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DECLARATORY DECREE : AN APPROPRIATE REMEDY
Submitted in partial fulfillment of Internal component for the award of degree
B. Com., LLB (Hons) for the subject
LAW OF CONTRACTS – I
BY
JUNIA K.R. LINDSEY – Reg. No. BC0180026
OF
1ST YEAR [Link](Hons)
Under the guidance and supervision of
Professor K. Govinda Rajan
Assistant professor of Law
TAMIL NADU NATIONAL LAW UNIVERSITY
TIRUCHIRAPALLI
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DECLARATION
I, do hereby declare that the project entitled “DECLARATORY DECREE : AN APPROPRIATE
REMEDY” submitted to Tamil Nadu National law school in partial fulfillment of requirement of
award of degree in undergraduate in law is a record of original work done by me under the
supervision and guidance of Assistant Professor K. Govinda Rajan, department of Law, Tamil
Nadu National law school and has not formed basis for award of any degree or diploma or
fellowship or any other title to any other candidate of any university.
DATE: 25/04/2019
PLACE: TIRUCHIRAPALLI
NAME : JUNIA K.R. LINDSEY (BC0180026)
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ACKNOWLEDGEMENT
First of all, I take this opportunity to thank my Assistant Professor K. Govinda Rajan from the
depth of my heart who has been of immense help during moments of anxiety and extreme
difficulty while the project was taking its crucial shape.
Secondly, I convey my deepest regards to the Vice Chancellor Dr Kamala Sankaran and the
administrative staff of Tamil Nadu National Law School who held the project in high esteem by
providing reliable information in the form of library infrastructure and database connections in
times of need.
Thirdly, the contribution made by my parents and friends by foregoing their precious time is
unforgettable and highly solicited. Their valuable advice and timely supervision paved the way
for the successful completion of this project.
Finally, I thank the Almighty who gave me the courage and stamina to confront and overcome
all hurdles during the making of this project. Words aren’t sufficient to acknowledge the
tremendous contributions of various people involved in this project. I once again wholeheartedly
and earnestly thank all the people who were involved directly or indirectly during this project
making which helped me to come out with flying colours.
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DECLARATORY DECREE : AN APPROPRIATE REMEDY
CHAPTER 1: INTRODUCTION
1.1 SPECIFIC PERFORMANCE AS A REMEDY
“Specific Performance is a form of fair and valid in equity relief. This is provided by the court to
enforce against the defendant who agreed to do a particular duty and even signed a contract for it
but in the end refuses to do the same. When taken the remedy of specific performance it is in
dissimilarity with the remedy for breach of a contract. The remedies for breach of contract
include financial compensations for the failure to carry out the duty assigned. Specific remedy as
said in the name is specifi unlike the damages whose remedy is “substitutional”. The remedy in
specific performance is imparted by special cases(excpetion). The plaintiff who wants to avail
this remedy must first prove to the court that the basic damages is not sufficient , such as cases
relating immovable properties. Sometimes even in those kinds of cases the specific performances
will not be granted as it is a non compulsory and voluntary remedy. This form of relief must be
claimed specifically as the suit claimed could be decreed of only the particular agreement and
not any other [Link] prescribed period is three years from the date fixed for the suit.
Section 10 of the Specific Relief Act,1963 describes the breach of the contract relating to
immovable properties cannot be claimed by compensation in money except the cases where the
article is of exceptional value or the property is held by respondent as trustee of plaintiff. Section
12 of The specific relief Act,1963 describes the “Specific performance of part of contract”1”
1
Sparsh Prasad, Specific performance of contracts, LEGALSERVICES
[Link]
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1.2 NATURE OF SPECIFIC RELIEF ACT,1963
The specific Relief Act as given in the name provide help for specific reliefs. Specific relief is
nothing but the relief provided for certain things that is, particular, fixed, named or determined
relief. Specific relief Act is a specific form of relief rather than general kind of relief which
include damages and compensations. For example if Mr.X unlawfully evicts Mr.Z of his
property , then according to general relief the Respondent Mr.X might have to pay Mr.Z
compensation which equals the loss incurred by Mr.Z and the case closes. But when Filed under
Specific relief Act, Mr.X will be made to restore the evicted property to Mr.Z as how it was
before. Specific relief is provided when there is not actual damages can be incurred or when no
financial support can compensate the damage.
The specific Relief Act,1963 applies to every state in India except Jammu and Kashmir.2
1.3 DIFFERENT KINDS OF REMEDIES UNDER SPECIFIC RELIEF
ACT,1963
There are few kinds of remedies that can be awarded by the Courts which eventually comes
under the provisions of Specific Relief Act,1963
RECOVERY OF POSSESSION OF THE PROPERTY
SPECIFIC PERFORMANCE OF CONTRACTS
RECTIFICATION OF INSTRUMENTS
RESCISSION OF CONTRACTS
CANCELLATION OF INSTRUMENTS
DECLARATORY DECREES
INJUNCTION
RECOVERY OF POSSESSION OF THE PROPERTY :
This form of relief deals with both movable and immovable [Link] ensues that even the
most violent forms of property fights are solved [Link] relief provides help to those who
have been evicted of their respective properties. In a well known case the court held that the
2
Anonymous, Specific Relief Act,1963, LAWYERSCLUBINDIA ( Oct. 29, 2009)
[Link]
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written law aka Statues provide for application of code and so there cannot be any doubt and
hence all the provisions under Sections 5 and 6 shall apply.
SPECIFIC PERFORMANCE OF CONTRACTS :
The main feature of a civil right is to fulfill the promises made in the for of contracts especially
when signed voluntarily. Everything in the surrounding is based on a contractual relationship.
For examples Banks, assets etc. Contracts if failed to fulfill may eventually disrupt many other
contracts sometimes as contracts are considered to be a chain of several contracts. Sometime
compensation merely will not satisfy the failure of the contract. It eventually disrupts the
economic purpose of the particular contract. Therefore Specific Performance of Contracts relief
was created to make the defaulting party to fulfill his obligation by fully performing his
promised contract.
RECTIFICATION AND CANCELLATION OF INSTRUMENTS AND RESCISSION OF
CONTRACTS
Contracts and agreements has to be in the form of a written document. Sometimes written
documents may become error and can be executed by mistake. These eventually become void or
is discovered void already. The kinds of documents (contracts and agreements) have to be
cancelled. Chapter V provide relief to such kind of documents. Then there are some form of
documents which becomes voidable at the decision of a party . This particular party has the right
to cancel the contact according to Chapter VI
PREVENTIVE RELIEF
Sometimes the contract does not admit any form of specific relief or any form of damages will
satisfy the deal. During such instances the court must prevent the party from threatening breach
atleast to some extent. The agreement or deal will be enforceable. When put some pressure the
party might be convinced to do the duty promised. This type of relief is known as Preventive
relief. This is enforeced by issuing the order known as “ INJUNCTION”, that is persuading the
party to do something.
DECLARATORY RELIEF
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When a person is entitled to his own property and sometimes a third party prevents the owner
from enjoying his land. During this situation the owner is allowed and can file petition under
Chapter VI of Specific Relief Actto proceed against any person who is preventing him from
enjoying his right. This form of remedy is known as DECLARATORY DECREE.
1.4 CONCLUSION:
From the above research and analysis it can be concluded that the Specific Relief Act,1963
provides remedy for all types of problems that arises contractually. The various types of
remedies which applies to every state in the Country except Jammu and Kashmir proves how not
only agreeing to do a contract is important but the outcome is extra important. The specific relief
Act widens the scope of Civil laws in the country. Specific relief defines Nature, Remedy and
procedure.
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CHAPTER 2
DECLARATORY DECREE
2.1 INTRODUCTION
“ “Provision regarding declaratory decree has been provided in sections 34 and 35 of the Specific
Relief Act, 1963.”
“Section 34 of Specific Relief Act reads as:”
“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, and
the court may in its discretion make therein a declaration that he is so entitled, and the
plaintiff need not in such suit ask for any further relief:”
“Provided 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.”
“Explanation: 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.”
2.2 MEANING
“Declaratory Decree otherwise known as declaratory judgment is a binding declaration of right
in equity without consequential relief. In straightforward terms, a declaratory decree is cone which
settles the right and expels the confusion of the status of the party.”
“The declaratory suit is enforceable when the petitioner wants to share the promissory notes,
with which the respondent has sued upon, the amount is likely to be ordered.”
2.
2.3 ESSENTIALS OF A DECLARATORY SUIT
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There are few essentials which must be satisfied for a declaratory suit to be filed lawfully.
The main essentials are
(i).”The plaintiff must be a person entitled to any legal character or to any right as to any
property.”
(ii).”The defendant must be a person denying, or interested to deny, the plaintiff’s title to such
character or right.”
(iii).”The declaration sued for, must be declaration that the plaintiff is entitled to a legal character
or to a right to property.”
(iv).”The plaintiff should be able to seek further relief than a mere declaration of title, he must
seek such relief.”
If any of the first three following conditions is not satisfied then the declaratory suit will be
dismissed. If the final essential is not fulfilled then the court will not make the declaration to be
sued for.
The Law commission of India put forward that the provisions must not be confined to the right to
property but it must also validate declarations in respect of different legal rights.
2.4 EFFECTS AND LIMITATIONS OF DECLARATORY SUIT
Declaratory decree binds the parties in a contract but it does not bind any third party.
Section 35 Of the Specific Relief Act,1963 states,
“Effect of declaration.—A declaration made under this Chapter is binding only on the parties
to the suit, persons claiming through them respectively, and, where any of the parties are
trustees, on the persons for whom, if in existence at the date of declaration, such parties would
be trustees.”
This section replicates section 43 of the nullified act.
This section makes it clear that the declaration which has been made will not become a
judgement in rem, namely with respect to the adoption of particular [Link] declaratory suit
might be applicable under the Section 13 of The Indian Evidence Act, 1872. Even after this the
confirmation factors of different cases.
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The declaratory decree is finished between the parties to it and the person who litigates the
process. The trial question decided will become barred. This has been decided In the famous
Case Raja Chattar singh v. Diwan Roshan Singh3.
A declaratory decree does not grant title. Therfore after the Hindu Successions Act,1956 an
temporary owner obtaining absolute right under Section 14(1) cannot and will not be deprived of
possession of the party who is entitled to a property having the declaratory suit in their favour.
LIMITATIONS:
The suit which proves the counterfeit of a tool issued or registered ought to be filed within three
years from the date of the issue or else the respective registration will becomes known to the
plaintiff/petitioner.A suit for declaration that has a professed adoption is not valid , more likely
never,taken place must be petitioned within three years from the date when the professed
adoption comes to the knowledge of the paintiff. The right to take legal action gathers from the
date the plaintiff’s right has been threatened.
2.5 CONCLUSION
From the research and analysis done regarding declaratory decree it can be seen that this form of
remedy is When a person is entitled to his own property and sometimes a third party prevents the
owner from enjoying his land. During this situation the owner is allowed and can file petition
under Chapter VI of Specific Relief Actto proceed against any person who is preventing him
from enjoying his right.
3
Raja chattar singh vs. Diwan Roshan singh,(1946) Nag 159, AIR 1946 Nag 277
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CHAPTER 3
OVERALL CONCLUSION
The specific Relief Act, 1963 proves to be one of the most effective kind of remedial Act in the
contractual law. It has remedy for any kind of situation put forth. The specific relief makes sure
that the respondent fulfills his duties irrespective of the intensity of the contract signed because
he has promised to do so. The Specific Relief Act is enforceable and valid in all the states in
India except Jammu and Kashmir as J&K has its own form of Government. The different kinds
of remedies namely Recovery of possession of property; Specific performance of contracts;
Rectification and cancellation of instruments and Rescission of contracts; Preventive relief and
Declaratory relief. These remedies prove to be effective and makes sure all the contractual
problems have a solution. The project based on Declaratory Decree : An appropriate remedy,
discussed the effects, essentials and the limitations of the declaratory suit. The declaratory suit
has been discussed in sections 34 and 35 of the Specific Relief Act,1963 which defines
declaratory decree and the effects of a declaratory suit. The major limitation which can be found
in a declaratory decree is that the petition must be filed within three years from the date the
original suit has been made known to the plaintiff. On the whole it can be concluded that the
Declaratory decree under The specific relief Act,1963 even though an expensive procedure will
make sure the contractual obligation has been fully completed by the parties.