1. The only question to be decided in this appeal is whether the present suit for a declaration is competent. Jagat Ram plaintiff instituted the suit for a declaration that Mst. Basanti defendant No. 1 was not his wife and that Bhoda Singh defendant No. 2 was not his son. It was alleged that Mst. Basanti had effected a mutation of land in favour of Bhoda Singh describing him to be her son from the plaintiff and that an application for maintenance had also been filed against the plaintiff under Section 488 of the Cr PC.
2. The defendants pleaded that defendant No. 1 was a legally wedded wife of the plaintiff and that defendant No. 2 was born from him and that a suit for a negative declaration in respect of relationship was not competent. The learned Senior Subordinate Judge decreed the plaintiff's suit holding that the plaintiff had a locus standi to institute the present suit, that the suit in the present form could proceed under Section 42 of the Specific Relief Act and that defendant No. 1 was not the lawfully wedded wife of the plaintiff and that defendant No. 2 was not his son.
3. The defendants feeling aggrieved preferred an appeal to the Court of the District Judge who held that the plaintiff's suit in the present form could not proceed and that he was not entitled to claim negative declaration in respect of his alleged relationship with the defendants, but in view of the fact that the finding of the other issues had been in favour of the plaintiff, the parties were left to bear their own costs throughout.
4. On second appeal, Mr. H.R Mahajan has strenuously contended that the present suit is competent and that the learned District Judge is, in error in non-suiting the plaintiff-appellant on the erroneous ground that the suit in the circumstance's of this case is not competent as framed. He submits that in 1942, after Mst. Basanti's husband's death, she transferred her property to Bhoda Singh describing him to be her son from Jagat Ram. In 1952 she filed a petition for maintenance against the plaintiff-appellant which was consigned to the record-room on her own statement some time in July 1952.
5. On 13th of February, 1952 the present suit was instituted by Jagat Ram plaintiff-appellant. The counsel submits that the defendants had been trying to create evidence in support of their assertion of relationship with the plaintiff which relationship, if true, would impose a legal obligation on the plaintiff to maintain both the defendants and would also entitle them to succeed to the plaintiff's estate on his death. In this view of the matter, the counsel submits that the present suit is fully competent under Section 42 of the Specific Relief Act. The section is in the following terms:
“42. 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:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation:— A trustee of property is a ‘person interested to deny’ a tide adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.”
6. In Bai Shri Vaktuba v. Agarsinghji Raisinghji, ILR 34 Bom 676, a talukadar-plaintiff brought a suit for a declaration that defendant 2, a minor, was not his son and that he was not born so the plaintiff's wife, defendant 1, and for an injunction restraining defendant 1 from proclaiming to the world that defendant 2 was plaintiff's son and from claiming maintenance for him as such son. The defendants contended that the suit was not maintainable under the provisions of the Specific Relief Act and that it was premature.
7. It was held by a Division Bench of the Bombay High Court that the suit was maintainable, it being within the provisions of Section 42 of the Specific Relief Act it was further held that in the interests of justice it was of the highest importance that such claims should be investigated and decided without unnecessary delay, and when the controversy had once been brought to trial the decision should ordinarily follow the usual course. The learned District Judge in the present case followed the decision of the Rangoon High Court in Daw Pone v. Ma Hnin May, AIR 1941 Rang 220, where it is laid down that a suit for a declaration that the defendant is not keittima daughter of the plaintiff and her husband does not lie under Section 42 of the Specific Relief Act.
8. Out of these two decisions I, on my part, would prefer to follow the decision of the Bombay Court and not that of the Rangoon Court which is a foreign Court. It is not disputed that a suit for a declaration of legitimacy is maintainable. Indeed, this proposition was upheld by a Full Bench of the Lahore High Court in Haji Abdul Karim v. Mst. Sarraya Begam, AIR 1945 Lah 266. Section 9 of the CPC empowers the pourts to try all suits of a civil nature excepting suits the cognisance of which is either expressly or impliedly barred. There does not appear to the any express bar with respect to suits for a declaration in the negative.
9. In order to make out an implied bar it is necessary to consider the basis for the implication. The reasoning employed in Bai Shri Vaktuba's case, ILR 34 Bom 676, in my opinion, clearly outweighs the reasons on the basis of which any such implied bar can be reasonably pleaded. In Chinnasami Muda-liar v. Ambalavana Mudaliar, ILR 29 Mad 48, a Division Bench of the Madras High Court upheld the maintainability of a suit for a ration that the defendant was not the adopted son of the plaintiff. In fact, this decision went further and held that it was not necessary for the maintainability of a suit that a claim must be set up by a party alleged to have been adonted.
10. In Bansilal Shankarlal v. Shankarlal Ramlal, AIR 1933 Nag 292, the decisions in ILR 29 Mad 48 and ILR 34 Bom 676 were approved and relied on. In U. Arzeina v. Ma Kyin Shwe, AIR 1940 Rang 298, also it was observed that a suit for a declaration of non-paternity and of non-liability in consequence to pay maintenance is competent under Section 42 of the Specific Relief Act. It may be observed that the attention of the learned Judges who decided AIR 1941 Rang 220 on 1st of February 1940 was not drawn to any precedents or decided cases and the judgment is a short one without any elaborate discussion.
11. AIR 1940 Rang 298 decided on 25th April, 1940, on the other hand, contains an elaborate discussion of the case law on the point and the learned Judges have come to the conclusion contrary to that contained in AIR 1941 Rang 220 though of course without having been referred to it. The question is undoubtedly not free from difficulty but the preponderance of authority, to which I have been referred at the Bar, is clearly in favour of the competency of a suit of the present nature. It is also desirable that disputes of the present the should be adjudicated upon without undue delay and certainly before the relevant evidence disappears. For the reasons given above, I would allow this appeal and setting aside, the judgment and decree of the learned District Judge, send the case back to the lower appellate Court for decision of the appeal on the merits. The lower appellate Court will, of course, issue proper notice to the parties for the hearing of the appeal. As the point is not free from difficulty, the parties are left to bear their own costs in this Court. The counsel have been directed to inform their clients to appear in the Court of the District Judge, Hoshiarpur on 14-4-59 when another date for further proceedings will be given to the parties.
D.R.R
12. Appeal allowed.