The court affirmed that a decree for declaration can be granted under Section 34 of the Specific Relief Act, 1963, even without seeking further relief, recognizing the plaintiffs as legal heirs entitled to inherit the property.

JUDGMENT

Deepak Gupta, J.

Suit for declaration filed by the plaintiffs (appellants herein) was dismissed by the trial Court on 03.07.2023 and the said judgment has been affirmed by the First Appellate Court of Ld. District Judge, Chandigarh on 18.12.2023. Against this concurrent finding, the plaintiffs of the suit have approached this Court by way of present Regular Second Appeal.

2.1 Perusal of the paper-book would reveal that Smt. Kamlesh Mehta wife of Manmohan Mehta was the owner of House No.3041. Sector 37D, Chandigarh, by virtue of a sale deed dated 10.03.2004. She died intestate on 13.12.2019, leaving behind her husband Manmohan Mehta, two sons namely Rishi Mehta & Akshay Mehta; and one daughter namely, Ritu Mehta (plaintiffs appellants herein). All these four legal heirs of Smt. Kamlesh Mehta filed the suit for declaration, claiming that after the death of Smt. Kamlesh Mehta, the suit property had devolved upon them as per section 15 of the Hindu Succession Act, 1956, as there was no other legal heir except them. They prayed for a decree of declaration to that effect. The suit was filed against the General Public. Despite publication in newspaper having circulation in the area, nobody put in appearance to file any objection and so, the defendant-General Public (respondent herein) was proceeded against ex parte.

2.2 Ex parte evidence was produced by the plaintiffs, which apart from the oral evidence also included death certificate of Smt. Kamlesh Mehta as Ex.PW1/2 and copy of sale deed Mark A. After taking this ex parte evidence, the suit has been dismissed by the trial Court on 3.7.2023 solely on the ground that a mere decree for declaration cannot be granted under section 34 of the Specific Relief Act, 1963. The said finding of the Id. trial Court has been affirmed by the appellate Court in its judgment dated 18.12.2023.

3. The short submission made by Id. counsel for the appellants before this Court is that appellants were seeking a decree of declaration regarding their entitlement to the legal character to the effect that they are the legal heirs of deceased Kamlesh Mehta and also their legal right that they have inherited the suit property left behind by Kamlesh Mehta and therefore, even the suit for declaration was maintainable. Ld. counsel has referred to a decision of Hon'ble Supreme Court rendered in Vemareddi Ramaraghava Reddy and others v. Konduru Seshu Reddy and others, 1967 AIR (Supreme Court) 436; and a Division Bench judgment of Madhya Pradesh High Court rendered in Ramnarayan and others v. Firm Mangeram Rad-heshyam Hardoi (UP) and another, 1979 HLR 766.

4. As respondent-defendant is ex parte before both the Courts be-law, therefore, notice of the appeal to the respondent is hereby dispensed with.

5. Having considered contentions of Ld. Counsel for the appellants, I find merit in the same.

6. The only issue to be determined by this Court is as to whether in the facts and circumstances of the present case, a mere decree for declaration could be granted or not section 34 of the Specific Relief Act, 1963 is relevant, which reads as under:-

"34. Discretion of court as to declaration of status or right.

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested 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 than a mere declaration of title, omits to do so.

Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee."

7. Prior to coming into force of the Specific Relief Act, 1963, similar provision i.e., Section 42 existed in Specific Relief Act, 1877