The main legal point established in the judgment is that the suit for declaration of property rights was not open to objection on the ground that only a mere declaration of the plaintiffs right was sought for.

1. The plaintiff, as the paternal aunts son or bandhu of the deceased Sankaramoorti Mudaliyar, sues for a declaration of his right to the property left by the deceased, on the ground that the defendant, the deceaseds mother, is not entitled to the property, she having been a party to his murder, but that the plaintiff, as the next in succession, is the person that has the right thereto. The defendant and a Muhammadan by name Shaik Abdul Kadir Ravutban, with whom she is alleged to have been criminally intimate prior to the death of her son, were tried for the murder in the Sessions Court of Tinnevelly. She was, however, acquitted while her alleged paramour was convicted of the offence.

2. The Subordinate Judge, without trying the question whether the defendant was concerned in the murder, dismissed the suit.

3. The first question for consideration is whether the plaintiff can ask for mere declaration; and if so, whether, as urged for the defendant, the Court should, in the circumstances to be referred to, refuse the relief prayed for. Now as to the first point. Prior to the death of Sankaramoorti, he having been a minor, proceedings regarding the appointment of a guardian for him had been taken under the Guardian and Wards Act. Pending those proceedings, the District Court of Tinnevelly appointed the plaintiff as Receiver and put him in actual possession of the properties of the minor, removing the defendant from the charge thereof. This Court held that the District Court had no power to appoint a Receiver in the course of the guardianship proceedings and directed that possession of the property should be handed back to the defendant. This order for re-delivery to the defendant was no doubt passed subsequent to the death of her son, but it had not been carried out to any extent at the date of the suit.

4. Consequently the possession of the property was, at the time, neither with the defendant, nor with the plaintiff, the property having been in custodia legis and in the hands of an officer of Court, it being of course a mere accident that that officer was the plaintiff himself. The defendant not having been in possession, the plaintiff could not as against her, have claimed as consequential relief an order for delivery and if, as alleged, he is the person entitled, nothing more was required to be done to secure to the plaintiff all his rights, than the revocation of the order of this Court referred to above directing delivery of the property to the defendant; and that would have enabled the plaintiff to retain possession in his own right. In these circumstances, it must be held that the proviso to Section 42 of the Specific Belief Act is not applicable to the case and that the suit is not open to objection on the ground that nothing more than a mere declaration of the plaintiffs right is sought for.

5. As to the next point it was contended for the defendant that the plaintiff had been guilty of contempt in not obeying the order of this Court directing delivery of the property to the defendant, that such contempt remained unpurged at the date of the suit and consequently that the relief sought for should, in the proper exercise of the discretion vested in the Court, in cases like the present, be refused to him. The facts bearing upon this contention are briefly these. In an appeal preferred in connection with the guardianship proceedings the plaintiff, in his capacity of Receiver, had been made a party respondent. In that appeal, while the defendants son was still alive the plaintiffs appointment as Receiver was set aside, but no order about the possession of the property in his charge was then made. That question came up for consideration in October 19C0 and the fact of the sons death having been brought to the notice of the Court, it was ordered that possession be given to the defendant, the prima facie heir. Even prior to such order the defendant had moved the District Court to call upon the plaintiff to surrender possess