JUDGMENT Pullan, J.
1. The plaintiff-appellant Mt. Shiyam Dei filed this suit on 31st July 1927, praying for a declaration that a deed of gift executed by her in favour of two persona Bankey Lal and Bishunath on 10th June 1926, had been obtained by fraud and should be cancelled, and she also sought as an ancillary relief for a declaration that the house purporting to be transferred by her in that deed of gift was her own property and could not be attached or sold in 'satisfaction of a decree or in satisfaction of any debt due by Nanhoon Mal insolvent who was the father of the allege 1 donees. The plaintiff impleaded the donees, the official receiver of Nanhoon Mai's estate and two oreditors of Nanhoon Mal, on whose application he had been declared an insolvent and who had applied for the attachment of the house in suit by their application dated 18th February 1927.
2. The plaintiff's suit has been dismissed by the Subordinate Judge on his finding that the suit is barred as against the official receiver by Section 80, Civil P.C. It does not appear to me that this finding would necessarily bring the suit to an end for the main question raised by the plaintiff was her right to have the deed of gift executed by herself in favour of defendants 1 and 2 set aside and. clearly she might be entitled to a decree as against them even if she failed to establish her case that the property could not be attached and sold in respect of a debt due by the insolvent Nanhoon Mal. But I am not of opinion that Section 80, Civil P.C., should be applied to this suit. Section 80 lays down that no suit shall be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months after notice in writing has been given. I do not consider that this is a suit instituted against a public officer in respect jot an act purporting to be done by him I'm his official capacity. The suit which is not one of the same nature as that to which the learned Subordinate Judge has referred and which is reported in Murari Lal v. E.V. David A.I.R. 1925 All. 241. In that case the brothers of an insolvent brought a suit against the official receiver who had taken charge of the estate, claiming a two-thirds share of the house which was alleged by the official receiver to be part of the estate of the insolvent. This was clearly a case brought against the official receiver in respect of an act done by him in his official capacity. The present suit might have been brought even though the official receiver had taken no action whatever in respect of the property. The cause of action arose from the execution of a deed of gift which the plaintiff alleged to have been obtained from her by fraud, and in the first instance she sought relief against the donees who had defrauded her. The second portion of the relief claimed is no doubt directed in a manner against the official receiver as the plaintiff found that the property had, been placed under attachment. But I am not prepared to find that every suit in which an official receiver is impleaded in order that the plaintiff may obtain an ancillary relief can be set aside on the ground that notice has not been given to the official receiver under Section 80, Civil P.C. Our attention has been drawn to a case reported in Skippers & Co. Ltd. v. E.V. David A.I.R. 1927 All. 132, in which it was held:
that Section 80, Civil P.C. would not apply to a suit against an official receiver, where the suit was really a suit to establish and realize a charge over property, and the official receiver was impleaded not on account of any specific action taken by him in respect of the property concerned but merely because he was for the time being in charge of it.
3. It may be that in the present case the plaintiff was induced to file a suit because it came to her notice that the property was in danger owing to the action of the official receiver, but her cause of action was not what the official receiver had done but what she herself had been induced to do by the other defendants. In my opinion this case should be sent back to the lower Court for a decision on the other issues.
Niamatullah, J.
4. I entirely agree and would add a few words of my own in support of the conclusions arrived at by my learned brother. The appeal has to be decided on the allegations to be found in the plaint as the suit has been dismissed. On the preliminary ground namely, that the notice under Section 80, Civil P.C., was not given to defendant 3, the receiver of the estate of the insolvent Nanoon Mal. It is alleged in the plaint that the plaintiff is the widow of the insolvent's brother's son who was separate from the insolvent a partition having taken place in the family long before the present controversy arose and that the property in dispute belonged exclusively to her husband on whose death it devolved upon her as his widow. As regards the deed of gift, the plaintiff's case is that it was obtained from her by practice of fraud, and that she became aware of the deed on 9th March 1927. The plaint proceeds to mention that defendants 4 and 5, the creditors of the insolvent, applied to the District Judge for attachment and sale of the property to which the deed of gift relates alleging that the same belonged to the insolvent. The application was granted by the District Judge under whose order defendant 3, the receiver, attached the property as belonging to the insolvent. On these allegations the plaintiff seeks two reliefs; (1) a declaration that the deed of gift dated 10th June 1926, in favour of defendants 1 and 2 is void having been obtained by practice of fraud and by concealment of its real nature from the plaintiff, and (2) that the property to which the deed of gift relates is not liable to be attached and sold for satisfaction of the debts due to defendants 4 and 5. It should be observed that beyond a reference to the fact that the receiver attached the property on the application of defendants 4 and 5, no action of his is referred to or impugned in the plaint.
5. Section 80, Civil P.C. which requires two months' notice to be given in certain cases, can apply if the suit is against a public officer in respect of any act purporting to be done by such public officer in his official capacity
6. It is clear to me that notice required by this section is not necessary in every case in which a public officer is impleaded as a defendant. The suit must be against him in respect of any act purporting to be done by him in his official capacity which in my opinion implies that the plaintiff's cause of action is essentially based on some act attributable to the public officer. If the act of the public officer is not an essential part of the cause of action disclosed by the plaint though having regard to his position in relation to the subject-matter of the suit, he is a necessary party, no notice is necessary: Skippers & Co. Ltd. v. E.V. David A.I.R. 1927 All. 132, affords a clear instance in which the receiver was a necessary party and yet no notice under Section 80, Civil P.C. was held to be necessary. The present suit is of a declaratory character and is clearly based on Section 42, Specific Belief Act which provides that 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,
7. For the reasons given by my learned brother the first relief claimed by the plaintiff is clearly one which has no reference to any act done by the receiver. As regards the second relief, I am of opinion that the application of defendants 4 and 5 to the District Judge alleging that; the property in question belonged to the insolvent Nanhoon Mal, which implies a denial of the plaintiff's right, if read with the order of the District Judge granting it afforded a good cause of action to the plaintiff for the declaration claimed by her. To a suit of this kind the insolvent is a necessary party, but as the insolvent's estate is vested in the receiver, the latter had to be impleaded. The attachment made by the receiver under the orders of the District Judge passed on the application of the creditors is merely the result of the successful denial by defendants 4 and 5 of the title of the plaintiff. In substance the suit is like an action contemplated by Order 21, Rule 63, Civil P.C. The only difference is that the debtor in this case is an insolvent and has to be represented by the official receiver whereas in a suit under Order 21, Rule 63, the debtor can himself be impleaded as a party to defend his title as against the rival claimant. A suit brought in the circumstances stated above cannot be considered to be one in respect of any act done by the receiver the material part of the plaintiff's cause of action having arisen from the act done by the creditors in successfully moving the District Judge to treat it as the property of the insolvent. Murari Lal v. E.V. David A.I.R. 1925 All. 241 wag a case in which the suit was necessitated by the act of the receiver and it was his act which was alleged to afford a cause of action to the plaintiff. The only defendant was the receiver. In Anna Laticia DeSilva v. Govind Balwant A.I.R. 1920 Bom. 50, the only point; decided was that a receiver appointed in an insolvency proceeding is a public officer within the meaning of Section 80, Civil P.C. No question was raised as to whether the suit was in respect of an act purporting to have been done by a public servant in his official capacity It was apparently common ground that if the receiver was a public officer within the meaning of Section 80, Civil P.C. notice was necessary. It should be noticed that in this case also the only defendant was the receiver. For the reasons stated above, I concur with my learned colleague in the order which he proposes to pass.