BULAKRAM Vs. GANGA BISHUN CHAUDHURI

JUDGEMENT

(1.) This is a Letters Patent Appeal from a judgment of Varma J. in a second appeal. The plaintiff-respondent brought a suit in the Court of the Munsif for a declaration that a certain mortgage, purporting to have been executed by him, was a forged document and of no legal effect. He also prayed for an injunction restraining the defendant from ever enforcing their supposed rights under such documents The learned Munsif came to the conclusion that the mortgage was a genuine one and dismissed the suit; but on appeal, the lower Appellate Court held that the document was a forgery and granted the plaintiff the declaration sought for and the injunction. The defendants preferred a second appeal to this Court, but that appeal was dismissed with costs by Varma J., hence this Letters Patent Appeal. It has been strenuously argued on behalf of the defendants-appellants by Mr. Mehdi Imam that the decision of the learned single Judge cannot be sustained.

(2.) It is argued that the learned single Judge treated this suit as one under Section 42, Specific Relief Act. It is said that it was not a suit falling within that Section and consequently it should have been dismissed. Stress has been laid upon the form of reliefs sought by the plaintiff, and it is necessary to set them out in extenso. The reliefs were: (1) On determining the above fact it may be held by the Court that the fraudulent mortgage bond dated 10 July 1935 has never been executed by the plaintiff and the aforesaid fraudulent deed forged, fraudulent, illegal and without exchange of equivalence and which is and cannot be binding upon the plaintiff and on his property. (2) After determining the Relief No. 1, the defendants may be prohibited for ever by issuing an order or injunction to enforce the said fraudulent mortgage bond. (3) The costs of this suit with interest till the date of realization may be awarded to the plaintiff against the person and property of the defendants. (4) Any other reliefs, besides the above to which, in the opinion of the Court, the plaintiff be deemed entitled, may be awarded to the plaintiff.

(3.) As pointed out by Varma J. the translation of the reliefs is not very happily worded but there is no difficulty in understanding the nature of the reliefs sought. The first relief is clearly for a declaration that a certain mortgage bond was a forged document creating no rights whatever in the property alleged to have been mortgaged. In short, it is a prayer for a declaration that the mortgage was null and void and not binding upon the plaintiff or his property. It has been contended by counsel for the appellants that such a declaration cannot be sought under Section 42, Specific Relief Act. That Section provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not, in such suit, ask for any further relief.... The argument for the appellants is that what the plaintiff was asking for in this suit was not a declaration that he was entitled to a legal character to any right in property but rather a declaration that a certain instrument was null and void.