RAMCHARAN Vs. JAGAN BEHARI LAL

JUDGEMENT

(1.) This is a second appeal by certain defendants against whom the plaintiffs claim for a declaration has been decreed by both the Courts below. The essential facts maybe stated as follows : Gyan Singh, father of the defendants, mortgaged with possession certain zemindari property to one Prem Masih on August the 20th, 1881. On November the 4th, 1886, Gyan Singh executed in favour of the same Prem Masih a deed of simple mortgage hypothecating the same property. This deed contained the usual covenant giving the mortgagee power of sale, but it also contained a special covenant to the effect that in no case would the mortgagor be entitled to redeem the usufructuary mortgage of August the 20th, 1881, without first paying off whatever was due from him under this later deed of 1888. On December 31st, 1894, the sons of Prem Masih executed a deed of sale by which they purported to transfer all their proprietary and mortgagee rights in certain zemindari, including that mortgaged to their father by Gyan Singh, to the father of the present plaintiffs. On the 31st of July 1910 the plaintiffs instituted the present suit. They said that the defendants were denying their right under the deed of November the 4th, 1886, and claimed to be entitled to a declaratcory decree, to the effect that this deed was binding on the defendants and that the defendants could not redeem the usufructuary mortgage of August the 20th, 1-81, without first paying whatever might be found due to the plaintiffs under the said deed of November the 4th, 18-6. There was an alternative prayer for a decree for sale under the simple mortgage of November the 4th, 1886 : but the plaint was not properly stamped, as it should have been in respect of the larger of two alternative reliefs sought. It was stamped only with reference to the prayer for a declaration. On this point there has been a certain amount of confusion in the Courts below.

(2.) The Court of first instance did not require the plaintiffs, as it should have done, to make up the defciency in Court-fees to the full amount which would have been due from them on the alternative prayer for sale, nor did it offer the plaintiffs the alternative between doing this and amending their plaint, by themselves striking out all reference to the alternative prayer for sale.

(3.) When the case came before the learned District Judge on appeal, he held that the plaintiffs should have been compelled to stamp their plaint properly in the first instance in accordance with its terms, and he gave them an opportunity of doing this. The plaint was then properly stamped. These considerations affect one only of the pleas now taken before me in second appeal. Both the Courts below have held that the plaintiffs were under the circumstances entitled to a declaratory decree. It is pleaded before me that on the facts stated, the suit for a simple declaration should not have been permitted to be brought under the terms of Section 42 of the Specific Relief Act (I of 1877). To this the plaintiffs have replied that they did seek in the alternative a decree for sale, and that they cannot be bound by the order of the first Court striking out that relief from their plaint more especially after the lower Appellate Court has compelled them to pay Court-fees on the plaint as originally drafted. I must say that the position thus arrived at is somewhat unsatisfactory, but it would be difficult for me, as the case now stands, to substitute a decree for sale for the decree passed by the lower Appellate Court, and it would certainly be inequitable under the circumstances to dismiss the plaintiffs suit altogether, if the only valid point against them is that they were not entitled to sue for a simple declaration. On the whole 1 am not prepared to say that the-words of Section 42 of the Specific Relief Act would necessarily preclude the plaintiffs from suing for a simple declaration on the facts stated. I think it somewhat doubtful whether this is not the kind of case in which a declaration might not, as a matter of discretion, have been refused and the plaintiffs told either to press their claim for a decree for sale, or to be content to wait until a suit was brought for redemption of the usufructuary mortgage. As the case now stands before me in second appeal, I am not prepared to interfere with the discretion of the Courts below on this ground. I now pass on to consider the other points raised by this appeal.