P L D 1960 Dacca 103 (PLP)

CHAKRABORTI, J.‑The defendant is the appellant and the appeal arises out of a suit for declaration that the kabalas executed by minor defendant No. 6, Kalipada Datta, in favour of defendants Nos. 1 and 2 to 4, dated 27‑2‑52, are void and not binding on the plaintiffs.

2. The disputed land originally belonged to one Bhawani charan Datta who died leaving a widow Kumudini, pro forma defendant No. 5, and a minor son Kalipada Datta, pro forma defendant No. 6, plaintiffs Nos. 1 and 2 by one kabala and plaintiffs Nos. 3 to 5 by another kabala purchased the disputed land in suit from Kumudini on behalf of herself and Kalipada who sold the property for certain legal necessity. The lands were already in possession of the plaintiffs in darjote right under Bhawanicharan. The plaintiffs' grievance is that the defendants have secured fraudulent kabalas from the minor Kalipada describing him as a major and this act on the part of the defendants has thrown a cloud on the plaintiffs' title and they have brought this suit for reliefs as stated in the plaint.

3. Defendants Nos. 1 and 2 and defendants Nos. 3 to 5 by two written statements contested the suit. Their defence, in substance, is that defendant No. 6 is a major and their kabalas were genuine and the kabalas obtained by the plaintiffs are invalid and fictitious and, as such, the plaintiffs are not entitled to the relief claimed in the suit.

4. Both the Courts below nave negatived the contentions of the defendants and have decreed the suit.

5. The defendants thereafter preferred this Second Appeal before this Court.

6. Mr. Shhinsuddin Ahmed appearing for the defendants has contended before this Court that the suit itself is not maintain able under section 42 of the Specific Relief Act, inasmuch as even if the kabala executed by Kalipada in favour of the defendants was a fraudulent document, that does not affect the plaintiffs' position, if any, and, as such, the plaintiffs are not competent to maintain this suit. He has secondly contended before us that the learned District Judge ought to have held that there was no bona fides on the part of the plaintiffs inasmuch as they all through evaded medical examination of Kalipada in spite of the fact that the defendants filed a petition for his medical examination and deposited the necessary fees. He further contends that Kalipada was a major and that could have been established by medical examination, and the plaintiffs having avoided that examination the judgments and decrees of the Courts below could not stand.

7. Mr. Bhattacharyya appearing for the respondents has however contended in this case that the fact that the defendants have obtained fictitious kabalas from Kalipada describing him as a major, although he was a minor, has thrown a cloud on his title and, as such, they are competent to maintain this suit. Mr. Moinul Huq appearing for the Deputy Registrar has however raised a point that even in the memorandum before the lower Appellate Court and also in the Second Appeal, pro forma defendant No. 6 was described as a minor before the First Appellate Court and he was also so described as a minor in the Memorandum of Appeal in this Court. The appellants prayed for time to put in the Deputy Registrar's fee and deposited the Deputy Registrar's costs and the Deputy Registrar appointed an Advocate of this Court to represent this minor. The appeal itself was filed on the 8th of November, 1954. It is too late for the appellants to plead that this was a case of mistake. So Kalipada was admittedly a minor and the question of his medi cal examination does not, therefore, arise ; and, in that view, the documents obtained by the defendants were nothing but void documents.

8. There was some argument on the question of maintain ability of the suit. The relevant ground in the Memorandum of Appeal is ground No. 2 which runs as follows: "For that the learned District Judge ought to have dismissed the suit as not maintainable, inasmuch as there was no prayer for setting aside the deeds in favour of the defendants when this relief could have been prayed for and proper Court‑fees should have been paid." When the document itself was a void document, .it is not neces sary for the plaintiffs to pray for setting aside those documents. It is enough for them to pray for a declaration that these were' void documents and were not binding on the plaintiffs. In that view, the question of maintainability raised by the appellants in their Memorandum of Appeal does not arise.

9. Mr. Shamsuddin Ahmad cited in this connection the case of Jeka Dula v. Bai Jivi and others (A I R 1938 Bom. 37) which practically does not help him very much. That case only lays down the condi tions that under section 42 (I) the plaintiff must be entitled to a legal character at the time of the suit, or (2) to a right to property, (3) defendant should have denied these or be interest ed in denying this character or right, and (4) the plaintiff should not be in a position to ask for relief, consequential upon declara tion sought ; and, in considering a case under section. 39, three things have to be borne in mind : (1) the written instrument in question is either void or voidable as against the plaintiff, (2) who may reasonably apprehend serious injury from the instrument being left outstanding, (3) in view of all the circumstances of the case, the Court considers it reasonable and proper to administer the protective and preventive justice asked for."

10. Applying the test, as laid down, in this case' also, the present suit is clearly maintainable under section 42 of the Specific Relief Act. Section 42 of the Specific Relief Act says: "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." The scope of the section is very wide, for, a person can pray fort a declaration against any person who is interested to deny the plaintiff's title. Illustration (d), to which our attention was drawn by Mr. Bhattacharyya, throws some light into this matter. That illustration says: "A alienates to B property in which A has merely a life‑interest. The alienation is invalid as against C, who is entitled as reversioner. The Court may in a suit by C against A and B declare that C is so entitled." There are some earlier decisions where a contrary view was taken. Recent decisions of this Court consistently laid gown that such suits are maintainable. Mr. Bhaittacharyya has drawn our attention to the case of Kundan Lal and others v. Hukam Singh and others (A I R 1952 Pun. 115), where Kapur, J., observed: "Besides, this is a cloud on the ultimate rights of the land lords and they had a' right to bring the present suit, and I respectfully agree with the rule laid down in Bhagat Si;igh v. Mathra (A I R 1926 Lah. 275), where it was held that where evidence is being created, it beings the case within section 42 of the Specific Relief Act and a suit can be brought under that section (section 42) for declaration." The same principle has also been adopted in a decision of our Court in the case of Srimati Bidhumukhi Dasya v. Srimati Sarala Sundari Dasya and another (6DLR97). That was a case relating to a transfer by a father and the suit was brought by a prospec tive heir. Their Lordships at page 113 have quoted with approval the observations in 49 C W N 716: "A person having even a contingent right in a property may sue for a declaration under section 42 of the Specific Relief Act, although no declaration can be made on the basis of a mere chance or hope." Their Lordships then observed: "From the trend of the aforesaid decisions, it is clear that a suit by a reversioner, immediate or remote, for declaring an alienation by the widow void is not barred under section 42." The relief is no doubt discretionary but the real test is whether there is any impending danger or whether the plaintiff really apprehends that an interested person may deny the plaintiff' title. Evidently when the defendants obtained these kabala from a minor describing him as a major, they did so with some ulterior object and the plaintiffs were competent to institute a suit because the defendants were interested to deny his title. Otherwise, there is no reason why such fraudulent kabalas should be brought into existence. There was the question of apprehended danger and, in that view, the suit was clearly maintainable.

11. I may observe here that although the appellant objected to the maintainability of the suit he did not raise this aspect of the case in the Memorandum of Appeal.

12. We, therefore, hold that there is no substance in any of the contentions raised by the learned Advocate for the Appel lants.

13. In the result, the appeal is dismissed with costs. AKBAR, J.‑I agree. K. B. A./A. H. Appeal dismissed.