DECLARATORY DECREES
Declaratory Relief
It is important to note that Sections 34 and 35 of the Specific Relief Act, 1963 talk about the declaratory decrees. If any person entitled to any legal character, or to any rights as to any property and is denied of such legal character or right to property by another then any suit filed by the person so denied to declare his legal character or right is called a declaratory suit.
Main objective of declaratory decrees is to prevent future dispute by removing the existing controversy. It is rightly opined that Section 34 not only perpetuate and strengthen testimony regarding title but also protect it from adverse attacks. The policy of legislature is not only to secure to a wronged party possession of the property taken away from him but also to see that he is allowed to enjoy that property peacefully.
Example 1- A is lawfully in possession of certain land. The inhabitants of a neighboring village claim a right of way across the land. A may sue for a declaration that he is entitled to conclusive enjoyment of the property and they are not entitled to the right so claimed.
Example 2- A owns a land by inheritance of plot no. 401 in Sector 38, Chandigarh. Afterwards, it was wrongfully recorded in the name of B under plot no. 401. B forcefully attempted to take possession of the land on the basis of the wrongful record. A may obtain a declaration of his right to the whole property.
Example 3: A has life interest in a property in which C is reversionary. A alienates property to B. The alienation is invalid as against C. The Court may in a suit by C against A and B declare that C is so entitled.
Example 4: The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survives her may, in a suit obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow’s lifetime.
Example 5: A hindu widow in possession of property adopts a son to her deceased husband. The person presumptively entitled to possession of the property on her death without a son may, in a suit against the adopted son, obtain a declaration that the adoption was invalid.
Example 6: A bequeaths (leaves in will) property to B for his life, with remainder to B’s wife and her children, if any, by B, but if B die without any wife or children, to C. B has a putative wife, D, and children, but C denies that B and D were ever lawfully married. D and her children, may, in B’s lifetime, institute a suit against C and obtain therein a declaration that they are truly the wife and children of B.
Essentials of declaratory relief/Requisite for a declaratory action:
In order to obtain relief under Section 34, plaintiff must prove the following:
(i) The plaintiff at the time of the suit must be entitled to any legal character or to any right as to any property.
(ii) The defendant has denied or is interested in denying the character or title of the plaintiff.
(iii) The denial must be communicated to the plaintiff in order to give him cause of action.
(iv) The declaration asked for is a declaration that the plaintiff is entitled to a legal character or to a right to property.
(v) The plaintiff is not in a position to claim further relief than a bare declaration of his title.
A person, who is able to seek for further relief, should not be allowed mere declaratory relief, if he omits to do so. Three expressions which need clarification are: entitle, legal right and right to property.
Let’s understand these expressions:
Entitle:- The plaintiff “must be entitled to”, It means he must have a title to some legal character or right to property. Therefore, a plaintiff cannot succeed where he is a stranger to title or has no right to property.
In case of City Municipal Council Bhalki v Gurappa (2016 SCC), the right to any property, mentioned in this Section, must be a right actually existing at the date of the suit, though the enjoyment itself may be deferred, e.g. a right to reversioner.
In Deokali Koer v Kedar Nath (1912 ILR Cal), It is stated that title, however, need not be a perfect or absolute one, against the whole world. It is sufficient if he has a title superior to the alleged cloud (Kennedy v Elliot, 85 F 832). The plaintiff may have proprietary title or possessory one. Plaintiff must show subsisting right not only on the date of the suit, but also on the date of the decree (1959 Bom).
Legal Character: One of the important essentials of Section 34 is that the plaintiff must be entitled to legal character or legal status. In Rashmeet Kaur Kohli v. Central Board of Secondary Education (2007 Del), questions relating to minority, rank, caste, official position, civil death, illegitimacy or legitimacy, nationally are about legal character of a person. It refers to a position recognised by law.
Right to property:- Another right to which the plaintiff must be entitled is right to property. In Achal singh Keri singh v Dolat singh Surajmal ji (1924 Bom), the Court held that for claiming relief under Section 34 of the plaintiff must have a present existing right in some property and at the date of the suit. The right of the owner of a building to receive compensation from a public body for the removal of fixtures attached to the building is a right to property, and he may sue for a declaration of such right (1916 PC). Declaration may be granted for the right to attach a particular property (1968 Punj), that a certain sale is void (1936 Pat), for charge of maintenance on wakf property (1975 AII).
Example 1: A is lawfully in possession of certain land. The inhabitants of a neighboring village claim a right of way across the land. Here the inhabitants of a neighboring village are denying right to property of A so suit can be filed against them.
Example 2: A owns a land by inheritance of plot no. 401 in Sector 38, Chandigarh. Afterwards, it was wrongfully recorded in the name of B under plot no. 401. B forcefully attempted to take possession of the land on the basis of the wrongful record. Here B is denying A’s right to property so A may obtain a declaration of his right to the whole property.
Interested to deny: It means, a person who has some interest in denying legal character or right to property of the plaintiff. A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.
Example:- A created a trust with B as trustee for the benefit of C. After death of A, B does not use that property for the benefit of C and denies legal character of C as beneficiary. If C files a suit for declaration that he is beneficiary then B may deny legal character of A as creator of trust for whom, if alive, he would have been trustee.
In case of Governor-General in Council v. Mulla Mahommad Bhai (1944 Nag), a suit may be brought under this Section not only against a person denying, but a person interested to deny, the plaintiff’s right to property. The words ‘interested to deny’ to mean that ‘the person interested to deny a legal character or a right to property is a person with a rival claim of some sort and with some interest resembling in its nature that of the person whose legal character or right is denied.
In case of Federation of All India Hire Purchaser Financiers Secunderabad v Union of India (2008 Bom), a general declaration, though can be granted by its nature, cannot be granted unless it is sought against a person denying or interested in denying the right or title of the plaintiff. Thus, financers who faced innumerable police complaints from customers that the financer did the business of money lending statute did not apply to their transactions, unless they set out who were the people interested in denying their right etc.
No declaratory relief:- No declaratory relief is granted when there is no defendant who deny or interested in denying legal character or legal right of the plaintiff to property.
In case Pilla Appala Nasamma v Record Officer for OIC Record (2011 AP), where a wife sought a declaration that the husband being not heard of for over seven years should be deemed to be dead, the suit was held not maintainable as the plaintiff did not claim to be entitled to any legal character, nor was there a person denying or interested to deny any character.
Denial must be communicated- Denial must be communicated to the plaintiff.
Therefore, where denial is not communicated under Section 34, no cause of action will arise and hence suit cannot be filed.
Example: – A is lawfully in possession of certain land. The inhabitants of a neighboring village claim a right of way across the land. A may sue for a declaration that they are not entitled to the right so claimed. Here denial of A’s absolute right to land was communicated to A when neighbor used that land.
Declaration must be that the plaintiff is entitled to legal character or right to property- In the plaint the plaintiff must make a request for declaration that he is entitled to legal character or right to property.
Declaration to legal character- A plaintiff may, under this Section, sue for a declaration that the defendant is not his son (1910 ILR Bom), or is not his illegitimate son (1914 Oudh), or that the defendant is not an adopted son (2008 Jhar), and the natural parents who have given their son in adoption, can seek declaration that that son, and not another (named in the suit) was the adopted son of the adoptive parents (2013 KLJ).
Conversely, a plaintiff may sue for a declaration that he is the legitimate child of a deceased person (1945 Lah), or a declaration relating to illegitimacy (1963 AII), or that he is the son of A, and not the son of B (1952 AII).
Declaration may be sought that the plaintiff is the adoptive father of defendant (1933 Nag), or of non paternity, and consequent non-liability to pay maintenance (1940 Rang).
A Hindu widow in possession of property adopts a son to her deceased husband. The person presumptively entitled to possession of the property on her death without a son may, in a suit against the adopted son, obtain a declaration that the adoption was invalid (1959 SC).
A woman may sue for a declaration that she is not the wife of the defendant (1955 Tri).
A suit for the declaration that the marriage between the parties to the suit is dissolved is maintainable when the defendant is interested to deny the legal character claimed by the plaintiff (1953 Mad), as also a suit but that the marriage between the parties is void on grounds not falling under Sections 11 & 12 of the Hindu Marriage Act, 1955 (Sections 11 & 12 of the Act provide for the relief of nullity) e.g. on the ground that in a marriage performed according to Hindu rites, the defendant was not a Hindu (1993 MP).
A suit by a servant for a declaration that he was wrongfully dismissed is not a suit to assert a legal character (1951 Mad).
In a case High Commissioner for India v I.M. Lall (1948 PC), a suit by a person for a declaration that an order of removal from the Indian Civil Service was illegal thereof will lie, but not that he was still a member.
Declaration regarding Right to property
The plaintiff must claim in the plaint that he is entitled to right in the property and must request the court to make a declaration that he has such right.
Example- A alienates to B, property in which A had merely a life interest. The alienation is invalid as against C, who is entitled as reversionary. The Court may, in a suit by C against A and B, declare that C is so entitled.
Further relief [Proviso to Section 34]
Proviso to Section 34 provides 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.
Significantly, plain reading of Section 34 and proviso cover two possibilities;
(a) Where plaintiff is entitled to declaration only and no further relief- This is covered under Section 34 only and it provides that where the plaintiff is entitled to the declaration that he is has some legal character or right to property and not in position to claim further relief than a bare declaration of his title can be claimed without asking for further relief. It means mere declaration regarding legal character or right to property can be claimed.
Example- A is lawfully in possession of certain land. The inhabitants of a neighboring village claim a right of way across the land. A may sue for a declaration that he is entitled to the property and they are not entitled to the right so claimed.
(b) Where plaintiff is entitled to declaration as well as further relief- It means in such situation he must claim both, declaratory relief as well as further relief.
The term ‘further relief’ means ‘the relief to which the plaintiff is necessarily entitled on the basis of declaration of the title’. For example, possession or partition and possession, injunction etc. Significantly, the main objective is to avoid multiplicity of suits. However, further relief must be in relation to the legal character or right to such character or the right which the defendant denies or is interested in denying.
Example- A claims that he is biological son of B. And he is entitled to share in the property. He must pray for two reliefs, one a declaration that he is biological son of B, and second that the partition must be reopened and he must be given his share in the property.
In Rohit Shekhar v. Narayan Dutt Tiwari (FAQ (OS) No. 547/2011), the appellant filed an appeal before the Delhi High Court for declaration, that he is the natural born son of Narayan Dutt Sharma and that Narayan Dutt Sharma is the father of the appellant and for perpetual injunction restraining Narayan Dutt Sharma from denying in public or otherwise the fact that he is the father of the appellant. Narayan Dutt Tiwari took plea that conducting DNA test would violate his privacy. The High Court held that out of right of paternity of the plaintiff and right of privacy of the respondent balance of convenience is in favour of paternity, therefore, the court held that DNA test must be conducted and directed to take his blood sample at his residence. After the result, the court made declaration that Narayan Dutt Tiwari is biological father of Rohit Shekher.
No declaratory relief when further relief not claimed
There are number of cases decided by the judiciary where no declaratory relief is granted, when no further relief to which the plaintiff is entitled, is not claimed in the plaint.
In Ram Saran V. Ganga Devi (1973 SCC), the defendant was in possession of some of the suit properties and the plaintiffs in their suit did not ask for the possession of those properties. They merely prayed for a declaration that they were the owners of the suit properties.
In Ataul Huq v Chairman Manicktala Municipality (1921 Cal), it was held that mandatory injunction can also be claimed as ‘further relief’. Thus, the plaintiff seeking a declaration that he is a qualified voter can seek mandatory injunction that his name be entered in the register of voters.
Amendment of the plaint where further relief not claimed: Where the plaintiff is entitled to further relief in addition to the declaratory relief and he fails to claim then no declaratory relief shall be granted. However, he has option to amend his plaint and claim the further relief.
Discretion of court as to declaration of status or right- According to Section 34 of the S.R. Act, any person entitled to any legal character, or to any rights 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 it discretion make therein a declaration that he is so entitled, the plaintiff need not in such suit ask for any further relief.
In case of Jammuna Choudhuri v Ramanup Singh (1960 Pat), a decree of declaration is not a matter of right, but is in the discretion of the Court. The discretion must be exercised with great care and caution, having regard to all the circumstances of the case, and based on sound legal principles (1980 Del). It is capable of correction by a Court of Appeal, if it has not been fairly exercised by the lower Court, or has been exercised arbitrarily or wrongly.
When suit for declaration cannot be filed- A suit for declaration will not lie in the following cases:
(1) For a declaration that the plaintiff did not infringe the defendant’s trademark (111 IC 176). Negative declaration will not be allowed.
(2) For a declaration that a disposition made by the father of the plaintiff in a will is invalid and that the property is ancestral and that the plaintiff is entitled to a share in it. This suit would be barred by the proviso of Section 34, Specific Relief Act, because the plaintiff can claim further relief or partition (25 Mad 504).
