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Home <https://www.legalbites.in/> » Contract Law

<https://www.legalbites.in/contract-law/> » Declaratory Decrees |
Specific Relief Act 1963

Declaratory Decrees | Specific Relief Act 1963

By Rishabh Aggarwal <https://www.legalbites.in/author/rishabhaggarwal/>

| April 1, 2020
0 Comment <https://www.legalbites.in/declaratory-decrees/#respond>

Declaratory Decrees | Specific Relief Act 1963

Declaratory decrees issued under *section 34* of the *Specific Relief

Act*. It acknowledges the legal character or right to property of the
plaintiff. It helps in avoiding all possible future controversies and
litigations that can arise over the title. It is binding only between
the parties.

*I. Introduction: Declaratory Decrees under the Specific Relief Act

1963*

Under *Chapter 6* of *Part 2* (Specific Relief) of the Statute,

*Specific Relief Act, 1963* (hereinafter “The Act”), the remedy of
/Declaratory Decrees/ is being provided. The court can exercise its
/discretion/ so as to grant a declaration concerning the title or
interest of the plaintiff for the property.

The person has to be entitled to a *legal character* so as to be

eligible to get a declaration from the court of law. The legal
character can also include a *right to property*.[1] <#_ftn1> The
defendant should be *denying* or infringing the plaintiff’s title.
If any *consequential relief* the plaintiff is entitled to, he or
she must claim the same.

In the following article, the legal nuances and explanations of

Declaratory Decrees i.e. an equitable remedy shall be explored. The
article shall answer important questions that arise when it comes to
declarations as a crucial remedy under the Specific Relief Act, 1963.

*II. History of the Provision related to Declaratory Decrees *

Before delving into the remedy enshrined under the present law, it will
be helpful to know how this provision took its ‘present’ shape. To know
the same, one has to open the history. For this provision, the
historical background goes back to 1852. It originated with *section*
*50* of the *Chancery Procedure Act of 1852*, imbibing the /Scot
practise/ of /declaratory/. English courts got the legal and
authoritative sanction to grant declarations.[2] <#_ftn2>
Hence, it was an innovative step which led to the origin of this unique
remedy. In Indian statute books, this remedy found space in 1859 with
*section 15* of the *Code of Civil Procedure, 1859*. It was made lawful
for civil courts to “/make binding declarations of a right without
granting any consequential relief/.”[3] <#_ftn3>

With the enactment of the *Specific Relief Act, 1877*, the provision
concerning the power of granting declarations got transferred to
*section 42* of the same.[4] <#_ftn4> With *section 34 *of the *1963
*law, this power got transmuted into a new law.[5] <#_ftn5> But, to
what extent has this power has become /important/ and got
/independent/ from this provision of law can be understood from
further sections.

*III. Purpose and Importance of Declaration*

Instead of having /multiple litigations/ over a controversial title of

the plaintiff, the dispute can be settled once and for all through the
mechanism of a declaration.[6] <#_ftn6> The stand and title of plaintiff
is /strengthened/ in favour of this claim over the property concerned
and it is not weakened against the opposite party.[7] <#_ftn7>

Thus, a /perpetual bulwark/ is provided to the plaintiff against all

possible future attacks on his or her title. Existing cause of
/controversy/ is being prevented by this act of the court.[8] <#_ftn8>

*Ambit of Section 34*

It is well settled that this provision of law is /not at all/

exhaustive. The source of granting declaratory decrees does not solely
vest in this section. It is because of the decision of the Hon’ble
Supreme Court in */Vemareddi Ramaraghava Reddy v. Konduru Seshu
Reddy/*/*[9]*/ <#_ftn9>/,/ wherein court considered *section 9* or
*Order 9, Rule 7*, Civil Procedure Code. 1908[10] <#_ftn10> as also
vesting the source for granting declarations, since the suit, in this
particular case was regarding declaring a /compromise decree /as not valid.

Court has been categorical in holding that this provision is merely

a *statutory recognition* of well-recognised relief of declaration.
But for situations like the declaration of rights of a holder of
/mortgage decree/ who is also an assignee of a creditor’s decree
whose property is to be attached, it is *Order 21, Rule 95*, Code of
Civil Procedure that can be used for granting declaration.[11] <#_ftn11>

Similarly, section 9 read with *Order 7, Rule 7*, Code of Civil

Procedure can be used to declare an order of the /Food Corporation of
India/ (FCI) as illegal. In a specific case, FCI ordered plaintiff-
transporter to compensate for the loss in transit, with twice the levy
price of 100 bags of sugar. It was declared illegal accordingly.[12]
<#_ftn12>

*IV. Essentials for Relief – Declaratory Decrees *

*1. Legal Character*

The terminology used stands for a status that is ascribed to an
individual to his or her /personal capacity/.[13] <#_ftn13> Thus, it is
a position accepted in law. Various examples can be adduced- /minority,
caste, rank, official position, civil death, illegitimacy, nationality/,
even /name/ of the plaintiff in a record.[14] <#_ftn14>

It can be a question of /family relationships/[15] <#_ftn15> or

/hereditary right/ of making appointments.[16] <#_ftn16> It can be the
legal character of a /priest of a temple/.[17] <#_ftn17>

*2. Entitlement of a legal character with the plaintiff*

The plaintiff before suing for a declaratory decree cannot be a mere

stranger to the title. He or she must be */entitled /*to some legal
character or right to the property so as to be eligible for the
remedy.[18] <#_ftn18> The plaintiff has to sufficiently discharge the
/burden/ of proving the title irrespective of whether the defendants
have proven their case or not.[19] <#_ftn19>

If the plaintiff’s claim to the title could not be sufficiently

established, the court cannot decree on the basis of the defendant’s
claim of title even if /easement/ and /adverse possession/ have not been
established.[20] <#_ftn20> The title /need not be/ absolute or perfect.
He or she may have a /proprietary or possessory title/.[21] <#_ftn21> It
should be just /superior/ to the one to the cloud.[22] <#_ftn22>

*3. Present interest*

Plaintiff needs to have present and /subsisting right/ not only at the
date of suit[23] <#_ftn23> but also at the date of the decree.[24]
<#_ftn24> The court cannot make a declaration on the basis of a right
that may arise in /future/ if and when the occasion arises since this
will not be a basis for a legal character.[25] <#_ftn25> This shows that
on a speculative basis, the court is not authorised to grant this
remedy.[26] <#_ftn26>

Even for /past rights/ or legal character, a declaration cannot be

granted by the court.[27] <#_ftn27> A chance to succeeding to the
property as an heir apparent would constitute to be a /spes
successionis/ under the provisions of the Transfer of Property
law.[28] <#_ftn28> The court cannot grant a declaration for such an
uncertain title.[29] <#_ftn29>

*4. Complete Title*

When the plaintiff claims the title, it must be complete. In /totality/,

the situation has to be considered. If a voter did not take requisite
steps to get his name registered in the /voter list/, a declaration
cannot be sought for being qualified to vote, since the main relief is
to get the name registered in the list.[30] <#_ftn30>

On similar lines, a /partner/ to a firm who is not admitted to a

partnership cannot ask for a declaration that he is an equal partner
with other partners.[31] <#_ftn31> But, in case of issuance of a letter
of /allotment/ and possession certificate, if the plaintiff claims
possessory right from a defendant who has admitted the entitlement of
the plaintiff, the plaintiff is considered eligible for remedy.[32]
<#_ftn32>

*5. Suit against person denying or “interested to deny”*

/_Denial of title_/ is a must for the plaintiff to establish his or her

/locus standi/ before the court.[33] <#_ftn33> Denial can be
temporary,[34] <#_ftn34> express or implied of the plaintiff’s legal
character or his or her right to property.[35] <#_ftn35> But the
provision is widened by including a person who can be /_interested to
deny_/ the title of the plaintiff.

This opens /wide/ gates of interpretation for eligibility of plaintiff

to bring suits against various people. A person interested to deny has
been interpreted by courts as an opposite party holding /rival claims/
or some sort and of some interest /resembling/ with the right of the
person whose interest is being denied.[36] <#_ftn36>

As per the explanation provided in section 34, a *trustee* of a property

can also be a person interested to deny the title of the plaintiff.[37]
<#_ftn37> Any person who */might/* stand to gain financially from a
legal right if established cannot be put in this category.[38] <#_ftn38>
There must be a *specific person* who is denying or interested to deny
the plaintiff’s right.

In a case concerning /financers/, consumers complained that they

didn’t have a license. Court held that financer cannot ask for a
general declaration that having a license is not mandated by the
statute. There must be a specific person against whom the
declaration is sought.[39] <#_ftn39>

*6. Specific Instances of Declaration*

A question of title over some property or of a legal character is a must

as mentioned categorically in the law. A suit for declaration of rights
emerging from a *contract* is not maintainable.[40] <#_ftn40> But in
cases of wrongful dismissal from /service/, the plaintiff’s legal
character is affected and tarnished, thus the employee can base his or
her claim on a contract.[41] <#_ftn41>

A *family relationship* can be also declared by the courts. In case of

/blood relationships/, the courts cannot compel the parties to give
blood samples.[42] <#_ftn42> Such a direction concerning blood samples
can only be given once an eminent need is established.[43] <#_ftn43> To
claim that the appellant’s wife is the wife of the appellant, the
respondent was mandated to first prove that appellant is /married/.[44]
<#_ftn44>

For the Hindu faith, worshippers can seek a declaration that certain
lands are the properties of the *deity*.[45] <#_ftn45> But with regards
to the Muslim faith, the suit for land concerning a wakf property, the
provision in the *wakf* act would have to be relied for initiating the
matter before the respective tribunal.[46] <#_ftn46>

A declaration for subsistence of *service* can be made in special

circumstances after purported termination of contract of service,
 because the appropriate remedy under the law is considered as
damages.[47] <#_ftn47> In any case, such a declaration therefore can
be granted if a consequential relief is also sought along with the
same.[48] <#_ftn48>

Even the status of *caste* is a legal character as well settled by

judicial pronouncements.[49] <#_ftn49> In one case, plaintiff was
claimed to be a member of an agricultural tribe and the same was allowed
by the court.[50] <#_ftn50> Hon’ble Supreme Court has held that for
identification of caste of such members, a committee in every state
government has to issue /social caste certificate/.[51] <#_ftn51>

A suit can also lie for declaration against the *government* as the
court is duty bound to respect the appellant’s rights and declare them
accordingly.[52] <#_ftn52> A public authority including its each officer
cannot take nay unjustifiable stand concerning matters related to
public.[53] <#_ftn53>

*V. Categories of Relief*

As per the landmark verdict by /Calcutta High court/[54] <#_ftn54>,

there are three categories of relief that can be obtained from the court
through this provision of law:

* Relief merely declaratory, defining rights but not giving any

present relief.
* Relief in form declaratory, but in effect giving instant relief to
the plaintiff by restoring his deprived rights.
* Relief claimed as introductory to the relief granted by the court.

*VI. Right of further relief*

The word */relief/* has been interpreted to mean something more than a
right whereby a person claiming the relief needs something. This
“/something/” is the relief.[55] <#_ftn55> When the plaintiff, suppose,
is already in /possession/, all that he or she would require from the
court would be a declaration from the right of his or her right, nothing
more, nothing less.[56] <#_ftn56>

It is well settled that a declaratory decree would /merely declare/

and acknowledge the rights of a decree-holder. It is due to the
change in the law from 1859 civil law, as discussed above, to the
present Specific Relief Act.

In the earlier law, it was mandatory for the party to claim the
declaratory decree along with the consequential relief available.[57]
<#_ftn57> But in the latter case, a party can merely seek a declaration
as well.[58] <#_ftn58> But, in the present law, there can be situations
wherein the opinion of the court, it is considered necessary for a party
to claim further relief.[59] <#_ftn59>

*VII. Effect of Declaration*

As per *section 35* of the act, a declaration given by the court is

binding only between the parties; hence it is only a declaration /in
personam/ and not /in rem/.[60] <#_ftn60>
 As far as the difference from */res judicata/* goes, there is /no
limitation/ with regards to competency of court.[61] <#_ftn61> A
previous judgment can be /res judicata /in subsequent litigation
between parties though they may not have been claiming through them
or nominee parties.[62] <#_ftn62>

*Conclusion – Declaratory Decrees *

The declaration thus becomes an /important component/ of the

discretionary and equitable remedies that are being provided by the court.

------------------------------------------------------------------------

*References*

[1] <#_ftnref1> Specific Relief Act, 1963, § 34, No. 47, Acts of
Parliament, 1963 (India).

[2] <#_ftnref2> Deokali Koer v Kedar Nath, (1912) ILR 39 Cal 704.

[3] <#_ftnref3> Moothoo Vijia Ragoonadah Ranee Kolandapuree Natchiar v.

Dorasinga Tevar, (1874) 2 IA 169, 187–90.

[4] <#_ftnref4> Specific Relief Act, 1877, § 42, No. 1, Acts of Imperial
Legislature, 1877 (India).

[5] <#_ftnref5> Specific Relief Act, 1963, § 34, No. 47, Acts of
Parliament, 1963 (India).

[6] <#_ftnref6> T.S. Palaniappa Mudaliar v. Syed Ghulam Ghouse Madani

Sahib, AIR 1928 Mad 489.

[7] <#_ftnref7> Nilima Bose v. Santosh Kumar Ghosh, AIR 1997 Cal 202.

[8] <#_ftnref8> Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594.

[9] <#_ftnref9> Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy, AIR

1967 SC 436.

[10] <#_ftnref10> Code of Civil Procedure, 1908, § 9, No. 5, Acts of

Imperial Legislature, 1908 (India).

[11] <#_ftnref11> Supreme General Films Exchange Ltd v. His Highness

Maharaja Sir Brijnath Singhji Deo of Mahiar, AIR 1975 SC 1810.

[12] <#_ftnref12> Food Corporation of India, Gorakhpur v. Mahabir Prasad

Bharatiya, AIR 1988 All 160.

[13] <#_ftnref13> Lalji Haridas v. Mulji Manilal Kamdar, AIR 1966 Guj 159.

[14] <#_ftnref14> Rashmeet Kaur Kohli v. Central Board of Secondary

Education, AIR 2007 Del 46.

[15] <#_ftnref15> Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554.

[16] <#_ftnref16> Manickavachaga Desikar v. Paramasivan, AIR 1929 PC 53.

[17] <#_ftnref17> Debendra Narain Sarkar v. Satya Charan Mukerji, AIR
1927 Cal 783.

[18] <#_ftnref18> Specific Relief Act, 1963, § 34(1), No. 47, Acts of
Parliament, 1963 (India).

[19] <#_ftnref19> Union of India v. Vasavi Cooperative Housing Society

Ltd, (2014) 2 SCC 269.

[20] <#_ftnref20> Ram Das v. Salim Ahmed, (1998) 9 SCC 709.

[21] <#_ftnref21> Qabool Singh v. Board of Revenue, AIR 1973 All 158.

[22] <#_ftnref22> Kennedy v. Elliott, 85 F 832.

[23] <#_ftnref23> Dass Mal v. Union of India, AIR 1956 Punj 42.

[24] <#_ftnref24> Qabool Singh v. Board of Revenue, AIR 1973 All 158.

[25] <#_ftnref25> Shaikh Rafiquddin v. Haji Shaikh Asgar Ali, AIR 1922
Pat 392.

[26] <#_ftnref26> Jeka Dula v. Bai Jivi, AIR 1938 Bom 37.

[27] <#_ftnref27> Seth Narainbhai Ichharam Kurmi v. Narbada Prasad

Sheosahai Pande, AIR 1941 Ngp 357.

[28] <#_ftnref28> Transfer of Property Act, 1882, § 6 (a), No. 4, Acts

of Imperial Legislature, 1882 (India).

[29] <#_ftnref29> Sharifan Bibi v. Aishan Bibi, AIR 1928 Lah 831.

[30] <#_ftnref30> Chairman of Municipal Commissioners v. Assam-Bengal

Rly Co Ltd, AIR 1928 Cal 736.

[31] <#_ftnref31> ASCO Engineering Co v. Surat Gas Supply Co, AIR 1988
(NOC) 48 (Del).

[32] <#_ftnref32> Manoji Rao v. T Krishna, AIR 2001 SC 623.

[33] <#_ftnref33> Tulsiram v. Shyamlal Ganpatlal, AIR 1960 MP 73.

[34] <#_ftnref34> Sahdeo Lal Bhagat v. Kesho Mohan Thakur, AIR 1916 Pat.
361.

[35] <#_ftnref35> Muddasani Sarojana v. Muddasani Venkat Narsaiah, AIR

2007 AP 50.

[36] <#_ftnref36> Governor-General in Council v. Mulla Mahommed Bhai,

AIR 1944 Ngp 382.

[37] <#_ftnref37> Specific Relief Act, 1963, § 34(1), No. 47, Acts of
Parliament, 1963 (India).

[38] <#_ftnref38> Zena Gladys Freemantle v. Herbert Charles Freemantle,

(1950) 52 BOMLR 641.

[39] <#_ftnref39> Federation of All India Hire Purchaser Financiers

Secunderabad v. Union of India, AIR 2008 Bom 198.

[40] <#_ftnref40> Nathu Ram v. Mula, AIR 1937 Lah 25.

[41] <#_ftnref41> Ashok Kumar Srivastav v. National Insurance Co. Ltd,

(1998) 4 SCC 361.

[42] <#_ftnref42> Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418.

[43] <#_ftnref43> Narayan Dutt Tiwari v. Rohit Shekhar, (2012) 12 SCC 554.

[44] <#_ftnref44> D Velusamy v. D Patchaiammal, (2010) 10 SCC 469.

[45] <#_ftnref45> Monmohan Haldar v. Dibbendu Prosad Roy Choudhury, AIR

1949 Cal 199.

[46] <#_ftnref46> Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8

SCC 726.

[47] <#_ftnref47> Bool Chand v. Chancellor Kurukshetra University,

(1968) 1 SCR 434.

[48] <#_ftnref48> Manninkal Krishna Kurup v. Swamiyar Avergal, AIR 1969

Ker 36.

[49] <#_ftnref49> Mian Ghulam Rasul Khan v. Secy of State for India,
(1925) 6 Lah 269; Secy of State v. Dhobu Ram, (1944) 25 Lah 168.

[50] <#_ftnref50> Bendangmeren Longchar v. Merazulu, AIR 1994 Gau 109.

[51] <#_ftnref51> Kumari Madhuri Patil v. Addl. Commissioner, Tribal

Development, (1994) 6 SCC 241.

[52] <#_ftnref52> Sri Rajah v. Sarvagnaya Kumara Krishna Yachendra, AIR

1945 Mad 5.

[53] <#_ftnref53> K. Madhadeva Sastry v. Director Post-Graduate Centre,

AIR 1982 AP 176.

[54] <#_ftnref54> Manjural Haque v. Bisseswar, AIR 1943 Cal 361.

[55] <#_ftnref55> Surya Nath Singh v. Shio Karan Singh, AIR 1936 Ran 316.

[56] <#_ftnref56> Ramanuja v. Devanayaka, (1885) ILT 8 Mad 361.

[57] <#_ftnref57> Code of Civil Procedure 1908, § 15, No. 5, Acts of

Imperial Legislature, 1908 (India).

[58] <#_ftnref58> Sree Sree Goddess Pitha Kali Matha Thakurani v.

Surendra Nath Tagore, AIR 1934 Cal 192.

[59] <#_ftnref59> Sivaramalinga Dikshitar v. Sabharatna Dikshitar, AIR

1919 Mad 233.

[60] <#_ftnref60> SNP Shipping Services Pvt Ltd v. World Tanker Carrier
Corp, AIR 2000 Bom 34.

[61] <#_ftnref61> Veeranna v. Sayamma, AIR 1958 AP 363.

[62] <#_ftnref62> Razia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886.

------------------------------------------------------------------------

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