MT FARYAD FATIMA BIBI Vs. MUJAHID ABBAS

JUDGEMENT

(1.) THIS is a plaintiff's appeal and arises out of a suit for a declaration, which has been dismissed by the learned Subordinate Judge of Allahabad on the ground that it is "premature." The circumstances which led to the institution; of the suit are as follows: Defendant 1, Mujahid Abbas, executed a deed of simple mortgage for Rs. 1,250 in favour of the plaintiff. He had previously executed another deed of simple, mortgage in favour of Janki Prasad andV others hypothecating certain properties, including those covered by the mortgage-in favour of the plaintiff. Janki Prasad and others obtained a decree for sale on their mortgage, and so did the plaintiff, It is clear that the plaintiff could only proceed to have the property mortgaged to her sold in case the prior mortgage was satisfied with the sale proceeds of properties other than that mortgaged to the plaintiff. THIS was not however the case. The entire property mortgaged to Janki Prasad and others had to be sold, and after satisfaction of their decree a surplus of Rs. 600 only was left, which was all that could be available to the plaintiff. The latter took no further action in her suit after obtaining a final decree, but instituted the suit which has given rise to this appeal for a declaration in respect of a deed of transfer executed by the mortgagor in favour of his wife, the second defendant, in respect of certain property not mortgaged to him in lieu of her dower debt amounting to Rs. 7,000. THIS deed is dated 23 March 1927, that is, in the interval between the passing of the preliminary decree and final decree in favour of the plaintiff. The property covered by the sale-deed is said to be all which the mortgagor owned and against which the plaintiff could proceed in the event of her obtaining a decree under Order 34, Rule 6, Civil P.C. The declaration which the plaintiff seeks is that the deed executed by defendant 1 in favour of defendant 2, is void, being in fraud of creditors, including the plaintiff. The suit was contested by the defendants, inter alia, on the ground that the plaintiff is not entitled to the declaration claimed by her, as she has not obtained a simple money decree under Order 34, Rule 6, Civil P.C. One of the issues struck by the lower Court was: "Has the plaintiff right to sue?" The learned Subordinate Judge considered several questions which did not fall to be decided. Later on in his judgment he referred to the circumstances that the plaintiff has not obtained a decree under Order 34, Rule 6. He also noted the fact that the plaintiff purchased the property covered by her mortgage in execution of the decree obtained by the prior mortgagees. In view of these circumstances the learned Judge held that the plaintiff's suit was premature. Accordingly he dismissed it on that ground. In our opinion the ground on which the decree passed by the learned Subordinate Judge proceeds is not quite accurate except so far as it may be taken to imply that it was not necessary for him at that stage to institute a suit. Nor do we think it was the defendant's plea that the suit was premature. What the defence implied was that the plaintiff had had no cause of action for her suit.

(2.) A declaratory relief is always in the discretion of a Court. No suitor is entitled of right to obtain a declaration that a certain alienation made by the defendant is invalid. It is possible that the plaintiff may not succeed in obtaining a decree under Order 34, Rule 6 for the unsatisfied portion of her mortgage money. If she does not obtain such a decree, she will never have any interest in the validity of the sale-deed executed by defendant 1 in favour of defendant 2. We do not consider it necessary to decide that a mortgagee in the position of the defendant has absolutely no cause to impeach an alienation such as has been made by defendant 1 in favour of defendant 2. We dispose of the suit on the short ground that in the circumstances of the case the Court is not justified in exercising its discretion in granting the relief claimed by the plaintiff. It is, as already stated, possible that the plaintiff may not succeed in obtaining a decree under Order 34, Rule 6. It is equally possible that if she does so obtain the decree and attach the property covered by the sale-deed the defendants may not object to the sale thereof for satisfaction of the plaintiff's claim, or if they do so object, their objection may be disallowed. No useful purpose will be served by granting a declaration at this stage. If the plaintiff hereafter obtains a decree under Order 34, Rule 6 and attaches the property to which the sale-deed in favour of defendant 2 relates, and an objection is taken under Order 21, Rule 58, Civil P.C. and if the same is allowed by the Court executing the decree, the plaintiff will have a good cause of action for a declaratory suit of the nature now instituted by her. The declaratory relief being in the discretion of the Court; it should not be granted in anticipation of a contingency which may not arise. For these reasons we hold that the decreed appealed from should be upheld. Accordingly, we dismiss this appeal. As no appearance has been entered on behalf of the respondents, we make no order as to costs.