(Appeal (disposed of on 9-8-1944) from the judgment of Chandrasekhara Aiyar, J. dated 17-8-1942 and passed in the exercise of the ordinary original civil jurisdiction of the High Court in C.S. No. 109 of 1941.)

Sir Vere Mockett Officiating Chief Justice

In these connected appeals the first respondent filed a suit C.S. No. 109 of 1941 against Elayaperumal Naicker as first defendant, his wife E. Balammal as second defendant and his daughter Krishnaveni Ammal as third defendant. There was also a claim against one Nataraja Pillai, the fourth defendant, the first defendants clerk relating to the transfer of a motor car. The second and third defendants appeal and so far as they are concerned the form of the suit was for a declaration that certain alienations made in favour of the wife and daughter respectively were benami in nature for the purpose of defrauding the first defendants creditors. The learned trial Judge, Chandrasekhara Aiyar, J., decreed the suit in favour of the plaintiff and the third defendant appeals in O.S.A. No. 79 of 1942 and the second defendant in O.S.A. No. 8 of 194

3. The form of the plaint, and this is made clear by the prayer, is for a declaration that the properties transferred to the appellants were benami in nature. Paragraph 5 states that the transactions are benami and fictitious. This means that the plaintiff alleges not that there was an actual transfer to the defendants but that there was only a transfer in form, the actual property remaining with the transferor. The learned Judge has so found. Accordingly the learned Judge held that S. 53 of the Transfer of Property Act had no application, it not being a transfer binding between the parties. It was therefore not voidable at the instance of the creditor. The plaint, however, as already stated, proceeds on the basis that there was no real transaction, the transfers being benami, that is to say, in the name of the wife and the daughter, but the property actually remaining with the husband.

The appellants have contended before us that following upon this finding the learned Judge should have dismissed the suit and that S. 42 of the Specific Relief Act could not be called in aid by the respondent in the absence of facts attracting the provisions of O. 21, R. 63 of the Civil Procedure Code. The appellants argued that for these reasons the suit could not be regarded as a declaratory suit. It is not suggested that any claim or objection had arisen for investigation within the meaning of R. 6

3. The learned Judge, however, held that S. 42 was not exhaustive and that the suit although not within S. 53 of the Transfer of Property Act would lie apart from the provisions of S. 42 of the Specific Relief Act.

That the provisions of S. 42 are not exhaustive is well established by authority; Robert Fischer v. The Secretary of State for India in Council (22 Mad. 270 (P.C.) Ramachandra Rao v. Secretary of State for India (39 Mad. 808) [LQ/MadHC/1915/404] and Secretary of State for India v. Subba Rao (56 Mad. 749 [LQ/MadHC/1933/45] = 38 L.W. 155). In each of those cases on the facts the defendants had challenged a substantive right of the plaintiff. In Robert Fischer v. The Secretary of State for India in Council (22 Mad. 270 (P.C.) the plaintiff prayed for a declaration that an order of the Government to his prejudice be declared invalid. In Ramachandra Rao v. Secretary of State for India (39 Mad. 808) [LQ/MadHC/1915/404] a suit for a declaration that an order debarring one from acting as Vakil for another in a village Court was void, was held to be maintainable, though not covered by S. 42 of the Specific Relief Act. In the latest Madras decision, The Secretary of State for India v. Subba Rao (56 Mad. 749 [LQ/MadHC/1933/45] = 38 L.W. 155) Beasley C.J. and Bardswell J. held that a suit by a karnam for a declaration that an order of the Board of Revenue was invalid as being to his prejudice, was maintainable although not comprehended by S. 42 of the Specific Relief Act. At page 755 Bardswell J. discusses the question as to what extent S. 42 is not exhaustive of declaratory suits and he refers to the decision of the Privy Council in Sheoparasan Singh v. Ramanandan Prasad Singh (43 Cal. 694 (P.C.). At page 704 of the Privy Council case Sir Lawrence Jenkins makes the following observations regarding S. 42:

A plaintiff coming under this section, must, therefore, be entitled to a legal character or to a right as to property. Can these plaintiffs predicate this of themselves Clearly not; and this is, in effect, stated in the plaint, where they described themselves as entitled to Bachu Singhs estate in case of an intestacy after the death of the defendant widows.

Sir Lawrence Jenkins went on to say that the suit must fail at the very outset, the plaintiffs not being clothed with a legal character or title which would authorise them to ask for a declaratory decree sought by the plaint. In Ramakrishna v. Narayana (39 Mad. 80) Napier J. held that although S. 42 was not intended to be exhaustive, declaratory relief would not be given in respect of rights arising out of a contract affecting only the pecuniary relationship between the parties unless there were exceptional circumstances to take it out of the ordinary rule. The learned Judges at page 83 stated that no such case had been brought to their notice. In Sheoparasan Singh v. Ramanandan Prasad (43 Cal. 694 (P.C.) referred to above their Lordships refer to Kathama Nachiar v. Doraisingha Tevar (1875 L.R. 2 I.A. 169, 191) wherein it is stated that reversionary suits were in a special class and had been entertained by the Courts ex necessitate rei.

It is well to consider the exact allegations of the plaintiff in his plaint. The effect of the plaint may be stated as follows: Paragraph 3 alleges that the first defendant owes the plaintiff a large sum of money in respect of which he, the plaintiff, had filed C.S. No. 121 of 1939 in the High Court. Paragraph 4 alleges the first defendant was heavily indebted to various creditors. Paragraph 5 and following paragraphs allege the transfers by the first defendant to his wife and daughter, the subject of the suit. Such facts are of almost daily occurrence in the various Courts of this Presidency and the usual and proper remedy in such circumstances would have been for the plaintiff to apply to the Court for an order for attachment before judgment. Had he obtained such an order, he could have attached the properties transferred to the wife and daughter as being the properties of the first defendant. That would have been a perfectly logical course in that he alleges in paragraph 5 that the transfers were made in the name of the wife and daughter. It may be added that the decree in C.S. No. 121 of 1939 was not passed until November 1941, so that, at the time of this plaint the plaintiff was in no different position from any other creditor of the first defendant. I am of opinion that this suit does not lie and should have been dismissed. It was clearly not within S. 53 of the Transfer of Property Act as with respect the learned Judge rightly held. It is not, I consider, a suit to which S. 42 of the Specific Relief Act applies. There is no authority for the proposition that on the facts such as these an ordinary declaratory suit can lie. If it were so, the Courts would be flooded with suits by creditors attacking transactions made by debtors. As already stated the machinery of the Code relating to attachment before judgment, O. 38, Rr. 5 to 13, is available to creditors. In such proceedings, if adopted, for example in this case, it would have been for the present appellants to establish, their title and very probably a suit could have been properly instituted under O. 21, R. 63 of the Civil Procedure Code.

Whilst the exact facts of this case are not covered by authority in this High Court, there are two decisions of the High Court of Rangoon on the topic. In K.R.M.A. Firm by their Agent Meyyappa Chettiar v. Maung Po Thein and others (4 Rang. 22), the plaintiffs in the suit claimed a declaration of their right to attach certain properties in execution of a decree in another suit. The learned Judges, observing that the suit before them did not fall within the provisions of O. 21, R. 63, proceeded to discuss the applicability of S. 42 of the Specific Relief Act. They noted that the plaintiffs had not adopted their remedy by attachment. At page 24 there appears the following observations,

Before appellants can succeed they must show that they have a right as to the property in suit. The only right which they claim is a right to attach that property under a decree for money. They do not claim that they have themselves any title to the property or to any part of it. All that they are seeking to establish is that their judgment-debtors have rights as to the properties.

They held that the suit was rightly dismissed since the plaintiff claimed no right of his own in the property. More recently in Maung Ba Maung v. Maung Be Yin (I.L.R. 1940 Rang. 59 (F.B.), a Full Bench of the Rangoon High Court considered the following question,

Can a creditor sue under S. 42 Specific Relief Act, for a bare declaration that a transfer has been made by his judgment-debtor fraudulently with intent to defeat or delay his creditors, or must he sue for cancellation of the deed of transfer either as his sole remedy or as a relief further to that declaration

The learned Judges held that K.R.M.A. Firm by their agent Meyyappa Chettiar v. Maung Po Thein (4 Rang. 22) was rightly decided. They discuss cases within S. 42 of the Specific Relief Act where the suit for a bare declaration could only lie when the plaintiff is entitled to any legal character or to any right as to any property. Dunkley J. at page 71 observes:

It is essential to bear in mind the distinction between a substantive right and a right which is conferred by rules of procedure. The right of a judgment creditor to attach the property of his judgment-debtor is a mere procedural right, conferred by the Civil Procedure Code. It is not a substantive right as to the property, and therefore cannot give rise to a right of suit under S. 42 of the Specific Relief Act.

I respectfully agree with the decisions in both K.R.M.A. firm by their agent Meyappa Chettiar v. Maung Po Thein (4 Rang. 22) and Maung Ba Maung v. Maung Be Yin (I.L.R. 1940 Rang. 59 (F.B.).

It is true, as laid down in the various decisions to which I have referred, that the general view is that S. 42 of the Specific Relief Act is not exhaustive, but there is no authority for the proposition that a suit for a declaratory decree will lie when the plaintiff is neither entitled to any legal character nor to any right in the suit property. To return to the judgment of their Lordships in Sheoparasan Singh v. Ramanandan Prasad Singh (43 Cal. 694 at 705 (P.C.), their Lordships repeat the warning given in Sree Narain Mitter v. Kishan Soondary Dassee (1872 L.R. I.A. Supp. Vol. 149, 162) where it was stated,

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.

I consider that this suit should have been dismissed for exactly the same reason as given by their Lordships in Sheoparasan Singh v. Ramanandan Prasad Singh (43 Cal. 694 at 705 (P.C.) to which reference has already been made, namely, because the plaintiff in the appeals before us is clothed with neither a legal character nor title to the suit property. I will conclude by adding that their Lordships after noticing the facts in relation to the plaintiffs legal position did not even discuss whether the suit would lie aliundi .

For the above reasons I consider that these appeals should be allowed with costs against respondents 3-7 and the suit dismissed without costs.

Kuppuswami Ayyar, J.

I agree.