MOHANTO BISSOI Vs. BONTILO BISSOI AND

JUDGEMENT

(1.) PLAINTIFF is the legally married wife of Defendant, 1. Her case is that as she had no issue, Defendant -1 developed apathy and indifference towards her. For sometime she left for her father's house and resided there for about it years till July, 1960. During her absence the natural parents of Defendant. 2 prevailed upon Defendant. 1 to execute a deed of adoption in favour of Defendant. 2. Though there was no giving and taking and the Plaintiff did not give her consent to the adoption, Defendant. 1 executed a deed of adoption on 5.2.1959. Later on Defendant -2 assaulted the Plaintiff and Defendant -1 and wanted to take forcible possession of their property. Plaintiff has accordingly filed the suit for a declaration that Defendant. 2 is not the adopted son of Defendant. 1 and herself. Defendant -1 is ex parte.

(2.) MR . P.V.B. Rao contends that Courts should not grant a declaration simpliciter under Section 42 of the Specific Relief Act (Old), hereinafter referred to as the Act, if that declaration (sic) likely to prove ineffective ultimately. Applying the aforesaid principle to the facts of this case, he continues that Defendant -1 is an absolute owner of his property in which the Plaintiff has no right, title and interest in present. Even if a declaration, as prayed for by the Plaintiff is granted by the Court, it would be made nugatory by Defendant -1 by disposing of his entire property by transfer or by Will. He placed reliance on two unreported decisions of this Court in Kalachand Bhoi v. Balabhadra Bhoi S.A. 281 of 1947 and Balmukunda Dip v. Bahnu Dip S.A. 360 of 1950 and some decisions of other High Courts. The contention requires careful examination.

(3.) IN Noor Jehan v. Eugene Tiscenko : : A.I.R. 1942 Cal. 325 (S.B.) the meaning of the expression "interested to deny" was very succinctly and clearly presented. Their Lordships said: