A suit for a declaration that the plaintiffs are the legal heirs of a deceased person is maintainable under Section 387 of the Indian Succession Act, 1925, even without a prayer for consequential relief.

Judgement

JUDGMENT:- Plaintiff No. 1 has preferred this appeal against the decision of the Additional District Judge, Cuttack in Title Appeal No. 44/72 reversing the decision of the First Munsif, Cuttack in Title Suit No. 104/66.

2. Plaintiff No. 2 has been impleaded as pro forma respondent No. 3 in this appeal.

3. The admitted genealogical tree is given below:-

4. The plaintiffs have filed this suit for a declaration that they, being related to Narasingha alias Garudadhwaja Bedbagis in the manner as shown in the abovementioned genealogical table, are the only legal heirs and successors of the said Narasingha who died in the year 1962. The plaintiffs state that defendant No. 1, Hema Dei (respondent No. 1 herein), is a stranger to the family and was not the legally married wife of Narasingha, and so the succession certificate granted in her favour on the basis of her false claim as the widow of late Narasingha should not have been granted. In paragraph 4 of the plaint it is stated that the Life Insurance amount of Rs. 1,000/which has fallen due for payment on the death of Narasingha has to be paid to the legal heirs of the deceased.

5. The Divisional Manager of the Insurance Company, who is holding the said amount which has fallen due on the death of Narasingha, has been impleaded as defendant No. 2 in the suit. Defendant No. 2 has not contested the suit and has been set ex parte. Defendant No. 1, who alone has contested the suit, states that she is the legally married wife of late Narasingha and accordingly she and her daughter Pratima, who was born after the death of Narasingha, are the only two heirs and successors of late Narasingha. She further states that she has justly been granted the succession certificate and the prayer of the plaintiffs to the same effect has rightly been rejected. She further states that this suit for a mere declaration is not maintainable as it offends the provisions of Section 34 of the Specific Relief Act.

6. The trial court found that defendant No. 1 was not the wife of Narasingha; and that the plaintiffs were the legal heirs of Narasingha. It also held that even though the plaintiffs had not asked for any consequential relief, this suit for mere declaration was maintainable, and that in view of Section 387 of the Indian Succession Act, the present suit was not hit by the principles of res judicata.

7. Defendant No. 1 preferred an appeal against the aforesaid decision of the trial court. In the appellate court the findings of the trial court that defendant No. 1 is not the legally married wife of Narasingha and that the plaintiffs are his legal heirs were not agitated or challenged. On the questions agitated the appellate court has found that the plaintiffs suit is maintainable in view of the provisions of Section 387 of the Indian Succession Act, but as this suit is for mere declaration without a prayer for proper consequential relief it is not maintainable. Only on the last mentioned ground the court below has dismissed the plaintiffs suit. Hence this second appeal by plaintiff No. 1.

8. Mr. Das, the learned counsel for respondent No. 1, while supporting the ultimate conclusion of the court below, submits that the plaintiffs could not have instituted this suit without filing appeals under Section 384 of the Indian Succession Act (hereinafter referred to as the Act ) against the orders granting the succession certificate in favour of defendant No. 1, and refusing the prayer to that effect made by the plaintiffs. Mr. Das submits that the plaintiffs were parties to the proceeding in which the succession certificate was granted in favour of defendant No. 1, and as they did not prefer any appeal under Section 384 of the Act, that order has become final and no suit to set aside the said order can be instituted by the plaintiffs to assail that order.

I do not see any substance in the above submission. The decision of a court in the matter of succession certificate cannot operate as res judicata for a regula