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TMI Blog1937 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... g, Chhita succeeded to the properties by survivorship and died on August 14, 1907. At that time the family consisted of his widow Bai Jatan, his mother Bai Jivi, defendant No. 1, and his sister Bai Chanchal, defendant No. 2. The widow Bai Jatan succeeded to the properties. She remarried in 1910,...and it is clear that her interest in the properties on remarriage came to an end. Before remarriage however she and defendant No. 1 Bai Jivi executed a deed of sale to Shiva Ranchhod, husband of defendant No. 5, relating to two properties, 9/14 and 9/15. In July, 1917, Bai Jivi who on remarriage of Jatan succeeded to the property executed a deed of gift with regard to the property 7/1 in favour of her daughter, defendant No. 2, and a fortnight thereafter defendant No. 2 gifted away the property to Shiva Ranchhod. On September 10, 1928, Bai Jivi executed a deed of surrender in favour of the plaintiff who was the next reversioner. The deed which was duly registered recited that Bai Jivi relinquished her life estate in properties 7/1, 9/14, and 9/15 and conveyed the same to the plaintiff for a consideration of ₹ 4,999 as a provision for her maintenance and the maintenance of her daught ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to a declaration that they were void or voidable and were not binding on him, and it is on that footing that the case has been argued before us on behalf of the appellant. The learned Counsel who argued on behalf of the appellant contended that the case fell under Section 39 of the Specific Relief Act as regards the relief by way of cancellation of these deeds and under Section 42 of that Act as regards the declaratory relief sought. 5. Now the relief as to cancellation of an instrument is, as pointed out by Story, founded upon the administration of the protective justice for fear that the instrument may be vexatiously or injuriously used by the defendant against the plaintiff when the evidence to impeach it may be lost or that it may throw a cloud or suspicion over his title or interest. Section 39 of the Specific Relief Act is based upon1 the same principle, and under that section three points 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cter at the time of; the suit, or (2) to a right to property (3) defendant should have denied these or be interested in denying this character or right, and (4) the plaintiff should not be in a position to ask for relief consequential upon declaration sought. The last condition may be left out of consideration in this case. I will assume that the first exists. The second is clearly wanting and the third, it is common ground, does not exist. The third condition is important. Even if the plaintiff has a present existing interest, no cause of action accrues to him until there is some infringement or threatened infringement of his right, in other words, a cloud must be cast on his title before he can ask for its removal. He must allege and prove hostility on the part of the defendant, for no Court will move on merely speculative grounds. Is that the position here? We think not. The defendants all swear by the deeds. They accept the surrender and the subsequent transactions entered into by the plaintiff voluntarily on the strength of the surrender. There is no hostility so far as they are concerned. Apart from surrender the plaintiff has no legal character or no right to any property. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration, and that is the plaintiff's case, may be defective as a deed of surrender, but it is difficult to see how the plaintiff can question a deed under which he himself derived benefit and to which he was a party. The case that the widow had precluded herself from surrendering her interest in the whole of Chhita's estate as she had parted with her life interest in regard to two of the three properties included in the deed cannot be accepted. It is common ground that in spite of the alienation of 1909 in favour of Shiva Ranchhod the property has all along been in the possession of Bai Jivi. It was not therefore necessary for her to sue to set aside the alienation. Shiva's widow, who was defendant No. 5, has disclaimed all her interest in the property. As to the gifts of 1917 defendant No. 2 was a party to the surrender and she accepted it. This property also was in the possession of Bai Jivi and as far as the widow of Shiva, who was defendant No. 5, is concerned she lays no claim to it. Apart from this it is clear law that where a widow alienates a portion1 of the estate inherited by her from her husband without legal necessity, and subsequently surrenders the whole ..... X X X X Extracts X X X X X X X X Extracts X X X X
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