UDAY CHANDRA PAUL Vs. BHPARMAR

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiffs who are the appellants here prayed for a declaration that a decree based upon a solenama was illegal, fraudulent, inoperative and void, and for an order that the said decree be set aside. The material facts are as follows : The plaintiffs-appellants who are four in number are the darputnidars of a mouza known as mouza Bendi. In 1894 their predecessors granted a mining lease of this mouza to one Mr. White who subsequently transferred his rights to defendant 2. On 2 August, 1935 the plaintiffs by a registered deed of conveyance transferred to defendant 1 their right to receive royalty for the years 1930 to 1946. Later, defendant 1 executed a deed of agreement by which she undertook to pay to the plaintiffs a certain proportion of the royalty for the years 1930 to 1946. In 1937, a suit for the recovery of royalty was instituted against defendants 2 and 3. The plaintiffs in that suit were the four plaintiffs-appellants and defendant 1 in the suit out of which this appeal arises. The suit was compromised and a decree was passed embodying the solenama. The minimum royalty payable under the original lease was Rs. 80 per annum, but, under the terms of the solenama, the defendants agreed to pay Rs. 500 per annum as royalty which would be a first charge upon the colliery.

(2.) In the present suit the plaintiffs-appellants alleged that fraud had been practised upon them by the defendant, that the former suit had been instituted without their knowledge, that the husband of defendant 1 in the present suit had contrived to get the former suit instituted with the assistance of papers which had been used, as vakalatnamas, but upon which he had obtained the signatures of the appellants at a time when those papers were blank. The learned subordinate Judge found that there had been no fraud, but held that the plaintiffs were entitled to a declaration that the solenama embodied in the decree in the earlier suit was inoperative and not binding upon the parties for want of registration under Section 49, Registration Act. The defendants appealed and the plaintiffs filed a cross-objection in which they prayed for a declaration that the decree was void on the ground of fraud. The learned District Judge who heard the appeal upheld the finding of the learned subordinate Judge that there had been no fraud, but he also held that the learned subordinate Judge had not acted in the proper exercise of his discretion under Section 42, Specific Relief Act, in granting the declaration just referred to. He accordingly reversed the order of the learned subordinate Judge and dismissed the suit. The only point urged in the present appeal on behalf of the appellants is that they are entitled to the declaration which was granted by the learned subordinate Judge. Mr. Mukherji has, in support of this contention, invited our attention to para. 10 of the plaint which is in these terms: The plaintiffs further state that the aforesaid solenama not being signed, executed and registered according to law is for all reasons void and inoperative and no decree can be passed on its basis.

(3.) Mr. Mukherji has contended, that the declaration granted by the learned subordinate Judge was within his discretion, and that in any event the exercise of that discretion was not a matter with which the lower appellate Court should interfere. In support of this contention, Mr. Mukherji has cited the following cases: Isri Dut Koer V/s. Mt. Hansbutti Koerain ( 84) 10 Cal 324 was a decision of the Privy Council in an appeal which arose out of a suit brought during the life of a Hindu widow by the presumptive heir, entitled on her death to the possession of the property in which she held her limited estate, to have an alienation by her declared to operate only for her life. The High Court on appeal held that the plaintiff was not entitled to the declaration prayed for, for reasons which Ainslie J. stated as follows: It seems to me that we ought not to allow this suit to be protracted and great additional expense to be incurred, when it is quite possible that the widows or one of them may survive the plaintiffs, so that the estate may never vest in them and the decision arrived at may prove no bar to further litigation. For the purposes of this appeal it is sufficient to say that the Court will not, in a declaratory suit, decide intricate questions of law, when no immediate effect and possibly no future effect can be given to its decision, and when the postponement of the decision to the time when there may be before the Court some person entitled to immediate relief (if the decision is in favour of the plaintiff) will not prejudice his rights in any way.