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TMI Blog1875 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in the year 1863. The points then decided were, first, that the zemindary was in the nature of an impartible raj, to be held by one member of the family; secondly, that the zemindary, having been granted by the Madras Government, after an escheat, to the istimirar zemindar, was to be treated as his self-acquired property; thirdly, that the right of succession to it was to be determined, not by any particular custom, but by the general Hindu law prevalent in that part of India, with only such qualifications as might follow from the impartible character of the subject. These propositions were, at least in the latter stages of the litigation, not much disputed. That which was really contested between the parties was that even if the istimirar zemindar were, as he had been found to be, in the strict sense of the term, a member of an undivided Hindu family, the succession to this zemindary, inasmuch as it was his separate self-acquired property, was to be determined by the rules which regulate the succession to the property of one separate in estate, and consequently, that his wife, daughter, and daughter's sons were entitled to inherit it in preference to a brother, a brother& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever that may be, it is certain that, under the order of Her Majesty, made in pursuance of that judgment, the first Appellant became the zemindar of Shevagunga, taking it as the heir of her father next in succession to the widow. 3. That having been the state of things for some years, the present Respondent brought, the suit out of which this appeal has arisen. The first paragraph of his plaint claimed to recover the zemindary of Shevagunga for the Plaintiff as the eldest surviving male heir of the istimirar zemindar. But this somewhat desperate attempt to reopen the question which had been closed by the judgment of this board was shortly afterwards abandoned, and by a subsequent proceeding he withdrew the claim to any right to immediate possession and amended his plaint accordingly. The plaint then went on to pray in the alternative;-- First, to have a declaratory decree passed, establishing the Plaintiff's right to succeed to the said zemindary as next heir after the death of the first Defendant, and adjudging her to pay him ₹ 60,000 per annum for maintenance, and further declaring him entitled to immediate possession of a portion of the palace, No. 1, which was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff's interests in the said zemindary. Then followed the case made for the relief prayed in respect of the management of the charitable institutions and for maintenance, which it is unnecessary to state in detail. 4. The Defendants to the suit appeared and set up various defences, the first and second Defendants impeaching the title of the Plaintiff upon several grounds; the third, fourth, and fifth Defendants setting up a case that the zemindary to which their mother had succeeded had either always been or had become her stridhanum; that according to the proper course of succession it would, upon their mother's death, devolve upon them, but that they had assigned and relinquished by deed their rights in favour of their brother, the second Defendant. Upon these pleadings the following issues were settled : 1. Whether or not according to Hindu law petitioner is entitled to succeed to the zemindary of Shevagunga at the death of the present Ranee. 2. Whether or not petitioner is entitled to succeed to the said zemindary at the death of the Ranee by virtue of any peculiar custom which obtains in that zemindary. 3. Whether or not petitioner is estopped by this being &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clause into the Code of Procedure, which, if a limited construction is to be put upon it, clearly implies that any decree made in excess of the power thereby conferred would be objectionable, the words of the section being : No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the civil Courts to make binding declarations of right without granting consequential relief. Nor does any Court in India since the passing of the Code seem to have considered that it had the power of making declaratory decrees independently of that clause. 8. The point, therefore, to be determined upon this appeal is, what is the true construction and effect to be given to that clause. It has been broadly urged at the Bar that the discretion given to the Courts is absolute, or at least controlled only by those reasonable considerations upon which Courts of Justice may be presumed to act in the particular case brought before them; and that in every case in which they think fit to make a declaratory decree under that clause they are competent to do so, subject of course to having the exercise of their discretion control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the clause is to be governed by the same principles as those upon which the Court of Chancery proceeds. 10. In the first of these cases (that of Sreenarayan Mittro 11 Beng. L.R. 171, decided on the 15th of January, 1873), there is a distinct reference to the case of Rooke v. Lord Kensington 2 K. J. 753. The learned Judge who delivered the judgment of this Committee said : It has beer held that under the 15 16 Vict. c. 86, Section 50, a declaratory decree cannot be made unless Plaintiff would be entitled to consequential relief if he asked for it : Rooke v. Lord Kensington 2 K. . J. 753. The 15th section, Act VIII. of 1859, is in similar terms. The Plaintiff, upon the facts so founded, is not entitled to any relief against the Defendant. It has been shown that, treating the documents as more agreements between the Plaintiff and the father of the child, the Plaintiff could have no right to maintain the present suit. He no doubt afterwards observed: It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fterwards did go to the Revenue Court, and there, upon the merits of the question being tried, failed to establish his right to enhance. 13. The most recent case is that of the Rajah of Pachete See ante, p. 83, decided on. the 15th of December, 1874. The judgment then delivered contains this passage: Their Lordships do not think it necessary to determine whether or not the High Court were right in the conclusion they came to as to the proof or the rebuttal of proof of : the bromuttur tenure, because in their Lordships' opinion the judgment dismissing the suit is maintainable on totally different grounds. This is in substance a suit for a declaration of title, and it is a suit to set aside, not any deed nor any act, but a mere allegation of the Defendants that they had a certain tenure. In their Lordships' view, such a suit is not maintainable. After giving the words of the clause, the judgment proceeds: A similar clause in this country has been held to give a right of obtaining a declaration of title only in those cases where the Court could have granted relief if relief had been prayed for; and that doctrine has been applied to this clause in the Indian Act. Now, ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but in the two other cases which were decided a month or two afterwards, namely, the cases of Greenwood v. Sutherland 10 Hare App. 1 p. xii and Garlick v. Lawson 10 Hare App. 1 p. xiv, the learned Vice-Chancellor receded from that, and held that the powers of the Court were not so enlarged by the statute as to enable him to make any declaration touching future interests during the life of a tenant for life. In the case of Garlick v. Lawson 10 Hare App. 1 p. xiv. he said: Now a declaration in the lifetime of the tenant for life with regard to the interests of the parties entitled in reversion could not have been made in a cause at the time that statute passed, and therefore could not have been made on a special case. Then came the new Act, which merely said that a suit should not be open to objection on the ground that a merely declaratory decree or order was sought. It enabled the Court, in its discretion, where it should appear to be necessary for the administration of an estate, or to the relief to which a Plaintiff might be entitled, to make a decree, notwithstanding it should be merely declaratory. But this was not a case in which it was necessary to do so. 16. The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... App. 1 p. xiv.--that it does not extend the cases in which declarations of right may be made, but merely enables the Court to declare rights without following up the declarations by the directions which, according to the old practice, would have been necessarily consequent upon them. Those directions which according to the old practice would have been necessary and consequent, would have involved consequential relief in one shape or another. There is, therefore, no ground for saying that the judgment of Lord Justice Turner did not go to the full extent, as to the construction of the clause, of the judgments of Vice-Chancellor Wood in Rooke v. Lord Kensington 2 K. J. 753 : S.C. 25 L.J. (Ch.) 795, and Vice-Chancellor Kindersley in Jackson v. Turnley 1 Drew. 617 : S.C. 22 L.J. (Ch.) 949. 19. What then has been the history of this clause in India? It appears that before the passing of the Code of Procedure it had been extended to India by Act VI. of 1854, the 19th section of which is in precisely the same words as the English enactment. I may remark that some of those who sat in the Supreme Court of Calcutta were always anxious that when an English statute was extended to the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, the limited construction put upon the clause by the Supreme Court is to prevail generally in all the Courts of India, we must come to the absurd conclusion that the same words are to be interpreted by the High Court in one sense when it is exercising its original jurisdiction or sitting on an appeal from a decree made under that jurisdiction, and in a different sense when it is sitting on an appeal from a Mofussil Court; and further that the Legislature has by the same form of words intended to make one law for the Mofussil Courts and another for those of the Presidency towns. 21. It appears, therefore, to their Lordships, that the construction which must bo put upon the clause in question is, that a declaratory decree cannot be made unless there be a right to consequential relief capable of being had in the same Court or in certain cases in some other Court. They admit the qualification introduced by the case of Fyz Ally. 22. With respect to the course of decision in the Presidency of Madras, it is to be observed that some of the earlier cases decided there adopted the English construction. In others, the Judges who claimed a wider discretion as to making declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving said thus much on the construction of the Act, their Lordships will now deal with the arguments which have been addressed to them to shew that even upon the limited and strict construction of the enactment this decree may be maintained. The first point upon which it is desirable to observe is that of the claim to maintenance. Upon that it is only necessary to say that the, suit must now be treated as if the claim to maintenance had never been put forward. There has been a final adjudication between the parties as to the right of maintenance. It was held by the Lower Court that even if the Plaintiff were unquestionably the next in succession to the zemindary, he would have no right to claim present maintenance from the zemindar, and there was no appeal from that decision to the High Court. 24. It will be convenient to consider next the grounds which the High Court of Madras seems to have considered sufficient to justify the declaration. The Chief Justice says : It appears that the first Defendant favouring the second Defendant's title, and concerting with him in opposition to the Plaintiff, had employed an agent, and executed a power of attorney to him, for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Defendant. It, at most, raises another point to be determined, should the title to this zemindary come, on the death of the existing zemindar, to be properly litigated between the Plain-till' and the second Defendant. 26. The point which, though not adverted to in the judgment of the High Court, has been mainly pressed upon their Lordships by the learned Counsel for the Respondents, is, that the plaint original]y made a case of waste, that it was necessary that the right of the Plaintiff as nearest reversioner should be ascertained in order to support such a suit, and that if the suit had been tried out as it was at first framed there would have been a case for consequential relief. The course the case took was that when it came before the Judge for the settlement of issues, he thought that the question of waste ought not to be tried in this suit. There was afterwards an application made to him to frame an additional issue, which he rejected; and the reasons for his coming to that conclusion are the following : At the settlement of issues the Court was of opinion that the question of alienation of the revenues of the zemindary was not one which had any place in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give him a locus standi in Court. Their Lordships are not prepared to say that by showing that he was a grandson of the istimirar zemindar, although a doubtful question might thereafter arise between him and the second Defendant as to which should succeed to the zemindary, he would not have established a sufficient lotus standi against the widow, and the right to have her acts of waste restrained for the protection of the estate. This, however, would not necessarily give him a right to bring the second Defendant into Court in order to obtain a final adjudication of title against him. 28. It appears, therefore, to their Lordships that, even if the Plaintiff had proved acts of waste against the widow, which he has not done, that would not have given him a right as against the second Defendant to have the question which arises between them determined by a declarator. 29. Upon these grounds, their Lordships think that both the Courts below have come to a wrong conclusion upon the seventh issue; and holding that, they conceive it would be improper for them to intimate any opinion as to the correctness or incorrectness of the very learned judgments given in India on the first issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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