JUDGMENT
1. The first defendant is the appellant. He is the Karaiswan (or proprietor) of a Kuri which he started in August 1906. There were 11 tickets in the Kuri and the 1st defendant induced other persons to enter into contracts with himself on certain terms which included the payment of subscriptions by them to the Kuri at the rate of Rs. 250 yearly for each ticket holder. The first defendant allowed also each ticket holder to assign his rights under each contract to third persons subject to certain conditions.
2. The plaintiff became the assignee of half of a ticket from the 2nd defendant who had entered into one of the several contracts with the 1st defendant. The sixth subscription to the Chit had to be paid on the 17th August 1911. The plaintiff had to send Rs. 125 to the 1st defendant as subscription towards the chit due on that date. He sent the Rs. 125 but the 1st defendant refused to receive it. Hence the plaintiff brought the suit on the 31st August 1911 for two reliefs namely, (a) that the 1st defendant be compelled ” to receive the amount due by the plaintiff for the 6th drawing after declaring that the plaintiff has right to pay subscription for the said Kuri “(b)” that the 1st defendant do give to the plaintiff the due receipt of the Kuri for the 6th drawing.
3. The District Munsif disbelieved the 1st defendant’s story that the Rs. 125 was not tendered before noon on the 17th August 1911, and believed the plaintiff’s evidence that the money was tendered in proper time, but following Kristayya v. Kasipathi (1885) I.L.R. 9 M. 55 he refused to give a decree compelling the 1st defendant to accept the Rs. 125. He, however, gave the plaintiff, a decree declaring that the plaintiff is entitled to continue payment of subscriptions to the Kuri conducted by the 1st defendant as the plaintiff was not a defaulter. His decree was confirmed by the learned Subordinate Judge.
4. The contentions argued on behalf of the 1st defendant in second appeal are found in the grounds 2 and 4 of the memorandum of second appeal. Those two grounds are as below:
(2) The plaint does not disclose any cause of action” and
(4) The suit for a mere declaration is not maintainable according to the Section 42 of the Specific Relief Act, the plaintiff having the right to claim consequential relief.
5. Though in the 4th ground, it is contended that Section 42 of the Specific Relief Act, bars the suit because the plaintiff had the right to claim consequential relief, the argument at the hearing was somewhat different. The contention was that only a person entitled to any “legal character ” or tp “any right to property can institute a suit for a declaratory relief in respect of his title to such legal character or right to property and that the plaintiffs suit to declare that he has contractual rights as against the 1st defendant does not come within the class of suits to declare a right to a legal character or a right to property. We think that the contention must be upheld to this extent, namely that Section 42 of the Specific Relief Act does not contemplate a suit like the present. We take it that a man’s ” legal character” is the same thing as a man’s status. ” A man’s status or ‘legal character’ is constituted by the attributes which the law attaches to him in his individual and personal capacity, the, distinctive mark or dress, as it were with which the law clothes him apart from the attributes which may, be said to belong to normal humanity in general.” ” According to Holland, the chief varieties of status among natural persons may be referred to the following causes:–(1) sex, (2) minority (3) ‘patria potestas’ and ‘manus’ (4) coverture (5) celibacy (6) mental defect (7) bodily defect (8) rank, caste and official position (9) slavery (10) profession (11) civil death (12) illegitimacy (13) heresy (14) foreign nationality and (15) hostile nationality.” (See Banerjee’s Lectures on Specific Relief). We think that a declaration that a valid personal contract still subsists between the plaintiff and the 1st defendant is not a right to declare a title to a legal character or a title to right to property.
6. Section 42 of the Specific Relief Act is no doubt, not intended to be exhaustive as regards the circumstances under which declaratory suits can be maintained. In Robert Fischer v. The Secretary of State for India (1898) I.L.R. 22 M. 270 the judgment of their Lordships of the Privy Council contains the following sentences in p. 282 ” Now in the first place it is at least open to doubt whether the present suit is within the purview of Section 42 of the Specific Relief Act…It is, in substance, a suit to have the true construction of a statute declared and to have an act done in construction of the statute rightly understood, pronounced void and of no effect.” “That is not the sort of declaratory decree which the framers of the Act had in their mind.” This seems to show that declaratory decrees can be passed though they may not come under Section 42 of the Specific Relief Act. In Kistayya v. Kasipati (1885) I.L.R. 9 M. 55 the learned Judges say (at p. 57) “it is suggested that a suit may be brought to obtain a declaration that the right has not been forfeited by default and that it continues to subsist” (the right in question in that case was the right to pay a debt by instalments). “But the suit before us is not one of that kind and it is not necessary for us to express an opinion on the question, whether under certain circumstances a declaratory suit may not be brought,” This only shows that the learned judges were not prepared to say without hesitation that such a suit would not lie in exceptional cases. But we have not been referred to any case in which any of the High Courts in India has given a declaratory relief in respect of rights arising out of a contract which would effect only the pecuniary relationship between the parties to the contract and we do not think there are exceptional circumstances in this case to take it out of the ordinary rule.
7. In the result we reverse the decrees of the Lower Courts and dismiss the suit in its entirety. Under the circumstances the parties will bear their respective costs throughout.
