BOBBA PADMANABHUDU Vs. BOBBA BUCHAMMA

JUDGEMENT

(1.) Plaintiffs sue for a declaration that a will said to have been made by their brother, the deceased husband of the defendant, authorising her to adept a boy was never executed. The defendant pleaded in limine that such a suit is incompetent. The Subordinate Judge dismissed the suit; the only question in appeal is whether this decision is right.

(2.) The diversity of judicial opinion on the construction of Section 42 of the Specific Relief Act is so great that I have resolved upon confining my citations to the cases decided in Madras and to the decisions of the Privy Council. If I may say so with respect the consideration of this question has been rendered difficult by mixing up two distinct issues. Section 42 of the Specific Relief Act, while indicating the character of the right which may be declared by a court of law, leaves it to the discretion of such court to grant or refuse the relief claimed. In arguments addressed to courts and not infrequently in decisions also, the question of the right of suit has been mixed up with the question of exercising discretion in regard to the relief.

(3.) If I had only the language of the section to guide me, I would have little hesitation in holding that suits like the present are within Section 42 of the Act. There can be no doubt that the plaintiffs are entitled to protect their alleged legal right of surviving co-parceners to their deceased brother s estate. It must also be admitted that the defendant is denying that character by setting up the will which if true would deprive the two plaintiffs of a third of their property. There is a further consideration in seeking the aid of. Section 42, a plaintiff may consider that if time elapses the pretensions of the defendant who is interested in denying the plaintiff s title may gain momentum and may in the course of years render the task of refuting those pretensions very difficult. In fact as I said in Naganna v. Sivanappa (1904) I.L.R. 38 M. 1102 Whenever a cloud is cast or attempted to be cast on the title of a plaintiff, he is entitled to come to court under Section 42.