Nagammal vs Agoramurthi by his next friend and grandfather Veeraswami Pillai

Krishnaswami Nayudu, J.—The defendant is the appellant. Her husband one Muthayya Pillai, executed a deed of settlement on the 12th

March, 1947, the construction of which is one of the questions to be determined in this appeal. The case of the plaintiff is that there is a settlement

of the properties under the document providing for a life interest in favour of the defendant and a vested remainder in his favour. The suit is for a

declaration that the plaintiff is entitled to the suit properties after the lifetime of the defendant. Subsequent to the execution of Exhibit B-1, the

deceased husband of the defendant executed two other documents in quick succession, one on the 9th April, 1947, Exhibit B-2, a will and the

other on the 27th June, 1947, Exhibit A-1, a settlement deed. By these two documents whatever rights that were conferred on the plaintiff had

been taken away and absolute rights in the properties were conferred on the defendant. The contention of the defendant was that notwithstanding

the description of Exhibit B-1 as a settlement deed, it was virtually a will and it was therefore competent for her husband Muthayya Pillai to

execute the subsequent documents Exhibits A-1 and B-2 and that in any event the plaintiff is not entitled to a declaratory decree.

As regards the first contention, on an examination of the terms of the settlement deed Exhibit B-1, both the lower Courts found that it effected a

present transfer and could not be construed as a will. It is urged now on behalf of the appellant that all the beneficial interests in the property were

directed to be given effect to only after the lifetime of Muthayya Pillai and there was nothing to show, excepting that the document has been

described as a settlement deed and has been registered, that it amounted to a present transfer of the property. But this argument ignores the

penultimate clause in the deed which says that on this date he had left the aforesaid property with Nagammal and that Nagammal herself shall pay

the kist of the aforesaid property. This recital is clear enough to show that a present transfer of the properties is effected, though the beneficial

interest in the property has been postponed to be enjoyed after the lifetime of the settlor. This recital is sufficient to support the conclusions of the

lower Courts as regards the construction of the document as amounting to a settlement and not a will. Added to this recital, there is this fact that

the document has also been registered and is termed as a settlement deed. Though a mere description of a document may not be conclusive to

arrive at a correct conclusion as to its true nature, the fact that it has been termed as a settlement deed and has been registered taken along with the

express recital in the document is sufficient to up-hold the finding of the lower Courts.

The other ground on which this appeal has been argued is that the plaintiff was not entitled to a declaratory decree. The trial Court, while holding

that Exhibit B-1 was not a will, however took the view that since under Exhibit B-1 the plaintiff had only a contingent right, a declaration could not

be granted, since the declaration he asked for was that he will be entitled to the property after the lifetime of the defendant. In appeal, however, the

learned Subordinate Judge, while holding that Exhibit B-1 is the operative document and Exhibits B-2 and A-1 are therefore void and also while

agreeing with the trial Court that the plaintiff had obtained under Exhibit B-1 only a contingent interest, granted a declaration not in the terms asked

for in the plaint but a declaration to the effect that the plaintiff will be entitled to rights in respect of the suit properties, such rights being governed by

the terms of the settlement deed Exhibit B-1. It is urged on behalf of the appellant that the plaintiff has no present interest in the property and that

his interest is dependent on his fulfilling certain conditions imposed on him, the condition being that the plaintiff, the brother''s son of the deceased

Muthayya Pillai, was to perform the funeral ceremonies to himself and also to the defendant after her lifetime and should conduct himself to the

satisfaction of the defendant and should it happen that after his lifetime the plaintiff did not properly protect his wife and did not live amicably with

her, his wife, the defendant, is to leave the aforesaid person and she would be entitled to deal with the properties as she liked. But in case there

was amity, the plaintiff would get the properties in their entirety after the lifetime of the defendant. It is the case of the plaintiff that he performed the

funeral ceremonies of Muthayya Pillai. The fulfillment of the other two conditions would however arise for consideration only after the lifetime of the

defendant. Since both the Courts have held that it is only a contingent interest that the defendant had got in Exhibit B-1, it is not necessary for me at

this stage to examine the correctness or otherwise of the contention as the finding is not questioned before me in any memo of objections or

otherwise. The question however for determination now is as to whether the declaratory decree granted by the lower Court can be supported.

u/s 42 of the Specific Relief Act.

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. 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.

It is not the case here that under the proviso the plaintiff is in a position to ask further relief and that he had not done so; but the very granting of a

declaration is questioned on the ground that since the plaintiff has no present interest but his interest is only contingent, no declaratory decree could

be granted. In support of this contention reliance is placed on the decision of a Special Bench of the Calcutta High Court reported in Samarendra

Chandra Deb v. Birendra Kishore Deb L.R. (1908) Cal. 777, where it was held that a person cannot sue for a declaration of his right to

immovable property, which may never come into existence; and that a mere contingent right, which may never ripen into an actual existing right, is

not always sufficient to ground an action for such a declaration. In that case the plaintiff asked for an affirmative declaration as regards his right to

succeed to the Rajah and a negative declaration that the defendant had no right of succession to the properties by reason of his illegitimacy. The

learned Judges however took the view that a declaration dependent upon such an issue ought not to be made at the instance of the plaintiff and that

in the exercise of the judicial discretion, which is vested in the Court under the section, they would not be disposed to make any such declaration;

nor did they think that such a declaration could properly be made in the absence of the Rajah, who was deeply interested in the question.

Obviously the Rajah was not made a party to the litigation. That decision however does not state that in every case where the right to property is

contingent on the fulfillment of certain conditions, a declaration could not be granted. The facts of that case were in the opinion of the learned

Judges, such that the right in respect of which a declaration was asked for was a mere contingent right which may never ripen into an actual existing

right. Apparently there was a remote chance of the plaintiff succeeding to the Rajah and being a bare chance of succession the learned Judges

were not prepared to exercise their judicial discretion in favour of the plaintiff.

A later decision of the Calcutta High Court brought to my notice is Tarak Chandra v. Anukul Chandra AIR 1946 Cal. 118 :49 C.W.N. 716.

That was not a case of a right to succession to an estate but it was a right to property in the shape of money. The Bench consisting of B.K.

Mukerjea (now Chief Justice of India) and Sharpe, JJ., held that though the right must be an existing one, it need not necessarily be a right which is

vested already and that no declaration can possibly be made on the basis of a chance or a mere hope entertained by the plaintiff, but a person

having even a contingent right in property may sue for a declaration, though the Court in the exercise of its discretion may refuse to make such

declaration if it considers the claim to be too remote or that the declaration given would be ineffectual and abortive. So it cannot be laid down as a

general proposition of law that in all cases where a person seeks to obtain a declaration as to property in which he has a contingent interest, such a

declaration should not be granted.

In AIR 1950 70 (Privy Council) , the declaration asked for was that the plaintiff was the absolute owner of the estate and entitled to possession

after the death of the three widows and that he was entitled to absolute ownership of certain villages after the death of the testator''s nephew if he

did not beget male children; and the Privy Council held that as the parties were vitally and immediately interested on the question which of them in

an event, not necessarily remote, would be entitled to substantial property, the Court could properly grant the declaration asked for in the exercise

of its discretion u/s 42 of the Specific Relief Act. It therefore turns out that in the application of Section 42 of the Specific Relief Act it is not a

question of the Court having jurisdiction to grant the declaration, but the Courts having a discretion in the matter. The question is whether where a

discretion has been exercised, such exercise was in accordance with sound judicial principles. Applying that test to the present case it cannot be

said that the plaintiff''s right to property in respect of which he seeks a declaration is a chance of succession or a mere hope which may not

eventually fructify. The conditions imposed under Exhibit B-1 are not so onerous as to lead to the conclusion that the plaintiff would not be in a

position to comply with them. One of the conditions, viz-, the performing of funeral ceremonies to the settlor, he says he had already satisfied and if

he wants to get the property he must perform the funeral ceremonies of the defendant. The question whether he conducted himself satisfactorily

towards the defendant would arise for decision only after her lifetime should anyone question his having fulfilled the particular condition.

Mr. Naidu referred to the decision in Desu Reddiar and Another Vs. Srinivasa Reddi by next friend Subba Reddiar and Others, , and sought

assistance therefrom to show that such a declaration might be granted in the case of a suit by a presumptive reversioner where however the interest

of the individual was not sought to be protected but the interest of the estate and the suit, though by a presumptive reversioner, was in fact a

representative suit to safeguard the reversion against possible waste of the estate and to obtain a recognition of the presumptive reversioner''s right

to have a check over the way in which the widow might deal with the property No doubt that was a case in which the declaratory decree was

supported on the ground that the declaration was nor asked for in respect of the individual or personal right of the plaintiff who was the

presumptive reversioner in that case, but there are observations of a general nature by Varadachariar, J., which show that in dealing with a

declaratory suit stress is not to be laid so much on the question of its maintainability as on that of the propriety and utility of granting relief by way of

declaration. It is therefore, as I have already observed, not a question of a Court having power to grant a declaration in the sense of its having

jurisdiction or not, or whether such a suit for declaration was maintainable, but it is the exercise of discretion by a Court and whether the exercise

of discretion was necessary in order to set at rest any doubtful claims and to see that the exercise of discretion is not futile but useful so as to

declare the right of parties. In the present case however I am satisfied that such a declaration is necessary. Apart from the reasonable certainty of

the plaintiff satisfying the conditions and getting the estate, the fact that Muthayya Pillai had thought it fit to execute two other documents Exhibits

B-2 and A-1 which really negative the right granted to the plaintiff under Exhibit B-1 and vest the defendant with absolute lights in the property

makes it necessary for any Court, which has been approached to decide upon the rights of respective parties though no executable decree could

be given, at least to declare such rights and in such a case the application of Section 42 of the Specific Relief Act is directly attracted as the

defendant in this case, though not actually been shown to have denied the title, is very much interested in denying the same and would be supported

by those two documents in such denial. In my view the application of Section 42 to this case is appropriate and the declaration granted is

necessary and useful and the exercise of discretion is quite proper and justifiable. It is however not necessary to go into the question whether

Section 42 of the Specific Relief Act is exhaustive of the reliefs for a declaratory decree as I am satisfied, even on the language of Section 42 that it

would apply to the present case.

The Privy Council has however observed in 3 CWN 161 (Privy Council) as follows:

Now in the first place it is at least open to doubt whether the present suit is within the purview of Section 42 of the Specific Relief Act. There can

be no doubt as to the origin and purpose of that section. It was intended to introduce the provisions of Section 50 of the Chancery Procedure Act

of 1852, 15 and 16 Vict., Chap. 86 as interpreted by judicial decision. Before the Act of 1852 it was not the practice of the Court in ordinary suits

to make a declaration of right except as introductory to relief which it proceeded to administer. But the present-suit is one to which no objection

could have been taken before the Act of 1852.

The Privy Council held that the declaratory decree in the case could be granted. In that case the declaration was obtained as to the true

construction of a statute where it was not possible to have a consequential relief. The discretion of Courts in granting declaratory decrees is rather

wide; but as in the case of the exercise of any judicial discretions, it must be exercised only when the circumstances of the case require such

exercise. The result is the appeal is dismissed with costs.

Leave to appeal is refused.