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DECLARATORY DECREE[1]
(S. 34 TO 35)
QUESTION BANK
Q.1. What do you understand by a declaratory decree? State the general principles on which a court grants a declaratory decree.
Q.2. What do you understand by the term ‘Declaratory order’?
SHORT NOTES
- Declaratory Decree.
- Declaratory order.
SYNOPSIS
III. Effect of declaratory decree (S. 35)-
I. Introduction:-
A declaratory decree is a declaratory of a right that is doubtful or required to be cleared. The object of the declaratory decree is to prevent future litigation by removing the existing cause of the controversy. The main object of S. 34 is to dispel a cloud cast upon the plaintiff.[2]. Though there may not be an immediate danger which threatens such title or legal character, it is equitable that such a person should be able to seek the assistance of the Court to get a declaration so that he can peacefully enjoy the title or legal character without fear of future disturbance.
II. Declaration by the court of status or right of a person (S. 34):-
- 34 (1) deals with the equitable relief of passing a declaratory decree. It provides that –
If any person is entitled to-
- a) any legal character, or
- b) any right to any property-
he may institute a suit against any person who –
- a) denies, or
- b) is interested in denying such character or right.
At its discretion, the Court then makes a declaration in such a suit that the Plaintiff is so entitled, and the Plaintiff need not ask for any further relief in a suit.
Kalyan Dombivali Municipal Corporation V. Tukaram Muttappa Pai[3]
Facts—The corporation has not given any notice to the plaintiff, and the defendant corporation has not adduced any evidence to show that they have scrutinized or examined the case even in their office. The concerned authority has not passed any order regarding demolition.
Held– Plaintiff is entitled to a declaration and injunction that it should not demolish the structure in question without following due process of law.[4]
However, the Court shall not make any such declaration if Plaintiff is able to seek further relief than a mere declaration of the title. It is because of the multiplicity of legal proceedings. The Plaintiff may file one suit for the declaration and one more for the other relief.
Illustrations
(a) A is lawfully in possession of certain land. The inhabitants of a neighbouring 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.
(b) A bequeaths his property to B, C and D ‘to be equally divided amongst all and each of them, if living at the time of my death, then amongst their surviving children.’ No such children are in existence. In a suit against A’s executor, the Court may declare whether B, C and D took the property absolutely or only for their lives, and it may also declare the interests of the children before their rights are vested[5].
III. Effect of declaratory decree (S. 35):-
- 35 lays down the three classes of persons on whom a declaratory decree is binding. Such a decree is binding on:-
a) Parties to the suit:-
Parties to the suit in which the declaratory decree was passed;
b) Representatives:-
Persons are claiming through such parties.
c) Trustee:-
If any of such parties are a trustee or deemed trustee, it is bound by the declaration.
In S. N. P. Shipping Ltd. V. World Tanker Carrier[6]
Held- By virtue of S. 35, a declaration under S. 34 is binding only between the parties. It is a declaration in personam (against a particular person only) and not in rem (i.e. against the whole world).
Illustration
A, a Hindu, in a suit to which B, his alleged wife and her mother, are defendants, seeks a declaration that his marriage was duly solemnised and an order for the restitution of conjugal rights. The court makes a declaration and on order. C claims that B is his wife, then sues A for recovery of B. The declaration made in the former suit is not binding upon C.
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[1] अधिकार घोषित करणे/ अधाकाराचा ठराव करणे [घोषणात्मक डिक्री]
[2] वादी के मालकांना हक पर डाले गए बादल को दूर भगाना
[3] (2006) (6) Bom C.R 339
[4] In Parikhit Baksi V. Ukis Singh Baksi (AIR 2004 Ori. 29).
Facts- Plaintiff seeking declaration of title in his favour on the ground of self acquired property and not joint family property. Plaintiff placed revenue sale deed showing that he had purchased property in his own name. Whereas, the defendant pleaded that the property was purchased out of joint family income. But did not show any evidence as to the sufficient family income to purchase that property.
Held- Court declared the Plaintiff as owner of property and property was declared as self acquired property.
[5] (c) A covenants that, if he should at any time be entitled to property exceeding one lakh of rupees, he will settle it upon certain trusts. Before any such property accrues, or any person entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainty. The Court may make the declaration.
(d) A alienates to B property in which A has merely a life interest. The alienation is invalid as against C. who is entitled as reversioner. The Court may in a suit by C against A and B declare that C is so entitled.
(e) 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 against alienee, obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow’s lifetime.
(f) 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.
(g) A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property.
(h) A bequeaths property to B for his life, with remainder to B’s wife and her children, if any, by B, but if B dies 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.
[6] (AIR 2000 Bom. 34).