A suit for a declaration that a gift deed is void and ineffective is maintainable under Section 42 of the Specific Relief Act, even if the plaintiff does not specifically ask for cancellation of the gift deed.

R.S.Narula, J.

1. This is the plaintiffs regular first appeal against the judgment and decree of the Court of Shri Charan Singh Tiwana, Subordinate Judge 1st Class, Bassi, dated February 14, 1958, whereby he dismissed the suit of the appellant for a declaration to the effect that the gift deed executed by him and registered on April 30 1957 regarding his agricultural property and residential house was void and ineffective against the plaintiffs rights of ownership and possession, and the gift deed was merely a paper transaction as (i) the gift deed had been got executed fraudulently by taking undue advantage of the mental and physical rendition of the plaintiff, and (ii) the possession of the property had not been delivered to Nihal Kaur respondent No. 1 (the alleged donee), and the entire proceedings relating to the gift were a mere paper transaction on the solitary ground that no suit for such a declaration was maintainable under Section 42 of the Specific Relief Act and that the only suit competent for obtaining the above said relief would be a suit under Section 39 of the Specific Relief Act (1 of 1877) (hereinafter called the Act) for cancellation of the gift deed The abovesaid declaratory suit which was instituted by the appellant (hereinafter called the plaintiff) on July 2, 1957 was contested by Nihal Kaur (hereinafter referred to as the contesting defendant) on inter alia the around that a suit for a mere declaration without consequential relief in respect of possession of the property and cancellation of the gift deed was not maintainable Whereas the plaintiff claimed to have continued in possession of the entire agricultural land, a Dart of which was under mortgage with possession with Dalip Singh respondent No. 2, and also claimed to be himself residing in the house which was the subject-matter of the alleged gift, the defendant denied those allegations and alleged that except for the land which was under mortgage, the remaining land was in possession of the tenants from whom the contesting defendant had got batai.

Regarding the house it was alleged by the contesting defendant that she along with her husband continued living in the house as before along with the plaintiff and in this way she had got into possession of the gifted property. From the pleadings of the parties, the trial Court framed the following preliminary issues: 1. Whether the suit is maintainable.

2. Whether a suit for mere declaration lies.

2. The parties produced evidence on the question of possession. After discussing the said evidence in a somewhat sketchy manner under issue No. 2, the learned Subordinate Judge held that it was "highly doubtful as to whether the plaintiff was in possession of the house on the date he filed the present suit or not. He, however, held that though "the plaintiff could seek merely a declaration of title if he could bring his case within the ambit of Section 42 of the Specific Relief Act" the suit was not maintainable in the form in which it had been filed because of his finding on issue No. 1 to the effect that the plaintiff should have sued under Section 39 of the Act for cancellation of the gift deed. The observation on which the finding of the trial Court on issue No. 1 is based is contained in the following Passage.

"In the present case the document being a registered one it is the plaintiff who is to prove certain circumstances which can render it invalid The opinion expressed by Chitaley and Rao in the Commentaries on Court-fees Act Second Edition, page 153 also is to similar effect. It is mentioned therein that if the plaintiff has been a party to the instrument sought to be avoided and the instrument is not absolutely void he must sue for its cancellation in such a case, unless and until the instrument is set aside by the Court it will be binding on the plaintiff Hence a mere suit for declaration that it is not binding on the plaintiff will not be competent. In such a suit, therefore, the indication