RAGHUNATH BARAEI Vs. JAINARAIN BARAIE

JUDGEMENT

(1.) This is an appeal by one who was defendant 1 in the suit. The plaintiff- respondent Jai Narain propounded a pedigree printed at p. 6 of the record as follows: and said that ha was the next reversioner to the estate of Harnandan, the last male owner of the property in suit. He complained that the mother of Harnandan, Mt Batasi, respondent 2, who was in possession had executed a deed of gift in favour of defendant 1 who was her brother's son, that this deed of gift w,as void after the lifetime of the widow, and the plaintiff accordingly, asked for declaration to that effect. The defence was that defendant 1 had been adopted by Harnandan's father, Sarup. The suit was decreed by the Courts below, and a second appeal was filed on the ground that on the pedigree propounded and found established by the Court below the plaintiff was not entitled to maintain the suit for they are no bandhus. The point taken is covered by the decision in Ram Sia V/s. Bua A.I.R. 1924 All. 790. No attempt has been made to show that that decision to which one of us was a party was wrong. This concludes the appeal.

(2.) During the hearing a point arose, namely, whether it was open to the plaintiff to maintain a suit for a declaration seeing that the alienation was by way of a gift in which there was no question of legal necessity, and there-lore there was no object to be gained by filing a suit for a pure declaration. There seems to be great force in this point but the fact remains that this point was not raised before. In Isri Dut Koer V/s. Hansbutti Koerain [1884] 10 Cal. 324 their Lordships of the Privy Council remarked that where a declaration is to be refused, it should be refused at a preliminary stage of litigation and not by a Court of appeal after the issues on fact and law have been decided. Further, it appears that In Saudagar Singh v. Pardip Narayan Singh A.I.R. 1917 P.c. 196 their Lordships of the Privy Council approved of a declaratory decree having been granted in favour of certain plaintiffs where the only transfer impeached was a tamlik namah or a deed declaring that the transferee was the owner of the property It has been argued with a good deal of force by Mr. Shiva Prasad Sinha that their Lordships themselves in Bangasami Gounden V/s. Nachiappa Gounden A.I.R. 1918 P.c. 196 said that a deed of gift could not possibly be held to be evidence of alienation for value for purposes of necessity, and that taken by itself the document could not stand as a deed of title, and therefore if the document in the case of Saudagar Singh V/s. Pardip Narayan Singh A.I.R. 1917 P.c. 196 had been a deed of gift their Lordships would have decided otherwise.

(3.) As the point has been raised late in the day we do not think we should give effect to it. In the result the appeal fails and is hereby dismissed with costs.