JUDGMENT
1. The following question was referred to the Full Bench for decision:
Whether a person who does not pay in his own right land revenue of Ra. 1,500 per annum but who is a member of a joint Hindu family paying land revenue amounting to more than Rs. 5,000 is eligible for election to the Court of Wards or the Agra Province Zamindars' Association under Section 4, United Provinces Court of Wards Act, read with Rule 5 of the Rules of the Agra Province Zamindars' Association and the United Provinces Electoral Rules.
2. The Full Bench has answered both parts of this question in the negative. Id follows that the defendant, B. Gajadhar Prasad, has not been duly elected as a member of the Court of Wards inasmuch as he was not eligible for election for such a post. Learned Counsel for the plaintiff contended in these circumstances that he was entitled to a declaration in terms of the prayer of his plaint. The prayer is in the following terms:
It be declared that the plaintiff is the duly elected member of the United Provinces Court of Wards from the Agra Province Zamindars' Association instead of defendant 1.
3. At the election sixteen votes of those present at the meeting of the Agra Province Zamindars' Association on 24th January 1934, were cast in favour of the plaintiff. Ten persons voted for the plaintiff by proxy. There were three other candidates-the defendant, B. Gajadhar Prasad, Raja Harpal Singh and Capt. Raja Durga Narain Singh. Capt. Raja Durga Narain Singh received 33 votes from those present at the meeting and 382 votes by proxy, Raja Harpal Singh 29 votes of those present at the meeting and 385 by proxy; Gajadhar Prasad 24 votes of those-present at the meeting and 383 by proxy. The record of the proceedings shows that there were 34 persons present at the meeting and that in all 389 proxies were produced. In these circumstances it is clear that at the meeting at which the election of representatives to the Court of Wards took place a majority of those present or voting by proxy did not support the candidature of the plaintiff. Learned Counsel for the plaintiff maintained that according to the general principles of common law as applied in England in election oases his client being next on the poll to the candidate disqualified, is entitled to a declaration in terms of the aforementioned prayer.
4. We would observe in the first place that even if the principles applicable to Parliamentary elections can be applied to an election of a member of the Court of Wards by the Agra Province Zamindars' Association, the plaintiff is not entitled to succeed. We refer on this matter to Rogers on Elections, Vol. 2, p. 81. There the principle is adumbrated that there must be notice to the electors who supported the candidate disqualified of the disqualification before their votes can be taken as thrown away and the next candidate on the poll declared elected in place of the disqualified candidate. Now in the present case although the question as to the defendant Gajadhar Prasad's eligibility for election to the Court of Wards was raised at the meeting of the Association on 24th January 1934, there; was no notice of any such disqualification to the electors who voted by proxy. It has been held however that the rules applicable to Parliamentary elections in England have no application to elections such as the election of a member of the Agra Zamindars' Association to the Court of Wards. In this connexion we would refer to the case in Harnandan Prasad v. Kamta Prasad A.I.R. 1934 All. 376. In that case the question raised was as to the validity of the election of a certain person as a Chairman of the Municipal Board. The section of the Municipalities Act which was held to be applicable was Section 92. Section 92(1) is in the following terms:
All questions which may come before a meeting of a Board shall be decided by a majority of the votes of the members present and voting.
5. The decision of their Lordships who I decided the case was that unless the candidate challenging the election could show that he had obtained a majority of the votes, he was not entitled to be declared elected even though the person whose election was being challenged was declared to be disqualified. Rule 25 of the Agra Province Zamindars' Association is almost in identical terms with Section 92, Municipalities Act. Rule 25 is in the following terms:
At meetings of the Association or of the Managing and other Committees, all matters shall be decided by a majority of votes, and in case of an equality of votes the President shall have a second or casting vote.
6. Now on 24th January 1934 the members of the Agra Province Zamindars' Association met for the purpose of electing their representatives to the Court of Wards. There were four candidates one of whom was B. Gajadhar Prasad whose election has been held to be invalid in respect that he was disqualified. From the record of the proceedings however it is clear that a majority of the votes were not cast in favour of the plaintiff. In these circum-stances, following the principle of the decision in the case in Harnandan Prasad v. Kamta Prasad A.I.R. 1934 All. 376, we hold that the plaintiff is not entitled to a declaration that he is the duly elected member of the United Provinces Court of Wards from the Agra Province Zamindars Association instead of defendant 1. Learned Counsel for the plaintiff maintained that his client is entitled however to a declaration that defendant 1, Gajadhar Prasad, is not the duly elected representative of the Association on the Court of Wards. No specific prayer is included in the plaint to which such a declaration could be referred. Prayer (c) however is in the following terms : "Any other relief which in the circumstances of the case is just and proper, be granted to the plaintiff." We are of the opinion that this prayer covers the declaration for which learned Counsel for the plaintiff now presses.
7. As already observed, the result of the Full Bench decision is that Gajadhar Prasad must be held not to be qualified to be the representative of the Agra Province Zamindars' Association on the Court of Wards. Learned Counsel for Gajadhar Prasad however has maintained that this Court has no jurisdiction to grant a declaration declaring his election invalid. He has referred in support of this contention to the terms of Section 42, Specific Relief Act. It is quite clear, in our opinion, that the declaration now sought cannot be brought within the terms of Section 42. Learned Counsel for the plaintiff invited the Court to stretch the provision of Section 42 in favour of his client. No amount of reasonable stretching of the plain provisions of Section 42 can bring the declaration now sought with the section. We are unaware however of any provision which prohibits this Court from granting a declaration such as the plaintiff now seeks. Undoubtedly the plaintiff being a member of the Agra Province Zamindars' Association has a right to challenge the representation of the Association on the 'Court of Wards by defendant 1. Defendant 1, we have held, is not entitled to sit upon the Court of Wards as the representative of the Agra Province Zamindars' Association, and we see no reason whatever in equity or in law why we should not grant a declaration to that effect.
8. In the result we allow the appeal in part and declare that defendant 1, B. Gajadhar Prasad, Advocate, has not been duly elected a member of the United Provinces Court of Wards from the Agra Province Zamindars' Association. We dismiss the plaintiff's prayer for a declaration that he is a duly elected member of the Court of Wards from that Association. Defendant 1 will pay half the plaintiff's costs in these proceedings in both the Courts. In view of our decision on costs, the cross-objection of the Agra Province Zamindars' Association is dismissed.