MAHA SINGH Vs. ANAND SINGH MANN

JUDGEMENT

(1.) By these Orders I shall decide two Objections that have arisen touching upon the maintainability of the suit. Mr. Rana, learned Counsel appearing for the Plaintiff has placed reliance on the following judgments such as AIR 1936 Patna, 231, AIR 1956 Hyderabad 118, AIR 1932 Allahabad 485, AIR 1926 Rangoon 71, AIR 1975 SC 1810, AIR 1967 SC 436, AIR 1977 Karnataka 173, AIR 1930 Allahabad 446, AIR 1954 Madras 83, AIR 1977 SC 1823, AIR 1981 Bombay 188, (1908) 35 Cal. 551, AIR 1929 Cal. 588, AIR 1968 SC 534, AIR 1971 MP 172, AIR 1950 Privy Council 68, 1994 (1) CCC 94, 1998 (8) SCC 623, AIR 1988 Allahabad 303, 1994 (4) SCC 396, 59 (1995) DLT 667, 1981 (2) RLR 278, AIR 1979 MP 153, 1987 RLR 262, AIR 1987 Delhi 165, AIR 1995 AP 423, AIR 1992 Delhi 118, 67 (1997) DLT 576, AIR 1980 Punjab and Haryana 25, AIR 1956 Punjab 230, AIR 1960 AD 535, 1992 DLT 530, AIR 1960 SC 335, AIR 1982 Delhi 520, AIR 1904 SC 497, 1971(1) SCC 597, AIR 1991 J and K 1, 1997 (III) AD Delhi 626, 1991 (3) Delhi Lawyer 350, 1991 RLR 239, 1998(44) DRJ 502, AIR 2000 Delhi 92, 2004 (1) AD (SC) 406.

(2.) I shall restrict discussions to Sanjay Kaushish v. Kaushish and Others, AIR 1992 Delhi 118, since learned Counsel for the Plaintiff has not been successful in showing the relevancy of several cases mentioned by him and because a number of decisions have been considered in this judgment. In most of the cases the decisions proceed on the basis that the properties in question were joint family (HUF properties). This question is hotly in dispute in the present case rendering those judgments to reduced relevance. 1 shall also accept that the normal rule is that averments made in the plaint must be taken at their face value until the final disposal of the suit.

(3.) So far as the factual matrix in the Kaushish's case (supra), is concerned, a reading of the judgment leave no manner of doubt that it was not in contest that the properties belonged to the joint family. The dispute was between the father/Defendant No. 1 and his sons. The father was admittedly the Karta of the HUF. It is in that context that the observations in paragraph 43 must be viewed. The learned Judge has stated that "the well settled principle of law is that if a particular document or decree is void the person affected by the said document or decree can very well ignore the same and file a suit seeking substantive relief which may be available to him without seeking any declaration that the said decree or document is void or any consequential relief of cancellation of the same". Mr. Rana had also drawn my attention to a decision where it had been held that a person need not seek a Declaration in respect of a Sale Deed which was executed while that person was a minor and that the Supreme Court has gone into the question of validity of the Relinquishment Deed without insisting on the filing of the suit for Declaration. These decisions would not caste any light on the conundrum which has arisen in this case, namely, where property stands in the exclusive name of one person, is it not mandatory for any other person seeking to enforce a titular right in that property to pray for a Declaration which tantamounts to annulling the Title Deed.