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Thursday, August 19, 2010

DECLARATORY DECREES

DECLARATORY DECREES

Definition: If any person entitled to any legal character, or to any rights as

to any property is denied by another and if any suit is field by the person so
denied is called a declaratory suit. This suit is filed if any legal character of any
person pr any legal rights of any property is denied or is interested to be denied
by any other person. Simple declaratory suit requires fixed court fee; which is
fixed at Tk- 200.
Illustration: X owns a land by inheritance of plot no. 501 in C.S Khatian.
Afterwards, in the R.S Khatian it was wrongfully recorded in the name of Y
under plot no.401. Y forcefully attempted to take possession of the land on the
basis of the wrongful record. X may obtain a declaration of his right to whole the
property.
Discretion of court as to declaration of status or right: According to section
42 of the S.R Act any person entitled to any legal character, or to any rights as to
any property may institute a suit against any person denying, or interested to
deny, his title to such character or right, and the court may in its discretion make
therein a declaration that he is so entitled, the plaintiff need not in such suit ask
for any further relief.
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Bar to such declaration- 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.
Illustration: A is in possession of certain property. B alleging that he is
the owner of the property requires A to deliver it to him. A may obtain a
declaration of his right to whole the property.
Applicability of Article 120- declaration as to right to property under section 42
of the Specific Relief Act.
Article 120 of the Limitation Act which prescribes six years limitation.
Case: Mono Mohini Devi vs. Sirajud Ahmed Bhuiya, 21 DLR

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2010 (17)
August (17)
Administrativ
e Law 1
Civil
Procedure
Code
Criminal
procedure
code&drafti
ng

Case Law-Not only a person entitled to any legal character but also any person
entitled to any right as to any property can institute a suit for decoration.
Case: Jinnat Mukhtean Vs. Abdul Majid, 27 DLR.
Essentials of the relief/ Requisite for a declaratory action: In order to obtain
relief under section 42, plaintiff must establish that
1. The plaintiff is at the time of the suit entitle to any legal character or to
any right as to any property.
Case: Ahmed Vs. Haji Khan, AIR.
2.

The defendant has denied or is interested in denying to the character or

title of the plaintiff. There must be some present danger or determent to
his interest. So that a declaration is necessary to safeguard his right and
clear the mist.

3.

The denial must be communicated to the plaintiff in order to give him

cause of action.
Case: Mahabir Vs. Sarju, 43 IC.

Writ
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ATION
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RY
DECREES
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4. The declaration asked for is a declaration that the plaintiff is entitled a

Legal character or to a right to property.

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5. The plaintiff is not a possession to claim further relief than a bare

declaration of his title. A person who is able to seek for further relief,
Should not be allowed mere declaratory relief, if he omits to do so.
Case: Chinnammal Vs. Varadarajulu, 15 Mad.
When relief under section 42 would be refused: Though no hard or fast rules
can be laid down as to the circumstances in which the court should exercise or
refuse to exercise its discretionary jurisdiction under section 42, the following
may be mentioned as the circumstances in which the court may refuse the relief;
a) The courts will not grand relief unless there is substantial injury.
Case: Chhakowri vs. Secy. of State, 5 pat.
b)

No declaration will be made where the plaintiff claim as never been

denied by the defendant.
Case: Pitchai Vs. Devaji, AIR.
Even a denial is not sufficient to justify a declaratory decree, where a
mere denial is not likely to injure the plaintiff materially.
Case: Ahmad Vs. Haji, AIR.
c) A declaration can not be given to a plaintiff whose conduct is fraudulent.
Case: Narainbhai Vs. Narbada, AIR.
d) No declaration would be granted where it could be rendered nugatory by
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law subject: DECLARATORY DECREES

the defendant Narain Vs. Sashi, 37 All, as where it would be contrary to

the provisions of a statute.
Case: Ali Khan Vs. Bhagwan, 1943.
e) No declaration should be made which will be in fructuous or useless.
Case: Biswanath Vs. Mytaba, AIR.
f)

A declaration may be refused where some other remedy would be more

effective, e.g. a proceedings for recovery of possession.
Case: Thakurji Vs. Kamta, AIR.
g) Non-joinder of necessary parties is a good ground for refusing to grant a
declaration decree in the exercise of discretionary power, because the
court will not make a decree which is ineffective.
Case: Maharaja of Benares Vs. Ramji, 27 All.
h)

Great delay in bringing a suit may of itself be sufficient to refuse the

declaratory relief of a declaration.
Case: Shiambehari Vs. Madan, AIR.

Effect of declaration: According to section 43A declaration made under this chapter is binding only on the parties to suit,
persons claiming through them respectively, 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.
Illustration: A, a Hindu, in a suit to which B, his alleged wife and her
mother, are defendants, seeks a declaration that his marriage was duly
solemnized and an order for the restitution of his conjugal rights. The court
makes the declaration and order. C, claiming that B is his wife, then sues A for
the recovery of B. The declaration made in the former suit is not binding upon C.
Abdul Kader Rani and others Vs. Kaiser Ahmed Howlader and others, 5
BLC.
.

Lecturer _ Mosume Madam.

Posted by Md.Asaduzzaman at 7:23 AM

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