JUDGMENT 1. The Plaintiff brought a suit for construction of the Will of one Gosain Das and for a declaration that the rights of defendants Nos. 2 and 3 had not been affected by the Will. The Plaintiff alleged in the plaint that Defendants Nos. 2 and 3, sons of Gosain Das, were entitled to the property under the Will of their father and that they had executed a mortgage of certain property in favour of the Plaintiff. Defendant No. 1 is the widow and executrix under the Will of Gosain Das. It is stated that she sold the property under mortgage to Defendant No. 4. The Plaintiff in this suit asserted that under the Will, Defendant No. 1 had no right to the property and that Defendants Nos. 2 and 3 were the owners thereof. Both the Courts below held that the suit as framed was not maintainable and that upon the construction of the Will, Defendant No. 1 had an absolute interest in the property. The question to be decided first, is whether the suit as framed can proceed. The suit must be treated as one based on sec. 42 of the Specific Relief Act. That section lays down : "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." In the present case, the Plaintiff does not sue for declaration of any legal character nor does he sue for a declaration of any right to any property. The declaration which he seeks is a declaration as to the rights of Defendants Nos.2 and 3. It is urged that if their title is declared the Plaintiff will get the benefit of the same as he claims under a mortgager from them. But he has not sued for declaration of his right as a mortgagee; and we do not see how he can maintain this suit so long as his right as a mortgagee from the Defendants Nos. 2 and 3 is not established. Until that is done, the Plaintiff cannot ask for a declaration of their rights. The learned Pleader for the Appellant, in the circumstances, prayed for amendment of the plaint. We do not think that that should be allowed for this reason. 2 and 3 is not established. Until that is done, the Plaintiff cannot ask for a declaration of their rights. The learned Pleader for the Appellant, in the circumstances, prayed for amendment of the plaint. We do not think that that should be allowed for this reason. The question of the Plaintiff's right as a mortgagee if allowed to be raised would have to be decided by taking evidence in the matter. In fact notice of the amendment would have to be given to the Defendants including Defendants Nos. 2 and 3 as they may have a defence in connection with the mortgage itself, and there must be a trial de novo. 2. We think as contended on behalf of the Respondents that the Plaintiff must, first of all, establish his right upon Ms mortgage and that until that is done, he has no cause of action for maintaining a suit for declaration of the title of Defendants Nos. 2 and 3 to the property as against Defendants Nos. 1 and 4. We accordingly hold that the suit must be dismissed on these grounds. It is unnecessary, therefore, to consider the question of construction of the Will upon which the Courts below have expressed their opinions. 3. The plaintiff Appellant must pay the cost of the Respondents. Let the record be sent down as soon as the decree is singed.