The Plaintiff files this suit for declaration that he is the absolute owner of all the properties moveable and immovable mentioned in Sch. ‘A’ attached to the plaint under the will dated 26th Dec. 1977 executed by Kewal Kishan Handa and the defendant has no right, title or interest in the said properties. The Plaintiff alleges that Kewal Kishan Handa was his paternal uncle and husband of the defendant, that plaintiff was brought up as a son by his uncle as he did not have any child, that his uncle was carrying on business under the name and style of Handar Printing Press at Saharanpur and he purchased properties out of his own earnings from the said business. There are three plots situated at Saharanpur detailed in Sch ‘A’ attached to the plaint. The moveable properties consist of the amounts lying in deposit with the banks as detailed in Sch. ‘A’. The plaintiff further alleges that Kewal Kishan Handa executed a Will on 26th December, 1979 bequeathing all immovable and movable properties to him with a direction that he would pay Rs. 300/- per month to the defendant and that he would also spend Rs. 1,00,000/- on the construction of a Dharamshala in the name of the deceased, that Kewal Kishan Handa died on 15th June, 1998 leaving behind the said assets, that the defendant is trying to interfere with the plaintiffs right, that a cloud has been cast on his right under the Will. The defendant in the written statement admits all the allegations contained in the plaint except that a monthly allowance of Rs. 300/- under the Will was not being paid to her. The defendant denies that she ever interfered with the rights accrued to the plaintiff under the Will. In fact the defendant says that she has no objection to the grant of decree for declaration provided the amount of Rs. 300/- per month is regularly paid to her under the Will. She complains that she has not been paid the said amount since the death of her husband which occurred on 15th June, 1978. On merits no issue arises as the defendant admits the claim of the plaintiff, The following issues, however, arise for determination :

1. Whether this court has jurisdiction to grant the declaration regarding the immovable properties situate at Saharanpur and the moveable properties in suit ? If not to what effect ?

2. Whether the plaintiff is to be granted the discretionary relief of declaration in the facts and circumstances of the case ?

Issue No. 1

The immovable properties in disputes are as follows :

1. Plot No. 9 Area 250 sq. yds, situated in Durga Colony, Saharanpur (U. P.)

Valued Rs. 30000/—

2. Plot No. 581/8/9 sq. yds, (?) situated in Khan Alampur, Janakpura Bajaria Road Saharanpur.

Valued Rs. 40,000/—

3. Plot No. 80 Area 3381/2 sq yds. Situated in Pathanpura, Saharanpur (U.P), half share

Valued Rs. 25000/—

All these plats are situated at Saharanpur. The plaintiff claims a declaration that he is the absolute owner of these properties, Para 9 of the plaint is as under :

“That some of the investments are in the bank within the jurisdiction of this Hon'ble Court and the cause of action for the suit has arisen at Delhi where the defendant has held out threats and where the defendant resides and works for gain. Hence this Hon'ble court has the jurisdiction to try this suit”.

2. The plaintiff claims jurisdiction with regard to immovable properties on the basis that the defendant held out threats to him at Delhi and that she resides and works for gain at Delhi. Section 16. Civil P.C is as under :

“Section 16 — Subject to the pecuniary or other limitations prescribed by any law, suits —

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property.

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property.

(d) for the determination of any other right to or interest in immovable property.

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate :

Provided that a suit to obtain relief respecting or compensation for wrong to, immovable property held by or an behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.”

3. Under this Section a suit for the determination of any right to immovable property under cl.(d) is to be instituted in the Court within the local limits of whose jurisdiction the property is situate. The plaintiff claims absolute ownership regarding the property in question, and absolute right under the Will dated 28th Dec., 1977 of Kewal Kishan Handa, husband of the defendant. The question is : what are the rights of the plaintiff in the three plots in question ? This question relates to determination of rights in immovable property, Admittedly the three plots are not situated within the jurisdiction of this Court and therefore this Court has no jurisdiction under S.16, Civil P.C to determine whether the plaintiff is the absolute owner of the plots. The moveable properties consist of deposits in banks. The defendant admittedly resides at Delhi. Therefore this Court under S.20, Civil P.C has jurisdiction to determine the right of the plaintiff with respect to moveable properties in suit. Some of the bank accounts are within the jurisdiction of this Court at Delhi. The other accounts are with the banks at Saharanpur. It is therefore, held that this Court has jurisdiction to determine the plaintiffs right with respect to moveable properties only.

4. The plaintiff has claimed two reliefs one with respect to immovable properties and the other with jurisdiction to grant the relief pertaining to immovable properties. The question therefore is : Can the Court return the plaint as regards the relief pertaining to immovable properties ? If Court has no jurisdiction to entertain suit with respect to all the reliefs claimed, the plaint is liable to be returned to the plaintiff for presentation to the Court in which the suit should have been originally instituted under O.7, R.10, Civil P.C But in the present case this Court has jurisdiction to determine the right of the plaintiff with respect to one relief i.e moveable properties. If the plaint is to be returned the plaintiff, then this Court will not be in a position to determine the plaintiff's right with respect to the relief regarding moveable properties. In these circumstances the appropriate course would be to reject the plaintiff's claim pertaining to immovable properties in suit and to entertain the plaintiff's suit with respect to moveable properties. I, therefore, reject the plaintiff's claim with respect to the immoveable properties namely, three plots situated at Saharanpur detailed in Sch. ‘A’ annexed to the plaint.

Issue No. 2 :

The plaintiff has claimed absolute right with respect to the various amounts lying with various banks at Saharanpur and at Delhi. The right is being claimed under the Will dated 25th Dec., 1977 of Kewal Kishan Handa. The defendant admits the allegations contained in the plaint. If the defendant is admitting the plaintiffs claim there is no necessity to grant any declaration. Section 34 of the Specific Relief Act is as under :

“Section 34 — Discretion of Court as to declaration of status or right. 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.”

The plaintiff has no absolute right to claim a decree for declaration. This Section confers a discretion upon the Court to grant or not to grant a declaration sought for by the plaintiff. The discretion is to be exercised sound judicial principles. After the death of Kewal Kishan Handa the testator, the legatee has to take out a Succession Certificate or a Probate to recover or realise the property left by the deceased. The plaintiff claims himself to be a legatee under the said Will but it appears he has not taken any steps to obtain either probate of the Will or Succession Certificate to the estate of the deceased. The present suit is a suit for declaration only. The value of the suit for purposes of jurisdiction has been fixed at Rupees 3,50,000/- being the value of the properties and the assets left by the deceased” Kewal Kishan Handa. Under Art.11 or 12 of Sch. I of the Courts Act, 1879 as applicable to the ton Territory of Delhi Court-fees at the rate of 21/2 % of the value of the property in respect of which the Probate or Succession Certificate is claimed is payable. The value of the claim by the plaintiff as stated is 3,50,000/-. Thus the plaintiff, if he desires to obtain the Probate or Succession Certificate, has to pay Court-fees Rs. 8,750/-. On the present plaint has paid fixed Court-fees of Rupees 19.50 only. The present suit is a device to avoid payment of the Court-fees. A declaratory decree should not be de by a Court where the object of suit is to evade payment of stamp duty or Court-fees and the Court in the exercise of its discretion should refuse relief in such cases. Another reason is that there is no denial by the defendant. The question is : What is the necessity of the declaratory decree when there is no denial by the defendant. The only purpose appears to be to evade payment of Court-fees and claim the various amounts lying in various banks on the basis of declaration. This would amount to giving relief to the plaintiff without making him liable to pay the Court-fees required to be paid by him under the Court-fees Act. Ordinarily the banks cannot make payment of the amounts lying to credit of the deceased unless the right of the claimant is established before a Court of law. The plaintiff adopted the present suit as the mode to get a declaration in his favour then to claim the amounts from various banks. As the defendant does not deny the allegations of the plaintiff, the plaintiff is not likely to suffer at all if the declaration sought by him is refused.

5. In the circumstances, I do not Consider, fit to grant the relief of declaration to the plaintiff. This I do so on two grounds, namely, (i) evasion of Court-fees and (ii) no denial of the alleged rights of the plaintiff by the defendant. I, therefore, dismiss the plaintiff's suit with regard to the moveable properties in the form of bank deposits detailed in Sch. ‘A’ annexed to the plaint. The plaint with regard to immovable properties is rejected. There will be no order as to costs.

Suit dismissed in part and rejected in part.

Suit dismissed.