintiff still lives and who is the only witness among those examined by the defendants who was competent to make a statement about Budhan and the plaintiff. This witness has stated in his cross examination that the plaintiff was born after Budhan had married defendant 1. If this statement is true, it makes the case of the defendant that the plaintiff is the son of Budhan by his former wife Murti, highly improbable even if we accept the statement made by this witness which is entirely opposed to the statement made by the other witnesses that Budhan married Dhanwati during the lifetime of Murti. As a matter of fact it was admitted by D.W. 4 that Budhan married Dhanwati one year after Murti''s death. The other statement made by this witness which seems to me to support strongly the case of the plaintiff is that the plaintiff was 38 or 19 years of age at the time when the document Ex. B was executed by Ramnarain Bajpai, the first witness for the plaintiff. This document was executed in the year 1925 and if the plaintiff was 18 or 19 years old at that time he must have been born sometime about 1907. Now a reference to Ex. A which is a plaint filed by Mt. Dhanwati in 1907 shows that it was signed by Budhan on her behalf as her husband. This would go to show that the plaintiff was born at the time when Dhanwati was the wife of Budhan. It appears to me therefore that the finding of the Subordinate Judge that the plaintiff is the son of Dhanwati must be upheld and the appeal must therefore be dismissed with costs.

Rowland, J.

I agree.