Tuesday, 4 August 2015

Whether suit for declaration is maintainable when consequential relief is not claimed?

 The defendant no.5 had taken a categorical plea that the plaintiff
was informed by letter dated 3/10/1998 that the sale was confirmed by
sale certificate dated 20/07/1998. It was also stated by the General
Manger of defendant no.5 in his evidence that the suit property was
auctioned on 16/06/1998 and the sale was confirmed on 20/07/1998 by
order of the Recovery Officer, the defendant no.4; that the plaintiff nor
other alleged heirs had shown any interest in the suit property; that the
plaintiff or other alleged heirs never objected to the attachment, auction
or confirmation of sale. It was further deposed by him that there was no
prayer in the suit for declaring the sale certificate as null and void.
Inspite of that, the plaintiff took no steps either to seek a declaration that
the said sale certificate was null and void or for that matter for
cancellation of its registration or for the recovery of the suit property
from the possession of defendant no.12. Shri Ramani, learned Counsel
appearing on behalf of the plaintiff submits that this Court can mould
the reliefs and grant the same to the plaintiff by declaring the sale
certificate as null and void and directing cancellation of its registration.
I am unable to accede to the submission made by Shri Ramani. A
similar issue was considered by the Division Bench of this Court in the
case of Mr. Guna Krishna Gauns & Anr. V/s. Mr. Antonio Joao
Braganza @ Antush Braganza & Ors. (2009 (2) Bom.C.R. 665)
(unreported judgment dated 15/12/2008 in First Appeal No.189/2005),
to which I was a party and it was stated therein that the object of the
proviso to Section 34 of the Specific Relief Act, was to prevent
multiplicity of suits by preventing a person from getting a mere
declaration of right in one suit and then seeking the remedy without
which the declaration would be useless and which could not have been
obtained in the same suit, in another suit. A claim is said to be
consequential only when it cannot be claimed in the absence of a claim
for declaration. Otherwise it would lead to multiplicity of litigation for
the declaratory suit will have to be followed up with an ejectment action
for recovery of possession. It is well settled law that a suit for mere
declaration when consequential relief which is available and which is
not sought for, is not maintainable. Reference was made to the case of
Ram Saran & Anr. V/s. Smt. Ganga Devi (AIR 1972 SC 2685) wherein
the Apex Court had stated that where the defendant is in possession of
the some of the suit properties and the plaintiff in his suit does not seek
possession of those properties but merely claims a declaration that he is
the owner of the suit properties, the suit is not maintainable. That was
the case where Gangadevi was in possession of suit property and the
plaintiffs had not sought the possession of the suit property and had
merely claimed declaration that they were the owners of the suit
property and it is in that context that the Apex Court had held that the
suit was not maintainable. Reference was also made to the case of
Vinay Krishna V/s. Keshav Chandra & Anr. (AIR 1993 SC 957)
wherein it was held that the failure to ask for relief of possession
undoubtedly bars the discretion of the Court in granting the decree for
declaration. The Apex Court had further observed that merely because
the plaint says in the prayer, such other relief be granted to the plaintiff,
it does not mean that without a specific plea for possession and
disregarding the bar under Section 42 (now Section 34, proviso) of the
said Act, the suit could be decreed even with reference to the portions of
which the plaintiff was in possession. In the absence of specific prayer
for the recovery of possession of the property sold by the said sale deeds
to the defendants, the suit for declaratory relief by the plaintiffs was
clearly not maintainable and in this view of the matter also, the
dismissal of the suit for main relief cannot be faulted.

N.A. BRITTO, J.
NH/-
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL NO.25 OF 2006
The Goa State Co-operative Bank Ltd.,

V/s
 Smt. Olinda Fernandes,
 CORAM : N.A. BRITTO, J.
DATE : 15th SEPTEMBER3
Citation;2010 (6) BOMCR871

This appeal is filed by defendant no.5 in Special Civil Suit
No.55/99/III (old) and is directed against judgment/decree dated
17/10/2005 by which the suit filed by respondent no.1 (plaintiff) has
been decreed with costs.
2. The parties hereto shall herein after be referred to in the names as
they appear in the cause title of the suit.
3. There is no dispute that the mortgaged property surveyed under
No.297/3 of Village Loliem in Canacona Taluka, was purchased by
defendant no.8 Milagrina Fernandes on 1/02/1959 during the
subsistence of her marriage with Luis Fernandes, who expired on
6/04/1973, leaving behind the plaintiff - Smt. Olinda Fernandes, the
defendant no.9 – Alda Fernandes, defendant no.10 - Angela D'Silva,
defendant no.11 – Maria Fernandes, as their daughters, defendant no.7 –
Judicia Fernandes as the daughter in law, and defendant no.6 – Mario
Fernandes as the son, besides the said defendant no.8 - Milagrina, the
widow.
4. Defendant no.8 - Milagrina along with her son defendant no.6
Mario and her daughter in law defendant no.7 – Judicia, mortgaged the4
said property in favour of defendant no.5, the Goa State Co-operative
Bank Ltd. on account of loan of Rs.2 lacs taken by defendant no.6, the
said Mario by a deed of mortgage dated 2/08/1993 to secure the
repayment of the said loan. As the loan was not repaid by defendant
no.6 - Mario, the loan was recalled by letters dated 15/12/1994 and
6/2/1998 and defendant no.6 - Mario was informed that mortgaged
property would be sold in public auction. The mortgaged property was
put to auction by publishing notices on daily newspapers and as on
16/04/1998 there were no bidders, the auction was adjourned to
16/06/1998 and it was adjudged in favour of respondent no.12, being the
highest bidder, for a sum of Rs.5,50,000/-.
5. The plaintiff claiming that she read the notice published on
“Gomantak” that the suit property would be auctioned on 16/06/1998 at
11.00 p.m., she made inquiries with defendant no.5 and she came to
know that the suit property was mortgaged by defendants nos.6,7 & 8 in
favour of defendant no.5 and, therefore, she sent a notice to defendants
nos.2,3 & 4 (Recovery Officer) on 13/04/1998 objecting to the proposed
sale which they received, and she again learnt on 6/06/1998 that the suit
property would be again put to public auction on 16/06/1998 and
therefore, she filed special civil suit no.100/98/II and when the
defendant no.5 objected on 30/07/1998 that the said civil suit was not
maintainable in the absence of the notice to defendant no.5, the plaintiff5
withdrew the said suit with liberty to file a fresh suit and after serving a
notice as required under Section 101 of the Multi-State Co-operative
Societies Act, 1984, she filed the present suit on 21/01/1999. By then
the plaintiff was informed by defendant no.5 by letter dated 3/10/1998
that the suit property was already attached and sold.
6. Contending that the plaintiff was a co-owner of the suit property
and, as such, defendants nos. 6 to 8 could not have mortgaged the suit
property in favour of defendant no.5, the plaintiff filed the suit for
(a) declaration that the deed of mortgage dated 2/08/1993 registered
with the sub-registrar on 23/08/1993 be declared as null and void;
(b) for direction to cancel the registration of the said mortgage;
(c) for declaration that the auction held be declared null and void;
(d) for injunction against defendants nos.1 to 5 from interfering with
the suit property; and
(e) any other order which the Court may deem fit and proper.
7. The suit was contested only by defendants nos.5 & 12; by
defendant no.5 stating that the sale was already confirmed by defendant
no.4 by his order dated 20/07/1998 and the suit property was transferred
to defendant no.12 by execution of sale deed dated 13/10/1998.
Defendant no.5 also pleaded that the defendants nos.10 & 11 were
married women, who had husbands and children and they were6
necessary parties to the suit. The defendant no.5 also stated that the
mandatory provisions of Section 101 of the Act of 1984 were not
complied with before filing of the suit. Defendant no.5 stated that the
plaintiff nor the other so called heirs showed any interest or gave any
information to defendant no.5 or defendant no.4, the Recovery Officer,
at the time of attachment or public auction of the suit property and that
defendant no.5 by its letter dated 3/10/1998 had informed the plaintiff
about the public auction and confirmation of sale. Defendant no.5 stated
that it had taken maximum care and precaution to find out whether there
were any more heirs to the suit property and that defendants nos.6,7 & 8
had declared that they were the only heirs and there were no other heirs
to the suit property and the suit property was in the name of defendant
no.8 in the title deed and in Form No.I and XIV of the survey records.
Defendant no.5 stated that the plaintiff could not seek the relief of
permanent injunction as the suit property was already transferred by
defendant no.4 in the name of defendant no.12.
8. Defendant no.12 in turn stated that he was bonafide purchaser of
the suit property having purchased the same in public auction which was
not objected to by the plaintiff and that he has been issued a sale
certificate which is duly registered in the office of the sub-registrar,
Canacona and which has not been challenged. Defendant no. 12 stated
that the plaintiff had no cause of action against defendant no.12 and that7
defendants nos.3 to 5 had not informed the defendant no.12 about filing
of the suit, withdrawal of the suit with permission to file a fresh suit, etc.
Defendant no.12 reiterated that he had purchased the suit property in
public auction and that he is the bonafide purchaser.
9. Other defendants did not contest the suit. The learned trial Court
framed several issues in the trial which followed. Only the plaintiff and
defendant no.5 gave their evidence. Defendant no.12, who had
contested the suit did not give any evidence. The learned trial Court, as
regards issue no. 2, held that the suit property was jointly owned by
plaintiff and other legal heirs of late Luis Fernandes and defendant no.8
and, in my opinion, the said finding cannot be faulted. As already
observed, the suit property was acquired, by sale by defendant no.8
while she was married to the said Luis Fernandes and if upon the death
of the said Luis Fernandes, their son defendant no.6 - Mario could
inherit the same likewise the plaintiff, who was one of the daughters had
also inherited the same and thus she was a co-owner of the suit property
which was mortgaged by defendants nos.6,7 & 8 in favour of defendant
no.5. Learned trial Court also referred to the provisions of Article 2177
of the Civil Code, 1867 and observed that the co-owner of a common
and an undivided property had a right to enjoy the whole property along
with other co-owners and no co-owner could restrict his/her enjoyment
to the whole property unless and until the property was divided and8
partitioned. The learned trial Court also noted that the suit property was
common and undivided property belonging to the plaintiff and
defendants nos.6 to 11 and defendants nos.6 to 8 without the express
consent of the plaintiff and other co-owners could not have entered into
a mortgaged deed with defendant no.5 as the plaintiff along with other
co-owners enjoyed jointly all the rights which were in common and
some of the co-owners could not have disposed of any portion of the
common object unless the same was assigned to them in partition. In
this regard, learned trial Court referred to the case of Shri Joao Manuel
Santa Rita Piedade Camara & Anr. V/s. Shri Maruti B. Jamuni &
Ors. (1993 (3) Current Civil Cases 133).
10. Shri Rivonkar, the learned Counsel appearing on behalf of
defendant no.5 relying on the case of Debi Singh V/s Bhim Singh and
others (AIR 1971 Delhi 316) has submitted that the deed of mortgage
could have been validated at least to the extent of shares of defendants
nos.6,7 & 8. To that, Shri Ramani, learned Counsel appearing on behalf
of the plaintiff, submits that if co-owners cannot sell the entire property,
unless it is divided, on the same principle, a co-owner could not
mortgage the entire property and, I am inclined to accept this submission
of learned advocate Shri Ramani. True, Section 58(a) of the Transfer of
Property Act defines “Mortgage” to be a transfer of an interest in
specific immovable property for the purpose of securing the payment of9
money advanced or to be advanced by way of loan, an existing or future
debt, or the performance of an engagement which may give rise to a
pecuniary liability. The transferor is called a mortgagor, the transferee is
called a mortgagee; the principal money and interest of which payment
is secured for the time being are called the mortgage-money, and the
instrument (if any) by which the transfer is effected is called a
mortgage-deed. If a co-owner of a common and undivided property
cannot alienate, dispose of or charge the common property without the
consent and permission of the other co-owner, as held by this Court in
the case of Shri Joao Manuel Santa Rita Piedade Camara & Anr. V/s.
Shri Maruti B. Jamuni & Ors. (supra), obviously three mortgagors
who were the co-owners of the property could not have charged the
interest of the other co-owners of the said property in favour of the Bank
and that being the position, the conclusion arrived at by the learned trial
Court that the deed of mortgage dated 2/08/1993 executed in favour of
defendant no.5 by defendants nos.6 to 8 was bad in law and ab initio
void, cannot be faulted.
11. The plea taken by defendant no.12 that he was a bonafide
purchaser of the suit property in public auction was subject matter of
issue no.11 and the said issue has been held as not proved by defendant
no.12. 10
12. Learned Senior Counsel appearing on behalf of defendant no.12
while conceding that the defendant no.12 did not lead any evidence in
support of the plea taken by him submits that the finding on issue no.11
can be corrected by this Court in exercise of its powers under Order 41,
Rule 33, CPC. Learned Senior Counsel submits that defendant no.12
had no connection either with the Bank or the other defendants and had
purchased the suit property in public auction, held pursuant to an
advertisement. Learned Senior Counsel submits that the plaintiff at the
most would be entitled to be compensated to the extent of the share of
the plaintiff. I am unable to accept the submissions made by the learned
Senior Counsel. The learned trial Court has observed that defendant
no.12 did not step in the witness box to establish his bonafides and his
belief to arrive at a conclusion that title of the suit property was clear nor
his tenor or trend of cross-examination to DW1 suggested so and there
was no iota of evidence in that regard. The learned trial Court has
observed that it was expected from defendant no.12 to ascertain the title
documents from defendant no.5 concerning the suit property and not to
fall prey to the malafides of defendant no.5 and thus defendant no.12
was equally negligent in purchasing the suit property in auction and,
therefore, by no stretch of imagination, defendant no.12 could be
considered as a bonafide purchaser. In my view, the finding given by
the learned trial Court as regards the plea taken by defendant no.12
cannot be faulted. The onus of proving the plea taken by him, was on11
him and that onus could have been discharged by defendant no.12 by
leading his own evidence or through the evidence of the plaintiff. The
Decree itself is against the defendant no.12. The Apex Court in S.
Nazeer Ahmed V/s. State Bank of Mysore (2007 (11) SCC 75) has held,
with reference to Order 41, Rule 22, CPC, that the respondent in an
appeal is entitled to support the decree of the trial Court even by
challenging any of the findings that might have been rendered by the
trial Court against himself and for supporting the decree passed by the
trial Court it is not necessary for the respondent to file memorandum of
cross objections challenging a particular finding that is rendered by the
trial Court against him when the ultimate decree itself is in his favour. A
memorandum of cross-objections is needed only if the respondent
claims any relief which has been negatived to him by the trial Court and
in addition to what he has already been given by the decree under
challenge. Considering the facts of the case, therefore, in the absence of
an appeal or memorandum of cross objections filed by defendant no.12,
the finding given by the trial Court on issue no.12 cannot be disturbed.
13. Shri Rivonkar, the learned Counsel on behalf of defendant no.5,
has next submitted that the plaintiff had a remedy of filing an objection
under Rule 22 (14)(i) of the Multi-State Co-operative Societies
(Privileges, Properties, etc.) Rules, 1985 (Rules for short), to set aside
the sale and having not availed of the same, the plaintiff could not have12
challenged the sale certificate dated 13/10/1998, registered on
23/10/1998 by a suit, which has attained finality in terms of Rule 22(14)
(vi) and which says that an order confirming the sale is final and is not
liable to be questioned in any civil Court. Shri Rivonkar has also
referred to Section 105 of the Act of 1984 which bars the jurisdiction of
Courts and submitted that by virtue of sub-section (3) of Section 105 r/w
Rules 22(14)(i) and Rule 22(14)(vi), the suit of the plaintiff was barred
by civil Court.
14. On the other hand, Shri Ramani, the learned Counsel, on behalf
of the plaintiff, has submitted that the bar created under Section 105 of
the Act of 1984 related to the jurisdiction of the Civil Court only as
regards matters which are required to be decided amongst members, past
members, etc. as contemplated by Section 74 of the said Act and not
matters between persons who were not the members of the defendant
no.5. Shri Ramani has submitted that the plaintiff was not the member
of the defendant no.5 - the Bank, although the defendants nos.5,6,7 & 8
might have been the members and the issue which has been decided was
not a dispute touching the constitution, management or business of a
Multi State Co-operative Society arising among members and a Multi
State Co-operative Society as contemplated by Section 74 of the said
Act.13
15. In my view the submission made by learned advocate Shri
Rivonkar need not detain us for long for the plaintiff has not sought any
relief as regards the Sale Certificate dated 13/10/1998 or its registration.
Defendant no.5 is not right in questioning the jurisdiction of the civil
court in granting the reliefs claimed by the plaintiff. Jurisdiction means
authority to decide and unless a statute bars the jurisdiction of the Civil
Court, either expressly or impleadly, it will have jurisdiction to try all
issues. The plaintiff essentially sought two reliefs mainly for declaration
that the deed of mortgage dated 2/08/1993 be declared null and void
and, consequently, cancellation of the said mortgage deed. The plaintiff
also sought the auction to be declared null and void. The plaintiff also
sought permanent injunction. The plaintiff did not seek for declaration
that the sale certificate dated 20/07/1998 be declared as null and void
nor for cancellation of its registration, and looked from that angle it
could not be said that the civil Court had no jurisdiction to grant the
reliefs sought by the plaintiffs and which have been granted to the
plaintiff i.e. by declaring the deed of mortgage as null and void as well
as the auction held by the Recovery Officer but that raises a fundamental
defect in the suit of the plaintiff which has been pointed out by Shri
Rivonkar on behalf of defendant no.5 and Shri Dessai on behalf of
defendant no.12 and that is in relation to Section 34 of the Specific
Relief Act. 14
16. The learned trial Court has been unnecessarily harsh to defendant
no.5 observing that defendant no.5 was not serious in defending the
case. On the contrary, it is seen that it is the plaintiff who having come
to know about the auction, remained satisfied by merely sending a
notice dated 13/04/1998. Nothing had prevented the plaintiff from filing
a proper application to defendant no.4, the Recovery Officer and
pursuing the same diligently either under Rule 22(13)(i) or Rule 22(14)
(i) of the Rules.
17. Section 34 of Specific Relief Act provides that any person
entitled to any legal character or to any right as to any property may
institute the suit against any person denying or interest 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
then the mere declaration of title omits to do so.
18. It is well settled that the grant or refusal of the relief of
declaration and injunction under the provisions of Section 34 are
discretionary and the plaintiff cannot claim the relief as a matter of right.
The suit property was mortgaged in favour of defendant no.5 who has
caused it to be sold through the Recovery Officer in favour of defendant
no.12 at an auction held on 16/06/1998 and thereafter the Recovery
Officer has issued a certificate confirming the sale in favour of
defendant no.12 which has been registered with the sub-registrar of
Canacona. It is safe to infer that pursuant to the mortgage in favour of
defendant no.5 and its subsequent sale to defendant no.12, it is
defendant no.12, who is in possession of the suit property. The plaintiff
neither sought for declaration that the sale certificate was null and void
nor for cancellation of its registration.
19. The defendant no.5 had taken a categorical plea that the plaintiff
was informed by letter dated 3/10/1998 that the sale was confirmed by
sale certificate dated 20/07/1998. It was also stated by the General
Manger of defendant no.5 in his evidence that the suit property was
auctioned on 16/06/1998 and the sale was confirmed on 20/07/1998 by
order of the Recovery Officer, the defendant no.4; that the plaintiff nor
other alleged heirs had shown any interest in the suit property; that the
plaintiff or other alleged heirs never objected to the attachment, auction
or confirmation of sale. It was further deposed by him that there was no
prayer in the suit for declaring the sale certificate as null and void.
Inspite of that, the plaintiff took no steps either to seek a declaration that
the said sale certificate was null and void or for that matter for
cancellation of its registration or for the recovery of the suit property
from the possession of defendant no.12. Shri Ramani, learned Counsel
appearing on behalf of the plaintiff submits that this Court can mould
the reliefs and grant the same to the plaintiff by declaring the sale
certificate as null and void and directing cancellation of its registration.
I am unable to accede to the submission made by Shri Ramani. A
similar issue was considered by the Division Bench of this Court in the
case of Mr. Guna Krishna Gauns & Anr. V/s. Mr. Antonio Joao
Braganza @ Antush Braganza & Ors. (2009 (2) Bom.C.R. 665)
(unreported judgment dated 15/12/2008 in First Appeal No.189/2005),
to which I was a party and it was stated therein that the object of the
proviso to Section 34 of the Specific Relief Act, was to prevent
multiplicity of suits by preventing a person from getting a mere
declaration of right in one suit and then seeking the remedy without
which the declaration would be useless and which could not have been
obtained in the same suit, in another suit. A claim is said to be
consequential only when it cannot be claimed in the absence of a claim
for declaration. Otherwise it would lead to multiplicity of litigation for
the declaratory suit will have to be followed up with an ejectment action
for recovery of possession. It is well settled law that a suit for mere
declaration when consequential relief which is available and which is
not sought for, is not maintainable. Reference was made to the case of
Ram Saran & Anr. V/s. Smt. Ganga Devi (AIR 1972 SC 2685) wherein
the Apex Court had stated that where the defendant is in possession of
the some of the suit properties and the plaintiff in his suit does not seek
possession of those properties but merely claims a declaration that he is
the owner of the suit properties, the suit is not maintainable. That was
the case where Gangadevi was in possession of suit property and the
plaintiffs had not sought the possession of the suit property and had
merely claimed declaration that they were the owners of the suit
property and it is in that context that the Apex Court had held that the
suit was not maintainable. Reference was also made to the case of
Vinay Krishna V/s. Keshav Chandra & Anr. (AIR 1993 SC 957)
wherein it was held that the failure to ask for relief of possession
undoubtedly bars the discretion of the Court in granting the decree for
declaration. The Apex Court had further observed that merely because
the plaint says in the prayer, such other relief be granted to the plaintiff,
it does not mean that without a specific plea for possession and
disregarding the bar under Section 42 (now Section 34, proviso) of the
said Act, the suit could be decreed even with reference to the portions of
which the plaintiff was in possession. In the absence of specific prayer
for the recovery of possession of the property sold by the said sale deeds
to the defendants, the suit for declaratory relief by the plaintiffs was
clearly not maintainable and in this view of the matter also, the
dismissal of the suit for main relief cannot be faulted.
20. As already stated, the defendant no.12 is in possession of the suit
property pursuant to the certificate of sale issued in his favour and18
registered in the land registration office. The plaintiff ought to have
sought for cancellation of the said sale certificate as well as its
registration and also for recovery of possession of the suit property.
These were consequential reliefs required to be sought for by the
plaintiff, consequential to prayers (a), (b) and (c) of the plaint. There is
no question of moulding any relief when relief which could be sought
for, was not sought. The plaintiff having not done so, the prayers for
declaration alone sought by the plaintiff could not have been granted
and, in this view of the matter, the suit of the plaintiff was bound to fail.
21. Consequently, this appeal succeeds. The judgment of the learned
Trial Court dated 17/10/2005 is hereby set aside and the suit filed by the
plaintiff is dismissed, and considering the facts, with no order as to
costs.
N.A. BRITTO, J.
NH/-
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