JETHU SINGH BISHAN SINGH Vs. KISHAN SINGH HIRA SINGH
LAWS(P&H)-1950-11-12
HIGH COURT OF PUNJAB AND HARYANA
Decided on November 08,1950

Jethu Singh Bishan Singh Appellant
VERSUS
Kishan Singh Hira Singh Respondents

JUDGEMENT

Passey, J. - (1.) THE second appeal by the Plaintiff which is directed against the judgment of the District Judge, Barnala, dated 20 -6 -2006, reversing the declaratory decree granted to him by the Sub -Judge 1st Class, Dhanaula raises an important question regarding his right to continue his suit for a mere declaration. The learned District Judge has concurred with the decision of the trial Court on the four issues that had been framed in the case, but be has thrown out the suit on the ground that the Plaintiff could not continue his declaratory suit when during its pendency the right to claim relief for possession had accrued to him on account of the death of the doner. Jethu Singh, a collateral of Buta Singh, husband of Mt. Bishno alienor, brought the present suit to obtain a declaration that the gift of the suit property effected by Mt. Bishno by a registered deed dated 19 -7 -2004 was void qua his reversionary interests. When the case was ripe for arguments Mt. Bishno, who had been arrayed as a Defendant, passed away on 19 -2 -2005 and the Defendant submitted an application on 8 -4 -2005 drawing the attention of the Court to that fact, and praying for the dismissal of the suit, as her death had given rise to a right to the Plaintiff to claim possession. This application was ordered to be placed on the file and was ignored by the trial Court in its judgment, but the argument contained in it has found favour with the lower appellate Court and the suit now stands dismissed. The learned District Judge has relied upon Mt. Sat Bharai v. Mt. Sat Bharai 65 P.R. 1913 : 18 I.C. 329 for holding that the right to claim a declaratory decree lapses as soon as the right to seek consequential relief cornea into existence even though the latter right may have sprung up after the institution of the suit. I am afraid, this view being opposed to the plain meaning and spirit of the proviso to Section 42, Specific Relief Act, cannot be endorsed or sustained. Admittedly during the life -time of the donor, the donee was in possession and the Plaintiff could not sue for or lay claim to a preferential right to obtain possession of the suit property. He could only ask for a declaration that the impediment to his own succession as a reversioner of the husband of the donor created by the deed of gift dated 19 -7 -2004, would not injure his right to recover the property on the demise of the donating limited heir. No doubt, the right to obtain possession of the disputed property accrued to the Plaintiff when Mt. Bishno died but the suit as instituted did not for that reason became non -maintainable, and the Plaintiff, in view of the fact that the suit had reached the judgment stage, could well claim that he should not be forced to amend his plaint in the light of the altered circumstances and pray that the suit be taken to its final stage. The proposition cannot be denied that a Court can take notice of events that appear after the institution of the suit and determine the dispute between the parties in the light for the changed circumstances, but it cannot follow as an inevitable corollary that a suit which was perfectly in order when it was instituted would become bad on account of the happening of events subsequently. The ordinary rule of law is that the rights of the parties must be adjudicated upon as they stand on the date the Plaintiff comes into Court with his claim. This rule, however, may be deviated from and the Plaintiff required to mould his prayer for relief in the light of the altered circumstances when the Court feels it incumbent and necessary to take notice of events that have cropped up after the suit was instituted. Such deviation would be justified where litigation would be shortened or full justice between the parties would be done by resorting to it. In the present case, inspite of the objection of the Defendant the suit of the Plaintiff had been decreed and it had been held by the trial Court that the gift in favour of Kishan Singh being not countenanced by custom was invalid and it would, therefore, have no binding effect upon the rights of the Plaintiff. In these circumstances to up get that decree and direct the Plaintiff to sue for possession would necessarily amount to inflicting upon him a second round of litigation on the same facts on which issues had been framed and decided. In the event of the declaratory decree granted to the Plaintiff being upheld, the Defendant donee may not think it worthwhile to oppose his claim for possession and he might surrender the gifted property to the Plaintiff reversioner without forcing him to file possessory suit. A direction to the Plaintiff to convert the suit into one for possession would not abridge litigation but prolong it. I am, therefore, of the view that the happening of the death of Mt. Bishno giving rise to a right to the Plaintiff to claim possession cannot destroy his right to claim a declaration that the alienation in question is not valid according to the law by which he is governed. Section 42, Specific Relief Act, confers upon any person entitled to any legal character, or to any right as to any property, the right to 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 there in a declaration that he is so entitled, and, the Plaintiff need not in such suit ask for any further relief. This right, however, is limited by the condition laid down in the proviso 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 expression 'omits to do so' in the proviso, apparently refers to the ability of the Plaintiff on the date of the institution of the suit and cannot be stretched to include subsequently acquired ability also. This question came up before a Division Bench of the Lahore High Court in Hurmat Ali v. Tufail Mohammad, A.I.R. 1935 Lah. 332 : 16 Lah. 729 and the learned Judges after reviewing the case law cited at the bar on the subject held that the Plaintiff's rights must be determined as they exist on the date of the suit and if events subsequently occur that give him a right to claim consequential relief, he cannot be forced under the law to ask for the latter relief. With regard to the decision in Mt. Sat Bharai v. Mt. Sat Bharai 65 P.R. 1913 : 18 I.C. 329, the view was expressed that it did not lay down the correct law on the point and appeared to be opposed to the general principles of law governing such cases. This is how the point raised in the case was dealt with: ...Reading, therefore, the words occurring in the substantive part of the 'Section and the Plaintiff need not in such cases ask for any further relief' with the words occurring in the proviso" being able to seek further relief than a mere declaration of title, omits to do so" no doubt remains in our mind that the words occurring in the proviso are merely explanatory of the concession granted to the Plaintiff in the substantive portion of the section. If, therefore, at the time when the suit is instituted the Plaintiff is not able to seek any further relief than a mere declaration of title, he need not in his suit ask for any further relief and his suit will be competent under the substantive portion of Section 42, Specific Relief Act. If on the other hand, he is at this time able to seek further relief than a mere declaration of title and omits to do so, his suit will be barred under the proviso. Evidently, therefore, the ability of the Plaintiff to seek further relief dates to the time when the suit is brought and cannot be utilised against him if that ability comes into existence only after the institution of the suit and during the pendency of the trial. His right will be adjudicated upon as it existed at the time of the institution of the suit and if later he does not choose to pursue the remedy that has become then available, he cannot be compelled under the law to do so. This appears to us to be the obvious interpretation of Section 42 read with the proviso. In Govinda v. Perun Devi 12 Mad. 136, the same view was taken. A Suit had been brought for a declaration that certain alienations of land made by a Hindu widow were not binding on the Plaintiff or reversionary heirs and pending appeal by the plaintiff, the widow died. It was held that the Plaintiff was entitled to proceed with the appeal. Recently this question was considered in Meghaji Mohan Ji v. Anant Pandurang, A.I.R. 1948 Bom. 396 :, 50 Bom. L.R. 274 and citing Hurmat Ali v. Tufail Mohammad, A.I.R. 1935 Lah. 332 :, 16 Lah. 729, Sarada Prasad Roy v. Mohan Saha : A.I.R. 1925 Cal. 819 : 85 I.C. 629 with approval, it was held that the plaintiff's right to maintain a declaratory suit is not affected by the fact that during the pendency of the suit, the right to possession had also accrued to him.
(2.) FOR the reasons set out above, I would hold that the suit of the Plaintiff could not be thrown overboard for the mere reason that Mt. Bishno had died and a right to obtain possession on that account had accrued to Jethu Singh. So far as the merits are concerned, the learned Counsel of the Respondent concedes that he has nothing to say against the correctness of the findings of the Courts below. The appeal is accepted and the decree of the lower appellate Court reversed and that of the trial Court restored. No costs. Chopra, J.
(3.) I entirely agree.;


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