- (1.) THIS is a plaintiff's appeal and it arises out of a suit brought by her for declaration that she is entitled to receive her maintenance at the rate of Rs. 11.26 paise per mensem as well as for fixation of this amount. The allegations of the plaintiff were that Waqf-Alal-aulad was created by Nawab Saiyed Vilayat Husain Khan in this way that he executed a first deed of waqf on 20-4-1919 and subsequently he executed another deed on 30-1-1924. Under the terms of those deeds plaintiff's mother was granted maintenance at the rate of Rs. 10 per mensem out of the income of the property about which Waqf- Alal-aulad was created. The income of the Waqf property at that time was Rs. 100 per mensem. Plaintiff's mother died in 1953 leaving three sons and three daughters including the plaintiff. The plaintiff's share in the 'Guzara' or maintenance of her mother came to Re. 1.11 paise. Now the income of the property about which the first Waqf was created has gone up to Rs. 745 per mensem while income of the property about which second Waqf was created yielded Rs. 300 per mensem. The description of the properties given in the Waqf deeds was mentioned in Schedule 'A' attached with the plaint. The allegations of the plaintiff were that expenses of living condition having increased the plaintiff's share of Guzara was not only insignificant but looking to the increase of the income of the property it was expedient in the interests of justice that her Guzara be increased to Rs. 11.26 paise per mensem in view of the proportionate increase in the income of the Waqf property. On these grounds declaration was sought for. The suit was contested on behalf of defendant No. 1. He admitted the creation of Waqf as well as right of the plaintiff to claim maintenance. He, however, alleged that although there has been an increase in the rental income, but taxes and expenses also have gone up proportionately with the result that there was no substantial increase in the income so as to justify increase in the rate of maintenance. It was also urged that the maintenance amount was fixed in the Waqf deed and it could not be altered one way or the other. It was also alleged that the court fees paid was insufficient, that relief for declaration alone should not be given, and that Waqf Board was a necessary party to the suit.
(2.) THE trial court decided issue No. 1 on 12-8-1966 and plaintiff complied with the order of the court by paying appropriate court-fees. On the issue of non-joinder, the trial court held that since the suit was filed against Mutwalli who was to carry out the directions of the waqif and since plaintiff had a right to get maintenance the suit could not be said to be bad for non-joinder of necessary parties. On Issue No. 2, however, the trial Court held that since the amount was fixed in the Waqf deed it could not be altered. The trial court did not go into the question as to what alterations could be made in case if it be held that this fixed amount could be altered in view of the increase in the income of the Waqf property. As a result of his finding on Issue No. 2 the suit was thrown out. The plaintiff went up in appeal, but remained unsuccessful. She has now come up in second appeal to this Court. Learned counsel for the appellant urged before me that since income of the property had increased the amount of maintenance should be increased by the Court. Learned counsel for the respondents urged that the amount could not be enhanced and in any case relief for declaration alone could not be allowed.
(3.) I shall take up the second point first raised from the side of the respondents. Since this suit was filed after the enforcement of the New Specific Relief Act of 1963, Section 34 is relevant for our purposes. It reads thus : "34. 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. Explanation :- A trustee of property is a person interested to deny a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee." Learned counsel for the respondents urged in view of the decision of this court reported in Mahabir Jute Mills v. Firm Kedar Nath Ram Bharose., 1959 All LJ 890 : (AIR 1960 All 254) that a suit for declaration of pecuniary liability was not maintainable. That case evidently cannot be made applicable to the facts of this case for the simple reason that there was some contract between the parties. The defendant informed the plaintiff that he was not willing to furnish security and that whether the contract was to be treated as cancelled. Plaintiff informed him that the contract stood cancelled. Thereafter, defendant threatened to file a suit against the plaintiff for recovery of damages for breach of contract. The plaintiff as a counter-blast filed that suit praying that a declaration be made that no transaction about the purchase and sale of certain bales at certain rate took place and that no contract at certain other rate subsisted. In that connection A. P. Srivastava, J. after noting Section 42 of the Old Specific Relief Act observed at p. 893 (of All LJ) ; (at p. 255 of AIR) that : "The principle which emerges from their decisions is that Section 42 of the Specific Relief Act does not contemplate declarations about the pecuniary liability of persons as the same cannot be considered to be declarations about their legal character or any right to property." In this case before me declaration is sought about maintenance which is a charge on the property in the hands of the Mutwalli. The Waqf itself mentioned that in case the amount is not paid it could be realised and this realisation could be done from the income of the property which could be attached in such a suit. In this context the plaintiff had a right to the income which, being a charge on the property itself, is tantamount to a right in the property itself, inasmuch as she could not get money decree as a personal liability from the Mutwalli himself. After all the Mutwalli could have filed a suit for declaration of his right to accelerated rate of expenses or remuneration fixed in the waqf deed. In fact the beneficiaries could have themselves filed a suit for the reduction of this amount on the plea that the income of the property had gone down to such an extent that if remuneration of the Mutwalli as fixed in the waqf deed, was paid nothing would be left for payment to the beneficiaries. In such an event the only relief that could have been asked for was a relief of declaration because that would have been a declaration in respect of a right to the property. That being so, the present suit also is in the nature of declaration of a right to the property and unless the plaintiff asks for such a declaration which can be given to her only by a court of law, she cannot claim enhanced maintenance. In such a case it was not necessary for her to claim enhanced maintenance also because that would not be a consequential relief so much so that without asking for such a relief the relief of declaration would become meaningless. It is a distinct relief which may or may not be claimed. That being so, the present suit for declaration, in my view, lies.;