CHAPTER VI

DECLARATORY DECREES

[s 34] Discretion of court as to declaration of status or right.-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.

SYNOPSIS

[s 34.1] Introduction. 378 [s 34.11.2] Right of Further Relicf... 408

[s 34.2] History of the Remedy 379 [s 34.11.3] Further Relief at the Date of
the Suit. 409
[s 34.3] Section 34 is not Exhaustive. 380
[s 34.11.4] Further Relief Not
|s 34.4] Purpose of the Relicf. 381
Obtainable from Civil
[s 34.5] Entitled 382 Court 410
[s 34.5.1] Present Interest. 383 [s 34.11.5] Further Relief Obtainable
[s 34.6] Declarations in Respect of Con from Civil Court 411
tracts 385
[s 34.11.6] Court shall not Make a
(s 34.7] Legal Character. 386 Declaration 412
34.8] Person entitled to Legal [s 34.11.7] Objection to
Character 388 Maintainability. 412
[s 34.9] "Interested to deny" 389 [s 34.11.8] Amendment of Plaint... 412
[s 34.9.1] Explanation: Trustee... 391 [s 34.11.9] Particular Furcher Reliefs".. 414
[s 34.9.2] Denial ofTitle. 391
(s 34.12] Declaration and Injunction. 425
[s 34.9.3] Title Complete. 392
[s 34.13] Discretion of the Court. 426
[s 34.9.4] Particular Declarations. 392
[s 34.14] Grant of Relief 430
Is 34.10) Right to Property 398
[s 34.10.1] Plaintiff Must Show [s 34.15] Declaration and Court Fees. 430
Entitlement to Right. 399 [s 34.16] Effect of Declaration. 432
Is 34.10.2] Particular Declarations. 399 (s 34.17] Practice and Procedure.... 432
[s 34.11] Proviso: Plaintiff Must Seek Fur [s 34.18] Limitation. 433
ther Relief. 405 [s 34.19) Execution of Decree 434
[s 34.11.1] Declaration Against the
Government.. 408

377
378 Section 34 Chapter V Declaratory Decrees
[s 34.1] Introduction
To enable an order of declaration, the plaintif must cstablish the following:
(i) The right of the plaintiff, i.., that the plaintiff is entitled to any legal character or any
right as to property.
(ii) The infringement, i.e., that the defendant is denying, or interested to deny the
plaintiff's title to such legal character or right.
(üi) The declaration, ie., the declaration sought is that the plaintiff is entitled to such
legal character or right.
(iv) The consequential relief, i.e., where the plaintiff is able to seek further relief than
mere injunction, he secks such relief.
If any of the first three conditions is not fulflled, the suit should be dismissed. If those
conditions are fulflled, but the fourth is not, the court shall not make the declaration sued
for.
This section is the same as section 42 of the repealed Act. The Law Commission of India
recommended that the provision must not be restricted to right to property, but must enable
declarations in respect of legal rights of all kinds;' and that the proviso to the section be deleted,
enabling the sccking of declaration without seeking further relief.? It also recommended an
cxpress provision for a declaration as to constitutionality of a law.
The proviso to section 34 states that no court can make any declaration where the plaintiff,
being able to seek further relief than mere declaration of title, omits to do so. The said question
will have to be considered at the time of final adjudication of the suit as the question of
granting further relief or consequential relief would arise only if the court grants a declaration.
If the plaintiff is unsuccessful in seeking the main relicf of declaration, then, the question
of granting any furher relief would not arise at all. Therefore, omission on the part of the
plaintiff in praying for furher consequential relicf, would become relevant only at the time
of final adjudication of the suit. Hence, in view of the above, the plaint cannot bc rejected
at this stage by holding that the plaintiff has only sought declaratory relicfs and no further
consequential reliefs.4
Section 34 indicates that -
1. A 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.
2. The court may in its discretion make a declaration that the plaintiff is so entitled and
the plaintiff need not in such a suit ask for further relief.
3. Under the proviso, no court shall make any such declaration where the plaintiff
being able to seck furcher relief than a mere declaration of title omits to do so.

1. The 9th Report of the Law Commission of India, 1958, para 93.
2. The 9th Report of the Law Commission of India, 1958, para 93; see below: "Recommendation of the
Law Commission of India."
3. The 9th Report of the Law Commission of India, 1958, para 93, para 94.
4. Frost International Ltd. vMilan Developers ß Builders (P) Lid, 2022 SCC OnLine SC 394
5. Sayyed Ayaz Ali vPrakash GGoyal, (2021) 7 SCC 456: (2021) 4 SCC (Civ) 100 : 2021 SCC OnLine
SC 472
Discretion af courtas to declaration ofstatus or right Section 34 379

[s 34.2] History of the Remedy

Prior to the enactment of Chancery Proccdure Act, I852, it was not the practice of che court
in England to make a declaration of right cxcept as introductory to relief which it proceeded
to administer. Decrecs mercly declaratory were an innovation, and they first obrained
authoritative sanction in England by scction 50 of the Chancery Procedure Act, 1852.' Seven
years latcr, India followed suit with section 15 of the Code of Civil Procedure, 1859:
No suit shall be open to objection on the ground that a merely declaratory decree or order
is sought thereby, and it shall be lawful for civil courts to make binding declarations of right
without granting consequential relief
Section 15 of the Code of Civil Procedure, 1859, was in the same terms as section 50 of
Chancery Procedure Act, 1852. It was held under the latter by English courts that it gave a
right of obtaining adeclaration of title only in those cases where thecourt could have granted
relief, if relicf had been prayed for: The same interpretation was put by the Privy Council
on section 15 of Code of Civil Procedure. In Moothoo Vijia Ragoonadah Ranee Kolandapuree
Natchiar vDorasinga Teva," after an observation that the application of scction 15 of Code
of Civil Procedure must be governed by the same principles as those upon which the Court of
Chancery proceedcd in refercnce to section 50 of the Chancery Procedure Act, 1852, it was
stated about section 15 of theCode:
It appears, therefore...that the construction which must be put upon the clause in question
is, that a declaratory decree cannot be made unless there be a right to consequential relief capable
of being had in the same Court or in certain cases some other Court.!!
The Code of 1859 was repcalcd by the Code of 1877, and the provision about declaratory
decrees transferred to section 42 of the Specific Relicf Act, 1877.
As regards section 42 of the repcaled Specific Relief Act of 1877 it was stated:
The terms of the section are not aprecise reproduction of the provision contained in the Act
of 1859 and the English law: in one direction they are more comprehensive, in another more
limited. It is common tradition that the section was designed to be asubstantial reproduction of
the Scot action of declarato, but whether this is so or not is of no grcat moment. We have to be
guided by its provisions as they are expressed.?
Prior to the Specific Relief ACt, 1877, the courts had no power to make a merely declaratory
decree independently of section 15 of the Code of Civil Procedure, 1859. The power to make
such decrees rested entirely upon that section.3 It might have been thought that since the
enactment of section 42 of the Specific Relicf Act, 1877, the power of the courts in India to
make merely a declaratory decree rested entirely upon section 42, now section 34 of Specific
Relief Act, and that the courts had no power to make such decree independently of that
section. However, it is now settled that the provisions of this section are not exhaustive as to
grant of dcclaratory decrees.

6. Fischer v Secy of State for India in Council, (1898) 26 IA 16, 28:22 Mad 270, 282.
7. (15 & 16 Vict, c 86); Deokali Koer v Kedar Nath, (1912) ILR 39 Cal 704, 708: 15 1C 427.
8. The decisions on this enactment are revicwed in Moothoo Vijia Ragoonadab Ranee Kolandapuree Natchiar
v Dorasinga Tevar, (1874) 2 IA 169, 187-90.
9. Rooke v Lord Kensington, (1856) 2 K&J 753.
10. Moothoo Vijia Ragoonadah Ranee Kolandapuree Natchiar v Dorasinga Tevar, (1874) 2 IA 169; Rajab
Nlmony Singh vKally Churn Bhatacharje, (1874) 2IA 83.
11. For instance, a revenue court; Sadut Ali Khan vAbdool Gunney, (1873) LA (Supp) 165, 717.
12. Deokali Koer v Kedar Nath, (1912) ILR 39 Cal 704: 15 IC 427.
13. Moothoo Vijia Ragoonadah Ranee Kolandapuree Natchiar v Dorasinga Tevar, (1874) 2 IA 169 at 179-80.
380 Section 34 Chapter VI-Declaratory Decrees

[s 34.3] Section 34 is not Exhaustive

The confict of opinion as to whether this section is exhaustive of the circumstances in
which declaration may be granted, can be taken as finally settled by the decision of the
Supreme Court in Rama Raghava v Sesha Reddy," also reaffirmed later. "5 In Vemareddi
Ramaraghava Reddy vKonduru Seshu Reddy, 16 acertain temple was declared a public temple.
The defendants fled a petition to have the order set aside, and for a declaration that certain
properties were private properties of the defendants. Acompromise decree declarcd the
temple to be a public temple, and the properties were declared to bc private properties of
the defendants. The plaintiff brought a suit for declaration that the compromise decree was
not valid and binding on the temple. The defence was that the provisions of section 42
(section 34 of the new Act) had not been complied with, and the suit was not maintainable.
It was hcld:
Section 42 of Specific Relief Act is not exhaustive of the cases in which a declaratory
decree may be made and the Courts have power to grant such a decree independently of
the requirements of the Section. It follows, therefore, a suit by the plaintiff-worshipper for a
declaration that the compromise decree is not binding on the deity is maintainable as falling
outside the purview of s. 42 of the Specific Relief Act.""Adeclaration of this character, namely,
that the compromisc decree is not binding upon the deity is in itself asubstantial relief and has
immediate coercive cffect. A declaration of this kind falls outside the purview of s. 42 of the
Specific Relicf Act and willbe governed by the general provisions of the Civil Procedure Code
like s. 9, or O. 9, r. 7.
Later in Supreme General Films Exchange Ltd v His Highness Maharaja Sir Brijnath
Singhji Deo of Mahiar,l a holder of a mortgage-decree, who was also the assignee of
another creditor's decree, in execution of which the property in suit was attached, sought a
declaratory-decree of his own rights and the rights of any future purchaser of the property.
The court held that such a declaratory action was maintainable and such a decree could be
awarded taking into consideration O XXI, rule 95 of the Code of Civil Procedure. It was
stated;19

Section 42 merely gives statutory recognition to a well-recognised type of declaratory relicf

and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory
relief or to circumscribe the jurisdiction of Courts give declarations of right in appropriate
cases falling outside section 42. The circumstances in which a declaratory decree under section
42 should be awarded is a matter of discretion depending upon the facts of cach case. No doubt
a complete stranger whose interest is not affected by another's legal character or who has no
interest in another's property could not get a declaration under section 42 with reference to the
legal character or the property involved.

14. Vemareddi Ramaraghava Reddy v Konduru Seshu Reddy 1966 Supp SCR 270: AIR 1967 SC 436.
15. Supreme General Films Exchange Lid vHs Highness Mabaraja Sir Brijnath Singhji Deo ofMabiar, AlR
1975 SC 1810.
16. Vemareddi Ramaraghava Reddy v Konduru Seshu Reddy, 1966 Supp SCR 270 : AIR 1967 SC 436.
17. Relying on FischervSecy ofState for India in Council, (1898) 26 IA 16: 22 Mad 270 (PC); Partab Singh
v Bhabuti Singh, (1913) 40 IA 182 : 35 All 487 (PC); distinguishing Sheoparsan Singh v Ramnandan
Prasad NarayanSingh, (1916) 43 IA 91 : AIR 1916 PC 78:43 Cal 694 : 33 IC914; affirming Konduru
Seshu Reddi v Vemareddy Rama Raghavareddy, AIR 1964 AP 118; Sanat Kumar Mira v Hem Chandra
Dey,AlR 1961 Cal 411,419; State of Karnataka v TSrinivas, AIR 1988 Kant 67, 76; Supreme General
Films Exchange Lid vHis Highness Maharaja Sir Brijnath Singhji Deo of Mahiar, AIR 1975 SC 1810.
18. Supreme General Films Exchange Ltd vHis Highness Maharaja Sir Brijnath Singhji Deo of Mahiar, AIR
1975 SC 1810.
19. Supreme General Films Exchange Lid vHis Highness Maharaja Sir Brijnath Singhji Deo of Mahiar, AIR
1975 SC 1810 at 1813.
Discretion of court as to declaration ofstatus or right Section 34 381

Much carlier, some High Courts also had taken the view that a right of action to have a
right declared cxisted in Common Law, if not under section 42,20
Relief of a mere declaration of illegality of the order of the Food Corporation of India
that, as a result of loss in transit, twice the levy price of 100 bags of sugar and other incidental
expenses would be recovered from the pending bills of the plaintiff-transporter though not
strictly covered by section 34, could still be granted by the court under section 9 read with O
VII, rule7 of the Code of Civil Procedure, 1908.21
For the same rcason relief has been granted in respect ofa declaration that a decree was
obtained by collusion and fraud, and execution proceedings commenced were a nullity;22
that the termination of service of the plaintiff by the defendant has been wrongful, and the
plaintiff continued to be in service;"3 about the date of birth of the plaintiff in the record
of the employer;% that a compromise decree is not binding on the deity in a suit by a
plaintiff-worshipper; or as to tribal customs;2 or to declare order, judgment or decree as
null and void on proving fraud or collusion on the part of the adverse party:" Discussion of
particular cases of declarations below are not restricted to those granted exclusively under
this section.

[s 34.4] Purpose of the Relief

Adeclaration helps to perpetuate and strengthen the testimony regarding the title of the
plainiff so that adverse attacks on it may not weaken it." It seeks to clear what is doubtful,
and which is nccessary to make clear. It prevents future litigation by removing existing causes
of controversy. It gives a remedy to a person against all person who not only claim an adversc
interest to his own, but against all those who may do so, and it is intended that all such claims
may once and for all be determined in one suit. The object of this section is to provide a

20. KP Ramakrishna Pattarv KP Narayana Pattar, (1914) 39 Mad 80, 82 : AIR 1915 Mad 584: 26 IC
883 (but not for declaration in respcct of rights arising out of contract); Province of Orissa vDurjodhan
Das, AIR 1951 Ori 342; Sri Krishna Chandra vMababir Prasad, (1933)55 All 791: AIR 1933 All 488
(plaintiff merely asked for a declaration that a previous decree was void, suit was held maintainable on
the ground that section 42 was not cxhaustive); Secy of State vKocherlakota Subba Rao, (1933) 56 Mad
749 : 144 IC400 : AIR 1933 Mad 618 (question involved interpretation of a regulation); Sri Sri Sri
Ramachandra Maradanaj Deo Garu vBeero Pillai, (1935) 59 Mad 825: AlR 1936 Mad 531: 164 1C 396
(FB) (suit for declaration simpliciter that order of statutory body is in excess of its jurisdiction is always
maintainable, where the court held that such a suit was a suit under the general law based on a Common
Law right); Fariduddin Abmad v Murtaza Ali Khan, (1935) 11l Luck 486: AIR 1936 Oudh 67 : 158 IC
338 (decree is illegal and not binding on plaintiffs); Suayamprabhai Ammal vD Muthukishna Padayachi,
(1942) 1Mad Lj 303: AIR 1942 Mad 362 (an application under the Madras Agriculurists' Relief Act
for a declaration that certain rules passed under the Act were ultra vires did not fall under section 42);
Andbra University vKorada Durga Lakbbmi Manoharam, AIR 1951 Mad 870.
21. Food Corp of India, Gorakhpurv
Mababir Prasad Bharatiya, AIR 1988 All 160, 164.
22. Thiruvenguda Mudaliar v dNanayanaReddiar, AIR 1959 Mad 141.
23. Andbra Üniversity v Korada Durga Lakbhmi Manobaram, AIR 1951 Mad 870.
24. KMadhadeva Sastry vDirector Post-Graduate Centre, AlR 1982 AP 176.
25. Vemareddi Ramaraghava Reddy vKonduru Seshu Reddy 1966 Supp SCR 270 : AIR 1967 SC 436.
26. Chitui Naga vOnhen Kuki, AIR 1984 Gau 62.
27. Sisir Kumar Chandra vManorama Chandra, AlR 1972 Cal 283, 290 (an heir challenged the validity of
the grant of probate, and hence, it is submitted that he had a legal right to property and the suit was
within the purvicw of section 34 of Speciic Relicf Act 1963.)
28. Gandla Pedda Naganna vSivanappa, (1915) 38 Mad 1162, AIR 1915 Mad 348 : 26 1C 232; Nilima Bose
vSantosh Kumar Ghosh, AIR 1997 Cal 202.
29. T'S Palaniappa Mudaliar vSyed Ghulam CGhouse Madani Sahib, AlR 1928 Mad 489.
382 Section 34 Chapter V DeclaratoryDecrees
perpetual bulwark against adverse attacks on the ticle of the plaintiff, where a cloud is cast
upon it, and to prevent further litigation by removing the existing cause of controversy*
The declaratory relief can be classified into three categories:31 (i) a relief merely declaratory
defning rights but not giving any prescnt relief; (i) a relicf in form declaratory, but in cffect
giving instant relicf to the plaintiff by restoring his deprived rights; and (ii) the relicf claimed
as introductory to the rclicf granted by the court.
[s 34.5] Entitled
Where the plaintiffs claim of title could not be cstablished by leading convincing evidence,
the suit cannot be decreed on the basis that the defendant's claim of title on the basis of easement
and adverse possession has not been established. The weakness in the defendant's title to the
suit property cannot establish the plainiff's title." The approach by the High Court that while
the initial burden would always be upon the plaintiff to cstablish is case but if the evidence let
in by the defendants in support of their case probabilises the case set up by the plaintiff, such
evidence cannot be ignored and kept out of consideration, was crroncous. The legal position
is clear that the plaintiff in a suit for declaration of title and possession could succeed only on
the strength of its own title and that could be done only by adducing sufhcient evidence to
discharge the onus on it, irrespective of the question whether the defendants have proved their
case or not."A portion of the ancestral property devolving on the plaintiff had been acquired
by the defendant, and the balance extent for which new survey numbers had been assigned,
corresponded with the old survey numbers of that property, to which title records were proved,
a decree of declaration was passed in favour of the plaintiff. Notwithstanding that the defendant
had not been able to prove that the suit property had been acquired, held that the plaintiff had
independendy proved his tidle and it was immaterial that the defendant had not been able to
prove its title, since the decree was not passed on the basis of the defendant's failure.4
It is an cssential condition for the application of this provision that the plaintiff must be
entitled to, i.e., have a title to some legal character or right to property; a plaintiff cannot
succeed where he is a stranger to title.
In Deokali Koer v Kedar Nath,35 it was stated:
The section does not sanction every form of declaration, but only a declaration that the
plaintiff is 'entitled' to any legal character or to any right as to any property: it is the disregard
of this that accounts for the multiform and at times, eccentric declarations which find a place
in Indian plaints.
His 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.% The plaintiff may have proprietary
title or posscssory onc. Plaintiff must show subsisting right not only on the date of the suit,
but also on the date of the decree.37

30. Anathula Sudhakar v P Buchi Reddy, (2008)4 SCC 594. See also - Akkamma v Vemavathi, 2021 SCC
OnLine SC 1146
31. Manjural Haque vBisseswar, AIR 1943 Cal 361, 364-65.
32. Ram Das v Salim Abmed, (1998) 9 SCC 709.
33. UOI v Vasavi Cooperative Housing Society Ltd, (2014) 2 SCC 269. See also - Jagdish Prasad Patel v
Shivnath, (2019) 6 SCC 82, A Subramanian vR Pannerselvam, (2021) 3 SCC 675
34. City Municipal Council Bhalki v Gurappa, (2016) 2 SCC 200.
35. Deokali Koer v Kedar Nath, (1912) ILR 39 Cal 704 per Sir Lawrence Jenkins, 709, 15 1C 427.
36. Kennedy vElliott 85 F 832.
37. Qabool Singh v Board of Revenue, AIR 1973 All 158.
Discretion of court as to declaration ofstatus or right Section 34 383

However, the section is not cxhaustive, and declarations can be granted independently of
the provisions of this section. Thus, a worshipper, as next friend to deity, represents the deity
and can maintain a suit for declaration and challenge alienation of deity's property.* A suit by
a committee under the Religious Endowments Act lies for a declaration that the person who
had entered the office of a mutawalli and was removed by the committee was validly removed,
and that appointment of another person by the committec was valid." A ratepayer has an
interest in the property of the municipality and can maintain a suit against the municipality
for declaration that a sale by the municipal committee was illegal, and in contravention of the
statute."" Suit lies for mere declaration that a new valuation made by a municipality for fixing
water-rate, but not implemented by it, is void.41
A suit by a shareholder was maintainable for a declaration that a notice calling an
extraordinary general meeting to pass a resolution to declare a dividend was ultra vires the
powers of the company, where such resolution could be passed only at an ordinary general
meeting, and the rate of dividend had to be recommended by the directors.2
Upon dissolution of a partnership, the assets and goodwill were taken over by one partner.
The busincss of thc partnership was the manufacture of hosicry from woolen yarn which
was granted through a quota system under the Woolen Yarn Control Order, on the basis of
consumption of yarn by an applicant during the preceding ycars. Asuit was filed by the other
partners following dissolution, for a declaration that they were entided to a pro rated share of
the quota. It was held that quota granted did not convert to a partnership asset, divisible among
partners. Quota attaches to the owncr of the busincss at the time the quota is granted. Hence the
plaintiffs were not entitled to such quota. The relief of declaration on this basis was erroneous,
since a declaration can be founded only on a legal right.3
[s 34.5.1] Present Interest
In a suit for a declaration that the plaintiff was the legally wedded wife of the first defendant,
held, that the result of a declaratory decree on the question of status, such as in the instant
case, affects not only the parties actually before the court, but generations to come, and in view
of that consideration, the rule of "present interest" as evolved by case law relating to disputes
about propcrty, docs not apply with full force.44
The plaintiff must have a present intercst in the character or property, and as at the date
of the suit,5 though it may not be onc of immediate enjoyment of property. Thus, a plainiff
who is actually in receipts of rents from the defendants, his tenants, cannot sue to set aside

38. Bhagauti Prasad KhetanvLaxminathji Maharaj, AIR 1985 All 228; Manmoban Haldar vDibbendu Prosad
Roy Choudhury AlR 1949 Cal 199; Mohinder Singh v Pirthipal Singh, AIR 1997 P&H 13 (worshippers,
being bencficiaries, could seek declaration and injunction restraining construction on a picce of land
reserved for a guruduwara).
39. Gholam Hossain Shah vAltaf Hossain, (1933) 61 Cal 80: AIR 1934 Cal 328: 149 IC 1215.
40. Ajudbia Nath Dowarka Nath vAmar Nath Gupta, AIR 1961 P H 352.
41. Surendranath Sen vMunicipal Commissioners Mymensingh, (1933) 61 Cal 276: AIR 1934 Cal 673: 152
IC 694.
42. Raghu Nandan Neotia v Swadeshi Cloth Dealers Ltd., AIR 1964 Cal 247; relying on Bishwanath v New
Central Jute Mills Lid, 64 Cal WN 970.
43. Shadi Lal vNagin Chand, (1973) 1 SCC 185.
44. Razia Begum v Sabebzadi Anwar Begum, AIR 1958 SC 886; KS Varghese v St. Peter's o Paul's Syrian
Orthodox, 2017 SCC OnLine SC 815.
45. Achalsingh Kesrisingh v Dolatsingh Surajmalji, AIR 1924 Bom 470; Abmad Yar Khan v Haji Khan, AIR
1944 Lah l10, 216 1C 82; Dass Mal v UOI, AIR 1956 Punj 42.
384 Section 34 Chapter V-Declaratory Decrees

a mere allegation of the defendants that they were holding the land under a certain tenure.16
However, it is otherwise where the tenants not only set up a certain tenure, but exercise
rights in the land inconsistent with the tenure under which the plaintiff alleges they hold
the land, though consistent with the tenure set up by them.7 The court will not make a
declaration of mere facts which are not ripe for determination of their legal consequences.
Thus, no declaration will be granted for declaration that the plaintiff will be entitled to
contribution from the defendants if and when the occasion arises, this not being a claim
to a legal character.18 Nor will declaration be given of past rights or character. Declaration
cannot be sought of a mere spes successionis.
The court will not grant any declaration on mere speculative grounds," unless the title
has been challenged or threatened; nor on mere question of law,s2 or for declaration of
abstract rights.3 But a person who is likely to be adversely affected by an order may file a
suit for declaration that the order is ultra vires, and bcyond the powers of the authority that
passed it. 4
Aperusal of section 34 would revcal that any person claiming title to any legal character
or to any right as to any property is cntitled to institute a suit against any other person who is
denying or interested in denying his right or title to such property. The use of expression "any
right as to any property is very wide because it shows that it is not necesary for the plaintiff
to claim any right in the property and it would be enough if the right he claimed is related
to the property in question. It is also evident that a right as to property signifies that there is
an existing right of the plaintiff to any particular property. A declaration of such right must
be an existing one and it need not necessarily be a vested right. The logical corollary would
thus be that a person having a contingent right in the property may also sue for a declaration.
It is a different matter that the court in its discretion may refuse to make such a declaration
by concluding that the claim made was too remote and that the declaration given, would be
ineffectual.5
The case of a Hindu reversioner to seek a declaration during the widow's lifetime that an
alienation made by her of her husband's estate was void beyond the widow's lifetime, was
treated as an exception, entitling him to maintain such a suit for the preservation of the cstate%
under section 15 of the Code of Civil Procedure, 1859,7 The Specific Relicf Act, 1877 covered
such a case in illustration (c), and it was stated:

46. Rajah Nilmony Singh vKally Churn Bhattacharjee, (1874) 2 IA 83.

47. Kali Kishen Tagore v Golam Ali, (1886) ILR 12-13 Cal 3 at l1.
48. Shaikh Rafiquddin vHaji Shaikh Asgar Ali, AIR 1922 Pat 392.
49. Ram Sunder Sabu v Ram Narain Sabu, AIR 1918 Pat 79; Seth Narainbhai lchharam Kurmi v Narbada
Prasad Sheosahai Pande, AIR 1941 Nag 357.
50. Jagdeep Narain vJaibasi Koer, AIR 1914 Cal 686: Sharifan Bibi vAishan Bibi, AIR 1928 Lah 831.
51. Jeka Dula v Bai Jivi, AIR 1938 Bom 37: (1937) 39 Bom LR 1072 : 174 1C 24.
52. Prag uRaja Muhammad Abdul HussainKhan, AIR 1914 Oudh 190; but see Province of OrissavDurjodban
Das, AIR 1951 Ori 342 (suit maintainable for proper construction of statute).
53. Naubahar Singh v Qadir Bux, AIR 1930 All 753 : 125 1C 14: (1930) All LJ 875; Ori Lal vMobammad
Yakub, AlR 1914 Oudh 286, 25 1C 908, 17 OC 354.
54. Annie Besant National Girls High School v Dy Director of Publicnstruction, AIR 1983 SC526.
55. Indian Navigation Co v Haryana State Industrial Developmet Corp, AlR 2006 P&H 29.
56. Isri Dut Koer v Hansbuti Koerain, (1883) 10 IA 150, 155-56: (1883) 10 Cal 324; Moothoo Vijia
Ragoonadah Ranee Kolandapuree Natchiar v Dorasinga Tevar, (1875)2 IA 169, 191; Balmakund Lal v
Sohano Kueri, (1929) 8 Pat 153 : AIR 1929 Pat 164: 119 IC 817.
57. Later section 42 of the repealcd Act, now Specific Relief Act, 1963, section 34. See below: "Reversionary
Interest."
Discretion of courtas to declaration of status or right Section 34 385

Where any deed is esxecuted, che result of whichmay be to prejudice the interests of the reversionary
heirs, those heirs, though stillreversionary and though they may never get any tile because events may
precdude them from doing so, may have a declaration as to the effect of the deed.
However, the relicf being discretionary, a declaration can be given in cases where the
plainiff has acontingent interest which is not so remote." In Nagammal v Agoramurthi," the
husband by adeed of scttlement gave to his wife alife estate after his death; but subsequently
he made a will and executed a deed of settlement leaving the property to the defendant and
depriving his wife of all rights. The wife brought asuit for declaration that the two documents
would not affect her rights, and she succeeded.
The cxistence of a mere future and contingent right, which may never have existence, is not
sufficient ground for an action for a declaration.6!
Where there is a dispute as to the construction ofa will and all the parties interested
are before the court, it may make a declaration in respect of the rights of a contingent
remainderman, provided his interest is not remot.

Is34.6] Declarations in Respect of Contracts

A suit for a bare declaration about rights arising out of contract is not maintainable,
unless it involves a question of title to some lgal character or right to any property.0
However, apart from the provisions of the section, a suit can lie for brcach of a contract
of employment resulting in wrongful dismissal of the plaintiff from service, even without
a claim for damages, where it was for vindication of the plaintiff's character, which stood
tarnished by such dismissal.4 Declaration was granted to a contractor that the employer was
not entitled to recover extra cost involved in getting the work done, where the cmployer had
committed breach.65

The plaintif does not acquirc any vested right mercly because his bid amount is the highest
and he had deposited 20% of the highest bid amount along with the carncst money to the
Board for a plot in auction. In the absence of acceptance of the bid offered by the plaintiff by
the competent authority of the frst defendant, there is no concluded contract in respect of
the plot in question and as the plaintiff did not acquire any legal right in respect of the plot in
question, the declaratory rclicf sought by the plaintif that the auction of the plot in favour of
58. Saudagar Singh vPardip Narayan Singh, (1917) 45 LA 21 : AIR 1917 PC 196; Mallampalli Somayya
vMallampali Annapurnamma, (1919) 42 Mad 699 : AIR 1919 Mad 93 (1) : 52 1C 380; Bhagwati
Charan v Hirday Singh, AIR 1952 Pat 160.
59. Nagammal vAgoramurthi, AlR 1956 Mad 248; following Raj Sbantranjai vRaj Bahadur Singh, (1950)
77IA98 : AIR 1950 PC 70: 52 Bom LR 485; India Navigation Co Gurgaon vHaryana State lndustrial
Development Corp, AIR 2006 P&H 29 (no discussion why right is contingen); Maya Basak vKalidassi
Dasi, AIR 1980 Cal 45; JanakiAmmal vNarayanasami Aiyer, AIR 1916 PC 117.
60. Nagammal vAgoramurthi, AlR 1956 Mad 248.
61. Faryad Fatima Bibi v Mujabid Abbas, AIR 1934 All 1064; Maya Basak v Kalidasi Dasi, AIR
1980 Cal 45.
62. Raj Shantranjai vRaj Bahadur Singh, (1950) 77 IA 98 : AIR 1950 PC 70: 52 Bom LR 485.
63. Sripatrao Sadashiv Üpre vShankarao Sarnaik, AIR 1930 Bom 331 (declaration that the defendant is
liable to pay the plaintiff all money which the plaintiff as defendant's guarantor, was liable to pay); Nathu
Ram vMula, AIR 1937 Lah 25: 169 IC 932; but sce KCSkaria vGovt of StateofKerala, AlR 2006 SC
811:(2006) 2 SCC 285.
64. Andhra University v Korada Durga Lakbhmi Manoharam, AIR 1951 Mad 870; but see Mothey Krishna
Rao vGrandbi Anjaneyulu, AIR 1954 Mad 113; Shyam Sundar Misra vMunicipal Chairman Parlakimedi,
AIR 1964 Ori lll;shok Kumar Srivastavv National Insurance Co Lid, (1998) 4 SCC 361.
65. KC Skaria v Got of State of Kerala, AIR 2006 SC 811: (2006) 2 SCC 285.
386 Section 34 Chapter VI-Declaratory Decrees
the plaintiff is binding on the defendants and its non-acceptance is illegal and void, was not
maintainable in law. A suit for a declaration that a valid contract subsists between the partics
is not maintainable, not being either for legal character, or onc to establish right to propcrty."
Thus, where the defendant vendor tricd to scll property to third persons after the agreement of
sale with the plaintif, the plaintif could file a suit for injunction, but not for declaration, as
he was not entided to any legal character.
Adeclaration is not granted if it affects only the parties to a contract, unlcss it is necessary
to have the pecuniary right declared before a suit can be based upon it.
The plaintiff brought a suit alleging that accounts were setled betwecn the partics, and that
the plaintiffs had not to pay anything to the defendants on account of any transactions, and
that no amount was due to the plaintiff. Declaration was refused."1

[s 34.71 Legal Character

Aman's "legal character" is the same thing as his status which is constituted by the attributes
the law ascribes to him in his individual and personal capacity."2 Legal status is a right when
it involves a peculiariy of the personality arising from anything unconnccted with the nature
of the act itself, which the person of inherence can enforce against the person of incidence,"3
Questions relating to minority, rank, caste, official position, civil death, illegitimacy or
legitimacy, nationality are about legal character of a person. It refers to a position recognised
by law. Declaration can be sought for a person's name, and for relief secking incorporation of
full name of the plaintiff in a record."4
However, where the declaration of relationship is not calculated to carry with it any legal
incidents, or to affect in any manner the legal rights and obligations of the partics to the
litigation, a suit for such a declaration is not onc for cstablishing legal character."5 The mere
fact of kindred or affinity to a given person is not a legal character.
Legal character is not restricted to family relationships. Apriest of a temple files a suit for
legal character.7 Ahereditary right to make appointments to a particular office also confers a
legal character.78

66. UP Awas Evam Vikas Parishad v Om Prakash Sharma, (2013) 5 SCC 182.
67. KP Ramakrishna Pattar v KP Narayana Pattar, (1914) 39 Mad 80 : AIR 1915 Mad 584 : 26 1C 883;
Madanlal vState of MadhyaBharat, AIR 1955 MB 111.
68. Keshavlal Lakshmandas Patel vNarsinhbhai Kalidas Patel, AIR 1976 Guj 154.
69. F Gopal Das Parmnanand vL Mul Raj, AlR 1937 Lah 389, 173 IC 444.
70. Chettinad Mercantile Bank Ltd v Pl A Pichammai, (1946) Mad 200 : AIR 1945 Mad 447 (claim of
banker's lien).
71. Ramnarayan v Firm Mangeram Radheshyam Hardoi, AIR 1979 MP 61.
72. Lalji Haridas vMulji Manilal Kamdar, AIR 1966 Guj 159; KP Ramakrishna Pattar vKP Narayana Pattar,
(1914) 39 Mad 80, 82 : AIR 1915 Mad 584, 585: 26 IC 883; Noor Jehan Begum v Eugene Tiscenko,
(1942) 2 Cal 165: AIR 1942 Cal 325, 329.
73. Shanta Shamsher Jung Babdur Rana vKamani Bros Pt Ltd, AIR 1959 Bom 201; Narayan vR Vaidyanath,
AIR 1975 Kant 117.
74. Rasbmeet Kaur Kobli v Central Board of Secondary Education, AIR 2007 Del 46.
75. Haji Abdul Karim vSarraya Begam, (1945) Lah 489 : AIR 1945 Lah 266 : 221 IC 375 (FB); Reshma
Dubain v Ram Dawan Tewari, AIR 1928 All 309: (1927) 26 All LJ 409 :109 1C 112.
76. Mahommad AkbarKhan vFarman Ali, AIR 1930 Lah 795: (1930) 121 1C 417.
77. Manickavachaga Desikar v Paramasivan, AlR 1929 PC 53; Limba bin Krishna v Rama Bin Pimplu,
(1888) 13 Bom 548; Kalidas JivramvGor Parjaram Hirji, (1890) 15 Bom 309; Debendra Narain Sarkar
vSatya Charan Mukerji, AIR 1927 Cal 783. See also below: "Rights of Religious Nature".
78. Manickavachaga Desikar vParamasivan, AIR 1929 PC 53.
Discretion ofcourt as to declaration of status or right Section 34 387

A
right to stand as a candidate for an clection is a valuable right, and is a right of a legal
character.?" Similarly, aplaintif have anight to seck declaration that he is entitled o have his
name entered in the list of voters. 80
The right to hold a certain office in a certain place at a certain scason of the ycar
confers upon the holder of that right a legal character, and a suit to establish the right
is maintainable, Legal character as used in section 42 (corresponding section of the
repealed Aco) is equivalent to legal status. The plainiff claims legal character or legal
status and secks a declaration that he is a managing director and continues to be so. The
office of a managing director is an office recognized by law (sections 2(26) and 316(3)
of the then Companies Act, 1956) and has been clothed by law with certain attributes.
Independently of the powers entrusted to him he has no peculiarity or legal status which
affects or modifies his powers or rights. Amanaging director cannot, therefore, be said to
have any legal status. Therefore the plaintiff is not entitled to any legal character within the
meaning of section 42 of the Act (now section 34),"2 However, where under the Articles
of a company, a director need not to be a shareholder, and no right was conferred upon
him to a stipulated remuneration, which could be paid out of the funds of the company,
a creditor, also a sharcholder, who was excluded from directorship for absence from Board
meetings, had sufficient proprietary interest toenable him to sue for the reliefs.> Asuit
for declaration that the defendant is not a sharcholder or a director of a company is
maintainable, %4
The Debts Recovery Tribunal (DRT) is not a civil court. If it were so, the debtor or
even a third party must have an independent right to approach it without having to wait
for the bank or fnancial institution to approach it first. The continuance of a counter
claim before the Debts Recovery Tribunal is entirely dependent on the continuance of the
applications filed by the bank and before that no declaratory relicf can be sought for by
the debtor. 85
Suit lies for a declaration that plaintiff is the real decree-holder ofa decree obrained by his
agent. Adeclaration that the plaintiff was born on a particular date clothes him with various
legal rights, immunitics, privileges and powers and the refusal of such a declaration may
visit him with certain consequences including duties, liabilitics, and disabilities. Therefore,
a suit can lie for declaration of date of birth; it is not mercly a declaration of an event, but a
declaration of a legal status.
has been held that a suit for a declaration that the plaintiff is not a "dealer" under the
sales tax law, is not within section 34.8* The following have been held not to possess legal

79. Sabhapat SinghvAbdulGaffur. (1896) 24 Cal 107; Shyam Chand BasakvChairnan ofDacca Municipality,
(1919)47 Cal 524: AIR 1920 Cal 669; Sat Narain Gurwala v HanumanParshad, AIR 1946 Lah 85, 224
IC 332.
80. Ataul HuqvCbairman Manicktala Municipality, (1920) 48 Cal 378: AIR 1921 Cal 85; but see Chairman
of MunicipalCommissioners vAssam-Bengal Rly Co Lid, AIR 1928 Cal 736: 115 IC 262.
81. Hina Pandey vBachu Pandey, AIR 1916 Pat 215.
82. Shanta Shamsher Jung Bahadur Ranav Kamani Bros Pt Lid, AIR 1959 Bom 201.
83. Hayes v Bristol PlantHire Ld, (1957)1 All ER 685 : (1957] 1WLR 499; Pulbrook v RichmondConsolidated
Mining Co, (1878) 9 Ch D 610.
84. Mutual Bank of IndiaLdv Sohan Singh, AIR 1936 Lah 790.
85. Nahar Industrial Enetrprises Ltd v Hong Kong and Shanghai Banking Corp, (2009) 8 SCC 646.
86. Abdul Gaffoorv MaSultano, AIR 1931 Ran 24: 130 1C 366.
87. Jalil Khan v GKW Ltd, AIR 1988 Cal 257, 258; State of Karnataka v T Srinivas, AIR 1988 Kant 67,
overruling State of KarnatakavVishwanatha Rao, (1985) Kant 246.
88. Visheshwar Singh vProvince of Bihar, (1948) Pat 820 : AIR 1952 Pat 129.
388 Section 34 Chapter VIDeclaratory Decrees
character as to entitle them to declaration: a beggar secking declaration of right to receive alms
received by him and his ancestors for a long time;" person secking enjoyment of honorary
privileges or offices without remuneration;" or for mere honours without right.

[s 34.8] Person entitled to Legal Character

No suit is maintainable under this section, unless the plaintiff is a person entitled to some
legal character or to some right as to property, and the declaration sought is that he is entided
to such character or to such right.2
Legal character or any right to any propcrty are specics of the same genus, viz. "legal rights".
"Legal character," however, does not appear to be a phrase common to jurisprudence, nor does
it appcar to be uscd in statutes cxcept this provision and section 41 of the Indian Evidence Act,
1872. It means "legal status".93
It is not necessary that the legal character must be in regard to certain property. The
expressions "legal character" and "right as to any property" have been used in the section
disjunctively and not conjunctively, so as to entitle the plaintiff to a declaration on the
exclusive basis of either the one or the other. A suit for declaration lay even if the legal
character" is not as to any property, but merely cast a cloud over the title of the plaintiff's
wife arising after the plaintiffs death. Thus, in Ramsunder Bhagat v Rambharosi Bhagat"" the
plainiff executed a will bequeathing to the defendant, property after his own death, and that
of his wife. Apprehending that the defendant in order to affect the title of the plaintiffs wife
after plaintiffs death would create mischief, the plaintiff destroyed the will and brought a suit
for declaration that the defendant was not his adopted son. The suit was held maintainable.
A decrce-holder cannot sue for a declaration of the debtor's title to property" and that it
is liable to attachment.* The section has, however, been held to be applicable, (wrongly it is
submitted, as the defendant neither denied nor was interested in denying plaintiff's rights) to
acase where the plainiff sought adeclaration that the defendants owned ashare in Blackacre,
in order to cstablish that a revenue officer had erred in refusing permission to the defendants
to sell a share in Whiteacre to the plaintiff.» The ground of the decision was that the test was
whether the plaintiff had an interest in seeking such a declaration; which really ignores the
plain words of the section.

89. Bansi v Kanhaiya, (1921) ILR 43 All 159 : AIR 1921 All 374: 59 IC 659.
90. Maharaj Narain Sheopuri v Shabsi Shekhareshwar Roy, AIR 1915 All 197.
91. Chitti Babu v Venkatasubba, AIR 1933 Mad 264: 143 1C 104.
92. Sheoparsan Singhu Ramnandan Prasad Narayan Singh, (1916) 43 IA 91 : AIR 1916 PC 78:43 Cal 694:
33 IC 914; Deokali Koer v Kedar Nath, (1912) 39 Cal 704: 15 IC427; Haji Mabonmad Nabi Shirazi v
Province ofBengal, (1942) 1Cal 211:AIR 1942 Cal 343 : 201 1C 248; Narain Chandra Dalapati vSidh
Nath Singh, (1940) 2 Cal 443 : AIR 1940 Cal 445 : 190 IC 200; Satruban Prasad Singh v Udai Pratap
Narain Singh, AIR 1940 Pat 502 : 187 IC207; Nand Lal v Frm Kharaiti Lal Chaman Lal, AIR 1938
Lah 574: i78 IC 128; Ganesh Khopra Mils Co v Municipal Corp of Karachi, AIR 1946 Sind 112: 223
IC107 (declaration that the specified goods were not liable to tax).
93. Shanta Shamsher Jung Bahadur Rana v Kamani Bros Put Ltd, AlR 1959 Bom 201.
94. Ramsunder Bhagat v Rambharosi Bhagat, AIR 1957 Pat 131.
95. Bhoop Singh v Tarif Singh, AlIR 1952 All 392; Abdul Barik Abdul Aziz vAbeda Khatoon, AIR 1955 Tri 2.
96. Ramsunder Bhagat v Rambharosi Bhagat, AIR 1957 Pat 131.
97. KRMA Firm vMaung Po Thein 4 Rang 22, AlR 1926 Ran 124:95 IC 98; Krishnaveni Ammal vMD
Soundararajan, AlR 1945 Mad 53.
98. Mabadevi v Saraswati, AIR 1963 Mys 149.
99. Thakur Dei Kunwar vBishwanath Singh, AIR 1953 All 251.
Discretion of court as to declaration ofstatus or right Section 34 389

A suit for declaration by a mere creditor of the transferor that a document of transfer is a
sham does not lie, though such a suit will be maintainable by the transferor.0
A person out of possession cannot merely seek injunction; he must sek declaration. "o1
While the plaintiffs traced their title on the basis of various sale deeds, the defendants
claimed title through entries in the General Land Register. Holding that the approach of
the trial court in examining in depth the weakness in the defendant's case was erroneous,
the Supreme Court rciterated that the question to be gone into in a suit for declaration of
title to the suit property was whether the plaintiffs had independently proved title to the
suit property. 02

[s 34.9] Interested to deny"

A suit may be brought under this section not only against a person denying, but a person
interested to deny, the plaintiffs right to property. The words "interested to deny" have been
interpreted 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 denicd."103 They arc not to be interpreted so
widely as to mean a person who might stand to gain financially or otherwise, if somc person's
legal character or right to property were held to be not established. There must be a plaintiff,
having a legal character, and a defendant interested to deny it. l4 A plaintiff can also claim a
declaration that the defendant does not possess the right stated; however, the relief is worded,
the test is always whcther the right claimed by the defendant implies a denial of the plaintiff's
right as to any property, or to some legal character.3 The plaintiff has to allege and prove that
the defendant has denicd or is interestcd in denying the legal character or right to property.
before the filing of the suit.!6
A gencral declaration, though can be granted by its naturc, cannot be granted unless it
is sought against a person denying or interested in denying the right or title of the plainiff.
Thus, financers who faced innumerable police complaints from customers that the fnancers
did the business of moncy-lending without licence, could not seck a general declaration that
the Money-lending statute did not apply to their transactions, unless they set out who were
the persons interested in denying their right etc.l07
Thus, a Hindu son is entitled to bring such a suit challenging the right of his father's
unsecured creditor to proceed against his share in the joint family property. s

100. Bandaru Subbaraidu vAlluri Satyananayana Raju, AIR 1962 AP 25; contra Ouseph Skaria v Cherian
Joseph, AlR 1965 Ker 288 (obiter).
101. Govindammal vMurugesan, AIR 201IMad 235.
102. UOl v Vasavi Cooperative Housing Society Lid, (2014) 2 SCC 269. See also - Jagdish Prasad Patel v
Shivnath, (2019) 6 SCC 82, 4. Subramanian v [Link], (2021) 3 SCC 675
103. Governor-General in Council vMulla Mahommad Bhai, (1945) Nag 527 :AIR 1944 Nag 382 (the Crown
is not interested to deny the decision of an Income-Tax Officer).
104. Zena Gladys Freemantle v Herbert Charles Freemantle, (1950) 52 Bom LR 641.
105. LGaneshi Lal vAnwar Khan Mabboob &Co, AIR 1933 All495.
106. Krishnaji Annajee Bulte vAnnajee Dhondajee Bulte, AIR 1930 Bom 61.
107. Federation of All IndiaHire Purchaser Financiers Secunderabad v UOI, AIR 2008 Bom 198.
108. Udmniram Karoodimal vBalramdas Tularam, AIR 1956 Nag 76; nder Devi vKirpa Ram, AIR 1930 Lah
803; LaljiHaridas v Mulji Manilal Kamdar,(1966) Guj 971 :AIR 1966 Guj 159 (interested in denying).
390 Section 34 Chapter VI-Declaratory Decrees
An owner of land has a right to bring asuit against any menmber of the public who formally
claims to use the land as a public road. l09 Where an order is made by a magistrate under the
provisions of the Code of Criminal Procedure, 1973 against a person directing him to remove
an otta standing in front of his shop as an obstruction to the public way, such person may
institute asuit against the Secretary of State for India in Council for a declaration that the
land on which the otta stood is his property, and that it does not from part of the public road.
Public roads being vested in the State Government, l10 the Government was "interested to
deny the plaintiffs title to the land.!11
In a suit for declaration of title to immovable property by a person in possession, there
must be an attempt at ouster of the plaintiff by the defendant, or some cloud cast upon title; it
may be in the form of a document, which obstructs the title or enjoyment of the property or
casts a serious cloud upon his title.12
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.13 It is not necessary that the defendant should actually deny the plaintiffs
legal character; the plaintiff can come to court when the defendant is interested in denying
the plaintiff's legal character.!14 Prescnt danger is not necessary; such a danger as would
affect rights in the future is sufficient.!15 Even where cvidence is being crcated which might
ultimatcly result in disturbing the title of the plaintiff, he will have a cause of action."16 Where
the defendant admits the plaintiffs right or the plaintif's title to any property, this section has
no application."
Where title and possession are not disputed, the plaintiff can seek injunction without
secking declaration concerning the title or possession."19
The right to sue for declaration accrued when a clear and unequivocal threat to infringe the
right was made by the defendants when they refuscd to admit the claim of the appcllants of
joint ownership and possession of the land. 120

109. Chuni Lall v Ram Kishen Sabu, (1888) ILR 15 Cal 460(FB); Ram Lal v Thakurji Mandir, AIR 1933 Lah
920: 146 IC 136 (cach denial of title gives a fresh cause of action).
110. Under the Land Revenue Code (Bombay Act 5 of 1879).
111. Secy of State for India in Council vJethabhai Kalidas, (1892) 17 Bom 293; Raja Bhagwan Bakhsh
Singh vSecy of State, (1937) AIl 736, 756: AIR 1937 All 569: 171IC 322; Mobammad Habit Khan v
Badiulzaman Khan, (1932) 14 Lah 414 : AIR 1933 Lah 195: 141 IC 443.
112. Azizur Rabman Moulvi Hazrat Ji vAbdur Rahim, AIR 1938 Pesh 28; Sheo Singh Rai vDakho, (1 875-80)
ILR 1-2 All 484(PC).
113. Zena Gladys Freemantlev Herbert Charles Freemantle, (1950)52 Bom LR 641; but see Pilla Appala
Narsamma v Record Officer for OIC Records, AIR 2011 AP 183 (declaration denied for failure to
prove).
114. Noor Jehan Begum v Eugene Tiscenko, (1942) 2 Cal 165 : AIR 1942 Cal 325; Tulsiram v Shyamlal
Ganpatlal, AIR 1960 MP 73.
115. Mankuwar Asaram v Bodhi Muk1undi, AIR 1957 MP 211.
116. Gandla Pedda Nagannav Sivanappa, (1915) 38 Mad 1162: AIR 1915 Mad 348 : 26 IC 232; Kundan
Lal v Hukam Singh, AIR 1952 Punj l15.
117. Municipal Corp of City of Rangoon vSaw Willie, AlR 1942 Rang 70.
118. Putlabai vVaijnath, AlR 2005 Kant 419.
119. Prembai vGhanshyam, AIR 2011 MP 1; Abdul LatifuNagar Vikas Pranyas, AIR 2006 Raj 215; see below:
sec 36: "Reliefs of Declaration and Injunction", and sec 38: "Posscssion".
120. Daya Singh v Gurdev Singh, (2012) 2 SCC 194.
Discretion of courtas to declaration of status or right Section 34 391

[s 34.9.1] Explanation: Trustee

The explanation provides that a trustee is a "person interested to deny a title adverse to the
title not only of a person who is in existence and for whom he is or would be a trustee, but
also for a person who is not in existence, but for whom, if he were in cxistence, he would be
a trustee.

[s 34.9.2] Denial of Title

A suit for declaration will lie where there has been denial, cxpress or implied, of the
plaintiff's legal character, or right to property. No cause of action accrucs to the plaintiff
until there is some infringemcnt or thrcatencd infringement of his right. 22 The denial may be
temporary. 129 The threat to his right has to be real, and not imaginary. 24
There must be an overt, hostile or adverse act calculated to prcjudice the plaintiffs title.
Anything which has a tendency, even to a slightest degrce, to cast a doubt upon the free
exercise of the plainiffs rights is a cloud, which may entitle the plaintiff to claim declaration. !25
A verbal denial is sufficient.!26 However, the plaintiff nced not seck declaration where the
defendant merely claims, in a manner that is not serious, that the defendant is in adverse
possession; the plaintiff can seek possession without declaration. !"7 Where in a suit for
posscssion based on title there was no serious cloud on the title of the plaintiff, there is no necd
to scck declaration. 128
The denial of title must be communicated to the plaintiff in order that any causc of action
may arisc.129 Where there is a denial of rights, the plaintiff nceds to seek declaration.!0
Mere denial of the right affords a cause of action for the suit;!3! and it is not lost by
subscquent admission of title, !"2 There may be repeated causes of action, cach one giving a
fresh right to sue for the purposes of calculating the period of limitation;'3" and the plaintiff
has a right to state which of those affects him for the purpose of Aling of the suit.l4 It is only
one causc of action, l35 and not a continuing wrong. 1%

121. Chintaman vMahadev, (1904) 6 Bom LR 283; Muddasani Sarojana vMuddasani Venkat Narsaiah, AIR
2007 AP 50.
122. Jeka Dula v Bai Jivi, AlR 1938 Bom 37 : (1937) 39 Bom LR 1072 : 174 IC 24; Tulsinam vSbyamlal
Ganpatlal, AIR 1960 MP 73; Chintaman vMahade, (1904) 6 Bom LR 283.
123. Sahdeo Lal Bhagat vKesho Mohan Thakur, AIR 1916 Pat 361.
124. Life Insurance Corp of India v lgbal Kaur,AIR 1984 J&K 1.
125. Abdullah Shah v Mahommad Bakar Shab, AIR 1918 Lah 124 (defendant applying to the revenue
authorities for partition after a private partition).
126. Jaitram vGirdhari, AIR 1928 Nag 16.
127. Kurella
150.
Naga Druva Vidya Bhaskara Rao v Gala Jani Kamma, AIR 2009 SC (Supp) 690, (2008) 15 SCC
128. Muddasani Venkata Narsaiah vMuddasani Sarojana, (2016) 12 SCC 288.
129. Mababir Rai v Sarju Prasad Rai, AIR 1918 All 175; Sursingji Dajiaj Thakorsahebv Secy of State, AIR
1926 Bom 590.
130. Hardesh Ores Pvt Lid vHede and Co, (2007) 5 SCC 614.
131. Chiagh Din v Ghulam Mabommad, AIR 1924 Lah 628.
132. Balkisansingh v Govindsingh, AIR 1928 Nag 252.
133. Zorawar Singh vDip Chand, AIR 1929 AlI 331.
134. KVK Kunhibiv Secy of Slate, AIR 1924 Mad 825 (several proceedings filed against the plaintif).
135. Thirumala Rao vKadekar Durgi Shetethi, AIR 1914 Mad 429.
136. Krishnaji Annajee Bulte vAnnajee Dhondajee Bulte, AlR 1930 Bom 61 (section 23 of the Limitation Act,
1963 does not apply).
392 Section 34 Chapter VI-Declaratory Decrees

Thus,a plaintiff may seek declaration where an adverse claim has been set up to his absolute
title, under a deed, an alienation, a fraudulent conveyance, an order of an officer or authority,
acts of trespass or encroachment. A plaintif may have a cause of action because of an entry
effected by revenue officers in the revenue records;1" but not where it does not afect the rights
of the plainiffs. 1" It is not the date of wrong entry in the revenue record but che date when the
plaintiffs came to know about the same upon the clear and uncquivocal threat to infringe the
right claimed in the suit, that the right to sue for declaration accrued.!'9 The plaintiff may also
have a cause of action upon attachment of property.0
Refusal by the revenuc authorities to change the entry in the revenue register gives a cause
of action to the plaintiff to seck declaration."! In Ganga Ram v Shiv Lal, 42 the plaintiff
obtained adecree of pre-cmption against a tenant to whom the land was rented by a proprietor
in November 1956, and obtained title to the land in May 1958 after depositing the price. The
right of pre-emption was abolished by a statute from July 1968. The plaintiff's petition for
cxccution was dismissed in May 1959, and mutation of names in the revenue record also was
refused. In March 1960, the plaintiff sought declaration of tile, and the defendant vendees
were merely tenants. The suit was held maintainable even though no further relief could be
claimed, and a cloud had been cast on his title by refusal of mutation.

[s 34.9.3] Title Complete

The title claimed by the plaintiff must be complete. A man who is qualified to vote at
an clection, but has not taken the required steps for having his name put on the register of
voters, cannot sue for a declaration that he is qualified; his status as voter being ancillary to the
main relief of his name being in the register.43 Mere decision to take the plaintiff as a partner
without bcing admitted to the partnership, would not enitle him to a declaration that he was
an equal partner with other partners.14
Where a development authority had issued a letter of allotment and a possession certificate
to the plaintiff and the defendant admitted the plainiffs entitlement, and did not claim title
in himself, the plaintiff was entitled todeclaration of his possesory title. 45
[s 34.9.4] Particular Declarations
s [Link]] Family Relationships
In matters where the paternity is disputed and a blood test to determine paternity is sought,
courts in India cannot order blood test as a matter of course. Whenever applications are
made for such prayers in order to have a roving enquiry, the prayer for a blood test cannot
be entertaincd. There must be a strong prima facie case in that the husband must establish
non-access in order to dispel the presumption arising under section 112 of the Evidence Act.
137. Lala Shiamlal v Mabommad Ali AsgharHusain, AIR 1935 AIl 174: 153 IC 73; KH Dasappa Setty vKN
Tammanna Gowda, AIR 1984 Kant l53.
138. Nar Bahadur Gurung v Anil Krishna Bhattacharya, AlR 1970 Man 57.
139. Daya Singh &anrvGurdev Singh, (2010) 2 SCC 194.
140. Narayanrav Damodar Dabbolkar v Balkrishna Mabadev Garde, (1879-80) ILR 4 Bom 529; Sbivram
Chintaman vJivu, (1888) 13 Bom 34; Nand Lal v Firm Kharaiti Lal Chaman Lal, AIR 1938 Lah 574,:
178 IC 128; Nand Lal v Firm Kharaiti Lal Chaman Lal, AIR 1938 Lah 574.
141. Raj Kunwar v Ganga Prasad, AIR 1920 Oudh 9.
142. Ganga Ramv Shiv Lal, AIR 1964 Punj 260.
143. Chairman of MunicipalCommissioners vAssam-Bengal Rly Co Lid, AIR 1928 Cal 736 : 115 IC262.
144. ASCO Engineering Co v Surat Gas SuppBy Co, AIR 1988 NOC 48 (Del).
145. Manoji Rao v T Krishna, AIR 2001 s 623.
Discretion of court as to declaration of status or right Section 34 393

The court must carefully examinc as to what would be the consequence of ordering the blood
test; whether it will have the cffect of branding a child as a bastard and the mother as an
unchaste woman. No one can be compelled to give sample of blood for analysis, 4Û Adircction
for DNA testing can be issued only after the test of eminent need is satisficd. However, once
such a direction is issued, the court should enforce such direction, by taking recourse to section
51 of the Civil Proccdure Code dealing with powers of the court to enforce execution."
Adeclaration that the parties were married to each other could not be given in the absence
of the person to whomn the husband claimed to be married before the alleged marriage betwecen
the parties in respect of which the declaration was sought, since such a finding would seriously
affect her rights. The respondent cannot claim to be the wife of the appellant unless it is
established that the appellant was not previously marricd. '48
Though section 11 of the Hindu Marriage Act provides that any marriage solemnized, if it
contravenes the conditions specified in clause () of secion 5 of the said Act, shall be null and
void, it also provides that such marriage may on a petition presented by cither party thereto, be so
declared. Though the law specifically does not cast an obligation on cither party to seck declaration
of nullity of mariagc and it may be open to the partics even without recourse to the court to trcat
the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms
of section 1l of the Act as a mcasure of precaution and/or record will lend certainty to legal status.
Thercfore, until the declaration contemplated by scction 11 of the Act is made by a competent
court, the woman with whom the second marriage is solemnized coninues to be the wife within
the meaning of section 494 of the Indian Penal Code and she would be enitled to maintain a
complaint against her husband. In case there is adispute on the matrimonial status of any person,
a declaration in that regard has to be sought only before Family Court. However, a civil court's
jurisdiction to ry a suit for a declaration of matrimonial status is not barred.190
The qucstion of whether there is a valid adoption or not pertains to the status and legal
character of an individual, which falls within the purview of section 34 of the Specific Relief
Act and a suit for declaration before a civil court is maintainable. When a person claims on the
basis of adoption, such an adoption cannot be decided by the Collector as the same involves
legal status/character of aperson which can only be decided by the civil court.151
Abequeaths property to B for his life, with remainder to B wife and her children, if any
by B, but if Bdices without any wife or children, to C. Bhas a putative wife, D, and children,
but Cdenies that Band D were ever lawfully married. D and her children may, in Bs lifetime
institute a suit against C and obtain therein a declaration that they are truly the wife and
children of B'S2 This illustration appears to indicate chat a declaration can be sought where
an immediate right to property is in question, but the cases below show that it suffices that
the status in question carries legal consequences; and a suit for declaration is maintainable,
notwithstanding that a claim for declaration of status may not have any bearing on any right
as to any property. 53

146. Goutam Kundu vState of West Bengal, (1993) 3 SCC 418.

147. Nantyan Dut Tiari v Robhit Shekhar, (2012) 12 SCC 554, approving the judgment of theDelhi High Court.
148. D elusamy v D Patchaiammal, (2010) 10 SCC 469.
149. A
Subash Babu vState of Andbra Pradesh, (2011) 7 SCC 616.
150. Balram Yadav vFulmaniya Yadav, (2016) 13 SCC 308 :AlR 2016 SC. 2161; Samar Kumar Roy vJbarna
Bera, (2017) 9 SCC 591.
151. Ramachandra Dagdu Sonavane v Vithu Hina Mabar, (2009) 10 SCC 273: Rajan Samotra v Financial
Commissioner, 2017 SCC OnLine J&K 534.
152. Illustration (h) to section 42 of the repealed Act of 1877.
153. Naqi Husain vChhaji Begam, AIR 1925 Oudh 210.
394 Section 34 Chapter VI-Declaratory Decrees
A plaintiff may, under this section, sue for a declaration that the defendant is not his son;4
or is not his illegitimate son;155 or that thc defendant is not an adopted son;1% and the natural
parents who have given their son in adoption, can scek declaration that that son, and not
another (named in the suit) was the adopted son of theadoptive parcnts.197 Conversely, a
plaintiff may sue for a declaration that he is the legitimate child of a deceased person;!8 or
a declaration relating to illegitimacy 159 or that he is the son of 4, and not the son of B. 160
Declaration may be sought that the plaintif is the adoptive father of defendant;l6" or of non
paternity, and consequent non-liability to pay maintenance. 162 A Hindu widow in possession
of property adopts a son to her deccascd husband. The person presumptivcly entitled to
possession of the propcrty on her death without a son may, in a suit against the adopted son,
obtain a declaration that the adoption was invalid. 163 A woman may suc for a declaration that
she is not the wife of the defendant,4 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; 16$ as also a suit that the nmarriage betwcen the parties
is void on grounds not falling under sections 11 and 12 of the Hindu Marriage Act, 1955l4%
e.g. on the ground that in a marriage performed according to Hindu rites, the defendant was
not a Hindu l67

(s [Link]) Caste
It has also been held that caste is a legal character, and a suit has been allowed for a
declaration that the plaintiff is a member of an agricultural tribe. 18 Directions for the
procedure for issuance of a social caste certificate by a Committee to be constituted by state
governments were issued by the Supreme Court in this case, with proccdures for verification of
the claim of a particular caste. The Supreme Court also held that such order will be final and
conclusive subject only to the proceedings under Article 226 of the Constitution and that no
suit or other proceedings would lie before any authority.

154. Bai Shri Vaktuba v Thakore Agarsingji Raisinghji, (1910) ILR 34 Bom 676:7 IC 945.
155. Kailasa vRaghubar, AIR 1914Oudh 374.
156. Chinnasami MudaliarvAmbalavana Mudaliar, (1906-08) ILR 29-31 Mad (VI) 33; Bishwanath Mandal
vAjay Kumar Kapri, AlIR 2008 Jhar 12.
157. Ashoka Sa vBidyadbar Patra, AlR 1995 Ori 59.
158. Haji Abdul Karim vSarraya Begam, (1945) Lah 489: AIR 1945 Lah 266: 221 1C 375 (FB).
159. Nafees Ara v Asif Saadat Ali Khan, AIR 1963 All 143.
160. Bhoop Singh v TarifSingh, AIR 1952 All 392.
161. Bansilal v Shankarlal,AIR 1933 Nag 292.
162. UArzeina vMa Kyin Shue, (1940) Rang 668 : AIR 1940 Rang 298 : 192 IC 439 (declaration that the
plaintiff monk was not the father of the defendant).
163. llustration (f) to section 42 of the repealed Act of 1877; contra Gummalapura Taggina Matada
KotturuswamivSSetra Veeravva, (1959) Supp 1SCR 968 : AIR 1959 SC577.
164. Abdul Barik Abdul Aziz v Abeda Khatoon, AlR 1955 Tri 2.
165. Noor Jehan Begum v Eugene Tiscenka, (1942) 2 Cal 165 : AIR 1942 Cal 325: Dipchand Kundanmal
Marwari v Manakchand Multannmal Marwari, (1939) Nag 429 : AIR 1939 Nag 154: 182 IC 18; Conal
Indira Gonsalves vJosepb Prabbakar Iswariah, AIR 1953 Mad 858 (suit for declaration of nullity of
marriage).
166. Sections 11 and 12 of that Act provide for the relief of nullity.
167. Sanjay Mishra v Eveline Jobe, A0R 1993 MP 54 56 (mariage be declared void).
168. Mian Ghulam Rasul Khan vSecy of Statefor lndia, (1925) 6 Lah 269: AIR 1925 PC 170; Secy of State
Dhobu Ram, (1944) 25 Lah 168; Bendangmeren Longchar vMerazulu, AIR 1994 Gau l09.
169. Kunmari Madhuri Patil vAdditional Commissioner, Tribal Development, (1994) 6 SCC 241.
Discretion of court as to declaration ofstatus or right Section 34 395

Is [Link]] Rights of Religious Nature

The following are the principles for a declaration of a religious nature: (1) a suit for
declaration of religious honours and privileges simpliciter will not lie in acivil court; (2) asuit
to cstablish onc's right to an office in a temple and to honours and privileges attached to the
said office as its remuneration or perquisites is maintainable in acivil court; (3) the cssential
condition for the existence of an offhce is that the holder of the alleged office shall be under a
legal obligation to discharge the duties attached to the said office and for the non-observance
of which he may be visited with penalties. 170
A priest may maintain a suit for declaration that he is entitled to officiate as a priest in
alternate years;!7! or his right to recite the stotras on certain occasions;'" or to establish his
right to the office of an adhikari or shebait, cven though no emoluments are attached to the
office;!73 or any right to an office, cven though the emoluments or offerings are very small. "4
The right of agor (priest) to conduct his yajmans (patrons) to a temple to perform worship
there on their behalf and receive presents from the patrons is a right to property, and the gor
may suc for adecaration of such rights where those rights are interfered with; " but not if the
presents are not connected with a religious office. A pragwal may restrain the use of aflag of
atoparticular design by another pragwal 7 Asuit to vindicate a person's rights not to office but
a mere dignity unconnccted with any profits or emoluments, is not maintainable.178 The
right would arise where an offce is recognised in acommunity or in alocality, but there is no
legal right or aright to ofice or property in receiving priestly dues or voluntary oferings "brit
from yajmans. "9
Declarations of the right to conduct religious processions and the like have been granted
without reference to the Act;ls0 though in some cases relating to rights of an individual as a
person belonging to afaith, adeclaration has been granted under this provision.*
A suit for declaration of the rights of the religious head of the suit temples, including
the right to regulate the services in those temples was a matter that was cognizable by a civil
court, I82

170. Sri Sinna Ramanuja Jeer alias Sri Vanamamalai Ramanuja Jeer Swamigal vSri Ranga Ramanuja Jeer Alias
Emberumanar Jeer, AIR 1961 SC 1720.
171. Limba Bin Krishna v Rama Bin Pimplu, (1888) ILR 13 Bom 548.
172. Bashiakar v Venkata Vatada Thatha Chariar, (1910) 20 Mad LJ 530.
173. Debendra Narain Sarkar vSatya Chanan Mukerji, AIR 1927 Cal 783.
174. Kali Kanta Surma vGouri Prosad SurmaBardeuri, (1890) 17 Cal 906; Anna Rangachariar v VParthasarathy
lyengar, AIR 1927 Mad 131.
175. Kalidas JivramvGor Parjanam Hirji, (1890) ILR 15 Bom 309.
176. Bansi vKanbaiya, (1921) ILR 43 AIl 159 : AIR 1921 All 374 : 59 1C 659.
177. Beni Madbo Pragual vHira Lal,.(1920) 43 AII 20 :AIR 1921 All 316: 59 1C 873.
178. Shankar Sadashiv Kulkarni vMalhar Shankar Kulkarni, AIR 1931 Bom 273.
179. Bishin Datt vKrishen Datta, AIR 1921 Lah 138; Ladba Ram v Rallaram, AIR 1928 Lah 730; Sarwar Lal
v Ram Narayan, AIR 1959 AP 307.
I80. Saiyid Manzur HHassan vSaiyid Muhammad Zaman, (1924) 52 IA 61 : AIR 1925 PC 36 : 86 IC 236
(prayer for injuncion); followed in Mahommad Salim vRamkumar Singh, 26 AlLJ 1001 : AIR 1928
¢ll 710: 1101C657 (moslem sacrifice of cows not being in public view): in appeal Ram Kumar Singh
vMubammad Salim, AIR 1929 All 339 : 123 IC 333: Chandu Sajan Patil vNyahalchand Panamchand,
AIR 1950 Bom 192, : (1950) 52 Bom LR 214 (FB); Martin ó Cov Syed Faiyaz Hussain, AIR 1944 PC
33.
181. Naubahar Singh v Qadir Bux, AIR 1930 All 753: 125 1C 14: (1930) All LJ 875.
182. His Holiness Peria Kovil Kelei Appan Thiruvenkata Ramannja Pedda Jiyangarlu Varlu v Prathivathi
Bhayankaram Venkatacharlu, AIR 1947 PC 53.
396 Section 34 Chapter VI-Declaratory Decrees
Declaration may be made ofa right to say prayers in a mosque. 183

The legal position is well-established that the worshipper of a Hindu temple is entitled, in
certain circumstances, to bring a suit for declaration that the alienation of the temple properties
by the de jure shebait is invalid, and not binding upon the temple. If a shebait has impropely
alienated trust propcrty, a suit can be brought by any person interested for a declaration that
such alicnation is not binding upon the deity, but no decree for recovery of possession can

be made in such a suit, unless the plaintiff in the suit has the present right to the possession.
Worshippers of temples are in the position of cestui que trust or beneficiaries in a spiritual sense.
Since the worshippers do not cxercise the deity's power of suing to protect its own interests,
they are not entitled to recover posscssion of the property improperly alienated by the shebait,
but they can be granted a declaratory decree that thealienation is not binding on the deity. 1M
Worshippers of a deity can seck a declaration that certain lands are the property of the deity, 85
In the absence of any provision in the Wakf Act for any proceeding before the Tribunal
for determination of disputes concerning eviction of tenants in occupation of Wakf property,
a suit will lie only before the civil courts for such relicf and not before the Tribunal. 86% The
jurisdiction of the civil court is barred in respect of any dispute I question or other matter
relating to any wakf, wakf property or other matter which is required under the Wakf Act,
1995 to be determined by a Tribunal constituted under that Act. Under section 6 read with
section 7 of the Act is clcar that the institution of a suit in the civil court is barred only in
regard to qucstions that are spccifically enumerated thercin. The bar is not complete so as to
extend to other questions that may arise in relation to the wakf property.$7
A suit can be maintained by worshippers for a declaration that certain land was carmarked
for the construction of a gurdwara, and to restrain the defendants from constructing on the
property for any other purpose. In such like cases the suit of a beneficiary who is to enjoy
certain rights from the property is maintainable irrespective of the fact whether he actually
Cxercised the rights presently or not. l8#

(s [Link]] Employment
When there has been purported termination of a contract of service, a declaration that
the contract of service still subsisted would rarely be made and would not be made in the
absence of special circumstances, because of the principle that the courts do not grant specific
performance of contracts of service; the remedy of the employee is a suit for damages. l89

183. Jiuwan Khan v Habib, (1933) 14 Lah 518: AIR 1933 Lah 759: 144 IC 658.
184. Vemareddi Ramaraghava Reddy v Konduru Seshu Reddy, 1966 Supp SCR 270 : AIR 1967 SC 436:
applying Kalyana Venkataramana Aiyangar vKasturi Ranga Aiyangar, (1916) 40 Mad 212 : AIR 1917
112 (under section 92 of the Code of CivilProcedure); Chidambaranatha Thambiram vPSNallasiva
Mudaliar (1917) 41 Mad 124 : AIR 1918 Mad 464; Abdur Rahim v Syed Abu Mabomed Barkat AliShab,
55 IA 96: AIR 1928 PC 16: (1928) 30 Bom LR 774.
185. Monmohan Haldar v Dibbendu Prosad Roy Choudbury, AIR 1949 Cal 199; Mobinder Singh v Pirthipal
Singh, AlR 1997 P&H 13 (worshipper could seek declaration and injunction restraining construction
on a piece of land reserved for a Gurudwana).
186. Ramesh Gobindram v Sugra Humayun Mirza Wakf (2010) 8 SCC 726.
187. Bhanwar Lal vRajasthan Board of Muslim Wakf, 2014(6) SCC 51.
188. Mobinder Singh v Pirthpal Singh, AIR 1997 P&H 13.
189. Bool Chand vChancellor Kurukshetna University (1968) 1SCR 434: AIR 1968 SC 292; Guntur Tobacco
Market Committeev Yarabothu Narasiah, AIR 1965 AP 266; Usha Das v Arati Kar, AlR 1982 Cal 174; A
Francis vMunicipal Councillors of Kuala Lampur (1962) 3 All ER 633 (PC): Shiv Kumar Tiwari v Jagat
Narain Rai, AIR 2002 SC 211: (2001) 10 SCC 1ll; Pearlite Liners Put Ltd v Manorama Sirsi, AIR 2004
SC 1373: (2004) 3SCC 172.
Discretion of court as to declaration ofstatus or right Section 34 397

However, grant of such declaration is not excluded merely for this reason.190 Mere declaration
may be granted where the suit is conceived solely with a vicw to vindication of the plainiffs
character, which has been tarnished by the removal."91 Else declaration may not be granted
unless conscquential relief, viz. damages, compensation for termination etc are claimed.!"2
Termination of relationship ofmaster and servant will not entitle the servant to a declaration
to the effect that he continues in service. 193
A contract for personal service cannot ordinarily be specifically enforced and a court
normally would not give a declaration that the contract subsists and the cmployce, cven after
having been removed from service can be deemed to be in service against the will and consent
of the employer. This rule however, is subject to three well recognized exceptions - () where
apublic servant or employee of an authority that is State within the mcaning of Article 12 of
the Constitution is sought to be removed from service in contravention of the provisions of
Article 31l of the Constitution of India or the law; (ii) where a dismissed worker is sought
to be reinstated under the Industrial Law; and (ii) where a statutory body acts in brcach or
violation of the mandatory provisions of the statute.194
A suit for declaration by a school that the orders issued by the Deputy Director of
Public Instruction under the Grant-in-Aid Code (under which the school received aid from
che government) for reinstatement of a headmistress was ultra vires the Code would be
maintainable 15

(s [Link]] Documents
A recorded tenure holder having a primna facie title and in possession can file a suit in the
civil court for cancellation of a sale deed on the ground that was obtained by fraud and
impersonation and he cannot be directed to fle a suit for declaration in a revenue court, sincc
his ticle is clear and he does not require declaration of his title to he land. 1"%
A suit before a civil court seeking a declaration that a decrce passed on a compromise
petition by che Assistant Collector (Revenue Court designated under the UP Zamindari
Abolition and Land Reforms Act, 1950), is fraudulent, inoperative and not binding on the
plaintiff is maintainable. 197
A suit lies for a mere declaration that the plaintiff was not a signatory to a document
and it was a forgery, irrespective of whether he averred absence of consideration or about

190. Asbok Kumar Srivastavv National Insurance Co Ltd, AIR 1998 SC 2046 (on facts, declaration refused).
191. Andhra University v Korada Durga Lakbni Manoharam, AlR 1951 Mad 870.
192. Mothey Krishna Rao v Grandbi Anjaneyula, AIR 1954 Mad 113; Shyam Sundar Misra v Municipal
Chairman Parlakimedi, AIR 1964 Ori 1ll; Union Territory of Tripura vAbinash Chandra Gautam, AIR
1968 Ti 29; Manninkal Krishna Kurup vSwamiyar Avergal, AIR 1969 Ker 36.
193. A Francis v Municipal Committee of Kualalampur. (1962) 3 All ER 633 (PC): Barber v Manchester
Regional Hospital Board, (1958) 1¢II ER 322:[1962] 1 WLR 181; Vidyodaya University of Ceylon v
Silva, (1964) 3All ER 865: [1965] 1WLR 77; Bool Chandu Chancellor Kurukshetna Universiy (1968)1
SCR 434, AIR 1968 SC 292; Surendra Nath Shukla v Indian Airlines Corp, AIR 1966 Cal 272, 280; J
Tiwari vJawala Devi Vidya Mandir, AIR 1981 SC 122; Vine v National Dock Lobour Board, [1957] AC
488, (1956) 3 All ER 939 (PC); Secy of State vIM Lall, (1945) FCR 103: AIR 1945 FC 47; on appeal
High Comnisioner forIndia vIM Lall, (1947) 75 IA 225 : AIR 1948 PC 121.
194. Executive Committee of Vaish Degree College vLakshmi Narain, (1976) 2 SCC 58; State Bank of IndiavS
N Goyal, (2008) 8 SCC 92.
195. Annie Besant National Girls High School v Deputy Director of Pubic nstruction, (1983) 1 SCC 200.
196. Sbri Ram v lst Additional District Judge, (2001) 3 SCC 24.
197. Horil v Keshav, (2012) 5 SCC 525.
398 Section 34 Chapter V-Declaratory Decrees

giving possession, !% A suit for declaration that a sale deed was void was maintainable where
it was alleged that the sale decds were not intended to convey property but were meant to be
security.199

(s [Link]]Rights of Public Nature

The right to use a street as a thoroughfare is a right which a court might properly declare;
and the right to pass along a street playing music is a right which the courts may recognise
in the case of religious processions if an inherent right is shown, and in the case of non
religious processions if music is an appropriate observance of that particular procession, but
always subject to the right of other citizens to use the highway, and to any orders issued by the
authoritics to prevent disturbances, and to control traffic,201

[s 34.10] Right to Property

The words used "right as to any property" are wider than, "right to any property and
wide enough to cover the right of a creditor to proceed against the property of his debtor for
recovering his debt. So long as the right claimed is a right as to any property, section 42 of
the Speciñc Relicf Act (corresponding section of the repcalcd Act) applies whether the right
be substantive or procedural. A creditor who is defeated by a sham transfer of propcrty is a
person entitled to a right as to that property, and the debtor and his transferee being persons
interested in denying that right, cven if they have actually not denicd it, there can be litle doubt
that asuit by the creditor for adecaration that the transfer is sham and that he is enitled to proceed
against the property for the realisation of his debt, would lie under this section 202
The plaintiff must have a present existing right in some property; and at the date of the suit.0)
The right of the owner of a building to reccive compensation for 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.204 Declaration may be granted for the right to attach a particular
property;205 that a certain sale is void;206 for charge of maintenance on wakf property,07
Aperson having avested interest, though it be after aseries of life-estates, is entitled to maintain
a suit under this section against the first life-tenant for a declaration, that the first life-tenant has no
more than a life-estate, and against a transfercc of the entire propcrty from him.

198. Rambharosa Lal v Binda Devi, AlR 1956 Pat 203.

199. Bhagwan Devi v Beni Bai, AIR 2006 All 251.
200. Mabommad Jalil KhanvRam Nath Katua, (1930) 53 All 484: AIR 1931 All 341 (declaration that certain
members of a community have a right of taking out possessions with music on public roads); Martin
CovSyed Faiyaz Husain, AIR 1944 PC 33.
201. Chandu Sajan Patil v Nyahalchand Panamchand, AIR 1950 Bom 192: (1950) 52 Bom LR 214 (FB); not
following Venkatesh Appashet vAbdul Kadir (1918) 42 Bom 438 : AIR 1918 Bom 162: 46 IC 740.
202. Ousepb Skaria of NaduvilaparambilvCherian Joseph of Pooppalli, AlR 1965 Ker 288.
203. Achalsingh Kesrisingh v Dolatsingh Surajmalji, AIR 1924 Bom 470.
204. A/S Joseph vCorp of Calcutta, (916) 43 L¢ 243 :AIR 1916 PC 123 :44 Cal 87 :36 IC 912.
205. Jamnabai Gulabchand Gujarati vDattatraya Ramchandra Gujrati, (1935) 60 Bom 26:38 Bom LR 251 :
AIR 1936 Bom 160: 162 1C 260; State ofPunjab v Giani Bir Singh, AIR 1968 Punj 479; but see Maung
Ba Maung v Maung Ba Yin, (1940) Rang 59: AIR 1939 Rang 332: 183 1C 746 (right to attach property
is a mere procedural right and does not entitle one to a declaration, and judgment creditor cannot sue
under this provision).
206. Mangtulal Bagaria vDaya Shanker Gobhardhan Das Bhala, AIR 1936 Pat 572: l65 1C 749.
207. Nawab Shabrukh Jaban BegamvSaiyed Enayat Hussain Khan, AIR 1975 All452.
208. Thakurain Ramanund Koer vThakurain Raghunath Koer, (1882) 9 IA 41, 53 : 8 Cal 769; Gauhar Khan
v Kasbmira Jan, AIR 1945 Pesh 49.
Discretion ofcourt as to declaration ofstatus or right Section 34 399

[s 34.10.1] Plaintiff Must Show Entitlement to Right

The plaintiff must prove title in order to seek declaration.209 Thus, a permission to construct
a boundary wall is not enough to show title,210 nor a mere entry in the record of rights,21The
plaintiff cannotdepend on the weakness of the defendant's case.212 Plaintiffmust show subsisting
right not only on the date of the suit, but also on the date of the decree.213 A coparcener can
scek declaration that a transfer made by another coparcener is illegal, and be set aside.214
The plaintiff is not entitled to a declaration of his right to a patta under an unregistered
decd, although the defendant admits his claim, because in the absence of registration no title
215
passes.

[s 34.10.2] Particular Declarations

(s 34. 10.2. 1] Proprietary Title

Where the plaintiff is in possession, but his title to the property is in dispute, or under a
cloud, or where the defendant asserts title thereto and there is also a threat of dispossession
from the defendant, the plainiff will have to sue for declaration of title and the consequential
rclief of injunction. Where thc tide of the plaintiff is under a cloud, or in dispute and he is
not in possession or not able to establish possession, nccessarily the plaintiff will have to file a
suit for declaration, possession and injunction.216 Where in a suit for possession based on tile
there was no serious cloud on the title of the plaintiff, there is no need to seek declaration.?17
A suit for declaration of title to the property can be filed by the decree-holder who has
deposited the pre-emption amount under a pre-emption decree, since the tile to the land
accrues to the plaintiff on such deposit.218
Asuit for declaration that properties comprised in a will on which probate was granted,
were joint Hindu family properties is maintainable since the probate court is not compctent to
determine the question of title to the propertics or whether the properties bequcathed by the
will were joint ancestral properties or acquired properties of the testator.219
In a suit for recovery of possession based on title, once the plaintiff has been able to create a high
degree of probability so as to shift the onus of proof on the defendant, it is for the defendant to
discharge the onus and in the absence thereof the burden of proof lying on the plaintiff shall be held
to have been discharged so as to amount to proof of the plaintiffs title.0

209. Dalip Singh vSikb Gurdwara Prabhandak Comnite, AlR 2004 SC 137: (2003) 10 SCC 352; Bajranglal
Shivchandrai Ruia v Shashikant N Ruia, AlIR 2004 SC2546 : (2004) 5 SCC272; Prabhakar Adsule v
State of MP, AIR 2004 SC 3557 : (2004) 11 SCC 249.
210. Prabhakar Adsule vState ofMP, AIR 2004 SC 3557 : (2004) 11SCC 249.
211. Narain Prasad Aggarwal v Siate ofMP, AIR 2007 SC 2349 : (2007) 11 SCC 736;, Ramchandra Sakharam
Mabajan v Damodar Trimbak Tanksale, AIR 2007 SC 2577: (2007) 6 SCC 737.
212. Dalip Singh vSikh Gurdwara Prabhandak Committee, AlR 2004 SC 137 : (2003) 10 SCC 352: Nirnashi
Bai v Ramlal, AlR 2006 Chhat 73.
213. Qabool Singh v Board of Revenue, AlR 1973 All 158.
214. Jagdish Tiwary vLalita Kuer, AIR 2011 Pat 40.
215. Kaisar Vardha Reddy vManmvat Rao, AlR 1951 Hyd 63.
216. Anathulla Sudbakar vPBuchi Reddy. (2008) 4SCC 594. See also -Akkamma vVemavathi, 2021 SCC
OnLine SC 1146
217. Muddasani Venkata Narsaiahu Muddasani Sarojana, (2016) 12 SCC 288.
218. Reshmu v Rajinder Singh, (2000) 3 SCC 47.
219. Kanwarjit Singh Dbillon v Hardyal Singh Dhillon, (2007) 11SCC 357.
220. RVE Venkatachala GOunder v¢rulmigu Viswesanaswami ß VP Temple, (2003) 8SCC 752.
400 Section 34 Chapter V-Declaratory Decrees

Asuit for declaration of paramount titde cannot be decreed in favour of the buyer where the
scller did not have such title and was only a lessee of the Government."1
Entries in the record of rights by itself will not confer any title on the plaintiff so as to
obrain a declaration to this effect. The plaintifs have to show, independent of these entries,
that their predecessors had tile over the property in question and it is that property that they
have purchased, 2
The mortgagee of the suit property, who was in possession under the usufructuary
mortgage, sold a portion of this propertry to the plaintif, with the recital recording that
the cquity of redemption was being purchased in respect of the portion of property.
Subsequently the mortgagec purchased the cntire suit property through a court sale
in execution of a moncy decree she had obtained on another loan given by her to the
mortgagor. The suit for declaration of title filed by the plaintiff for the portion sold was
held not maintainable, since the defendant / seller was now thc absolute owner of the
propcrty, and the plaintiff should have fled instead a suit for redemption of mortgage over
the propcrty,?23
Aperson entitled to property as owner may seck declaration ofhis title to the property, where
his title is challenged or threatened because of any document, order, an attachment,2% or
by any act of the defendant.227 A person in possession under a contract of sale is not entitled
to declaration of title.28
A person cntitled to property on the death of a Hindu widow may suc, where the parties
are referred by a revenue court to a civil court, for declaration that the widow is in posscssion
of the propcrty not as heir of a separated Hindu, but as the widow of a deceased coparcener in
lieu of maintenance.2"9
Suit lies for a declaration that the record of rights is wrong and for its correction;20 though
the court cannot give a direction as such by way of consequential relief to the revenue officers

221. State ofAP vStar Bone Mill and FertiliserCo, 2013 (9) SCC319.
222. UOI v Vasavi Cooperative Housing Society Ltd, (2014) 2 SCC 269. See also - Jagdish Prasad Patel
Shivnath, (2019) 6 SCC82,A. Subramanian vR. Pannerselvam, (2021) 3 SCC 675
223. Rukmani Ammal vJagdesa Gounder, (2006) 1 SCC 65: AIR 2006 SC 276.
224. See below: "Setting Aside Transaction and Cancellation."
225. Secy of State for India in Council vJethabhai Kalidas, (1892) ILR 17 Bom 293.
226. Narayanrav Damodar Dabholkar v Balkrishna Mahadev Garde, (1879-80) ILR 4 Bom 529(FB); Shivramn
Chintaman v Jivu, (1888) 13 Bom 34; Nand Lal v Firm Kbaraiti Lal Chaman Lal, AIR 1938 Lah 574:
178 1C 128.
227. Bissesuri Dabeea vBaroda Kanta Roy Chowdbry, (1 884) ILR 10 Cal 1076 (acts of trespass); Chinnammal
v Varadarajulu, (1891) 15 Mad 307; Mabadeo Singh v Bachu Singh, (1888-90) ILR 10-12 All (VI) 570
(receiving rent by co-sharer).
228. Ranesh Chand Ardawatiya vAnil Panjwani, AIR 2003 SC 2508 : (2003) 7 SCC 350.
229. Ram Manobar Singh v Dilaji Kunwari, (1914) 36 All 126, AIR 1914 All 169: 23 IC 252; Kanhai Lal v
Jai Lal, (1922) 45 All 164: AIR 1923 All 54; Daya Shankarv Mohammad lbrabim, AIR 1933 Oudh 555
(distant and contingent reversioner cannot claim declaratory relief); Fateh Mahommad Khan v Gurbux
Singh, AIR 1949 EP 210; Sukhdarshan Singh v Chanan Singh, AIR 1951 Pepsu 81; Karim Baksh v
Rabmon, AIR 1933 Lah 555: 144 IC 408; Feroze Din vKhair Din, AlR 1933 Lah 184: 145 1C 204; SA
Halima Bivi Ammal vSA Fatima Bivi, AIR 1987 Mad 129 (suit for a declaration that plaintiff, a Muslim,
was entitled to certain share in suit of property on the basis of a settlement deed).
230. Sarashijaksha Chaterje v Karpur Kamini Debi, AIR 1937 Cal 745:42 Cal WN 96; KH Dasappa Setty v
KN Tammanna Gowda, AIR 1984 Kant l53, 157; Babu Ram vSbri Poblo Ram, AIR 1992 HP 8, 10; Sbri
Raja Durga Singh of Solan v Tholu, AIR 1963 SC 361.
Discretion ofcourt as to declaration of status or right Section 34 401

to amend entry in any revenue record;231 the plaintiff can only ask for a declaration as to his
title or his share.232
After the enactment of Hindu Succession Act, 1956 the reversioners have neither legal
character, nor any interest in praesenti in the property of a Hindu female in possession of the
property as a limited owner at the time of the enactment, and would, therefore, not be entitled
to a mere declaration of reversionary rights.33
A suit for a declaratory decree that the plaintiff was entitled to draw onc-third the quota
of woollen yarn allotted by the Textile Commissioner to the erstwhile partnership firm of
which the plaintiff was a partner could not be decreed, since the quota not an asset of
partnership that could be divided amongst the partncrs, but a matter of privilege granted
under the Woollen Yarn (Production and Distribution)Control Order, 1960,24

(s 34. 10.2.2] Possessory Title

A person in lawful posscssion may seck declaration where a third party interferes or
threatens to interfere with his possession;35 he seeks declaration of his right to hold property,2%
However, where he is out of possession, he cannot claim mere declaration without secking
possession as conscquential relief.237
Even if the plaintiff is found to be in adverse possession, it cannot seck a declaration to
the effect that such adverse possession has matured into ownership. Only if proceedings are
fled against the plaintiff and the plaintiff is arrayed as defendant that it can use this adverse
possession as a shield/ defence 238
Adverse possession can be claimed by a person who claims to be in possession under
or through a third party. The defendant's claim to title through his predecessor in interest
having been rejected, then having regard to the fact that he had been in possession by
setting up title in his predecessor and later in himself, his posscssion was hostile to the true
owncr, and if he was able to show that such hostile possession continued for 12 years, he
could claim to have perfected his title by adverse possession. When a person is in possession
asserting to be the owner, even if he fails to cstablish ownership through his predecessor in
title, his possession would still be adverse to the true owner. The alternative pleas are nOt
inconsistent. 239
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,240 A is in possession of certain property. B, alleging that he is the owner of
che property, rcquires Ato deliver it to him. Amay obtain adeclaration of his right to hold

231. KH Dasappa Setty vKN Tammanna Gowda, AIR 1984 Kant 153.
232. Dhani Sao vBishun Prasad Singh, AIR 1938 Pat 524.
233. Sugandbabai Shivram Hede v Sundrabai Aba Madne, (1959) Bom 1022: AIR 1960 Bom 32; Laxmi Debi
vSurendra Kumar Panda, AIR 1957 Ori l.
234. Shadi Lal v Nagin Chand, (1973) 1 SCC 185.
235. Imail Ariff vMabommad Ghouse, (1893) 20 LA 99: (1893) 20 Cal 834; BAyyaparaju v Secy of State,
(1914) 37 Mad 298, AIR 1915 Mad 29: (2) 25 IC 894: (1914) ILR 37 Mad 293.
236. See ManojiRaov TKrishna, AIR 2001 SC 623.
237. Executive Officer vChandran, (2017) 3 SCC 702.
238. Gurdwara Sabib vGram Panchayat Village Sirthala, (2014) 1SCC 669.
239. LN Aswathana v P Prakash, (2009) 12 SCC 229.
240. Illustration (a) to section 42 of the repcaled Act of 1877.
402 Section 34 ChapU:r VJ.-Declaratory Decrees

the propercy.241 These illustrations show that a person in possession may sue for a declaration
in certain events.
A purchaser o f property having a valid sale deed can seek declaration of tide and recovery
o f possession if possessio n is not handed over by the seller. 242
Declaration of tide by a person in possession, on whose tide a cloud has been cast by an
auction sale of property for arrears of taxes, can be granted. 243 A declaration can be sought that
the saJe certificate for realising arrears of sales tax was nuJl and void. 244

[s [Link]} Leases
A suit for a declaration that termination of lease is invalid can be instituted even without
dispossession as dispossession is different &om termination of lease. 245 A landJord may seek
declaration against the defendant who claims the land adversely against him and has evicted
the tenants, for declaration of title, possession, and right to receive rents. 246 A person holding a
zur-i-peshgi, lease from an occupancy tenant and who has let out the land to others may sue the
lessor and the sub-lessees for a declaration of his title as zur-i-peshgi,, lease and for possessio n
which could only be by receipt of rents &om the sub-lessees.247
Unsettled condition among landJords and tenants is good ground for declaratory decree.248
A tenant has under the Transfer of Property Act, 1882, or rent control legislations an interest
in the demised premises which would fall within the expression "property", and a tenant can sue
for declaration, and consequential reliefs in respect of his interest in the tenanted property.249

[s [Link]} Ertent ofRight

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 onJy for their lives, and it may also declare the interests of
the children before their rights are vested. 250

[s [Link]} Lesser Interest in Property

Suit lies for a declaration that a prior mortgagee, who is in possession of a portion of
a mortgaged house sold to him on an order for sale of the whole house obtained by the
subsequent mortgagee, is entitled co a charge on the portion purchased by him. 251

241. illustration (g) to section 42 of the repealed Act of 1877; Gajadhar Singh v Hari Singh, AIR 1925 All 421
(As tide having judicially affirmed against B, B makes a claim adverse to it in another proceeding. this is a
fresh cause of action for A under d1e present section); Nar Bahadur G1mmg v Anil Krishna Bhattacharya,
AIR 1957 Man 25.
242. Kumm Cha,,dra Deb Bam1a v Sunil Chandra Debnath, AIR 2012 Gau 88.
243. Upendra Nath Bez v }itendrt1 Nlllh Parui, AIR 1959 Cal 25 (not under this section).
244. Moolchand Agrawal v Babul,zl Agrawal, AIR 2006 MP 42.
245. Kand/a Port v Hargovind jasmj, (2013) 3 SCC l 82.
246. Bissesuri Dabeea v Baroda Kanta Roy Chowdhry, (1884) ILR IO Cal 1076.
247. Sit11 Ram v Ram Lal, (1896) ILR 18 All 440(FB); Ghulam H usain v Mahommad Husain. ( 1909) 31 All 271.
248. [Link] Pillai v RS Sabbaraya Pilla_i, AlR 193 1 Mad 505 : 133 IC 193.
249. Ratnamala Dasi v RataTI Singh Bawa, AIR 1990 Cal 26, 28 (che declarations sought were chat he was
entitled to file a collapsible gate, the entrance, to convert DC electricity currem to AC current in the
premises, to have an access co the rooftop for fixin g antenna an d to supply of water); Municipal Corp of
Greater Bombay v lain Pancham, AIR 1965 SC l 008.
250. lllusuation (b) co section 42 of the repealed Act of 1877.
251. Makhan Mal v Gokal Chand, AlR 1932 Lah 237 : 138 IC 699.
Discretion ofcourt as to declaration ofstatus or right Section 34 403

[s 34. J 0.2. 6/ Hindu Coparcenary Property

Where consent of an adulc coparcener was not obtained while transferring joint family
property, the coun held that the aggrieved coparcener was entitled to the relief of declaration
of his right, tide and interest, and recovery of possession. 252

[s 34.10.2. 7/ Inheritance and Succession

A suit for declaration that the plaintiff's heirs were the owners and entitled co the sealed box
lying in a safe-deposit with the bank with consequential relief of allowing them co operate the
safe-deposit locker, was held to be maintainable on the ground that the estate of an intestate
Hindu vested in the heirs even without obtaining letters of administration.253

[s [Link]} Wills
While granting a probate, the court would not decide any dispute with regard to tide of the
properties concerned and a separate suit would be maintainable. 251
Section 213 of the Succession Act, 1925 docs not come in the way of a suit or action being
instituted or presented by the executor or legatee claiming under a will in respect of a property
under the will Section 213 however, bars a decree or final order being made in such suit or
action which involves a claim as an executor or a legatee in the absence of a probate or letters
of administration in regard to such a will. 255
A suit to sec aside a will during the lifetime of the testator is not maintainable. 256 After
the death of the testator, the plaintiff cannot sue for a bare declaration, buc must seek its
cancellation. m D eclaration may be sought that a bequest under che will is void. 258 A declaration
may he sought that the will has never, in fact, been executed;259 or as to the effect of the will
o n the interests of the plainciff,260 viz. the nature or extent of the estate conferred upon the
plaintiff under the will. 261

[s [Link]} Contracts
A suit docs not lie under this section for a declaration that a valid personal contract still
subsists between the plaintiff and the defendant, or conversely for a declaration that the
plaintiff is not liable under a certain contract;262 such a suit not for being a declaration that the
plaintiff is en tided co a legal character or to any right as to any property;263 and also because

252. Jagnrmnth Sahu v Golapi Barik, AIR 1985 Ori 288, 292-93.
253. Adarsh Rattan v State Bank ofIndia, AIR 1987 P&H 232, 236.
254. Krishna Kumar Bir/a v Rajendra Singh Lodha, (2008) 4 SCC 300.
255. Binapani Kar Chowdhury v Sri Satyabratn Basu, (2006) IO SCC 442.
256. Rambhnjan Kunwnr v Gurcharan K1mwar, ( 1904-05) lLR 26-27 All (VI) 432.
257. HumakSingh v Cyan Devi, AIR 19 16 Lah 21: 36 IC 95.
258. Shambai v Govardhnn, AIR 1925 Sind 195: 78 IC 249.
259. Bobba Padm,mabjudu v Bobba Buchamma, AIR 1919 Mad 793 : 47 IC 702.
260. Saudagar Singh v Pardip Narayan Singh, ( 19 17) 4 5 IA 2 1 : AIR 19 17 PC I 96.
261. Raj Shantranjai v Raj Bahadur Singh, (1950) 77 IA 98: AIR 1950 PC 70: 52 Born LR 485.
262. KP Ramakrishna Pattar v KP Narnynna Pattar, (1914) 39 Mad 80 : AIR I 9 15 Mad 584: 26 IC 883;
Madan/al v State of Madhya Bharat, AIR 1955 MB 111 ; Mahabir jute Mills v Firm Kedar Nath Ram
Bhnrou, AIR 1960 All 254; Mahabir Shum Sher Jung Ba/Jadur Rann v Lloyds Bank Ltd, AIR 1968 Cal
37 1; State ofMadhya Pradesh v Khan Bnhadur HHDH Bhiwandiwala and Co., AIR 1971 MP 65.
263. KP Ramakrishna Pattar v KP Narayana Pnllnr, supra.
404 Section 34 Chapter Vf.-Ded aratory Decrees

a declaration regarding pecuniary liability of a person cannot be considered to be declaration

abo ut the legal character or any right to property. 264
Suit does not lie for declaration that defendant would be liable to compensate plaintiff in
case the latter had to pay. 2<,~
A declaration that the plaintiff was a holder for value of a cheque was allowed in peculiar
circumstances.266
A covenants that, if he should at any time be entitled co property exceeding one lakh of
rupees, he will settle it upon certain trusts. Before any such property accrues, or any persons
entitled under the crusts arc ascertained, he institutes a suit co obtain a d eclaration that the
covenant is vo id fo r uncertainty. The coun may make the declaracion.267
D espite being the high est bidder, the plaintiff acquired no vested right to have the auction
by the State concluded in his favour and in the absence of any legal right or concluded
contract,268 was not entitled to maintain the suit for declaration.269

[s [Link]] Alienation
A alienates co B property in which A had merely a life intcresr. The alienation is invalid as
against C, who is entitled as reversionar. The court may, in a suit by C against A and B, declare
that C is so cntitlcd . 270
The widow of a sonless H indu alienates part o f th e p roperty ofwhich she is in possession as
such . The person presumptively entitled to possess the property if he survives her may, in a suit
against the alienee, obtain a declaratio n chat the alienation was made without legal necessity,
and was, therefore, void beyond the widow's lifetime. 271

[s 34. 10.2.11J Decrees

A suit for declaration that a decree is a nullity is maintainable on the ground that it has
been obtained by fraud, o r is one without jurisdiction.m A suit for declaration that a decree
was obtained by fraud does no t lie in the absence of a prayer co sec it aside. 273
A plaintiff in possession of property claiming to be an owner thereof may sue for a
declaration that the decree obtained by one of the two defendants against the ocher affecting
the plaintiffs property was collusive, and is not binding o n the plaintiff. 274
Suit for declaring that compromise decree is forged, is not m aintainable because of
0 XXIII, rule 3A of the Code of C ivil Procedure, 1908. 27 5 Person s not parties to

264. Mahabir Jute Mills v Finn Kedar Nath Ram Bharose, AIR 1960 All 254.
265. Nathu Ram v Mula. AJR 1937 Lah 25: 169 IC 932.
266. Girdhari/.a/ Rama/,a/ v Palaniappa Mudali, AJ R 1929 Mad 572: 11 9 IC 158.
267. IIJusrration (c) co section 42 of the repealed Act of 1877.
268. H aryana Urban Development Awhority v Orchid lnfrastruaure Developers Pvt Ltd. (2017) 4 SCC 243.
269. Uttar Pradesh Avas Evam Vikas Parishad v Om Prakash Sharma, (20 13) 5 SCC 182.
270. Illustration (d) to section 42 of the repealed Act of 1877.
271. Illustration (c) to section 42 of the repealed Act of 1877; but see now section 14 of the Hindu Succession
Act, 1956.
272. Badami v Bha/i, (20 11 ) 12 SCC 574; RMARM Chettyar Firm v M aung Shwe Hmun, AIR 1938 Ran 468.
273. Kam/a Kant/ha v Muktinath /ha, AIR 1942 Pat 309: 197 IC 185. See below: "Set aside decree."
274. Gandia Pedda Naganna v Sivanappa, ( 1915) 38 Mad 1 162 : AIR 19 15 Mad 348 : 26 IC 232; but sec
Ganga Ghulam v Tnpeshri Prasad, (1904) 26 All 606, 607; K1mhamed v Kimi. (I 891) I 4 Mad 167 (decree
obtained by corruption, remedy is injunction to restrain execution).
275. Pratap Mistry v Sitaram Mistry, AJR 2010 Pac 104.
Discretion ofcourt as to declaration ofstatus or right Section 34 405

compromise decrees cannot seek d eclaration that such a decree is null and void; such d ecree
does not bind them, and they are entitled to immunity as regards their rights.276 A plea
chat the judgmem passed was obtained by fraud cannot be ignored. Authorities, be they
consticucional, statutory or administrative (and particularly chose who have to decide a !is)
possess the power to recall their judgments or orders if they are obtained by fraud. In case of
a fraud on a party to the suit or proceedings, the court may direct the affected party to file
a separate suit for setting aside the d ecree. Similarly, where the court is misled by a party or
the court itself commits a mistake which prejudices a party, the court has the inherent power
to recall its order. 277
It is not open to a party to treat a judgment of a competent court as void without a
declaration to that effect obtained from the competent court. Such a declaration cannot be
obtained in collateral proceedings.278
An interim or interlocutory order on custody of minor children passed by a foreign court
can be disregarded only if there are special reasons for doing so. These are: wh ether the foreign
court has jurisdiction over the child concerned based on ordinary residence of the child; a
prior substantive order should be given precedence over a substantive order passed later by
another court (foreign or domestic). 279

[s 34.11) Proviso: Plaintiff Must Seek Further Relief

A suit for declaration with a consequential relief of injunction is a nor a suit for declaration
simplicirer: it is a suit for declaration with further relief. Whether a further relief claimed in a
particular case as consequential upon a declaration is adequate must always depend upon the
facts and circumstances of each case. itto
Where a suit was filed for declaration char rhe plaintiffs were rhe sole owners of the property,
bur did not seek the relief of possession of the property which was in unlawful possession of
the defendant, it was held chat the suit was not mainrainable. 281 A plaintiff otherwise entitled
to declaration may be refused the relief where, being able co seek further relief than mere
declaration, he omits to do so. A suit for declaration o f ownership was filed by the plaintiff
who was admittedly not in possession of the suit property. The suit was barred by section
34.282 Where the suit property was in the possession of tenants of the defendants, who were
parties before the court, the suit was not maintainable where only a declaration without the
consequential relief of possession was sought for. To say that independent proceedings for
eviction of the tenants under a different statute could be filed would amount to defeating the
provisions of Or. 2 rule 2 CPC as well as the proviso to section 34. The very purpose of the
proviso co section 34 is co avoid the multiplicity of proceedings and also the loss of revenue of
court fees.283
This provision aims at avoiding multiplicity of proceedings. The plaintiff must seek the
relief where it is such as he can ask for, and he need ask for. The proviso is also stated to aim

276. Subash Eknathrao Khandekar v Pragyabai Manohar Biradar, AIR 2008 Born 46.
277. Indian Bank v Satyam Fibres {India) Pvt Ltd. (1996) 5 SC 550; Badami v Bhali, (2012} 11 sec 574.
278. lnderjit Singh Grewal v State ofPunjab, (2011} 12 SCC 588.
279. Surya Vadanan v State o/Tamil Nadu, (2015) 5 sec 450.
280. C Mohammad Yunus v Syed Unnissa, AIR 1961 SC 808.
281. Ram Saran v Smt. Ganga Devi, ( 1973) 2 sec 60, Executive Officer v Chandran , (20 I 7) 3 sec 702.
282. VOi v Ibrahim Uddin, (2012) 8 SCC 148.
283. Venkataraja v Vidyane Dourer Adjaperumal (2014) 14 SCC 502.
406 Section 34 Chapter \17-- Declaratory Decrees

at protecting the revenue from having a suit brought without paying ad valorem court fee. 2x4
This bar in the proviso applies only to a suit for declaration and not any other suit, eg, specific
performance.285
Mere prayer in plaint chat such other relief be granted to plaintiff without specific plea
for possession is not sufficient, and the bar under the proviso cannot be disregarded merely
because the plaint contains a general prayer also that other reliefs be granted.286
The suit filed was for a declaration that the alienation of the property of her husband by
a Hindu widow would not be binding on the children on whom the property would revert
on the death of the widow. On the death of the widow the reversioners become entitled to
possession of the property, and in a proper case leave may be obtained to amend the plaint in
the declaratory suit by adding all the reversioners as plaintiffs and by including in the plaint a
prayer for possession of the properry. 287
Where a suit for declaration that certain existing trustees were trespassers in the trust, and
that the plaintiffs should be appointed as trustees, etc., was filed without compliance of section
92 of the Code of Civil Procedure, the suit could not be saved by creating it as a suit for relief
of a bare declaration of their right to be appointed as trustees as chis would be hit by section
34 of the Specific Relief Act, and a suit only for such declaration could not be maintained. 288
The expression "further relief" would mean the relief which would complete the claim
of the plaintiff, and not lead to multiplicity of suits. Further, relief must flow necessarily
from the relief of d eclaratio n, and appropriate to and necessarily consequent on the right or
claim asserted. 2x9 ]t is such relief as flows necessarily from the relief o f declaration. It muse
be a relief ancillary to the main relief, and not one in the alternative. 290 It is such relief as
cannot be granted without the declaration. 291 A suit for a bare declaration of right without
further relief for possession and ocher reliefs as the faces and circumstances would require, is
not supportable.292 If the further relief is remote and is not connected in any way with the
cause of action accrued in favour of che plaintiff, it need not be claimed , and would not be
barred by this section. 293 The question whether the further relief is consequential upon the
declaration depends upo n the facts and circumstances of the case.294 It would depend upon the
interpretation of the plaint read as a whole, and especially the prayer clause. 295
Where the plaintiff is not in need of any other consequential relief, suit for mere declaration
is competent and the court should grant necessary relief; 296 as also where mere declaration is
sufficient to protect the plaintiffs interest. 297

284. Anirudha Padhan v Chhai Padhan, AIR 1981 Ori 74; see below: "Declaration and Court Fees."
285. Ramsingh v BabuurL, AIR 1954 Bhopal 3.
286. Vinay Krishna II Keshav Chandra, AIR 1993 SC 957, 961.
287. Radha Rani Bhargava v Hanuman Prasad Bhargava, AIR 1966 SC 2 16.
288. MK Rappai v john. 1969 (2) sec 590. Sec also -Akkamma v Vemavathi, 202 1 sec Online SC 1146
289. Jag Narain Sen Uki/ v Srikanta Roy. AIR 1922 Cal 8; M11nnu Chamar v Hari Narain, (1946) All 856. 860,
AIR 1947 All 352 : 229 IC 47; Re ChiefInspector ofStamps. Uuar Pradesh v Iqbal Bahad11r, AIR 196 1
All 555.
290. Issac Brickles v William H Snell, AIR 1916 PC 152.
29 1. Ranjit Singh v Birinder Kumar, AIR 1952 Pepsu 168.
292. MK &ppai v john, I 969 (2) sec 590.
293. Shefoli Roy v Hero jaswant Das, AIR 1992 All 254, 258.
294. CMahommad Yunus v Syed Unnissa, AIR 1961 SC 808.
295. VOi v Pearl Hosiery Mills, AIR 1961 Punj 280.
296. Sree Sru Goddess Pitha Kali Matha 1hakurani v S11reridra Nath Tagore, Al R 1934 Cal 192 : 58 Cal LJ 120.
150 IC 61 7; Maham Indra Narain Das vMaham Ganga Ram Das, AIR 1955 All 683.
297. Umararmessa Bibi v jamiranessa Bibi, AIR I 923 Cal 362.
Discretion ofcourt as to declaration ofstatus or right Section34 407

A suit for bare declaration without further relief for possession and other relief as the facts
and circumstances would require is not maintainable; further relief in the proviso mearu a
relief which was available at the institution of the suit.298 It must be a relief in relation to the
legal right to property which the plaintiff is entitled to. It must be a relief appropriate to and
necessary for and consequence of the right asserted. 299
Injunction is "further relief " within the meaning of the proviso,300 and so is cancellation.301
A suit, therefore, for a declaration and an injunction or a declaration and cancellation, is a suit
in which further relief is sought. Thus, where the plaintiff had sold the property, but alleged
that the transaction was truly one of loan, he cannot merely ask for declaration, unless he also
seeks declaration char the transaction was one of loan and sought specific performance of an
oral agreement co reconvey as alleged. 302
The question whether rhe further relief claimed in a particular case as consequential upon
a declaratio n is adequate, must always depend upon the facts and circumstances of the case.303
The further relief which the plaintiff is bound co claim is such relief as he would be in
position to claim fro m the defendant in an o rdinary suit by virtue of the title which he seeks
to establish, and of which he prays for a declaratio n.3 o-1
Mere declaration that certain order passed by the Revenue Board is without jurisdiction,
could be sought.305
Worshippers of a d eity seeking a declaration that certain lands are the property of the deity
need not ask for the appointment of a mahant, and pray for an order of restoration of the
property to the rnahant. 306 Where an anjuman filed a suit for declaration that a certain property
was a wakfproperty and not of the defendants, but did not claim possessio n of the property,
it was held that it was not a suit under section 34. The court further observed that even if it
was a suit under section 34 , the p laintiff, not being mutawalli or trustee, was not entitled to
possession, and chat the suit for declaration simpliciter was maintainable.307
However, in a suit under section 92 of Code of Civil Procedure, 1908 (public charities), no
consequential relief can be claimed beyond what is allowed by the provisions of that section.308
A person in possession of property under a contract of sale seeking possession from a trespasser

298. Animdha Padhnn v Chhai Padhan, AIR 1981 Ori 74, 79; Dulana Dei v Balaram Sahu, AIR 1993
Ori 59, 63.
299. Ibid.
300. Kunj Bihari Prasadji Purshottam [Link] v KeshavLaL HiralaL, (1904) 28 Born 567; Deokali Koer v Kedar
Nath, ( 1912) 39 Cal 704: 15 IC 427; Sumlar Singh MaLLah Singh Sanatan Dharam High School Trust v
Managing Committee Sundarsingh, (1937) 65 IA 106 : AIR 1938 PC 73 : (1938) Lah 63 : 172 IC 993;
Anila Bala Devi v Madhubendu Narain Ray. AIR 1942 Cal 245; Giribala Choudhury v Ushangini Debi,
AIR 1955 Assam 177; Specific Relief ACl, 1963, sections 38-39.
30 I. 7acoordeen Tewarry v Nawab S;•ed Ali Hossein Khan, (1874) 1 IA 192; See Specific Relief Acl,
1963, section 27.
302. N v Srinivasa Murthy v Mari;•amma, AIR 2005 SC 2897 : (2005) 5 sec 548.
303. CMahommadYtmus vSyed U,[Link], AIR 1961 SC 808;/agabandhu Naik v Gouri Bandha, AIR 1985 Ori 126.
304. Abdulkadar v Mohomed, ( 1892) ILR 15 Mad 15; Anila Bala Devi v Madhubmdu Narain Ray, AIR 1942
Cal 245.
305. Sachindra Kumar Roy v Nabendra Kisore Roy, AIR 1934 Cal 155: 149 IC 7 12; Govt of Pepm v Pratap
Singh, AIR 1952 Pepsu 119.
306. Manmohan Haldar v Dibbendu Prorad Roy Choudhury, AIR 1949 Cal 199; the consequential relief would
be barred by section 92 of the Code of Civil Procedure Code, 1908.
307. Anjuman lslamia v Najim Al.i, AIR 1982 MP 17, 20; following Ram Rup v Sam Dayal AIR 1936 Lah 283
: 160 IC 289; Munshi Abdul Rahim Khan vFakirMahommad Shah, (1946) Nag 5 18: AJR 1946 Nag 401.
308. Neti Ramajogiah v Venkatacharu/11, (1903) ILR 26 Mad 450.
408 Section 34 Chapter v1- D eclaratory D ecrees

need not seek specific performance. Not having title himself, he cannot have declaration of
title, but can seek and can be granted possession. 309

[s 34.11.1] Declaration Against the Government

A view is expressed char mere suit for declaration would also lie where the declaration is
sought against the government, as "the declaration of the appellant's right by the court was
sure to be respected and carried out."310
In Fischer v Secretary ofState for India in Council, 311 it was stated:
It was asked-whal would happen if lhe Collecrnr ignored the order of lhe Courc? ... le
is highly improbable thal any officer of Lhe government would set the coun al defiance. le is
impossible to suppose thal che governmem would countenance such conduce as chat.
An employee was granted a declaration of date of birth with consequential relief of
correcting service record. The employer, an officer of the government, refused because relief
was not granted. It was held that the officer, being a public authority could not take such
unjustifiable stancl 312 A plaintiff seeking declaration that termination of his service was void
without any further relief, was not entitled to arrears of salary.31 3

[s 34.11.2] Right of Further Relief

A declaratory decree merely declares the right of the decree holder vis a vis the judgment
debtor and does not in terms direct the judgment debtor to do o r refrain from doing any
particular act or thing. Where the decree declared that the plaintiff continued in service,
but did not direct reinstatement or payment of arrears of salary, the executin g court has no
jurisdiction to direct payment or grant any consequential relief which does not flow directly
and necessarily from the declaratory decree.31~ A suit for a declaration chat the plaintiff is
entitled co the reduction of a tax assessment will lie, without a prayer for an injunction
restraining the government fro m collecting the excess, seeing chat the government is sure to
respect the decision of the courc.315
It was held under section 15 of the Code of Civil Procedure, 1859,3 16 chat a declaratory
decree could not be made unless there was a right co consequential relief capable of being had in
the same court or in some cases in some ocher court, e.g., a revenue court.3 17 Under the present
section a suit would lie for a mere declaratory decree, though the consequential relief could
be claimed, e.g., a suit by an owner of land against any member of the public who formally
claims to use such land as a public road and who thereby endangers the title of the owner,318

309. Ramesh ChandArdawatiya vAnil Panjw1mi, AlR 2003 SC 2508: (2003) 7 SCC 350.
310. Sri Rajah v Saroagnaya Kumara Krishna Yachendra Bahadur Garu v Province ofMadras, (1947) Mad 190,
AlR I 945 Mad 5(2).
311. Fischer v Secretary ofState for India in Council, ( 1898) 26 1A 16, 28 : 22 Mad 270; quoted in Abid Ali
Khan v Secy ofState, AlR 195 l Nag 327.
312. K Mt1dhadeva Sastry v Director Post-Graduate Centre, AIR 1982 AP 176.
313. Rajasthan State Road Transport Corp v Shyam Bihari Lal Gupta, AlR 2005 SC 3476: (2005) 7 SCC 406.
314. State ofMadhya Pradesh v Mangilal Sharma, ( 1998) 2 SCC 510.
315. Sri Rajah v Saroagnaya Kumara Krishna Yachendm Bahadur Caril v Province ofMadraJ, ( 1947) Mad 190
: AlR 1947 Mad 5(2).
3 l 6. The Code of Civil Procedure l 908, section 15 which provided for che relief of declaration, later
incorporated into the repealed Specific Relief Act l 877.
3 l 7. Mootho Vijia Ragoonadah Ranee Kolandapuree Natchiar v Dorasinga Tevar, (I 975) 2 lA 169, 187.
318. C..'huni Lall v Ram Kishen Sahu, (1888) ILR 15 Cal 460 (FB); Sree Sree Goddess Pirha Kali Matha
7hakurani v Surendra Nath Tagore, AlR 1934 Cal 192 : 58 Cal LJ 120 : 150 IC 6 17.
Discretion ofcourt as to declaration ofstatus or right Section 34 409

or a suit for a declaration that the defendant is nor the plaintiff's son.319 Where a defendant is
nor in possession or not in a position to deliver possession of the properties in suit, no "further
relief" than a declaration of the right to possession is available to the plaintiff, the proviso
320
to section 34 is no bar to the granting of such a declaration. The word "relief" connotes
something which is needed by the person seeking the relief; it means more than a "righc."321
" ... the term relief presupposes the actual withholding of the fruit of the right, of which a
declaration is sought. A declaratory decree is all chat a plaintiff requires when he has no need
of the assistance of the court to replace him in possession."322

[s 34.11.3] Further Relief at the Date of the Suit

The phrase "the plaintiff being able to seek a further relief" only means where the plaintiff,
in the opinion of the court, under the circumstances of the particular case, ought to make
a demand for a relief, (i) that naturally follows from the declaration; and (ii) which is not
automatically granted to him by the declaration. 323
The proviso to this section refers to the position of the plaintiff at the dare of suir;324 to relief
which was available at the institution of rhe suir;325 and not to relief which accrued after filing
the suir.32<,
The plaintiff may seek only declaration, where he is unable to seek further relief at the time
of filing the suit. If the right to claim further relief arises during the pendency of the suit for
declaration, it is not affected by the right of further relief which accrues to the plaintiff.327
Similarly, any change of circumstances brought about by the plaintiff himself purchasing the
property in respect of which the suit is brought does not cake away the right to sue which
had accrued to him prior to the date of the suit.328 A plaintiff in possession, who sues for
declaration of title, is not bound to amend the plaint and sue for possession as a consequent

3 19. Bai Shri Vaktuba v 7hakore Agarsingji [Link], (19 10) ILR 34 Born 676: 7 IC 945; latifanbai v
Sakinabai, AIR 1939 Sind 107: 181 IC 770; Ram Rup v Sam Dayal. AIR 1936 Lah 283 (a beneficiary
of cruse property can sue for mere declaration of his right as he cannot sue for possession).
320. Sundar Singh Mal/ah Singh Sanatan Dharam High School Trust v Managing Committee S,mdarsingh.
(I 937) 65 IA: AIR 1938 PC 73 : (I 938) Lah 63 : 172 IC 993; Giribala Choudhury v Ushangini Debi.
A1R 1955 Assam 177.
321. Surya Nath Singh vShio Karan Singh. AlR 1936 Ran 3 16: 164 IC 133.
322. Rama,mja v Devanayaka, (1885) ILT 8 Mad 361.
323. Sivaramalinga Dikshitar v Sabharatna Dikshitar, AlR 1919 Mad 233.
324. Govinda v Perumdevi, ( 1888) 12 Mad 136; Sabitri 7hakurain v FA Sari, AIR 1933 Pat 306; Singheshwar
]ha v Ajab Lal Mandar, AIR 194 l Pat 142, 190 IC 756; Annapurna [Link] v Sarat Chandra Bhattacharjee,
AIR 1942 Cal 394 : 46 Cal WN 355; Surendra Narayan Deb v Bhairaberzdra Narayan Deb, AIR 1950
Cal 386; AbidALi Khan v Secy ofState, AIR 1951 Nag 327 ;Jethu Singh Bishan Singh v Kishan Singh Hira
Singh, AlR 195 1 Pepsu 48; Mahant Indra Narain Da.s v Mahant Ganga Ram Da.s, AIR 1955 All 683.
325. Tekait Harnarayan Singh v Darshan Deo, (1924) 3 Pac 403 : AlR 1924 Pac 560: 83 IC 741; Dulana
Dei v Balaram Sahu, AlR 1993 Ori 59, 63.
326. QabooL Singh v Board ofRevenue, Al R 1973 All 158.
327. Fateh Singh v Jagarmath Bakhsh Singh, AIR 1923 Oudh 242; Fateh Shah v Bahab Shah, Al R 1927
Lah 128; Hurmat Ali Shah v [Link] Mahommad, (1934) 16 Lah 729: AIR 1935 Lah 332: 156 IC
830; Sulaiman Pir Mahommad II Abdul Shakoor Sheikh Chhote, AIR 1940 Nag 99; Meghaji Mohanji
7hakkar II Anant Pand11rang Chhatrc, AIR 1948 Born 396: (1948) 50 Bom LR 274; Surendra Narayan
Deb II Bhairabendra Narayan Deb, AIR 1950 Cal 386; Abid Ali Khan v Secy ofState, AIR 195 1 Nag 327;
jethu Singh Bishan Singh v Kishan Singh Hira Singh, Al R 195 1 Pepsu 48; Mahant Indra Narain Das v
Mahant Ganga Ram Das, AlR 1955 All 683; Abdul Hakim II Habib Khan, AIR 1998 Raj 157.
328. Wamanrao Damodar v Rustomji Eda/Ji, (1890) 2 1 Bom 70 I; Meghaji Mohanji 7hakkar v Anant Pandurang
Chhatre, AlR 1948 Bom 396 : (l 948) 50 Born LR 274.
410 Section 34 Chapter v7-Dedaratory Decrees

relief if during the pendency of the suit he loses possession to the defendant. 329 Hence, where
a suit for a declaration, when instituted is in every respect regular, no action on the part of
[Link]: J cft:[Link] subst:l{Ut:lll LU d1t: rnstiLutiun uf Ult: .suiL ca.u affcu, ur prt:judiu: Wt: righL uf t..l1t:
plaintiff.330
The court can take notice and consider events occurring during the pendency of the
suit, and mould its decree according to circumstances as they stand at the time the decree
is made.331
Plaintilf must show subsisting right not only on the date of the suit, but also on the date
of the decree.332

[s 34.11.4] Further Relief Not Obtainable from Civil Court

A declaratory decree ought nor to be made unless rhere be a right ro some consequential
relief which, if asked for, mighr have been given by the court, or unless, in cerrain cases, a
declaration of righr is required as a step ro relief in some ocher court. 333
The proviso docs nor apply where the consequential relief is necessary ro seek redress in
another courr or other proceedings;334 e.g., in the revenue courr.335
A suir for a mere d eclaration is maintainable for setting aside an order of the Registrar
of Co-operative Societies referring the matter of d amages for a defamatory statement made
by a m ember against a secretary, because the question is one of jurisdiction of the civil
court. 336
The proviso does not bar a suit for mere declaration where the civil court, if the plaintilf was
out of possession, would not be competent to grant the consequential relief of possession.337
A suit will lie for a mere declaration chat a person is a co-tenant, when the further relief of
partition would be outside the jurisdiction of the court;338 or a suit for declaration of title
without seeking the relief of possession, where the relief fell under the provisions of the Madras
Building, {Lease and Rent Control) Act alone. 339 A suit for mere declaration can be [Link] where
the consequential relief for share in the compensation given for excess lands under a statute
could be sought onJy under that statute.340

329. Santoshchandra v Gya,mmdarbai, AIR 1975 MP 193; Abdul Hakim v Habib Khan, AlR 1998 Raj 157
(court may order possession co restore the status quo ance).
330. Ram Adhar v Ram Shankar, (1904-05) ILR 26-27 All (VI) 145.
331. Annapurna Dasi v Saraf Chandr11 Bhattacharjee, AlR 1942 Cal 394 : 46 Cal WN 355; Meghaji Mohanji
7hakkar v Anaw Pandurang Chhatre, AIR 1948 Born 396 : (1948) 50 Born LR 274; Sugandhabai
Shivram Hede v Sundrabai Aha Madne, ( 1959) Born I 022 : AIR 1960 Born 32.
332. Qahool Singh v Board ofRevenue, AlR 1973 All 158.
333. Munnabai v Sharadabai, (1946) Nag 3 12 : AIR I 946 Nag 235: 227 IC 499.
334. JV Vannisami Thevar v JVR CheL/asami Yhevar, AIR 1921 Mad 47.
335. Munflt1bai v Sharadabai, (1946) Nag 312 : AIR I 946 Nag 235 : 227 IC 499; Province of Orissa v
Vurjodhan Das, AIR 1951 Ori 342; Ganga Ram v Shiv Lal, AIR 1964 Punj 260; Abhay Chand Ram
Chand v Ram Chand Wazir Chand, AIR 1966 P H 526 (vesting of property Occupancy tenants).
336. Himangrhu Bhusan Chakrabortti v Nirmal Kumar Das, AIR 1962 Cal 488.
337. Konduru Seshu Reddi v Vemareddy Rama Raghavareddy, AIR 1964 AP 118; Brij Bhukhan v Durga Dat,
(1898) 20 All 258.
338. Munnahai v Sharadabai, (1946) Nag 312: AIR 1946 Nag 235: 227 IC 499.
339. Balammal v M Lakshmana Naicker, AIR 1972 Mad 333.
340. Abhay Chand Ram Chand v Ram Chand Wazir Chand, AIR 1966 P H 526.
Discretion ofcourt as to dechration ofstatus or right Section 34 411

[s 34.11.5] Further Relief Obtainable from Civil Court

The proviso becomes applicable only when the plaintiff is able co seek further relief against
the dcfcndanc.341 The words "further relief' must be ocher relief against the defendant himself
against whom the relief is sought.342
Where land in dispute has been requisitioned by the government, the plaintiff may sue
merely for a declaration for his right to the entire amount of compensation money set apart
for defendants claiming to be occupancy tenants, the government not being party to the
suit. 343 The fact that the property is in the possession of a third party who is interested in
supporting the defendant's title does not oblige the plaintiff to pray for possession in addition
to a declaration. It is seated chat:
The restrictions imposed under s. 42 (now s. 34) of the Specific Relief Act must be held to
refer to the consequential relief properly obtained by the plaintiff as against the defendant in the
suit, and are nm to be extended to the case of all third parties who may possibly support some
of the contentions of the defendant. 344

Opinion is divided on the question whether a plaintiff suing for a declaration of title to
land ought to pray for payment of arrears of rent. One view is that "the object of the proviso
to section 42 (now section 34) is to avoid multiplicity of suits and to prevent a person gening
a declaration of right in one suit and, immediately after, the remedy already available in
another."345 The other view is chat "further relief" within the meaning of chis section docs not
include a claim for arrears of rent, and chat omission to sue for arrears of rent is no bar to the
court making a declaratio n asked for. The further relief referred to in the proviso is further
relief in relation to the legal character or right as to any property which any person is entitled
to, and whose title co such character or right any person denies or is interested in denying. 346

However, where the third party is clearly in possession on behalf of the defendant, and
his possession is hostile to the claim of the plaintiff, the consequential relief of possession
is required. 347
Where the plaintiff was admittedly not in possession and he did not ask for restoration
of possession or any consequential relief, the suit was barred by the proviso co section 34. 348
The suit filed by the plaintiff fo r a direction char he was the heir of the d eceased owner was
not maintainable as he did not claim consequential relief against the persons admittedly in
possession of the property. The declaration sought by the plaintiff was not in the nature of
a relief. 349

34 1. Nawab Humayun Begum v Nawab Shah Mahommad Khan, AIR 1943 PC 94; Autolite Fimmciers Pvt Lid
v Swastika Financial Corp Pvt Ltd., AIR 197 1 Del 310; Dumpala Ramchandm Reddy v Dempala Kama
Reddy, AIR 1973 AP 189.
342. Deo Kuer v Sheo Prasad Singh, (l 963) 3 SCR 655 : AIR 1966 SC 359; Ram Nagendra Tiwary v Jagdamba
Ojhain, AIR 1984 Pat 316; Nawab Humayun Begum v Nawab Shah Mahommad Khan, AIR 1943 PC 94;
A11tolite Financiers Pvt Ltd v Swastika Financial Corp Pvt Ltd, AIR 197 1 Del 310.
343. Lalit Kumar v Bhagwan Ch Sharma, AIR 1950 Assam 133.
344. Subramanyan v Paramaswaran, (1887) 11 Mad 11 6, 122; Bania Si7lgh v Diwan Singh, AIR 1929 Lah
11 : 115 IC 539; Nawab Humayun Begum v Nawab Shah Mahammad Khan, AIR 1943 PC 94; Radha
Gobinda Roy v Sri Sri Nilknnthn Narayan Singh, AlR 1951 Pac 556; Maham Indra Narain Das v Mahan/
Ganga Ram Das, AIR 1955 All 683.
345. Kombi vAundi, (1888-90) !LR 11-13 Mad (VI) 762.
346. Fakir Chand Audhikari v Ammda Chunder Bhauacharji, ( I 887) I LR I 4 Cal 586, 59 I .
347. Sarmamma v Earappa, AIR 1950 Mys 77.
348. VOi vlbrahim Uddin, (2012) 8 SCC 148.
349. Venkataraja v Vidyane Doureradjapemmal, (2014) 14 sec 502.
412 Section 34 Chapter VJ.- Declaratory Decrees

[s 34.11.6 ] Court shall not Make a Declar ation

Where the suit is for a declaration of tide but no relief is sought with respect co possessi
on
of the property which is with the defenda nt, che suit is hie by sectio n 42 (corresponding section
of the repcaJed Act) and is not maincainablc. 350 A bare declaration of right will be within
the
mischie f of section 34 of die Specific Relief Act. 351 Mere declaration without consequ
ential
relief docs not provide the needed relief in the suit; it would be for chc plaintiff co seek
both
chc reliefs. The omission thereof mandates the court to refuse co grant the declaratory relief.352
The proviso is imperative, and makes it obligatory on every court not co make any declarat
ion
in cases where the plaintiff, being able to seek further relief, omits co do so.353 A suit should
not be dismisse d if a plaintiff, being able co seek further relief, omits co do so. 354 All that
is
provided by this section is chat the court shall not make a declaration in the events specified
in
the proviso, not that the courr shall not grant the relief that is prayed for. 355

[s 34.11.7 ] Object ion to Mainta inabili ty

Objection co the maintainability of the suit on the gro und that it docs not seek consequential
relief, must be taken with prompti cudc.3~ It is obligatory on the part of the defenda nts to
raise
the issue at the carliest.m
The arbitratio n award which declared chat the respondents would be entitled co cake back
possession of the property in the event of certain defaults by the appellants was not merely
declaratory. It is never a pre-condition of the executability of a decree char it must provide
expressly chat the party entitled co a relief muse file an executio n application for obtainin
g
chat relief. It is a clear inccndmenc of the award chat if the appellants defaulted in discharg
ing
their obligations under the award, the respondents would be entitled co apply for and obtain
possession of the propercy.358
le is not chat in a suit for declaration where the plaintiff is able to seek further relief,
he
must seek chat relief, though he may not be in need of chat further relief.359

[s 34.11.8 ) Amend ment of Plaint

A mere declaratory relief remains non-executable in most cases generally. However, there
is
no prohibit ion upon a parry from seeking an amendment in the plainc co include the unsough
t
relief, provide d that it is saved by limitacion.360
All amendments ought co be allowed which satisfy two conditions: (a) of not working
injustice on the other side, and (b) of being necessary for the purpose of determi ning
the

350. Ram Saran II Sm,. Ganga Devi. ( 1973) 2 sec 60. See also - Akkamma II Vemava1h
i, 2021 sec Online
SC I 146
35 l. MK Rappai II John, 1969 (2) sec 590.
352. M1111i Lal II Oriental Fire and General lusurance Co Ltd, (l 996) l SCC 90.
353. Bishan Samp II Musa Mal"' 58 All 146, AIR 1935 All 8 17.
354. Ram Sadan Biswas II Ma1hura Mohan Hazra, AIR 1925 Cal 233.
355. Sakharam Krishna v Collec/or of Rat11agiri, (1904) ILR 28 Born 332; Kunj Bihari
[Link] Pursho1tam
[Link] 11 & shavlal Him/al, (1904) ILR 28 Born 567.
356. Syed Sa11/a1 Hussain II Syed Ilmuddin, AIR 1981 Raj 29 (objection not allowed
where taken after the
matter had been sent to the Supreme Court, which had remitted the matter on other grounds);
Chhabi
Dwhadl, 11 Bhw1eshar Pandey, AlR 2004 Jhar 92 (cannot be allowed in second appeal).
357. Venkataraja II Vidyane Doureradjapemmal, (20 14) 14 sec 502.
358. [Link] Chand Khurana II Harnam Singh. (I 973) 2 SCC 484 : AIR l 973 SC 2065.
359. S1a1e ofMP II Mangilal Sham1a, (1998) 2sec5 10: AIR 1998 SC 743.
360. Venkataraja v Vidyane Do11reradjapmnnal, (20 14) 14 sec 502.
 Discretion of court as to declaration ofstatus or right Section 34 41 3

real questions in controversy between the parties. Ir's a particular case of this general rule that
where a plaintiff seeks to amend by setting up a fresh claim in respect of the cause of action
which since the institution of the suit had become barrt:d by limicacion, the amendm ent
must be refused . 361 Amendment will be allowed where despite the fact that a legal right had
accrued to the defendant by lapse of time, yet this consideration was outweighed by the special
circumstances of the case, namely, that no n ew material fact needed to be added at all, and
only an alternative prayer in law had necessarily to be made in view of the original plea being
discarded .362
The doctrine of relation back would not apply to the facts of this case for the reason that
the court which allowed the amendment expressly allowed it subject to the plea of limitation,
indicating thereby chat there are no special or extraordinary circumstances in the present case
to warrant the doctrine of relation back applying so that a legal right that had accrued in
favour of the defendant should be taken away. 363
The plaintiff must seek and claim further relief, and he muse be given opportunity to amend
the plaint if he has not sought it. 36-1
Where the plaintiff o mits to seek furth er relief, and applies for an amendment in the
court o f first instance, the court sho uld allow the am endment; 365 and this m ay be allowed
in appeal wh ere the objection that th e plaintiff h as omitted to seek further relief is taken
for the first time in ap peal. 366 And if the plaintiff does not amend the plaint d espite the
opportunity, the declaration would be refused. 367 An amendment m ay be allowed even
w here the p laintiffs rights have been affected by the happening of events subsequent to
the fi ling of the suit; but no action o f che d efendant pending the suit sh ould be allowed to
affect o r prejudice the right o f the plainciff.368 Such amendment m ay no t be allowed where
it has becom e time-barred .369
The pica to the effect that further relief though available was not asked for, should be
raised at the earliest time so that the plaintiff can seek amendment. 370 Amendment m ay be
refused where the objection is taken in the court of fuse instance and notwithstanding this, the
plaintiff persists in continuing the suit as framed.371

361. Kisandas [Link] 11 [Link] Vithoba Shi/want, JLR (1909) 33 Born 644;
362. LC Hanumanthappa v HB Shivakumar, (20 16) I SCC 332.
363. Ibid.
364. Kalyan Singh v Vakil Singh, AJR 1990 MP 295.
365. Kalahhai Bapuji ChudaJama v Secy ofStatefor India in Council, (1904) 29 Bom 19, 29; Mahommad Sadiq
v Allah Baksh, AlR l 930 Lah 76: (1929) 120 IC 53 1.
366. Limba Bin Krishna v [Link] Bin Pimplu, (1888) 13 Born 548; Sardarsingji v Ganapatsingji, (1889) 14
Bom 395; Charan Das v jamna Devi, (1928) IO Lah 403 : AIR 1929 Lah 81 1 : 11 2 IC 48 (does not seem
reconcilable with these decisions, though on principle it seems correct that particular acL~ authorised by an
existing operative insrrwnenc cannot be declared invalid without cancelling the insrrwnenc); Banta Singh v
D iwan Singh, AJR 1929 Lah 11 : 11 5 IC 539; Musammat Bibi Zuhaida v Mohan Ram Sahu, AIR 1937 Pac
229 : I 70 IC 84; DAV College v Sarvada Nand Anglo Sanskrit Higher Secondary School, AJ R 1967 Pw1j 50 l.
367. MatmgSok Kyun vMaShwe Yu, AJR 1917 LB 141; Ram Sadan Biswas vMath11raMohan Hazra, AIR 1925
Cal 233; K Semdama Iyer v Sarvajana Sowkiahi VirdJ,i Nidhi Ltd, Al R 19 38 Mad 331; Annaprmw Dasi v
Sarat Chandra Bhattacharjee, AJR 1942 Cal 394: 46 Cal WN 355; Ma11oharsi11gh Narhasingh v Panneshari,
AIR 1949 Nag 21 I ; S Bhagat Singh v Satnam Transport Co Ltd AIR 196 I Punj 278.
368. Ra.m Adhar II Ram Shankar, (1904-05) ILR 26-27 All (VI) 145.
369. Muni Lal v Oriental Fire and General Imurance Co ltd, AJR 1996 SC 642.
370. Rukhmabai v Ln/~1 LtJXminaraya11, AIR 1960 SC 335.
371. Suryanarayanamurti v Tammanna, (1901) 25 Mad 504, 506; Narayana v Shankunni, (1891) 15 Mad
255; Ra.j Narain Das v Shama Nando Das Chowdhry, (1899) ILR 26 Cal 845; Shiv Ra.m DllS v Bhag Devi,
(1918) Punj Rec No 11 8 : AJR 1918 Lah 236: 48 IC 838.
414 Section 34 Chapter Vl--Declaratory Decrees

However, a plaintiff cannot be compelled to ask for consequential relief arising during
pendency of a suit. 372
Unlike sections 21, 22, 26 and 40 of Specific Relief Act, this section does not contain any
specific provision enabling the plaintiff to amend the plaint for seeking further relief, and any
amendment shall fall under the general provisions of the Code of Civil Procedure, 1908.
An Appellate Court will not dismiss a suit where the plaintiff though entitled to further
relief of injunction deleted it in the trial court and only prayed for and obtained a decree for
declaration; nor could an unsuccessful party raise in appeal the question of possession as a
consequential relief which the plaintiff was entitled to ask for, bur did not do.373

[s 34.I 1.9] Particular "Further Reliefs"

[s [Link]/ Injunction
A further relief of injunction restraining the defendants from interfering with the exercise of the
right of carrying out certain ceremonies and enjoying the income, as a part of the management of
an inam can be sought in a suit filed for declaration of this right. 374 A person claiming a right to
act as a co-shebait and for being allowed to act as such, can maintain a suit for declaration without
a further prayer for possession when the nature of the property being endowed property is not
denied; and if he sues for injunction he need nor pray for joint possession as injunction will secure
to him all the rights that he daims.375 Hence, a suit will lie for declaration that defendants are not
properly appointed trustees and shebaits, and for an injunction restraining them from acting as
such, and interfering with the estate of the deccased. 376
A agreed to sell immovable property to B, but fraudulently had the property mutated in
favou r of C. B sued for the declaratio n and for perpetual injunction. le was held that the relief
of declaration could not be granted as parties in agreement to sell were not entitled to any
character or property; but relief of injunction restraining the vendor A from alienating the
property to anyone other than B was granted on the basis of section 91 of Indian Trusts Act
1882, and because the agreement created a kind of crust. It is submitted that an agreement to
sell creates no interest in the property under section 54, Transfer of Property Act, 1882, except
to sue for specific performance, and the cases referred are distinguishable.m
Similarly, a plaintiff suing for a declaration of his right to succeed on his father's death
to a talukdari estate to the exclusion of the defendant who claimed to be a legitimate son of
his father, and to w hom during his minority the Talukdari Settlement Office· was making an
allowance for his maintenance under Broach and Kaira lncumberred Estates Act 1881, ought
to pray for an injunction restraining the defendant from receiving the allowance.378

A suit for mere declaration rhat defendants arc neither owners of the land nor they have a
right to it under the orders of the Collector is not maintainable without the relief of injunction
or cancellation of o rder.379

372. Hurmat Ali Shah v Tufail Mahommad, (1934) I 6 Lah 729 : AIR 1935 Lah 332 : 156 IC 830.
373. Dattatraya Ramrao Chorghade v Shakumalabai, AIR 1956 Nag 95.
374. C Mohammad Ytmw v Syed Umiissa, AIR 1961 SC 808.
375. Sankatha Pandey v Brij Mohan Pandey, AIR 1958 All 371.
376. Sanat Kumar Mitra v Hem Chandra Dey, AIR 1961 Cal 4 11.
377. Keshavlal Lakshmandas Patel v Narsinhbhai Kalidtis Patel, AIR 1976 G uj 154 at 156; Central Trust and
Safe Deposit Co v Harvey G Snider, (1916) AC 266, 272; hue see Mokarala Pitchayya v Boggavarapu
Venkatakrishnayya, AIR 1943 Mad 497.
378. Sardtirsingji v Ganapatsingji, (1889) ILR 14 Born 395 (Candy J. doubting).
379. Jugraj Singh vjaswam Singh, AIR 197 1 SC 76 1.
Discretion ofcourt as to declaration ofstatus or right Section 34 4 15

Where a company su es for a d eclaration of it being the managing agent o f a company, ic

was not entitled to a mere declaration without the relief of injunction to restrain the latter
from interfering with the discharge of its duties as managing agcnts.380
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 vocers. 381

[s [Link]} Joint Rights

A declaratory suit is maintainable in a case where the plaintiff seeks a right to a share in a
promissory note, which the defendant had sued upon, and the amount under which was likely
to be decreed. There was no other relief available against the defendant. 382
A suit by a co-shebait for declaration of his right to perform seva and for restraining his
co-shebait from preventing him from entering the room is not bad, if there is no prayer for
possession as possession of one shebait is possession of another, unless there is ouster.383
A mere d eclaration that certain joint family property, attached in execution of a
decree against the father, was not liable to attachment has been held to be competent,
without a prayer for an injunction restraining the defendant from executing his decree
by such attachment, on the ground that the mere declaration would be efficacious, in
that the executing court would be bound to accept a copy of the decree. It was observed
that illustration (a) to former section 42 did not indicate that a further prayer for an injunction
must be made.384

[s [Link]} Partition
A suit for declaration of joint ownership, possession and user is maintainable without the
prayer for partition;385 unless the plaintiff is not in possession. 386
In Rupan Rai v Subkaran Rai, 387 the plaintiffs sought a declaration that they were entitled
to a two-fifths share of property in the possession of the defendants. It was held that the
proviso in this provision did not apply, as relief by way of partition could be granted by the
Collector under section 54 of the Code of C ivil Procedure, 1908. The earlier editors of the
book d isapproved of this view, on the ground that the relief is granted by the court, and the
Collector was merely an officer of execution; and that the plaintiffs should have asked for
joint possession. This criticism was not accepted in Munnabai v Sharadabai,388 where it was
observed that the principles laid down by the Privy Council earller389 were not modified or

380. Boulton Bros & Co Ltd v New Victoria Mi/ls Co Ltd., 26 All LJ 1119 : AlR 1929 All 87: 119 IC 837.
381. Ataul Huq v Chairman Manicktala Municipality, (I 920) 48 Cal 378 : AlR 1921 Cal 85.
382. Dumpala Ramchandra &ddy v Dumpala Kanta Reddy, Al R 1973 AP 189; but see KP Ramakrishna Pauar
v KP Narayana Pattar, (19 14) 39 Mad 80: AlR 1915 Mad 584: 26 IC 883.
383. Sri ls war Kalimata 7hakurani v Shebaits ofSri Sri lswara Kalimata 7hakurani, AIR 1985 Cal 366.
384. Mumm Chamar v Hari Narain, AlR 1947 All 352 : 229 IC 47.
385. Asman Singh v Tulsi Singh, AlR 19 17 Pat 637; Vanubhai Mangalbhai Patel v Khalpabhai Mangalbhai
Pate/, AIR 2000 NOC 74 (Guj).
386. Atma Ram v Godhu Ram, (1932) 14 Lah 306: AlR 1933 Lah 7 12: 14 1 IC 409.
387. Rupan Rai v Subkaran Rai. (19 19) 41 All 207 : AlR 19 19 All 140: 49 IC 367.
388. Munnabai v Sharadabai, (1946) Nag 312, AlR 1946 Nag 235 : 227 IC 499; Province of Orissa v
Durjodhan Das, AIR 1951 O ri 342.
389. Sadw Ali Khan v Abdool G,mnry. (1873) IA (Supp) 165, 17 1; Moothoo Vijia Ragoonadah Ranee
Kolandapuree Natchiar v Dorasinga uvar 2 IA 169, 187.
416 Section 34 Chapter VI-Declaratory Decrees

abrogated by section 42 (now section 34). As for joint possession, the court remarked that the
plaintiff did not desire it, and as relations were srrained, it would not meet the necessities of
the case.
A plaintiff suing for a declaration that property bequeathed by his father to the defendants
(his brother) was ancestral, and that his father had no power to bequeath it, and char he was
entitled to it by survivorship along with the defendant, ought to pray for partition of the
property even if it be in the possession of tenants;390 as also a plaintiff suing challenging an
alienation in similar circumstances. 391
A suit by a minor coparcener for a declaration char a sale by the elder brother as karta
is void as not being for legal necessity or benefit of the estate or in the alternative for a
declaration that the sale is ineffective and void as against his own share is maintainable without
any consequential relief392 A purchaser of the whole of immovable property is entitled to
declaration and injunction limited to the share that fell to the share of his seller in a suit for
partition. 393

[s [Link].9.4] Possession
A plaintiff seeking relief about possession would claim either possession, or injunction
resrraining the defendant from interfering with the possession.394 If the plaintiff is out of
possession ofland and seeks to have his title declared, his suit for mere declaration will not lie
without the relief of possession.395
The plaintiff claimed to be in exclusive possession of the suit properties and sought a mere
declaration of her title. In the wrinen statement, exclusive possession was disputed and the
property was stated to be in the possession of the defendants and tenants. The plaintiff did not
choose to seek the relief of possession even through amendment, and this bars the discretion of
the court in granting the decree for declaration. 396
Under this section a plaintiff who is able to seek further relief than a mere declaration of
title is obliged to seek such relief. If he omits to do so, the court will not make the declaration
asked for. Thus, a plaintiff out of possession suing for a declaration of title to land ought to

390. Smyanarayanamurti v Jamma,ma, (190 I) 25 Mad 504; Rn) Kishore v Madan Copa!, ( 1931) 13 Lah, 491
: AlR 1932 Lah 636.
391. Purans v T Ammal, AIR 1937 Ran 427 (alienation by widow void after her lifetime}; Raghunath
Baraei v Jainarain Barnie, AIR I 932 All 661 : I 37 IC 145.
392. Baldeo Singh Raghuraj Singh v Copa/ Singh Raghuraj Singh, AIR 1967 MP 221.
393. TC Ashok Kumar v Covindammal, AlR 2011 SC (Supp) 59 1.
394. Gian Kaur v Raghubir Singh, AlR 201 I SC (Supp) 468.
395. Rnm Saran v Ganga Devi, AIR 1972 SC 2685; Mehar Chand Das v Lal Babu Siddique, AIR 2007
SC 1499: (2007) 14 SCC 253: lshwari Singh v Narain Dat, (19 14) 36 All 3 12: AIR 19 14 All 19:
23 IC 555; Shiv Ram Das v Bhag Devi, (1918) Punj Rec No I 18: AIR 19 18 Lah 236: 48 IC 838:
Manoherdas v Ramdas, AIR 1923 Sind 17; Raj Kishore v Mada11 Copa/, (l 931) 13 Lah, 49 1 : AIR 1932
Lah 636; Dwarka Pras11d v jasoda K11mvar, AIR l 933 All 958; Atma R11m v Godhu Ram, (1932) 14 Lah
306: Al R 1933 Lah 712: 14 1 IC 409; Dhani R11m v Rura Mal, AIR 1935 Lah 881; Sumhchandra
jamietram v B11i lshwari, AIR 1938 Born 206 : 174 IC 820; Anila Bala Devi v Madhubendu Narain
Rny. AIR 1942 Cal 245; Kalipada Monda/ v Kalicharan Monda!, Al R 1949 Cal 204; Mani Singh
Harnam Singh v Sher Singh, AlR 1961 Punj I 02; S11jja Suryanarayana Rao v Sajja Veera Rajamma, AlR
1964 AP 223; Saje Keshav Vernekar v Naraina Ananta Vernekar, AIR I 971 Goa 32; Kumud Ranjan
Banerjee v Manabendra Banerjee, AIR I 974 Cal 342: Shia Sharan Prasod Sahi v Sridhar Pras11d Singh,
AIR 1974 Pat 51; Samad Dar v Moh11med lsm11il Jamrary, AIR 1983 J&K 59: Shinder Pal Singh v
Karam Singh, AIR 2009 P&H I 52.
396. Vinay Krishna v Kesh11v Chandra, 1993 Supp (3) SCC 129.
Discretion ofcourt as to declaration ofstatus or right Section 34 417

pray for possession, if the defendant is in possession.397 However, he is not obliged to do so if

the defendant is not in posscssion,398 or if he is in lawful possession in any case, and the dispute
relates only to the character of his possession.39'J
Where, however, the plaintiff seeks a declaration of his title and is in possession of the
property, the suit without a prayer for possession is maintainable. 400 A suit for declaration
of tide and confirmation of possession is maintainable, and is not barred. 401 Nor need the
plaintiff seek possession where the defendant has admitted it; 402 the nature of possession may
be disputed. 403 However, the plaintiff must seek the reUef of possession by amendment if the
defendant has contested the plaintiff's claim of his exclusive posscssion.404 Where neither
plaintiff nor the defendant proved title, and the defendant was in possession, the plaintiff is
not entitled to declaration without seeking possession.405
Where the defendant made unnoticed use ofa small part ofopen piece of land, which aces did
not amount to aces of dispossession, the plaintiffs suit for declaration was maintainable without
seeking possession. 406 However, the suit will be hit by the proviso, if the plaint indicates that there
has been a scramble for possession, and that acts of rrespass by the defendant are not isolated .407
A suit for declaration by a trustee for the trust property without a prayer for possession is
sustainable where the property is in possession of tenants entitled to continue in possession
under a statute.408 Plaintiff can sue for declaration of title without any consequential reUef

397. Executive Officer v Chandran, (2017) 3 SCC 702; Ram Saran v Ganga Devi, (1973) 2 sec 60; Bikutti v
KaLendan, (1890) 14 Mad 267; Narayana v Shankum1i, (1891) 15 Mad 255; Mttttakke v 1himmappa,
(1891) 15 Mad 186; Ktmhiamma v Kimhttnni, (1891) 16 Mad 140; Krishnnblmpati Devu v Ramamurti
Pantulu, (1894) 18 Mad 405; Hanmantrav v Secy ofState for India, (1900) 25 Born 287; Rathnasabapathi
Pillai v RamasamiAiyar, (1910) 33 Mad 452; Raj Narain Das v Shama Nando Das Chowdhry, (1899) 26
Cal 845; Jshwari Singh v Narain Dat, (1914) 36 All 312: AIR 1914 All 19 : 23 IC 555 (where the land
was waste land); Haji Faqir [Link] Pandit 1hakur Prasad, (1941) 16 Luck 832 : AIR 1941 Oudh 457 :
194 IC 588; Raj Kishore v Madan Gopal (1931) 13 Lah, 491: AIR 1932 Lah 636; Shankar Narayan v
Puttu Bhatia Manju Bhatta, AIR 1932 Born 175 : 34 Born LR 125 : 139 IC 678.
398. Chhabi Dushadh v Bh1meshar Pandey, AIR 2004 Jhar 92.
399. Tekait Harnarayan Singh v Darrhan Den, (1924) 3 Pat 403: AIR 1924 Pat 560: 83 IC 741; Sindhal
Pannar Ramubai Pragji v Mir Bhuralal, AIR 1950 Kutch 4; Muwhi Abdul Rahim Khan v Fakir
Mahommad Shah, (1916) Nag 518 : AIR 1916 Nag 101; Gian Chand v Bhagwan Singh, AIR 1932 Lab
97 : 135 IC 502 (suit for declaration of ownership of house occupied by a tenant on the basis of a wiJJ ofa
deceased owner); Chandania v Cyan Chand, AIR 1989 All 75, 77 (suit for declaration of title to property
and right to realise its rem).
400. Ramanuja v Devanayaka, (1885) 8 Mad 361; Kanhai Lal v Jai Lal, (l 922) 45 All 164: AIR 1923 All 54;
Bhup Narayan Singh v Hira Lal, AIR 1936 Pat l 85 : 161 IC 709; Popat Ram v Khushi Ram, AIR 1937 Lah
295; Amma Shah v Ismail Shah, AIR 1972 J&K 79; Patta Mohapatrani v State ofOrissa, AIR 1972 Ori
248; Guljan Bibi v Nnzir-ud-din Mia, AIR 1975 Gau 30; Chitui Naga v Onhen Ki,ku, AIR 1984 Gau 62;
Mang11i11ath Tiwary v Phool Moh um mad Dobi, AIR 1985 Pal 338; Prembai v Ghamhyam, AIR 201 1 MP
l ; Abdul Latifv Nngar Vikas Pranyas, AIR 2006 Raj 215; K Jagadishwar v V Sharada, AIR 201 1 Kam 148.
401 . Pntta Mohapatrani v State ofOrissa, AIR 1972 O ri 248.
402. Ka11dhai Pande v Dachhina Misrai11, AIR 1921 All 78.
403. Ram ManoharSingh v Dilraji Kunwari, (1914) 36 All 126: AIR 1914 All 169: 23 IC 252.
404. Vinay Krishna v Krshav Chandra, AIR 1993 SC 957.
405. Gangaram Chim11n Patel v Secy ofStat-e for India in Council, (I 895-96) ILR 19-20 Bom (VI) 1103.
406. Nava/ram Laxmidas Devmttrari v Vijayabenjayvantbhai Chavria, AIR 1998 Guj 17; Pratap Narain Das v
Sri Krishna Chandra, AIR 1948 Pal 28 (mere interference of possession by the defendant nol amounting
to dispossession by the plaintiff).
407 . Dulana Dei v Balaram Sahu, AIR 1993 Ori 59.
408. Ramdas v Ajudhiadas, AIR 1920 Sind 92; Gian Chand v Bhngwan Singh, AIR 1932 Lah 97: 135 IC 502;
Ganga Ram v Shiv Lal, AIR 1964 Punj 260; Veerappa Mudaliar v Venugopala Mudaliar, (1966) 2 Mad
173 : AIR I967 Mad 404; Jyotim1oyee Debi v Durgadas &nerjee, AIR 1976 Cal 238, 242.
418 Section 34 Chapter Vf.-Dedaratory Decrees

where the property is in possessio n of cenants."O'J However, a suit for declaration char the
lease in favour of a tenant in possession is void is not maintainable without further relief
for possession,4 10 nor where the plaintiff sought a declaratio n chac che sale d eed was void;4 11
or where, the defendant was in possession as a licensee which licence the plaintiff had not
terminatcd.112 le was observed chat:
In order Lha1 a suit can be held 10 be un-maincainable by che applicalion of section 42 of che
(old) Specific Relief Acc. it muse be shown chat the defendant was in possession and as against
him the plaintiff could have obtained an order for delivering up of posscssion.4 13
A suit for mere declaration that the plaintiff is the owner of certain property without
consequential relief of possession is maintainable, if at the time of chc institution of chc
suit, the property is in possession of the court pending the decision of the suit, and not in
possession of che person against whom relief is sought.'111 When the suit property is under
attachment (custodia legis) at the commencement of the suit, the absence of prayer for
possession docs not render the suit bad; eg, where the property under attachment under
section 145 of the Code o f C riminaJ Procedure, 1973;115 or the property is in the hands of
an officer o f the court4 16 (unless the court holds that the defendant is entitled to continue in
possession cg as bailcc),41 7 o r Receiver or if it is in possession of the Court of Wards pending
the adjudicatio n of rival claims to the property. 41 H A suit would lie despite the order of the
Executive Magistrate under section 14 5 of the Code of C riminaJ Procedure as it is well seed ed
that the decision of the criminal court docs not bind the civil court.419 Similarly, a suit would
lie for a declaration simpliciter that the plaintiff is the owner of a lorry seized by the police and

409. Jyotirmoyee Debi v Durgadas Banerjee, AIR 1976 Cal 238; lnisram Aber Singh v Yumnam Ningol
Khangembam, AlR 1986 Gau 66 (possession jointly with the defendam through their tenant, further
relief of injunction restraining defendant from interfering with the plaintiffs right, and tide over d1e suit
land gramed).
4 10. Chu/am Mohiuddir, v Official Assignee, AIR 1978 Cal 463; referring to Sailendra Nath Bose v Cham
Chandra Barmerji, AIR 1929 Cal 422 : (1929) 118 IC 341; Anila Bala Devi v Madhubendu Narain Ray,
AIR I 942 Cal 245.
4 11. Samad Dar v Mohamed Ismail Tantrary, AIR 1983 J&K 59.
4 12. Shami Sarup v Radhaswami SatsangSabha, AJR 1969 All 248.
4 13. Malaiyya Pillai v T Perumal Pillai, ( 1912-13 ) ILR 35-36 Mad (VI) 554.
4 14. K Sundemn ~•er v Sarvnjnnn Sowkiabi Virdhi Nindi Ltd., ( 1939) Mad 989 : AIR l 939 Mad 853; Deo
Kuer v Sheo Prasad Singh, (1963) 3 SCR 655 : Deo Kuer v Sheo Prasad Singh, AIR 1966 SC 359; Kalyan
Singh v Vakil Singh, AIR 1990 MP 295, 299-300;Jagdish v Rajendra, AIR 1975 All 395; Qabool Singh
v Board of Revemu, AIR I 973 All 158; Fateh Shah v Bahab Shah, AJR I 927 Lah 128; Bnlji Kapoor v
K11shmiri Lal, AIR 1989 J&K 61.
415. Deo Kuer v Sheo Prasad Singh overruling Dukhan Ram v Ram Nanda Singh, AIR 1961 Pat 425; approving
K Sunderesa Iyer v Sarvajana Sowkiabi Virdhi Nindi Ltd, ( 1939) Mad 981 : AIR 1939 Mad 853; S,mdar
Singh Mal/ah Singh Sanattm Dharam High School Tmsr v Managing Commit/et Srmdarsingh, (l 937) 65 lA
I 06 : AIR 1938 PC 73 : (1938) Lah 63 : 172 IC 993; Deo Kuer II Sheo Prasad Singh, ( I963) 3 SCR 655;
AIR 1966 SC 359; Dhanwanti v Ramai, AJR 1979 All 348; Gyasuddin v A/lab Tnla WaqfMausuma, AJR
1986 All 39; Gangappa Rmnappa Damamravar v Kallappa So11kappa Kaui, AIR 1973 Mys 190 (property
in custody of receiver appointed under section 145 of Code of Criminal Procedure, 1973); comra}ugraj
Si11gh v jaswant Singh, AIR 1971 SC 76 1 (plaintiff neither asked for cancellation of ilie collector's order,
nor for injunction, the suit being for declaration that defendants were neither owners, nor cmitled 10 i1
under Collector's order).
4 16. Vedanayagt1 [Link] v Vedammal, (l 904) 27 Mad 59 I; K S1111deresa Iyer v Sarvajana Sowkiabi Virdhi
Nindi Ltd, (l 939) Mad 981 : AIR 1939 Mad 853; Annapurna Dasi v Sarat Chandra Bhauacharjee. AJR
1942 Cal 394, 46 Cal WN 355; Neelamoni Sah,, v Khetrabasi Sahu, AIR 1954 Ori 37.
4 l 7. Moolappunathil Kochukalt Amma Jannki Amma v Moolnppmrallm Veeuil Kochukali Amma Parameswaran
Nair, AIR 1954 Tr &Coch 407.
4 18. JagamathGirvTirgrmaNand,(1915)37 All 185:AIR 1915All 104:281C 139.
419. MP Peter v State ofKera/a, (2009) 12 sec 785.
Discretion of court as to declaration ofstatus or right Section 34 419

kept in its custody because the possession of the police is for the benefit of che true owner. 420
It is no t necessary to implead as defendant the court holding the prop erty. 421 H owever, it has
also been held chat where the court holds the property not for the rightful owner, but for the
defendant, the plaintiff must specifically claim the relief of posscssion.422
The plaintiff brought a suit for declaratio n, alleging to be the own er of a motor truck which
was given on hire to defendant N o. 1, bur the defendant No. 2 claimed to be its owner, and he
had hired it out to defendant N o. 3. This dispute was taken to the police for investigation and
the high court in its decisio n gave it to defendant No. 3 as custodian. The suit for declaration
was held to be maintainable as the property was in custodia legis, and it was not affected by the
truck remaining in defendant's possessio n at the conclusion of the investigation. 423 Where the
civil court finds that at the time of attachment the property in dispute was in possession of the
plaintiff who was its owner and the magistrate erroneously found the defendant in possession
which the court is entitled to find, the plaintiffs suit for injunctio n restraining the defendant
from interfering with his rights without further suing for possession was maintainable. 424
If during the pendency of the suit the possession is handed over to the defendant by the
criminal court, the proper procedure according to Allahabad H igh Court, is to bring a fresh
suit for possession. It is submitted that if the suit was properly framed at the time it was
brought, the subsequent passing of possession will no t affect its efficacy. 425 A purchaser of a
pistol from the owner, who had a valid licence, was deposited in the police malkhana. A suit
for declaratio n simpliciter of ownership and for the grant of a licence is maintainable. Further,
relief of possession is not necessary as the state is only a custodian of the pistol. 426 If the Court
of Wards does not hold possession as a stakeholder, but is merely managing the p roperty for
certain limited purposes, the plaintiff must pray for possession against the defendant through
the C ourts ofWards. 427
H owever, where a gaddinashin exercises a deed of trust creating a religious association and
transferred properties to it, a suit for mere declaration to declare that document void will not
be maincainable where the further relief of possessio n can be soughc. 428
Where the plaintiff sued fo r a declaration that the entry in the record of rights showing the
defendants as his tenants was erroneous and that the plaintiff was in possession through the
defendants as his agents, he need not ask for the further relief of posscssion.429
Where a suit for declaration of tide on the basis of a grant by the erstwh ile Maratha rulers
was filed against the UOI, to which the plaintiff claimed the land was tenanted, but he did not
ask for restoration of possessio n or any other relief, the suit was barred under this section and
should be dismissed solely o n this ground. 430

420. S Curdia/ Singh Bedi v S,mda Hire Purchase Corp, AIR 1970 Pac 7.
421. Amo/ire Financiers Pvt Ltd v Swastika Fi11ancia/ Corp Pvt Ltd, AIR 197 1 Del 3 10.
422. Natesa Ayyar v Mangalnthammal AIR 1933 Mad 503(2) : 144 IC 896; K SuruiAresa Iyer v Sarvajana
Sowkiahi Virdhi Nidhi Ltd, AIR 1938 M ad 33 1; approved in Deo Kuer v Sheo Prasad Singh, (1965) 3 SCR
655 : AIR 1966 SC 359.
423. A111olite Financiers Pvt Ltd v Swastika Financial Corp Pvt Ltd, AIR 197 1 Del 3 10.
424. Dhamvanti v Ramai, AIR 1979 All 348; distinguishing/ugraj Singh v j aswaru Singh, AIR 197 1 SC 76 1;
Samoshchandra v Cyarmmdarhai, AIR 197 5 MP 193.
425. }agdish v Rajendra, AIR 197 5 All 395.
426. Narain Singh v State ofUttar Pradesh, AIR 198 1 All 246.
427 . Surmdra Narayan Deb v Bhairabendra Narayan Deb, AIR 1950 Cal 386, 390.
428. Association ofRadhaswami Dera Baba Bagga Singh v Cumam Singh, AIR 1972 Raj 263, 268.
429. Kanai/al Dholey v Kalicharan Chatterjee, AIR 1977 Cal 4 99 .
430. UOI v Ibrahim Uddin, (20 12) 8 sec 148.
420 Section 34 Chapter VI- Declaratory Decrees

A suit filed for declaratio n and possession was dismissed since the plaintiff had not proved
its ride to the suit property, notwithstanding chat evidenciary value of the proof adduced on
behalf of the defendant to show their tide and possession was inadequate.'131
The office of a mahant cannot be separated from the properties which form the endowment
of the office; and, therefore, a plaintiff who asks for a declaration of his title to the office of a
mahant and is not in possession of its properties must ask for possession in a suit under section
34, or his suit will fail.432
A suit for declaration and injunction and for appointment of a receiver is not maintainable
when the relief of possession is available, the defendants being in possession.433
A plaintiff suing the defendants for a declaration that they are his tenants is not obliged co
pray for possession.'134 A tenant forcibly dispossessed ofland by the landlord brought a suit for
declaration of being a cultivating tenant under the Tamil N adu Tenancy Act, but possession
was not sought under section 6 and, therefore, the suit was dismissed .135
It is open to the Appellate court to allow amendment converting suit for declaration into
one for possession. 436 No further relief of "recovery" of possession was necessary in a suit
seeking declaration of a sha re in the suit property, and where partition and possession were
claimed.437
Where a person obtains a decree under section 6 of Specific Relief Ace, the defendant in
possession can bring a suit for declaration of title and injunction against the decree-holder.
There is nothing in section 6 of Specific Relief Ace, which takes away the remedies of a person
who is in possession as of right to remain in possession.438
A plaimiff suing for a declaration chat he is the Sheik of Kallai and entitled as such to all
the properties attached thereto, and for an injunction against the defendant co restrain him
from dealing with properties, ought to pray for possession of the properties if they arc in the
defendant's possession at the date of suic.439 Where the plaintiff, alleging chat the defendant
was in possessio n of a mutt and of che mutt properties under a false claim of title as successor
of the late Jheer, sued for a d eclaration that he was not the duly appointed successor of the late
Jheer and for an appointment of some duly qualified person at Jheer, it was held chat no such

431. UOJ v Vasavi Cooperative Housing Society, (2014) 2 sec 269. See also - Jagdish Prasad Patel II Shivnath,
(20 19) 6 sec 82, A. Subramanian II R. Pamurul11am, (2021) 3 sec 675
432. Kandaswami Thambiran v Vagheesam Pillai, (1942) Mad 13: AlR 194 1 Mad 822: 196 IC 721
(FB) (observalion chat ic mighl be regreuable that a person wrongly ousted from his office and che
properties attached co it should have to pay a court fee based on lhe value of lhe properties before
filling a suit to redress his wrongs) ; Mir HuJSein Bux v Kando, AIR 1916 Sind 33; cfZeb-ul-Nisa 11
Choudhri Din Mahommad, (1941) Lah 451 : AlR 194 1 Lah 97: 193 IC 64 1 (wakf); Mani Singh
Harnam Singh v Sher Singh, AIR 196 1 Punj 102; Chamelibai Vallabhdas v Ramchandrajee, AIR 1965
MP 167.
433. Kumud Ranjan Banerjee v Manabendra Banerjee, AIR 1974 Cal 342; following Anila Bala
Devi v Madhuberidu Narain Ray, AlR 1942 C al 245; Kalipada Monda! 11 Kalicharan Mondal AIR
1949 Cal 204.
434. Loke Nath Surma II Keshob Ram Doss, (1886) !LR 12-13 Cal 147, 154.
435. Subbiah Nadar II Nallaperumal Pillai, AIR 1973 Mad 432.
436. Bal Mukand v Madan Copa!, AlR 1935 Lah 91 : 157 IC 1024.
437. Anirudha Padhan II Chhai Padhan, AIR 1981 Ori 74; bUl see DuLana Dei u Balaram Sahu, AlR 1993 Ori
59 (suit hit by section 34 where plaimiff omirced to seek further relief being able co do so).
438. R Gopalakrishna Pillai II PS Venkatesam Pillai, (1967) 1 Mad LJ 346.
439. Ahdulkadar II Mahommad, (1892) ILR 15 Mad 15; Anila Bala Devi v Madhubendu Narain Ray, AIR
1942 Cal 245.
Discretion ofcourt as to declaration ofstatus or right Section 34 421

declaration could be made, as the plaintiff has omitted to ask for consequential relief, namely,
that the mutt properties be lhanded over to che person so appointed. 440

[s 34-.11.9.5} Pre-emption
A suit for a declaration of right to pre-empt would not lie if not followed by a prayer for
consequential relief.'141

[s 34-.11.9.6} Recovery ofMoney

The expression "ocher relief " mentioned in the proviso to section 42 (corresponding
provision of the repealed Ace), means other relief against the defendant against whom the relief
is sought. Where the wife sought a declaration that the amount in a bank account standing
in the name of the husband belonged to her, it was held that the plaintiff was entitled to a
declaration against the husband and there was no other relief that she could properly claim
against him.442
If at the time of the declaratory suit, the plaintiff could successfully seek for the ocher relief
of delivery of possession or recovery of money, it is not permissible for him to seek only for a
declaration without asking for the other requisite relic( Where the suit was for a declaration
that the plaintiff was entitled to half the sum due on a promissory note issued in favour of his
brother, but no sum had been recovered on the promissory note by the brother, the plaintiff
could not successfully seek for any further relief of recovery of his half share from the brother,
the I st defendant.443
Suit was held not maintainable where a daughter-in-law of a decree-holder asked for a
mere declaration that the money was really the self-acquired property of her husband and not
joint family property with d ecree-holder as manager, and did not ask for recovery of money
from the decree-holder. 444 A vehicle-owner was not entitled to declaration of entitlement to
compensation for loss of truck from the insurer, where he did not claim for the amount of
compensation. 445 A suit for declaration is competent where a member of a coparcenery claims
that compensation given for excess lands under the Punjab Occupancy Tenants (Vesting of
Proprietary) Rights Act, is also coparcenery property because the further relief would be sought
under section 4(3) of that Act. 446 However, declaration could be given to an heir claiming fixed
deposit lying with the bank in respect of which nomination was made in the name of another
person , without seeking further monetary relief, in the circumstances chat the Bank did not
appear co deny the claim.447

440. StrinivasaAyyangar v Strinivasa Swami, (1893) 16 Mad 31; Bhup Narayan Singh v Hira Loi, AIR 1936
Pac 185: 16 1 IC 709; Mahom madMusa vNahi Bakhsh, AIR 1938 Lah 616: 177 IC 781; Masjid Shahid
Ganj v Shiromani G11rdwara Parhhandhak Committee, AIR l 938 Lah 369 : 175 IC 945 (FB); Jamiat
Dawat wa Tahligh Islam v Mahommad Sharif, AIR 1938 Lah 869.
44 1. Charan Das vAmir Khan, 47 IA 255, AIR 1921 PC 50: (1921) 48 Cal 110 : 67 IC 185.
442. Nawah Humayun Begum ti Nawah Shah Mohammad Khan, AIR 1943 PC 94.
443. D11mpala Ramachandra &ddy v D11mpala Kama Reddy, AIR 1973 AP 189.
444. Natesa Ayyar v Mangalathammaf, AIR 1933 Mad 503(2), 144 IC 896.
445. Muni Lal v Oriental Fire and General lmurance Co Ltd., AIR 1996 SC 642.
446. Ahhay Chand Ram Chand t1 Ram Chand Wazir Chand, AJR 1966 PH 526.
447. Arnah Kumar Sarkar v Reba Mukherjee, AIR 2007 Cal 79.
422 Section 34 Chapter VI-Declaratory Decrees

/s [Link]} Termination ofService

le was not necessary for the plaintiff to seek relief of arrears of salary in a suit for
d eclaration as he may be satisfied with a m ere relief of declaration char he continues co be
in service.448 Where che termination is declared non est but without grant of further relief of
back wages, the executing court cannot grant such rclief. 449Although specific performance
will not be granted to enforce a contract of personal service in view of the bar under
section 14, section 34 is wide enough for maintaining a civil suit for various other kinds of
d eclaratory reliefs. 450
The civil court's jurisdiction in respect of service matters is not ousted by the CCS (CCA)
Rules, 1965 and a person who has been wrongly terminated could seek recourse under section
34 of the Specific Relief Act. 451

/s [Link]} Recovery [Link] and Emoluments

A court can decree a suit for arrears of salary of a dismissed government servant, although
he did not pray for setting aside the order of dismissal, but he did make all the necessary
allegations for the purpose.452

/s [Link]} [Link] Office

The trustees of a temple, suing for a declaration that certain proceedings of a district temple
committee removing them from that office are illegal, are not obliged to pray that they should
be reinstated in their office, unless there has been an actual ouster of the plaintiffs &om the
office of trustees.453

[s [Link]} Reversionary Rights

Section 14 of the Hindu Succession Act, 1956 made a provision to improve the legal
status of Hindu women enlarging their limited interest in inherited property into an absolute
454
estate, but the provision cannot benefit alienecs who purchased from limited owners before
the Hindu Succession Act, 1956.455 Thereby the decisions holding that after the Hindu
Succession Ace, 1956, the reversioner under Hindu law were no more so or had no right of
reversioner or any kind of spes successionis were overruled. 456 However, it was also been held
chat that there is no right of reversioners against the female heir after the Hindu Succession
Ace, 1956, as they have no legal character nor any interest in praesenti to be enticled co a mere
declaratio n of reversionary rights.457

448. State ofMP v Mangilal Sharma, ( 1998) 2 SCC 510.

449. Rajasthan Road Transport Corp v Shyam Bihari Lal Gupta. (2005) 7 SCC 406.
450. Ashok Kumar Srivnslav v National Insurance Co Ltd. (1998) 4 sec 361.
4 51. Rammdra Kishore Biswas v State of Tripura, ( 1999) 1sec 472.
452. Qamarali Wahid Ali v State ofMadhya Pratksh, AIR 1959 MP 46.
453. Rama11uja v Devanayaka, (1885) ILR 8 Mad 361.
454. As co the circwnscanccs in which lhe limited estate ofa Hindu femaJe would be enlarged into an absolute
estate, Mu/la's Hindu Law. Vol 2, l 8lh Edn, 200 I.
455. Harak Singh v Kai/ash Singh, AIR 1958 Pat 581 (FB).
4 56. Ram Ayodhya Missir v Raglnmath Missir, AIR 195 7 Pac 480 ; Ja11ki Kiur v Chlwhu Prasad, AIR l 95 7
Pat 674.
457. Sugandhabai Shivrnm Hede v Sundrabai Aba Madne, (1959) Born 1022: AIR 1960 Born 32; laxmi Debi
v Surendra Kumar Panda, AIR 1957 O ri I .
Discretion ofcourt as to declaration of status or right Section 34- 423

[s [Link]} Ser Aside Decree

The judiciary in India possesses inherent power, specifically under section 151 o f the CPC
to recall its judgment o r order if it is obtained by fraud on court. In case of fraud on a party to
the suit or proceedings, the court may direct the affected party to file a separate suit for setting
aside the decree obtained by fraud.458
Even if a decree is void ab initio, declaration to that effect has to be obtained by the person
aggrieved from the competent court. More so, such a declaration cannot be obtained in
collateral proceedings.459
In a suit where a declaration sought was that a decree on a mortgage of joint family property
was not binding on the children since there was no legal necessity to execute the mortgage,
held that the relief sought was either for setting aside the decree or for the consequential relief
of injunction restraining the decree holder &om executing the decree. It was essential for che
children to ask for setting aside the decree as a consequence of the declaration claimed and to
pay ad valorem court fee on the same. 460
A suit for declaration chat a decree was obtained by fraud does not lie in the absence of
a prayer to set it aside. 461 In a suit for declaration that the decree obtained by the defendants
in certain ticle suit was not binding on the plaintiff having been obtained by fraud, there
should be established a positive fraud, a premeditated and intentional contrivance to keep
the opposite party in ignorance of the case o r real facts of the case;462 or that it was obtained
by false and perjured evidence, and the fraud was practised upon the court in the course of
judicial proceedings.463
If in execution of a decree the property of a third person is sold and purchased at the
auction sale, such third person need not sue for setting aside the decree as long as he is not
disturbed in his possession, and he can in defence of his possession raise th e plea of the decree
not being binding on him.464
The plaintiff, all eging that he was the owner and in possession of a house, and that defendant
A had without any ticle mortgaged the house to defendant B, and that B, having obtained a
decree on the mortgage against A, had caused the ho use to be proclaimed for sale, sued A and
B for a declaration that che house was not liable to be sold in executio n of chc decree. It was
held that the plaintiff was enticled to a declaration, and chat the omission of a prayer to set
aside the mo rtgage, and the decree was no bar to the declaration. le was stated:
T here was no obligaLion o n the plaintiff, even W1der the proviso to sectio n 42 fnow section
34), to have sued to sec aside the morcgage o r the decree and indeed , it is doubtful in our opinion
if he had asked for such relief thal he could have succeeded. 465

458. Indian Bank v Stayam Fibres (India) Pvt Ltd, (1996) 5 SCC 550.
459. lnderjit Singh Grewal v State ofP1mjab, (2011) 12 sec
588,.
460. Shamsher Singh v Rajinder Prashad, (l 973) 2 SCC 524.
461. Kam/a Kam j ha vMuktinath}ha, AIR 1942 Pat 309, 197 lC 185.
462. Koijam Ningol Ningthemcha Ongbi Tampak Devi v RK M anisana Singh, AIR 1985 NOC 15 (Gau).
463. Tika Ram v Dau/at Ram, (1909) 32 All 145; Ramanadhan Chettiar v Annamalai Clutty, AIR 19 16 Mad
1203; Shriniwas Sarjerao Sholapurkar v Narayanrao Navlojimo N imbaikar, AIR 1923 Born 379 : 76 IC
55 1; Indian Provident Co Ltd v Govinda Chandra Das, AIR 1923 Cal 425; jhanda Singh v Lachhm i,
(1919) I Lah 344: AIR 1920 Lah 408: 56 IC 878; Kamar-ud-din v Sham Das, AI R 1927 Lah 788;
Kadiroely Nainar v [Link] Naicker, (19 17) 4 1 Mad 743: AIR 1919 Mad I 044; Kam/a Kant }ha v
M uktinath }ha, AIR I 942 Pat 309 : 197 IC I85.
464. Kedarnath Lai v Sheonarain Ram, AIR 1957 Pat 408.
465. Ganga Ghulam v Tapeshri Prasad, (1904) ILR 26 All 606.
 424 Section 34 Chapter VJ.-Declaratory Decrees

Creditors are entitled to a declaration that the wife of insolvent debtor was in possession of
his property under a collusive decree.466
A suit by the son under O XXI, rule 63 o f the Code of Civil Procedure, 1908,467 for
declaration to establish his right in the ancestral property and as such its not being liable
to be attached and sold in execution of a decree against the father, is a declaration where
consequential relief is prayed for because impliedly an injunction or relief that the decree is not
binding on the son is prayed for. 468
Where a decree is null and void, then no prayer for setting aside the decree is necessary, bur
when on the facts stated by a party, a decree must be set aside before any useful relief can be
granted to him, section 42 (corresponding provision in the repealed Act) comes in and the suit
is bound to fail. 469

[s [Link]/ Setting Aside Transaction and [Link]

There is a clear and well-marked distinction between a suit for cancellation of a deed
affecting certain property and a suit for declaration that a particular document be declared
inoperative against the plaintiff. 470 A suit for cancellation muse be brought by a person who
was a party to the deed , or was otherwise bound by it in law. Third persons who arc neither
parties to the deed , no r bound by it need not sue for its cancellation, and may merely sue
for a declaration that the deed is inoperative against them. Where the plaintiff seeks to
establish a ticle in himself and canno t establish it without removing an insuperable obstacle
to such a deed to which he may be a party, he must get it cancelled. H owever, when he
seeks to establish a title and finds himself threatened by a transaction between parties, his
proper remedy is to get a declaration thac rhe decree or deed is invalid so far as he himself
is concerned . 47 1
Where the foundation of the suit was that a registered sale deed was in fact o nly a loan
transaction executed to secure the amount borrowed , which had since been repaid, and a
declaration was sought that the plaintiff was rhe owner of the property, held that on these
averments it was the relief of d eclaring the registered sale deed to be a loan transaction
and the second relief of specific performance of oral agreement of reconveyancc of the
property that should have been claimed in the suit. 472 Where the document under which
the defendant claims is void, it is not necessary to ask for cancellation of that document as
a furth er relief. 473 However, a suit merely for declaration that they are entitled to property
will not be entertained, where the real object is to set aside a document, which is merely
voidable. 474 A respondent in whose favour suit of property had been settled, can maintain

466. Chattru Mal v Majidan, ( 1934) 15 Lah 849 : AJR 1934 Lah 460 : l SO IC 888.
467. Order XXI, Rule 63 of the Code of Civil Procedure, 1908, a provision deleted in 1976, provided that
where a claim or objection was preferred in execution proceedings co an actachmenc of any property, the
party against whom an order was made might institute a suit to establish Lhe right wh ich he claimed co
the property in dispute; and subject to the result in the suit, the order of the executing court on cbe claim
or objection was conclusive. (See now O XXl, rule 58 for a similar provision).
468. Sitaram v Maharaja Govindsinghjoo Deo, AJR 1974 MP 173; Shamsher Singh v Rajintkr Prasad, [1974] 1
SCR 322 : (1974) I SCR 270 : AIR 1973 SC 2384.
469. Kamin Kanta }ha v Muktinath }ha, AIR 1942 Pat 309.
470. S11hrid Singh v Randhir Singh. AIR 2010 SC 2807 (matter about court fees).
471. Sukh Lal v Devi Lal, AIR I 954 Raj l 70.
472. NV Srinivasa Murthy v Mariyamma, (2005) 5 SCC 548.
473. Ma Mo v Ma Set, AJR 1926 Ran 7 1.
474. KTirupathi Mudali v T Lakshmana Mudali, AJR 1953 Mad 545.
Discretion ofcourt as to declaration ofstatus or right Section 34 425

a suit for declaration of his cicle without setting aside the subsequent sale of the property
of che settlor. However, there may be circumstances when such alienations have to be set
aside.475
By an agreement, A agreed to purchase from B 50 shares of a company for Rs 6 ,000/-.
Transfer deed for the shares and the scrips were handed over co o ne j on the condition chat
on the payment of Rs 6,000/- by B, the documents would be handed over by J and A and
the price to B. j colluded with A and without payment handed over the documents to A. B
brought a suit for declaration of ownership of shares and chat they were not validly transferred.
The suit was not maintainable without further relief for return of documents, injunction, and
cancellation of the d ocuments of transfer.476
However, where che plaintiff, a minor claiming right, cicle and possession of the suit property,
sued for declaration that the kabala executed by his mother was a nullity, and for permanent
injunction restraining the defendants from interfering with his rights and possession , a further
prayer fo r cancellation of the instrument was not necessary, because a minor could treat the
alienation as void even without assistance of the courr.m
A suit under secrion 53 of the Transfer of Property Act, 1882 on behalf of all the creditors
for declaring a transfer as void against the creditors is in the nature of declaratory suit under chis
provision, and no further or consequential relief is to be claimed by the plaintlff.478 Judgment
creditors suing their debtor and a transferee fro m him, and praying a declaration that the
transfer is void as against creditors, arc entitled co proceed against the property without any
prayer for cancellation of the deed.479
A plaintiff suing for declaration chat a conveyance o f property by defendant A to defendant
B, taken by B with notice of prior agreement for sale of the property by A co the plaintiff is
not binding on the plaintiff, and for specific perfo rmance of the agreement, is no t obliged to
pray for delivering up and cancellation of chc conveyance; in such a case the suit is primarily
one for specific performance, i.e., for executio n of a deed of sale of the property by A to the
plaintiff.4so
An income-tax officer has no power to himself declare void any transfer of property
under section 281 of the Income Tax Act 196 1. If any transfer defrauds the revenue, the
Income-tax D epartment, as creditor, has to file a suit to have the transfer declared void under
chat section. 48 1

[s 34.12] Declaration and Injunction

The difference between section 34 on the o ne hand and sectio ns 37 and 38 on the other is
that in the case of the former the court cannot grant a declaratory relief where further relief is
capable of being gra nted. In the latter case there is no such restriction, and injunction can be

475. S lhirupa1hi Pillai v Ganthima1hi AmmaL, (1966) 2 Mad LJ 325.

476. S Bhagat Singh v Sa1nam Transporl Co Ltd., AlR 1961 Punj 278 (but amendment allowed to include
consequential relief); followed in UOJ v Pearl Hosiery Mills. AIR 1961 Punj 28 1; bu t sec Mani Singh
Harnam Singh v Sher Singh, AlR 1961 Punj 102 (amendment not allowed in second appeal).
477. Ganesh Chandra Bag v Rashbehari Chakmbarti, AIR 1978 CaJ 486 at 488; but see Sannidhi &tnavathi v
Arava Narasimha Murthy, AIR 2004 AP 29 (minor m ust seek cancellation).
478. Kishan Das Ta/war vAdeshwar La/Jain, AlR 1972 Del 122, 1256; referring to Tatavarthi Nagaportharow
v Pulipati Subbarow, AIR 1942 Mad 360.
479. Ma Sein vPLSK Firm, (1929) 7 Rang477, A1R 1930 Ran 927 : 120 IC 228.
480. Ka1111a11 v Krishnan, (1888-90) ILR 11-13 Mad (VI) 938.
481 . Jax Recovery Officer II v Gangadhar Vishwanath Ranade. ( 1998) 6 SCC 658.
426 Section 34 Chapt:er VJ.- Declaratory Decrees

granted without any prayer for declaration, although in many cases declaration is inherent in
the grant of an injunction. 482 This docs not, however, absolve the plaintiff of his obligation to
prove his right.483
The coun has the power to grant interim injunction in a suit for mere declaration of title. 481
For d eciding the nature of the suit the entire plaint has to be read, and not m erely
the relief sought. A suit cannot be dismissed on the ground that the relief of d eclaration
of ticle and possession has not been specifically mentioned as a relief in the plaint. Thus,
where che plaint showed that the suit for establishing che tide of che plaintiffs, and for
injunction on that basis against the d efendant, it was held chat since the foundation of
the plaintiffs' claim was the title, which they bad expressly pleaded in che body of the
plaint, the suit for perpetual injunction was maincainable. 4H5 le has been held that where
a cloud is raised over plaintiffs title and he does not h ave possession, che remedy is a suit
for d eclaratio n and possession, with or w ithout a consequential injunctio n. Where chc
plaintiffs cicle is not in dispute or under a cloud, but he is out of possessio n, he has to
sue for possession with a consequential injunction. Where there is merely an interference
with plaintiff's lawful possession or threat of dispossession, it is sufficient co sue for an
injunction simpliciter. 48 <•
A plaintiff cannot seek declaration of title under the garb of mandatory injunction. 487
When the plaintiff fails in proving his title to the suit land, the plaintiff can succeed in
securing a decree for possessio n o n the basis of his prior possession against the defendant who
has dispossessed him. Such a suit will be founded on the averment of the previous possession
of the plaintiff and dispossession by the defendant.188

[s 34.13] Discretion of the Court

The declaration or refusal of the rights or status under section 34 is discretionary. Ir
has to be granted according to sound principles o f law and ex debito justitiae. 489 A decree
of declaration is not a matter of right, bur is in the discretion of the court. The discretion
must be exercised with great care and caution, having regard to all the circumstances of

482. Corporation of City ofBangalore v M Papaiah, AIR 1989 SC 1809; M11thayya11 Swamillarha Sastrial v S
Namytmllswami Sastrial, AIR 1936 Mad 936; Fakirbhai Bhagwandas v Magan/al Haribhai, AIR 1951
Born 380; lnduma1iben Chimanlal Desai v UOJ, AIR 1969 Bom 423; KVK janardhanan v State ofTamil
Nadu, AIR 1995 Mad 179; Unnikrishnan v Ponnu Ammal, AJR 1999 Ker 405; Rabinarayan Stmdary
v Swhil.t1 Dei, AIR 2000 NOC 18 (Ori); bur see Sri Dam1tm N1tga Srmyasi v Allahabad Development
A111hority, AIR 1995 All 4 18 (the fact that no declaration has been sought would have a bearing on the
relief of temporary injunction).
483. Ram Kissen Joydoyal v Pooran Mull, AIR 1920 CaJ 239; Sri Rajah Nayani Venkata Ranga Rao Bahadur
Zamindar Cam v Sri Rajah ladakamaLia Sita Ramachandra Rao Bahadur Zamindar Garu, AIR 1941
Mad 91; D Rama11atha Gupta v S Razaack, AIR 1982 Kant 314; Urmikrisfman v Ponnu Ammal, AIR
1999 Ker 405.
484. Rajnibai v Kam/a Devi, AIR 1996 SC 1946.
485. Corp of City of Bangalore v M Papaiah, AIR 1989 SC 1809 at 1810; but see Ana1hula Sudhakar v
P Buchi Reddy, AJR 2008 SC 2033 : (2008) 4 SCC 594.
486. Anathula Sudhakar v P Buchi Reddy, AIR 2008 SC 2033: (2008) 4 SCC 594.
487. Hu/Lappa v State ofKamaraka, AIR 20 13 Kant 37.
488. Rome Gowda v M Varadappa Naidu, (2004) 1 sec 769.
489. American Express Bank Ltd v Calcutta Steel Co, ( 1993) 2 SCC 199, Kand/a Port v Hargovindjasraj, (20 13)
3 sec 182.
Discretion ofcourt as to declaration of status or right Section 34 427

the case;190 and based on sound legal principles.491 It is capable of correction by a Court of
Appeal, ifit has not been fairly exercised by the lower court, or has been exercised arbitrarily
or wrongly. 492
In Sreenarain Mitter v Kishen Soonduree Dossee,49 it has been stated:
It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with
the Court to grant it or not, and in every case the Court must exercise a sound judgment as to
whether it is reasonable or not under all the circumstances of the case to grant the relief prayed
for. There is so much more danger in India than fear of harassing and vexatious litigation that
the Courts in India ought to be most careful that mere declaratory suits be not converted into a
new and mischievous source of litigation.
The discretion which a court has to cxercise under section 34 is a judicial discretion. The
court has to consider- the nature of the obligation in respect of which performance is sought,
circumstances under which the decision came to be made, the conduct of the parties and the
cffect of the court granting the decrec. In such cases, the court has to look at the contract.
Even if want of mutuality is regarded as discretionary and not as an absolute bar to specifc
performance, the court has to consider the entire conduct of the parties in relation to the
subject matter and in case of any disqualifying circumstances, the court will not grant the
relicf prayed for.
The court must sec that the exercise of discretion is necessary in order to set at rest any
doubtful claims, and it must ensure that the exercise should not be futile, but will be effective
and uscful.495 Thus, discretion would be properly exercised where it will put an end to long
lasting disputes, 1% where its denial would materially injure the plaintiff. "7

490. Suprme General Fibns Exchange Lud vHis Highness Mabanaja Sir Brijnath Singhji Deo of Mahiar, AlR 1975
SC 1810; Bhupendra Nath v Ranjit Singh, (1914) 41 Cal 384, AIR 1914 Cal 152:20 IC 676; Baldeo Dube v
Shamdhur Pande,AIR 1914 Cal 518: 23 IC 809; Gandla Pedda Naganna vSivanappa, (1915) 38 Mad 1162
:AIR 1915 Mad 348 : 26 IC 232; Chhakouriv Secy of State, AIR 1920 Pat 363 (no substantial injury): mami
v lbrahim, AIR 1929 Oudh 292 (estoppel by acquiescencc): Jai Nanain v Ram Deo, AIR 1933 Oudh 207
(sole object was annulment of afinal order); Ram Tawakal Tewari v Dulari, AIR 1934 All 469: 154 1C 412;
Sachindra Kumar Roy v Nabendra Kisore Roy AIR 1934 Cal 155: 149 1C 712; Sital Raut vAdalat Raut, AIR
1935 Pat 256; Rentala Nanasimha Rao vRentata Venkatanamana Rao, AIR 1941 Mad 857; Mabadeo Lal vPratap
Udaynath Sab Deo, AIR 1946 Pat 470; Ramesh Chanda v State ofWest Bengal, AlR 1953 Cal 188; Somchand
Karmchand Shah vState of Sauashtra, AIR 1953 Sau 21; Mahant nda Nanain Das vMabant Ganga Ram Das,
AIR 1955 All 683; Abdul Barik Abdul AzizvAbeda Khatoon, AIR 1955 Ti 2; Nagammal vAgoramurthi, AlR
1956 Mad 248; Dhonavakonda Gopalrao v Tbatha Venkatadri, AIR 1957 AP 19; Nar Babadur Gurungv Ali
Krishna Bhattacharya, AIR 1957 Man 25; Jamuna Choudhuri vRamanup Singh, AIR 1960 Pat 182.
491. Executive Committee of Vaish Degree College v Lakshmi Nanain, AIR 1976 SC 888; Kamarbai v
Badrinarayan, AIR 1977 Bom 228; Anil Kumar Handa v Suman Bala, AlR 1980 Del 103.
492. Thakurain Jaipal Kunwar v Bhaiya ndar Bahadur Singh, (1904) 31 LA 67: 26 All 238 (PC); Mysore State
Road Tansport Corpn vMirja Khasim Ali Beg, AIR 1977 SC 747.
493. Mitter v Kishen Soonduree Dossee, (1873) IA (Supp) 149, 162 : 1l Beng LR 171, 190; Moothoo Vijia
Ragoonadah Ranee Kolandapuree Natchiar v Dorasinga Tevar, (1875) 2 IA 169, 181-82; Rani Pirthi Pal
Kumwar v Rani Guman Kunwar, (1890) 17 IA 107 : 17 Cal 933; Sheoparsan Singh v Ramnandan Prasad
Nanayan Singh, (1916) 43 IA 91,97 :AIR 1916 PC 78 :43 Cal 694, 704-5: 33 IC 914; A/S Joseph vCorp
ofCalcutta, (1916) 43 IA 243, 248 : AlR 1916 PC123: 44 Cal 87:36 IC 912; Bobba Padmanabjudu v
Bobba Buchamma, AlR 1919 Mad 793:47 IC 702; Executive Committee of VaishDegree College vLakshmi
Narain, AlR 1976 SC 888; Ramnarayan v Firm Mangeram Radheshyam Hardoi, AIR MP 61.
494. MP MathurvDTC, (2006) 13 SCC 706.
495. Bhairabendra Narayan Bhup vState of Assam, AIR 1953 Assam 162; Nagammal vAgoramurthi,AIR 1956
Mad 248.
496. Rani Indar Kuar vBaldeo Rani lndar Kuar v hakur Baldeo Bakhsh Singh, AIR 1921 PC 131:57 IC 397.
497. Abmad Yar Khan v Haji Khan, AIR 1944 Lah 110:216 IC 82.
428 Section 34 Chapter V-Declaratory Decrees

Declaration may be refused where the decree might become incffective,8 may be rendered
nugatory by any action of the defendant,1 or it willbe infructuous;0 or useless;0l or where
the defendant or authority would in its discretion accept or disregard it, s2 or might render
it infructuous,93 It should not be granted in anticipation of a contingency, which may not
arise 504

Declaration may be refused where the suit has not been brought honestly, sor has been made
for mere speculation;s6 where the intention of fling he suit is fraudulent. Declaration and
injunction were rightly refused where the appellants withheld relevant documents and violated
orders of injunction passed by the court, and carricd out illegal construction without obtaining
permission from the competent authority. Sos It may also be refused where the real object of the
suit is different, or would enable the plaintiff to cvade the law 1º or would nullify a decree or
order of acourt having special jurisdiction,1! Nor should adeclaration be granted where the law
provides another appropriate relief or remedy.12

498. Rani Mabaraj Narain Sheopuri vSbahsi Sbekhareshwar Roy (1915) 37 All 313: AIR 1915 All 197: 29 IC
53: James Henry George Hill v Satan Singh, AIR 1920 Pat 559; Lakshmi Chand v Lila Dhar, AlR 1925 AlI
745; Raja Bahadur Biswanath Saran Singh v Ch Mujtaba Husain, (1941) 16 Luck 742: AIR 1941 Oudh
422 : 195 IC 402 (rules of a registered society); Muhammad Israil v Patna Ciry Municipality (1942)
21 Pat 449 : AIR 1943 Pat 34; Rampal v Bhagwandas, AIR 1954 Ajm 11 (2); Budhu Singh v Board of
Revenue, AIR 1957 All 719; Maya Basak vKalidasi Dassi, AIR 1980 Cal 45.
499. James Henry George Hill v Satan Singh, AIR 1920 Pat 559; Fateh Singh v Gopal Narain Singh, (1924) 48
All 88: AlR 1925 All 637 : 89 IC 1013; Mabaraj Narain Sheopuri vShabsi Shekhareshwar Roy (1915) 37
All 313: AIR 1915 AIl 197 : 29 IC 53; Bhairabendra Nanayan Bhup vState of Assam, AIR 1953 Assam
162; Rampal vBhagwandas, AIR 1954 Ajm 11(2).
500. Maharaj Narain Sheopuri v Shahsi Shekhareshwar Roy (1915) 37 All 313 : AIR 1915 All 197 : 29 IC
53; Sailendra Nath Bose v Charu Chandra Bannerji, AlR 1929 Cal 422, (1929) 118 1C 341; Budhu
Singh v Board of Revenue, AIR 1957 All 719.
501. Laksbmi Chand v Lila Dhar, AIR 1925 All 745 (that a kabultyat was void); Rajkeshwar Singh vShyam
Bihari Singh, AIR 1927 Pat 286 (that property had been partitioned and the plainiff's property was
separate, the defendants having no further power of partition): Bhainabendra Nanayan Bhup vSiate
of Assam, AIR 1953 Assam 162 (that certain bills passed were ultra vires the provincial legislature):
Rampal vBhagwandas, AIR 1954 Ajm 11(2): Abdul Abad vAshfaq Ali, AlR 1933 Oudh 423(2) : 147
IC792 (a declaration in respect of the correctuness or otherwise of an clectoral roll, when the election is
alrcady over).
502. Raja Babadur Biswanath Saran Singhv Ch Mujtaba Husain, AIR 1941 Oudh 422.
503. Manapragada Swarnapathi vKrovvidi Suryaprakasa Rao, AIR 1934 Mad 293 : 148 1C 765; Raghunath v
Municipal Board Mathura, AlR 1952 All 465.
504. Faryad Fatima Bibi v Mujahid Abbas, AIR 1934 All 1064; Tarak Chandra Das v Anukul Chandra
Mukherjee, AIR 1946 Cal i18.
505. Ajaib Singh vSbam Singh, AIR 1925 Lah 127 (1).
506. Khushi Ram v Nand Lal, AIR 1933 Lah 866, 147 1C 399: Jeka Dula v Bai Jivi, AIR 1938 Bom 37 :
(1937) 39 Bom LR 1072 : 174 1C24; Raghu Nandan Neotia vSwadeshi Cloth Dealers Ltd., AIR 1964
Cal 247.
507. Ma Htay v U Tha Hline, AIR 1925 Ran 184.
508. Khatri Hotels Put Ld v ¯OI, (2011) 9 SCC 126.
509. Rajah Nilmony Singh v Kally Churn Bhattacharjee, (1874) 2 1A 83; Sheobaran v Bhairo Prasad, (1885)
ILR 7 All 880 (FB).
510. Chokalingapeshana Naicker vAchiyar, (1875) IMad 40 (evade payment of stamp); Ganpatgir Guru
Bholagir v Ganpatgir, (1879) 3 Bom 230 (evade stamp duty): Anil Kumar Handa v Suman Bala, AIR
1980 Del 103 (evade court fees on probate).
511. Jagannath v Balwant Singh, AIR 1922 All 372 (to forestall a suit in another court); Mullo v Ram Lal,
(1920) 43 All 191, AIR 1921 All 348(2); Kundan Lal v Parshadi 46 All 570: AIR 1924 All 744.
512. Poran Sookb Chunder v Parbutty Dossee, (1878) 3 Cal 612; Kunbamed v Kutti, (1891) 14 Mad 167;
Mahesh Rai v Chandar Rai, (1889) 13 All 17 (FB); Maharaja of Benaras v Ramji Khan, (1904) 27 AlI
138; TVLakshmanaswamyChetty v Offcial Assignee of Madras, AIR 1929 Mad 141.
Discretion of court as to declaration of status or right Section 34 429

Where thc decree in essence contains only a declaratory relief without any consequential
payment of monctary bencfits, the plaintiff would not be entitled to back wages, $13
Declaration may be refused where the plaintiff is guilty of dclay in fling thc suit;14 but since
a period of limitation has been prescribed for such suits,915 relief must not be refused for mere
delay, if suit filed is otherwise within the period of limitation. Nor can declaration be granted
in respect of immovable property situated abroad.9%46 The court may also refuse injunction
where all the interested parties are not before it. SI7 Declaration would also be refused where it
would seriously affect the interests of persons not parties to the suit,"% It might also be refused
where it may cause undue hardship to the defendant. 519
A
plaintiffis not disentitled to injuncion mercly because of the difficultics of questions involved,
expenses oflitigation or the improbability of the plaintiffs succding to the estate for many years to
come, or the perishable narureof the propery; nor will it be refiuscd merely because the plaintif's
motive in sccking the decree is to influence the opinion of authorities,21
Thus, the relicf of declaration has not been issued in the cxercise of discretion in a suit by
a Hindu against her mother-in-law and a son adopted by the laer, for a declaration that the
adoption is invalid, and that a willmade by the mother-in-law bequcathing the whole of her
husband's property to the adoptcd son is invalid for the purpose of transferring the estate;% for
a declaration that the clection of the defendant as a member of the Bengal Legislative Council
is invalid;$23 in a suit by a purchaser of a reversionary interest against the trustces of a deed
of settlement and the beneficiarics, for a declaration of his rights under the deed, when the
circumstances were such that to give adeclaratory decree would be to offer direct encouragement
to speculative purchasers of doubtful tides;24 where there was a alleged wrong cntry (without
contest at the time) made many years earlier in the khewat, there had been long delay on the
plaintiffs part, and the declaration prayed for would not have bound all parties interested,2 A
suit to set aside a decree against a minor for want of sanction by the court under the mandatory
provisions ofO XXXII, rule 7(2) of the Code of Civil Procedure, 1908 will be dismissed if the
court, after going into the merits, finds the decree to be for the bencht of the minor, 526Where a
reversioner is not entided to adecree as to a major portion of the property alienated by awidow,
the court will not in its discretion give a declaration as to a small portion.7

513. Rajasthan State Road Transport Corp vShyam Bihari Lal CGupta, (2005) 7 SCC 406.
S14. Palkudi Kuppal Naicker v Lakshmi Ammal, AIR 1937 Mad 555: Shiam Behari Lal CGour vMadan Singh,
AIR 1945 All 293.
515. Limitation Act, 1963, Schedule, Articles 56-58.
516. VS Subramania lyer v VV Ramasami Pillai, AIR 1951 Mad 531.
517. Maharaja of Benanas vRamji Khan, (1904) 27 All 138; Subedar Shingana Singh v CHDOCallaghan,
(1947) Lah 22, AIR 1946 Lah 247 (FB).
518. Hanno Lal v Badri Das, (1945) All 658: AIR 1945 All 278.
519. Executive Commitee of Vaish Degree College vLakshmi Narain, AIR 1976 SC 888 (the employer might be
liable to pay a large amount to the plaintiff who had not worked for 9years).
520. Isri Dut Koer vHansbutti Koerain, (1883) 10 LA 150 : (1883) 10 Cal 324 (PC).
521. Govind Siaram vBapuji Mahadeo, (1893) 18 Bom 5l6; Abimkhan vDadamiya, (1910) ILR 34 Bom
101; Hemendra Nath Roy vUpendra Narain Roy. (1916) 43 Cal 743 : AIR 1916 Cal 829; but see Rajah
Nilmony Singh vKally Churn Bhattacharjee. (1874) 2IA 83.
522. Rani Pirthi Pal kKunwar vRani Guman Kunwar, (1890) 17 IA 107 : 17 Cal 933.
523. Bhupendra Nath Basu vRanjit Singh Bahadur, (1914) 41 Cal 384, AIR 1914 Cal 152: 20 IC 676.
524. Bhujendro Bhusan Chatterjee vTrigunanath Mookerje, (1882-93) ILR 8-9 Cal (V) 491.
525. Afiab Ali Khan v Akbar Ali Khan, AIR 1929 All 529, (1929) All LJ 794 : 121 IC 209.
526. shar Singh vPritam SinghJwanSingh, AIR 1961 Punj 500.
527. Jamuna Choudhuriv Ramammp Singb, AIR 1960 Pat 182: relying on Rani Pirthi Pal Kunwar vRani
Guman Kunwar, (1890) 17 IA 107 : 17 Cal 933 (PC).
430 Section 34 Chapter V-Declaratory Decrees

Adecree for declaration that the plainifs dismissal was illegal for want of requisite notice
and that he continued in service would be refuscd because the decree could casily be nullified
by giving a proper notice, and then terminating his services, 923
Asuit against a University for a declaration that a candidate has passed an examination or
for an injunction compelling the University to promote him is not maintainable. That would
be an unwarranted usurpation of the academic functions of the University, 529
A widow had a life interest in the property in dispute. On her death the properry was
to devolve on her nicce who brought a suit for declaration and injunction restraining the
widow from alienating the propcrty, which the widow was entitled to alicnate for necessity
of her propcr maintenance. The suit was held maintainable at the instance of the contingent
interest holder, but was not decreed as the nicce rcfused to arrange for proper maintenance
of the widow. 530
While it is truc that the relief of declaration is discretionary, it is well settled thar it is only if
the discretion is not cxercised by the lower court in the spirit of the statute or fairly or honestly
or according to the rules of rcason and justice, that the order passed by the lower court can be
reversed by the superior court.>)

[s 34.14]Grant of Relief
The decree of declaration may be granted subject to terms, unless the plaintiff's right would
be infringed if terms were imposed. $2
A sale by a father was set aside by a suit for declaration and possession brought by a
minor son on the ground of want of necessity and bencfit to the estate. However, out of the
consideration moncy, a portion was found to be for nccessity. A decree for possession was
given on the condition of restiruting the bencfit, i.e., Rs 800,53 In setting aside an alienation
made by the mother of a Mahommedan minor son, the court has a discretionary power
under section 41 (section 33 of Specific Relicf Act, 1963)to order restitution by refund of the
amount by which the estate is benefhited. 534

[s 34.15] Declaration and Court Fees

Where the suit was for declaration and the second prayer related to the appointment of a
receiver to manage the affairs of the company, and this second relicf was relinquished in appcal
and ad valorem court fec was not paid for this prayer in the memorandum of appeal, hcld
that it was not open to the Judicial Commissioner to canvass the question whether the suit
with the second prayer cmanating from it fell within the mischief of the proviso to section 42

528. United Karnatak Insurance Co Lud vGovardhana Rao Venkata Rao, AIR 1961 Mys 49.
529. State Medical Faculty of West Bengal v Kshiti Bhusan Dut, AIR 1961Cal 31; Re GA Natesan, AIR 1918
Mad 763; Raja Ugrah Singh v Benaras Hindu University, AIR 1925 AIl 253(2).
530. Maya Basak vKalidasi Dassi, AIR 1980 Cal 45, 50 Even declaration could not have been granted as it
could be said that the respondent was able to seek further relief than mere declaration of his legal statuS
and which he omitted to do so.
531. Mysore State Road Transport Corp vMirja Khasim Ali Beg, (1977) 2 SCC 457.
532. Naubabar Singhv Qadir Bux, AIR 1930 All 753: 125 I 14: (1930) All LJ 875; Kbalil Uddin vSri Ram,
56 All 293, AIR 1934 All 176.
533. Ramnath Singh v Deoraj Singh, AIR 1957 Pat 495.
534. VST Kadir Meeral Beevi vSPKMabommad Koya, AIR 1956 Mad 368; Mohori Bibee v Dharmodas Ghose,
(1930) 30 IA 114, 125: (1930) 30 Cal 539.
 Section 34 431
Discretion of court as to declaration ofstatus or right
(corresponding scction in the repcaled Act). That was a question which related to the merits of
the appcal and did not concern its proper institution. 535
The second part of the prayer for decaration that he appointment of the defendant was
illegal, invalid and ultra vires and that he has no right to act as Chairman and Managing
Director of the company, was part of the prayer for declaration and did not amount to a prayer
for consequential relief warranting additional court fee. That thc suit as instituted may fail is
not material for determination of court fee.536
The valuation for jurisdiction shown in the plaint cannot be taken to be the valuation for
the payment of court fees on the plaint as wellas the memorandum of appcal. It is the amount
at which the plaintif has valued the relief sought for the purposes of court fee that determincs
the value for jurisdiction in the suit and not vice versa. $7
In a suit for accounts, it is not possible for the plaintiff to estimate correctly the amount
which he nmay be entitlded to, for, as in the present case, when the plaintiff asks for accounting
regarding che management by a power of attorney agent he might not know the state of
afairs of the defendant's management and the amount to which he would be entitled to on
accounting, Buc it is necessary that the amount at which he values the relicf sought for, should
be a rcasonable cstimate, 538
In a suit for declaration with conscquent relief falling under section 7(iv)(c) of the Court
Fecs Act, 1870, the plaintiff is ree to make his own estimate of the relicfs sought in the plaint
and such valuation both for the purposes of court fee and jurisdiction, has to be ordinarily
accepted. It is only in cascs where it appcars to the court on a consideration of the case that
the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalucd,
the court can examine the valuation and can revise the same. The lcasehold interest in the
consequential relicf for mesne profits valucd on the basis of the rent was held to be reasonable.s9
In a suit for a declaration that the mortgage decree obtained against the father was
not binding upon thc son, it is essential for the son to ask for setting aside the decree as a
consequence of the declaration claimed and to pay ad valorem court fee under section 7(iv) (c)
of the Court Fees Act, 1870.40
For deciding the nature of the suit, the entire plaint has to be read and not merely the
relief portion. The plaint the prescent case leaves no doubt that the suit has been filed for
establishing the title of the plaintiffs and on that basis to getting an injunction against the
defendant. The court fee payable on the plaint has also to be assessed accordingly, 41
Where the plaintiff seeks a mere declaration, the court fees payable would usually be a small
fixed amount.42 Any further relief sought would attract a court fee based on the valuation of
such relicf 43

535. Nemi Chandv Edward Mills Co Ltd, AIR 1953 SC 28.

536. Ibid.
537. SRM AR S SP Sathappa ChettiarvA RMAR RM Ramanathan Chettiar, AIR 1958 SC 245.
538. Meenakshisundaram Chettiar v Venkatachalam Chettiar, (1980) 1 SCC 616: AIR 1979 SC 989.
539. Taa Devi v Sri Thakur Radha Krishna Mabaraj, (1987) 4 SCC 69.
540. Shamsher Singh v Rajinder Prashad, (1973) 2 SCC 534.
541. Corporation of the City of Bangalore vMPapaiah, (1989) 3 SCC 612.
542. See Court Fees Act, 1870, Schedule II, art 17; and the said Act as applicable to states, and state statutes
relating to court fees.
543. Court Fees Ac, 1870, section 7(iv)(c), and the said Act as applicable to states, and state statutes relating
to court fees.
432 Section 34 Chapter VI-Declaratory Decrees
In Deokali Koer v Kedar Nath, 544 it was stated:
It is a common fashion to attempt an evasion of Court-fees by casting the prayers of the
plaint into a declaratory shape. Where the evasion is successful it cannot be touched, but the
device does not merit encouragement or favour....The section does not sanction every form of
declaration, but only a declaration that the plaintiff is 'entiled' to any legal character of to any
right as to any property: it is the disregard of this that accounts for the multiform and at times,
cccentric declarations which find a place in Indian plaints. If the Courts were astute-as I think
they should be-to see that the plaint presented conformed to the terms of section 42, the
difficulties that are to be found in this class of cases would no longer arise.M5
Declaration was declined in a suit where the plainiff prayed for a declaration of being
lawful legatee under a will, the immovable property being in Saharanpur District and movables
in Delhi and Saharanpur, on the ground that the plaintiff had adroitly framed his plaint to
avoid payment of higher court fee.546
The court cannot compel the plainiff to claim such relief or deem such relief to have been
claimed, and demand ad-valorem court-fee. It is for the plaintiff to decide whether he would
claim such further relief, or face possibility of the suit being dismissed under this provision.47
Every litigant is entitled to so frame his pleadings as to pay minimum of fees if that is legally
possible, and law courts are not tax collectors.8
If on the perusal, the court finds that the plaintiff should have asked for further relief, it
will refuse to grant declaration. The court cannot compel the plaintiff to add the prayer, nor
can it refuse to admit the plaint on the ground that further relief is not claimed, and court fee
not paid.549

It is the plaintiff's right, and a legitimate onc, to avoid the payment of higher court fee by
so framing his suit as to diminish his liability in that respect; and the court cannot force upon
the plaintiff to framc a suit which he is not willing to adopt.%0

[s 34.16] Effect of Declaration

A
declaration binds the parties to the suit, but may not bind third parties.51
[s 34.17] Practice and Procedure
Declaration cannot be given unlcss asked, 52
In a suit for declaration of title, the burden always lies on the plaintiff to make and
establish a case for granting such a declaration and the weakncss, if any, of the case set
up by the defendants would not be a ground to grant relief to the plaintiff.$55 In a suit

544. Deokali Koer v Kedar Nath, (1912) ILR 39 Cal 704 per Sir Lawrence Jenkins, 707-09, 15 IC 427.
545. Deokali Koerv Kedar ath, (1912) ILR 39 Cal 704, 707-08 : 15 IC 427.
546. Anil Kumar Handa v Suman Bala, AIR 1980 Del 103, 105.
547. Manoharsingh Nathasinghv Parmeshari, AIR 1949 Nag 211.
548. Bisban Sarup v Musa Mal, 58 All 146 : AIR 1935 All 817(FB); Mahommad lsmail v Liyagat Husain, AIR
1932 All316.
549. Bishan Sarupv MusaMal, 58 All 146: AIR 1935 All 817 (FB); but see Rajbans Sabay vAskaran Baid, AIR 1930
Pat 227 (suit cannot be entertained unless plaintiff pays ad-valorem court fee for the consequential relief).
550. Bishan Sarup v Musa Mal supra.
551. Lalji Haridasv Mulji Manilal Kandar, (1966) Guj 971 : AIR 1966 Guj 159, 164 (a declaration in a suit
by a benamidar against the real owner not binding on the income tax authorities). See section 35 below.
552. Ponnan v Chinna Gounder, AIR 2006 Mad 139.
553. UOI v Vasavi Cooperative Housing Society Ltd, (2014) 2 SCC 269. See also - Jagdish Prasad Patel v
Shivnath, (2019) 6 SCC 82, A. Subramanian v R. Pannerselvam, (2021) 3 SCC 675
Discretion of court as declaration of status or right Section 34 433

for declaration of title it is necessary to trace it to a point beyond a minimum of twelve

years before the suit. This was all the more necessary in the facts of the instant case where
the plaintiff did not have possession, nor were any revenue entries available to support the
ownership of the plaintiff and his vendors for a period of twelve ycars and more, prior to
the suit.5$4
Asuit for declaration of title to the building includes title to the land on which it is situated,
and no scparate prayer as to land nced be made.55 Where a plaintiff scecks perpetual injunction
based on lawful possession, and the court fnds so, an order of declaration that he is lawful
oWner is incorrect. 556
In Razia Begum v Sabebzadi Anwar Begum, 557 A sought a declaration that she was a legally
wedded wife of B and that she was also entitled to receive from him kharch-e-pandan at a
certain rate. B admitted thatA was married to him, had three children, and that she was also
entitled to the kharch-e-pandan as claimed by her. Then C and D, claiming respectively to
be the lawful and legally wedded wife and the son of B. applied to the court to be added as
defendants, being interested in denying the marriage of A, and her rights and status. Thcir
addition as defendants was upheld. It was stated:
Where the subject-matter of a litigation is a declaration as regards status or a legal character,
the rule of present or direct interest may be relaxed in a suitable case where the court is of the
opinion that by adding that party, it would be in a better position effectually and completely
to adjudicate upon the controversy..The cases contemplated in the last proposition, have to
be determined in accordance with the statutory provisions of sections 42 and 43 of the Specific
Relief Act. 58 In case covered by those statutory provisions, the court is not bound to grant
the declaration prayed for, on a mere admission of the claim by the defendant, if the court
has reasons to insist upon aclear proof apart from the admission. The result of adeclaratory
decree on the question of status affects not only the parties actually before the Court, but
generations to come, and in view of that consideration, the rule of 'present interest', as
evolved by case law relating to disputes about property, does not apply with full force.9
The Courts under the Consumer Protection Act, 1986 cannot grant declaratory relief. o
[s 34.18]Limitation
While enacting Article 58 of the Limitation Act, 1963 (entry rclating to suits for
declaration), the legislature has designcdly made a departure from the language in Article
120 of the 1908 Act. The word "first" has been used between the words "sue and "accrued".
This would mcan that if a suit is based on multiple causes of action, the period of limitation
willbegin to run from the date when the right to sue first accrues. Successive violation of
the right will not give rise to fresh cause.561 A suit for permanent injunction restraining the
defendant from interfering with its possession would not lie without secking a declaration that
the termination of the lease was invalid, and when such termination had taken place 18 years
carlier, the suit was hopelessly barred in terms of Article 58.5%2

554. TK Mobamned Abubucker v PSM Abmed Abdul Khader, (2009) 14 SCC 224.
555. Haladhar Sarma vAssan Go-seva Samity, AIR 1979 Gau 23.
556. N Hanumantha Rao v Corp of the City of Bangalore, AIR 1996 Kant 296.
557. Razia Begum v Sahebzadi Anwar Begum, AIR 1958 SC 886.
558. Now Specific Relief Act, 1963, sections 34 and 35.
559. Razia Begum v Sabebzadi Anwar Begum, AIR 1958 SC 886, 895.
560. Pardip Port Trust, Jagatsinghpur v State Consumer Disputes Redresal Commission, Orissa, AIR 2012 Ori 23
(DB).
561. Khatri Hotels Put Ltd vUOI, (2011) 9 SCC 126, LCHanumanthappav HBShivakumar, (2016) 1SCC 332.
562. Board of Trustees af Port of Kandla v Hargovind Jasraj, (2013) 3 SCC 182.
434 Section 34 Chapter V-Declaratory Decrees

A suit to declare the forgery of an instrument issued or registered must be fled within thrce
ycars from the date the issue or registration becomes known to the plainiff % A suit for declaration
that an alleged adoption is invalid, or never, infact, took place must be filed within three years from
the date when the alleged adoption becomes known to the plainiff. Asuit sccking any other
declaration must be filed within three years from the date the right to sue first accrues. "Article
58 would apply to an amended plaint inasmuch as it sought to add the relief of declaration of tile
to the alrcady existing relief of grant of injunction. In the instant case the right to sue arose when
in the written statement, the defendant had pleaded that the suit for injunction simpliciter is not
maintainable in that the plaintiff has failed to establish title with possession over the suit property.S«
The right to sue accrues from the date of threat to the right of the plaintiff. S07

[s 34.19]Execution of Decree
A decree of declaration is not capable of execution. It does not require the defendant to do
anything. No proceedings for contempt of court lie against the defendant judgment-debtor if
he ignorcs or does not comply with the decree. It is thus stated:
A declaratory decree...cannot be executed as it only declares the rights of thc decree-holder
qua the judgment-debtor, and does not in terms, direct the judgment-debtor to do or to refrain
from doing any particular act or thing. Since there is no command issued to the judgment-debtor
to obey, the civil process cannot be issued for the compliance of that mandate or command. The
decree-holder is free to seek his legal remedics by way of suit or otherwise on the basis of the
declaration given in his favour. 58

In State of Madhya Pradesh vMangilal Sharma, "® the plainiff sought declaration claiming
continuance of his service, but did not seck arrears of salary and interest on arrears. He was
reinstated when declaration was decrced. He sought to execute the decree for recovering arrcars.
The court held that the plaintiff could not have sought execution of the declaratory decree
when no rclief was granted to him towards arrears of salary and other consequential benefits.
However, a decree declaratory in form but based on a compromise recognising rights of the
plaintiff and defendants to perform pujas turn by turn, was executablc, especially for secking
police help where one party put locks on the premises of the temple.0
[s 35] Efect 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
the declaration, such parties would be trustees.
SYNOPSIS

(s 35.1] Introduction. 435 (s 35.3] Dcclaration and Res Judicata... 436

[s 35.2] Effect of Decree of Declaration... 435

563. Limitation Act, 1963, schedule, Article 56.

564. Limitation Act, 1963, Article 58.
565. Ibid.
566. LC Hanumanthappa v HB Shivakumar, (2016) 1 SCC 332.
567. Harendra Chandra Nath vBijoy Krishna Nath, AIR 1993 Gau 52. See also above: "Denial ofTitle".
568. Prakash Chand v SS Grewval 1975 Cr LÊ 679; approved in State of Madhya Pradesh vMangilal Sharma,
AIR 1998 SC 743.
569. State of Madhya Pradesh v Mangilal Sharma, AIR 1998 SC 743; see also Rajasthan State Road Transport
Corp vShyam Bibari Lal Gupta, AIR 2005 SC 3476: (2005) 7 SCC 406.
570. Babu Puri v Kalu, AIR 2005 Raj 77.
Efect of declaration Section 35 435

[s 35.1] Introduction
Adecree of declaration is binding on the parties, on the persons claiming through thcm; and
where the parties are trustecs on the person for whom, if they are in cxistence on the date of
declaration, the parties would be trustees. This section reproduces section 43 of the repealed Act.
[s 35.2] Efect of Decree of Declaration
By virtue of section 35, a declaration given under section 34 is binding only between the
parties. It is adeclaration in personam and not in rem." Adeclaration that the appellant was
a permanent lecturer of the college and that che notice issued for termination of his services
was illegal and void will not bind the 1" respondent, who had been appointed in his placc,
since the 1* respondent had not been made a party to that suit. The judgment of the court
binds only the parcies to it, or their privies when it concerns the rights of parties and such
proceedings purport to adjudicate the rights of contesting parties by means of an adversarial
process. The declaration could not have been legitimately made to the detriment and prejudice
of the frst respondent, who could ignore the judgment as not affecting him."2
A declaration is binding on the partics to the suit, and their representatives. Section 35
applies only to a suit for declaration.$73
A, a Hindu, in a suit to which B, his alleged wife, and her mother, are defendants, secks
a declaration that his marriage was duly solemnized and an order for the restitution of his
conjugal rights. The court makes the declaration and order. Gclaiming that Bis his wife, then
sues Afor the recovery of B. The declaration made in the former suit is not binding upon C%
Thesection makes it plain that a declaration made is not a judgment in rem, viz, in respect
of the adoption of acertain person."SA declaratory judgment might be admissible in evidence
under section 13 of the Indian Evidence Act, 1872 but its probative force would depend on
facts of cach case.76
A declaratory decree is conclusive between the parties to it, and the persons litigating
through them, and the trial of the question decided by the decree will be barred under this
section,57 is for the plaintiff who wants an effective declaration, to implead as defendants
to his suit all persons who are denying or are interested in denying his title to any right to
any property, or the legal character which he wants to be cstablished. An assignee pending
litigation in a suit for declaration of ownership has a right to be impleaded as a party in place
of his assignor. $78

A declaratory decree does not confer title. Hence after the Hindu Succession Act, 1956 a
limited owner acquiring absolute right under section 14(1) cannot be deprived of possession
by reversioners having a declaratory decree in their favour.79

571. SNP Shipping Services Pot Ltd v World Tanker Carrier Corp, AIR 2000 Bom 34.
572. Shiv Kumar Towari vJagat Narain Rai, (2001) 10 SCC 11.
573. Nagin Mansukhlal Dagli vHaribhai Manibbai Patel, AIR 1980 Bom 123.
574. lluStration to section 43 of the repcaled Act of 1877.
575. JP Wise vSunduloonissa Chowdranee, (1867) 11Moo Ind App 177; 7hakurain Jaipal Kunwar v Bhaiya
Indar Bahadur Singh, (1904) 31 LA 67, 26 All238 (PC).
576. Dinomoni Chowdbrani v Brojo Mohini Chowdhrani, (1901) 29 IA 24 : (1901) 29 Cal 187; Secy of
State v Syed Abmad Badsha Sahib Bahadur, (1920) 44 Mad 778: AIR 1921 Mad 248.
577. Raja Chattar Singh vDiwan Roshan Singh, (1946) Nag 159 : AIR 1946 Nag 277.
578. Gurdev Singh v Amarjit Singh, AIR 2011 P&H 77.
579. Shakuntala Devi v Kanala, 2005 AIR SCW 2203: (2005) 5 SCC 390.
436 Section 35 Chapter VI-Declaratory Decrees

Aright in rem is a right cxercisable against the world at large, as contrasted from a right in
personam, which is an interest protected solely against specific individuals. Acions in personam
refer to actions determining the rights and interests of parties themsclves in the subject matter
of the case, whereas actions in rem refer to actions determining the title to property and the
rights of the partics not mercly among themsclves but also against all persons at any time
claiming an interest in that property. Correspondingly, a judgment in personam refers to a
judgment against a person as distinguished from a judgment against a thing, right or status
and ajudgment in rem refers to ajudgment that determines the status or condition of property
which operates directly on the property itself.Ss0

[s 35.3] Declaration and Res Judicata

When a court makes a declaration in respect of a disputed status, important rights flow
from such ajudicial declaration. Hence, adeclaration granted in respect of alegal character or
status in favour of a person is meant to bind not only persons actually partics to the litigation,
but also persons claiming through them, as laid down in section 43 (corresponding scction in
the repcaled Ac). It is thus arule of substantive law, and is distinct and separate from the rule
of res judicata or cstoppel by judgment. The rule of res judicata as laid down in section 11 of
the Code of Civil Procedure covers a much wider fheld than the rule laid down in section 43
of the Specific Relief Act, 1877. For example, aprevious judgment may be res judicata in a
subscquent litigation between parties even though they may not have been eo nominee parties
to the previous litigation or even claiming through them. *1
To constitute res judicataall the conditions enumerated in scction 11 of the Civil Procedure
Code must be satisfied. One such condition is that the court which decided the former suit
must be a court competent to try the subsequent suit.8$2
In order to operate as res judicata, the finding must be such that it disposes of a matter
that is directly and substantially in issue in the former suit and that the said issue must have
been heard and finally decided by thc court trying such suit. Amater which is collaterally or
incidentally in issue for the purpose of deciding a matter which is directly in issue in the case,
cannot be made the basis of a plea of res judicata,53
If the carlier declaratory decree which is sought to be made the basis of res judicata is
delivered by a court without jurisdiction or is contrary to the cxisting law at the time the issue
comes up for reconsideration, such carlicr declaratory decree cannot be held to be res judicata
in a subscquent case unless, of course, protected by any special enactment. A declaratory
decree simpliciter does not attain finality if it has to be used for obtaining any future decre
like possesion. In such cases if suit for possession based on an carlicr declaratory decree is
filed, it is open to the defendant to establish that the declaratory decree on which the suit is
based is not a lawful decree.5M
It has been held that this section bars a subsequent suit, although the previous decree may
not operate as res judicata under section 11,85 but there is an obiter dictum in a later case that

580. Booz Allen and Hamilton Ic. vSBI Home Finance Ltd, (2011)5 SCC 532.
581. Razia Begum v Sahebzadi Anwar Begum, AIR 1958 SC 886.
582. Veeranna v Sayamma, AIR 1958 AP 363.
583. Ramji Gupta v Gopi Krishan Agrawal, (2013) 9 SCC438.
584. Shakunla Devi vKamla, (2005) 5SCC 390.
585. Durjati Subhayya vAnantaraju Nagaya, AIR 1936 Mad 951:71 Mad LJ 619: 166 IC 75: Raja Chattar
Singh vDiuan Roshan Singh, (1946) Nag 159 :AIR I946 Nag 277; but sce observations in Razia Begum
vSabebzadi Anwar Begum, AIR 1958 SC 886.
Effect of declaration Section 35 437

the section has not the cffect of abrogating the limitations imposed by section 11 as to the
competence of the court which tried the former suit to try the subsequent suit. 86%
In Veeranna vSayamma, S it was held that the section does not incorporate the limitation
laid down in section 11 of Code of Civil Procedure, 1908, as to the competency of the court
to deal with the later suit. The language of this section is not in a restrictive form. It was
enacted at a time when the rule of res judicata had not been included in the Code in its present
comprehensive form incorporating therein the substance of section 43 of Specific Relief Act,
1877, and this section has made no change. It cannot be that the legislature having specifically
provided in section 11 of the Code of Civil Procedure the conditions for its operation,
intended to make an exception in the case of declaratory suits and decrees. Therefore, this
provision should be read subject to section 11 of the Code of Civil Procedure.

586. Samavedam Sarangapani Ayyangar v Kandala Venkata Narasimhacharyulu, AIR 1952 Mad 384, 388.
587. Veranna vSayamma, AIR 1958 AP 363; applying Samavedam Sarangapani AyyangarvKandala Venkata
Narasimhacharyulu, AIR 1952 Mad 384; but see Avtar Singh vAtma Singh, AIR 1982 J&K 141.