The Judgment of the Court was as follows:—
Mukherjea, J.:— The facts giving rise to this appeal may be shortly stated as follows: Premises No. 53, Ashutosh Mukherjee Road belonged to one Abhoy Chandra Sarkar who died sonless leaving behind him his widow Raj Lakshmi and two daughters,—Nagendra Bala and Giribala. After the death of Abhoy, his widow Raj Lakshmi sold the premises to one Purna Ghose who in his turn conveyed it to Harimati from whom it was purchased by Anukul Chandra Mukherjee, the Plaintiff in the suit out of which this appeal arises. Harimati, it seems, remained in occupation of the premises as a lessee under Anukul during her whole life-time. On the 29th April, 1932, Anukul along with Harimati mortgaged the said premises No. 53, Ashutosh Mukherjee Road together with another property which is premises No. 2|1, Mahesh Choudhury Lane to Defendant No. 1, Tarak Chandra Das to secure an advance of Rs. 13,000. On the 17th August, 1935, Anukul and Harimati sold the Mahesh Choudhury Lane property to one Rukmini Bai for Rs. 8,000, and out of this consideration money, a sum of Rs. 7,000 was paid to the mortgagee, with a view to get this property released from the mortgage lien. On the 26th September, 1936, an agreement was come to between Tarak on the one hand and Anukul on the other under which the latter agreed to sell premises No. 53, Ashutosh Mukherjee Road to the former for a consideration of Rs. 19,500. It was agreed that the dues of Tarak as a mortgagee would be set off against a portion of the purchase money and the balance would be paid in cash to Anukul. A bainapatra was executed on that date, and a sum of Rs. 251 was paid as earnest money by Anukul. Four days after that, Tarak received a pleader's letter from Satya, the son of Nagendra Bala, one of the daughters of Abhoy, and in that letter Satya laid claim to the property as a reversionary heir of Abhoy, and asserted that Anukul being the purchaser of the widow's interest of Raj Lakshmi could not acquire any right which would enure beyond the life-time of the widow. It was then arranged between Anukul and Tarak that out of the sum of Rs. 19,500 which was fixed as the consideration money for the sale of the property, a sum of Rs. 11,357 would be taken by Tarak in satisfaction of his dues on the mortgage bond and a sum of Rs. 4,500 would be paid in cash to Anukul, the balance of the consideration money amounting to Rs. 3,392 would be retained as deposit by Tarak pending the decision of the suit which Satya threatened to institute: If Satya succeeded in that suit, the sum would go to indemnify the purchaser, whereas if Satya failed, the money would be returned to the Plaintiff. It was further agreed that Tarak would accept a lower rate of interest in case Satya's suit was dismissed, and a sum of Rs. 297 and annas odd which represented this reduced interest would also be refunded to Anukul on the same conditions upon which the sum of Rs, 3,392 would be returned. The conveyance was executed on the 7th May, 1937, and though the arrangement mentioned aforesaid was embodied in the draft, it was omitted, it is said, through inadvertence, from the final document.
2. On the 25th August, 1937, Satya instituted a suit in the Court of the First Subordinate Judge at Alipore for establishment of his reversionary title to the property in question, and Tarak as well as his wife Ranibala who was alleged to have advanced the money in the benami of her husband were made parties to suit. On the 30th July, 1938, the suit was dismissed, and against this decree of dismissal, an appeal was filed by Satya in this Court which was Appeal from Original Decree No. 228 of 1938.
3. After the dismissal of Satya's suit by the trial Court, the present action was brought by Anukul praying for a declaration that the sums of money mentioned above were held in deposit by Tarak on condition that they would be used by him in case Satya succeeded in the suit, whereas if Satya's suit failed, they would be returned to the Plaintiff. Ranibala, the wife of Tarak, was made Defendant No. 2 in the suit.
4. The contention of the Defendants, in substance, was that there was no such agreement as alleged by the Plaintiff, and they did not hold any money belonging to the Plaintiff in deposit on any condition whatsoever. It was averred that the Plaintiff Anukul had taken several sums of money aggregating to Rs. 3,392 on several hand-notes since then, and that there was no cause of action so far as the Defendant No. 2 was concerned. Lastly, it was said that the suit was not maintainable in view of the provisions of sec. 42 of the Specific Relief Act.
5. The trial Court substantially decreed the suit of the Plaintiff. The claim in respect of Rs. 297 and odd annas was dismissed, but the main relief prayed for by the Plaintiff was granted, and it was declared that out of the consideration money of premises No. 53, Ashutosh Mukherjee Road which belonged to the Plaintiff, the sum of Rs. 3,392 was retained and kept in deposit by the Defendant No. 1 on condition that it would go to him in case Satya succeeded in his suit and that it would be returned to the Plaintiff in case Satya's suit failed. This decision was upheld on appeal by the Additional District Judge of 24-Parganas, and the Defendants have now come up on second appeal to this Court.
6. The first and main contention raised by Mr. Ghose who appears in support of the appeal is that a declaratory relief of the nature prayed for by the Plaintiff in the present suit is not within the scope of sec. 42 of the Specific Relief Act. It is said that the right asserted by the Plaintiff is not an existing right but a future and contingent one, and whether it would at all come into being or not was dependent upon an uncertain event which might or might not be fulfilled. It is further argued that the claim of the Plaintiff to recover a sum of money from the Defendants on the basis of a contract is not a right to property which sec. 42 of the Specific Relief Act contemplates.
7. It is perfectly well settled that sec. 42 of the Specific Relief. Act does not sanction every form of declaration but only a declaration that the Plaintiff is entitled to a specific legal character or a right as to property. Now, legal character is the same thing as status, whereas a right as to property signifies that there is an existing right of the Plaintiff in any particular property. But though the right must be an existing one, it need not necessarily be a right which is vested already. No. declaration can possibly be made on the basis of a chance or a mere hope entertained by the Plaintiff, but a person having even a contingent right in a property may sue for a declaration, though the Court in the exercise of its discretion may refuse to make such declaration if it considers the claim to be too remote or that the declaration given would be ineffectual and abortive. The question, therefore, realty is not one of jurisdiction but one of discretion to be exercised by the Court.
8. In the case before us, if the story of the Plaintiff is to be believed,—and it has been believed by both the Courts below,—the Plaintiff's right to get back refund of the deposit accrued to him as soon as the title suit instituted by Satya was dismissed, and, in fact, Satya's suit was already dismissed by the trial Judge when the present action was commenced. There was indeed a chance of the decision being upset by the Court of Appeal, but, as in the meantime, evidence of the transaction might be lost or tampered with, the Plaintiff was entitled to pray for a declaration in the conditional form that in case the final judgment in Satya's suit ended in dismissal of the suit, he would get back his deposit and not otherwise. The Courts below in the exercise of their discretion might have refused to give him this declaration till the appeal filed by Satya against the judgment of the trial Judge was finally disposed of and, if necessary, the present litigation could have been stayed pending the decision in Satya's suit. As matters stand, however, they have given the Plaintiff a declaration in the form prayed for by him, and we are unable to say that such a declaration is outside the scope of sec. 42 of the Specific Relief Act.
9. Regarding the second branch of Mr. Ghose's contention, it is perfectly true that the right asserted by the Plaintiff must be in respect of a property. The Plaintiff in the present case proceeded on the footing that a portion of the consideration money which was retained by the Defendants was, in fact, his own money, and it was kept in deposit with the Defendants with the condition attached, namely, that on the disposal of the suit instituted by Satya in a particular manner, the money would be refunded to him. The Plaintiff, therefore, can be said to have claimed the right to the money itself, and in that sense, it is a right to property and not merely to a right against the Defendants personally. We are unable, therefore, to give effect to this contention of Mr. Ghose.
10. Mr. Ghose has urged in the next place that as the appeal preferred by Satya has ended in a partial decree in his favour on the basis of a compromise which was arrived at between the parties in this Court, the Plaintiff was no longer entitled to any relief on the case made in his plaint. We have been invited to take notice of this subsequent event for the purpose, of disposing of the matter in controversy between the parties finally. Undoubtedly the Appellate Court is entitled to look into subsequent events for the purpose of doing complete justice to the parties and in particular, for avoiding further litigation. A difficulty however arises, in this case as there was no pronouncement by the Court on the merits of the case in the appeal which was preferred by Satya. The appeal ended in a compromise between Satya on the one hand and Ranibala on the other. The decree of the Court below was not set aside, and all that the compromise laid down was that Satya surrendered whatever interest he had got in the property in favour of Ranibala on a consideration of Rs. 6,000. It is said on behalf of the Respondent that this compromise was fraudulent and collusive and was entered into for the purpose of defeating the claim to the money kept in deposit by the Plaintiff. These questions require investigation, and we are not competent to do so in second appeal, as it is necessary that evidence should be taken on these points. It is to be noted that the Plaintiff has so far got a declaratory decree in his favour which cannot possibly be executed and he is not going to get any money unless he institutes a fresh suit against the Defendants in which all these questions as to the effect of the compromise in the appeal filed by Satya in this Court can be properly raised and decided.
11. Considering the facts and circumstances of this case, we are not inclined to interfere with the decision of the Courts below. The result is that this appeal is dismissed with costs: Hearing fee, two gold mohurs.
12. No order is necessary on the application.
Sharpe, J.:— I agree.
S.C.S
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