TMI Blog1916 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... n November 12, 1899, Bachu Singh died, leaving two widows, the defendants Mussamut Ram. Rachan Kunwar and Mussamut Ram Kishori Kunwar, but no male issue. On September 22, 1902, the defendant Ramnandan Singh applied in the Court of the District Judge of Muzaffarpur for probate of a writing alleged by him to be the last will of Bachu Singh. In that writing he is described as Bachu Singh's kartaputra. The two widows, though heiresses of the deceased Bachu Singh, did not oppose the application. Caveats, however, were lodged by three groups of persons, and the plaintiffs in this suit were the members of one of these groups. There thus arose a contention as to the grant of probate, and the proceedings thenceforth took, as nearly as might be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of administration are in force they have no claim to the reversionary right to the estate of the deceased; and, furthermore, that they cannot apply for the revocation of the said letters of administration until what time they obtain a declaratory decree from the civil Court to the effect that they are the nearest reversioners according to Hindu law of the deceased Bachu Singh, and therefore entitled to his estate in case of an intestacy after the death of the defendants second party. The defendants second party were the two widows. The prayer of the plaint as originally framed was in these terms: that it be declared that the plaintiffs are the next reversioners to the estate of the late Bachu Singh according to Hindu law. By a subsequent an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been confined to the two issues.: (1.) Is the suit maintainable? (2.) Is the suit barred by Section 13 of the Code of Civil Procedure? The first of these problems takes the more specific form of an inquiry whether in the circumstances of this case the plaintiffs are entitled to claim from the Court a mere declaratory decree of the character proposed. 10. The Court's power to make a declaration without more is derived from Section 42 of the Specific Relief Act, and regard must therefore be had to its precise terms. It runs as follows: 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere it was said: There is so much more danger in India than here of harassing and vexatious litigation that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation. 13. Here, however, no question of discretion arises; the suit fails at the very outset, for the plaintiffs, while the will stands, as stand it must for the purposes of this suit, are not clothed with a legal character or title which would authorize them to ask for the declaratory decree sought by their plaint. The suit therefore should be dismissed because it is misconceived and incompetent. 14. Some reference was made in the course of the argument to a reversioner's right to sue where a widow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d pretence of law : 6 Coke, 9a. Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: If a person though defeated at law sue again he should be answered, 'You were defeated formerly.' This is called the plea of former judgment. (See the Mitakshara (Vyavahara), bk. II., ch. i., edited by J.R. Gharpure, p. 14, and the Mayuka, ch. i., Section 1, p. 11 of Mandlik's edition.) And so the application of the rule by the Courts in India should be influ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
