THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.812 OF 2011 Dated:08.09.2011 Between: Pithani Annapurna .. Appellant And Pithani Hari and others .. Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.812 OF 2011 JUDGMENT: The second defendant in O.S.No.153 of 2005 is the appellant. The suit was filed by respondents 1 to 3 (hereafter, the plaintiffs) against the appellant and respondent No.4 (first defendant) for declaration that they are the sons and daughter as well as the legal heirs of the deceased Pithani Markandeya, born out of lawful wedlock of said Markandeya and the first defendant. The said suit was dismissed by the Court of the Principal Junior Civil Judge, Kothapeta, on 20.10.2008. The plaintiffs appeal being A.S.No.6 of 2009 on the file of the Court of the Senior Civil Judge, Kothapeta, was allowed on 01.03.2011 reversing that of the trial Court. Aggrieved by which, the present Second Appeal is filed. The plaintiffs’ case is that Markandeya, who was a Government employee working as chainman at Mandal Revenue Office, Kapileswaram, married the first defendant. During their wedlock, plaintiffs were born. Differences arose between the couple, as the husband took to vices, and wife was forced to live in her maternal home. Markandeya filed a divorce petition being O.P.No.6 of 2001. The Court of the Senior Civil Judge, Razole, allowed the O.P. granting divorce, against which an appeal being C.M.A.No.26992 of 2003 is pending before the High Court. After death of Markandeya on 03.01.2004, the plaintiffs and the first defendant applied to Mandal Revenue Officer, Kapileswaram, for terminal benefits. The second defendant also filed a claim petition. The plaintiffs were asked to get appropriate declaration from the civil Court. Therefore, they filed the suit. The first defendant remained ex parte. The second defendant opposed the suit contending that she and Markandeya cohabited since 1992; in 1993 they married according to Hindu Rites; Markandeya opened a joint account in Co-operative Central Bank in Kakinada and that he had shown her as a nominee in the Government Insurance Policy and that she alone is entitled for the retrial benefits. The lower Court conducted trial after framing one circumstantial issue. The plaintiffs examined three witnesses and marked three documents. The second defendant examined five witnesses and marked Exs.B1 to B12. On considering the evidence, the trial Court came to the conclusion that Padmavathi ceased to be the wife of Markandeya after the grant of divorce in O.P.No.6 of 2001 and that the second defendant alone is entitled for terminal benefits payable to Markandeya. The appellate Court reversed the judgment of the trial Court. The counsel for the appellant/second defendant submits that a suit for mere declaration without consequential relief under Section 34 of the Specific Relief Act, 1963 (the Act) would not lie. The question as above was not raised before the trial Court nor any issue thereon. The appellate Court considered the issue relying on the decision of the Orissa High Court in Indramani Bedbagis v. Hema Dibya[1], and came to the conclusion that a suit for declaration of status or right without any further relief is maintainable. It is however submitted before this Court that the view taken by the Orissa High Court is not correct. The submission cannot be accepted. Section 34 of the Specific Relief Act, 1963 reads as under. 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. A suit for mere declaration is not always barred. The proviso to Section 34 of the Act creates an embargo on the jurisdiction of the Court to grant a declaration when further relief is omitted by the plaintiffs. Even then, it should be shown by the party to the suit taking such a plea, that the plaintiffs were able to seek further relief, but intentionally omitted to do so. In this case, there is no dispute that the plaintiffs as well as the second defendant approached the Mandal Revenue Officer seeking terminal benefits payable to Markandeya and on his advice to get a declaration, they approached the Court. An inference can be drawn that the Mandal Revenue Officer is willing to release the terminal benefits to the claimant who gets a declaration from the Court. Therefore, even if the plaintiffs did not seek a consequential relief and only sought declaration of status as children of Markandeya, the Court is not precluded from granting a decree. The first appellate Court correctly appreciated the position of law and allowed the appeal. The Second Appeal is devoid of merit and is accordingly dismissed. There shall be no order as to costs. ________________ (V.V.S. RAO, J) 08.09.2011 KH [1] AIR 1977 Orissa 88