S.N.D.T.

Women’s University
Law School
Contract Law
Subject:- Declaratory Decree

Class :- LLB 1st Year

Name :- Pratiksha Tripal Bhagat

ROLL NO:-4

Submitted to: Mrs. Mishra Madam

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 Index

SR. No. Topic Page No

1 Introduction 3

2 History of the Provision related to Declaratory Decrees 4

3 Essential Elements Of Decree 5

4 Purpose and Importance of Declaration 6

5 Policy behind declaratory decree 7

6 section 34:- Discretion of court as to declaration of status 8

or right

7 Essentials for Relief – Declaratory Decrees 9-11

8 Categories of Relief 12

9 Discretion of court as to declaration of status 13

10 When suit for declaration is not Maintainable 14

11 Effect of declaration 15

12 Case laws 16

13 Proviso to section 34 17

14 Nature of Declaration 18

15 Conclusion 19

16 Webliography 20

17 Bibliography 21

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 Introduction
The declaratory decree is the edict which declares the rights of the plaintiff. It is a
binding declaration under which the court declares some existing rights in favour of the
plaintiff and declaratory decree exists only when the plaintiff is denied of his right which
the plaintiff is entitled to. After that specific relief is obtained by the plaintiff against the
defendant who denied the plaintiff from his right.

According to Section 34, of the Special Relief Act, 1963, 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.

Declaratory decree provisions bring out to merely perpetuate and strengthen the
Plaintiff in case of an even adverse attack so that the attack on the Plaintiff can not weaken
his case and it is mentioned in the case of Naganna v. Sivanappa. And by the arguments
made in this case, it encourages the plaintiff to come forward to enjoy the rights which they
are entitled to and if any Defendant denied the Plaintiff from providing any rights for which
the Plaintiff is entitled, then it gives them the power to file the suit and get special relief.

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 History of the Provision related to Declaratory Decrees

Before delving into the remedy enshrined under the present law, it will be helpful to
know how this provision took its ‘present’ shape. To know the same, one has to open the
history. For this provision, the historical background goes back to 1852. It originated with
section 50 of the Chancery Procedure Act of 1852, imbibing the Scot Practise of
declaratory. English courts got the legal and Authoritative sanction to grant declarations.
Hence, it was an innovative step which led to the origin of this unique Remedy. In
Indian statute books, this remedy found space in 1859 with section 15 of the Code of Civil
Procedure, 1859. It was made lawful for civil courts to make binding declarations of a right
without granting any consequential relief. With the enactment of the Specific Relief Act,
1877, the provision concerning the power of granting declarations got transferred to section
42 of the same. With section 34 of the 1963 law, this power got transmuted into a new law.
But, to what extent has this power has become important and got independent from this
provision of law can be understood from further sections.

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 Essential Elements Of Decree

i. Adjudication- The term adjudication directly refers to the Judicial determination of

the cause of action made by the court while deciding the matter.
ii. Court: The adjudication must be done by a civil court having the jurisdiction to
try the civil suit.
iii. The rights of the parties should be completely determined.
iv. The decision must be conclusive even if the suit is not completely dismissed.
v. The subject matter in controversy must directly relate to the Subject matter of the
suit.
The decree can be further divided into 2 kinds:-
i. Declaratory Decree:- It is a statement from the court, issued during a trial,
outlining the rights and obligations of the parties under a contract or a statute,
which often answers some or all of the issues in a lawsuit. E.g. Z is in a lawfully possession
of a land. The residents of the neighbouring village claim a right of way across the land. Z
may enter and sue for the declaration that they are not entitled to the right so claimed.

ii. Executory Decree: - An Executory decree is a decree which is capable of being

executed by the court of law.

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 Purpose and Importance of Declaration
Instead of having multiple litigations over a controversial title of the plaintiff, the
dispute can be settled once and for all through the mechanism of a declaration.The stand
and title of plaintiff is strengthened in favour of this claim over the property concerned and
it is not weakened against the opposite party. Thus, a perpetual bulwark is provided to the
plaintiff against all possible future attacks on his or her title. Existing cause of controversy
is being prevented by this act of the court.

Ambit of Section 34
It is well settled that this provision of law is not at all exhaustive. The source of
granting declaratory decrees does not solely vest in this section. It is because of the decision
of the Hon’ble Supreme Court in Vemareddi Ramaraghava Reddy v. Konduru Seshu Reddy
wherein court considered section 9 or Order 9, Rule 7, Civil Procedure Code. 1908 as also
vesting the source for granting declarations, since the suit, in this particular case was
regarding declaring a compromise decree as not valid. Court has been categorical in holding
that this provision is merely a statutory recognition of well-recognised relief of declaration.
But for situations like the declaration of rights of a holder of mortgage decree who is also an
assignee of a creditor’s decree whose property is to be attached, it is Order 21, Rule 95,
Code of Civil Procedure that can be used for granting declaration.
Similarly, section 9 read with Order 7, Rule 7, Code of Civil Procedure can be used
to declare an order of the Food Corporation of India (FCI) as illegal. In a specific case, FCI
ordered plaintiff- transporter to compensate for the loss in transit, with twice the levy price
of 100 bags of sugar. It was declared illegal accordingly.

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 • To avoid multiplicity
of proceeding i.e. to
prevent future litigation
by removing the
existing cause of
controversy. • Declaration may
To bring greater provide the extra
amount of certainty assurance
and stability in person’s
status and legal to the plaintiff
relations. regarding his legal
status.

Policy
behind
declaratory
decree

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 section 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
sucsuit 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 some one who is not in existence, and whom, if in
existence, he would be a trustee.

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 Essentials for Relief – Declaratory Decrees

1. Legal Character
The terminology used stands for a status that is ascribed to an individual to his or her
personal capacity.Thus, it is a position accepted in law. Various examples can be adduced
minority, caste, rank, official position, civil death, illegitimacy, nationality, even name of
the plaintiff in a record.It can be a question of family relationships or hereditary right of
making appointments. It can be the legal character of a priest of a temple.

2. Entitlement of a legal character with the plaintiff

The plaintiff before suing for a declaratory decree cannot be a mere stranger to the
title. He or she must be entitled to some legal character or right to the property so as to be
eligible for the remedy. The plaintiff has to sufficiently discharge the burden of proving the
title irrespective of whether the defendants have proven their case or not.If the plaintiff’s
claim to the title could not be sufficiently established, the court cannot decree on the basis
of the defendant’s claim of title even if easement and adverse possession have not been
established. The title need not be absolute or perfect. He or she may have a proprietary or
possessory title. It should be just superior to the one to the cloud.

3. Present interest

Plaintiff needs to have present and subsisting right not only at the date of suit but
also at the date of the decree. The court cannot make a declaration on the basis of a right
that may arise in future if and when the occasion arises since this will not be a basis for a
legal character. This shows that on a speculative basis, the court is not authorised to grant
this remedy. Even for past rights or legal character, a declaration cannot be granted by the
court.A chance to succeeding to the property as an heir apparent would constitute to be a
spes successionis under the provisions of the Transfer of Property law. The court cannot
grant a declaration for such an uncertain title.

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 4. Complete Title

When the plaintiff claims the title, it must be complete. In totality, the situation has
to be considered. If a voter did not take requisite steps to get his name registered in the voter
list, a declaration cannot be sought for being qualified to vote, since the main relief is to get
the name registered in the list. On similar lines, a partner to a firm who is not admitted to a
partnership cannot ask for a declaration that he is an equal partner with other partners. But,
in case of issuance of a letter of allotment and possession certificate, if the plaintiff claims
possessory right from a defendant who has admitted the entitlement of the plaintiff, the
plaintiff is considered eligible for remedy.

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

Denial of title is a must for the plaintiff to establish his or her locus standi before the
court. Denial can be temporary, express or implied of the plaintiff’s legal character or his or
her right to property. But the provision is widened by including a person who can be
interested to deny the title of the plaintiff. This opens wide gates of interpretation for
eligibility of plaintiff to bring suits against various people. A person interested to deny has
been interpreted by courts as an opposite party holding rival claims or some sort and of
some interest resembling with the right of the person whose interest is being denied. As per
the explanation provided in section 34, a trustee of a property can also be a person
interested to deny the title of the plaintiff. Any person who might stand to gain financially
from a legal right if established cannot be put in this category.
There must be a specific person who is denying or interested to deny the plaintiff’s
right. In a case concerning /financers, consumers complained that they didn’t have a license.
Court held that financer cannot ask for a general declaration that having a license is not
mandated by the statute. There must be a specific person against whom the declaration is
sought.

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 6. Specific Instances of Declaration

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

categorically in the law. A suit for declaration of rights emerging from a contract is not
maintainable. But in cases of wrongful dismissal from service, the plaintiff’s legal character
is affected and tarnished, thus the employee can base his or her claim on a contract.

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

relationships, the courts cannot compel the parties to give blood samples. Such a direction
concerning blood samples can only be given once an eminent need is established. To claim
that the appellant’s wife is the wife of the appellant, the respondent was mandated to first
prove that appellant is married.

For the Hindu faith, worshippers can seek a declaration that certain lands are the
properties of the deity. But with regards to the Muslim faith, the suit for land concerning a
wakf property, the provision in the wakf act would have to be relied for initiating the matter
before the respective tribunal.
A declaration for subsistence of service can be made in special circumstances
after purported termination of contract of service, because the appropriate remedy under the
law is considered as damages. In any case, such a declaration therefore can be granted if a
consequential relief is also sought along with the same. Even the status of caste is a legal
character as well settled by judicial pronouncements. In one case, plaintiff was claimed to
be a member of an agricultural tribe and the same was allowed by the court. Hon’ble
Supreme Court has held that for identification of caste of such members, a committee in
every state government has to issue social caste certificate. A suit can also lie for
declaration against the government as the court is duty bound to respect the appellant’s
rights and declare them accordingly. A public authority including its each officer cannot
take nay unjustifiable stand concerning matters related to public.

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 Categories of Relief

As per the landmark verdict by Calcutta High court there are three categories of
relief that can be obtained from the court through this provision of law:

Relief merely declaratory, defining rights

but not giving any
present relief.

Relief in form declaratory, but in effect

giving instant relief to Relief claimed as introductory to
the plaintiff by restoring his deprived the relief granted by the court .
rights.

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 Discretion of court as to declaration of status

As in the Section 34 of Special Relief Act, 1963 the condition mentioned for the
declaration of status or right i.e. (1) the plaintiff at the time of suit was entitled to any legal
character or any right to any Property (2) the defendant had denied or was planning or
interested in denying the rights of the plaintiff (3) the declaration asked for should be same
as the declaration that the plaintiff was entitled to a right (4) the plaintiff was not in a
position to claim a further relief than a mere declaration of his rights which have been
denied by the defendant. But, it is not compulsory that even after the fulfilment of all the
four essential conditions required for declaration, the specific relief will be provided
through a declaration to the plaintiff. It is totally on the discretion of the court whether to
grant the relief or not to the plaintiff. The relief of Declaration or specific relief cannot be
asked as a matter of right, it is a total discretionary power which is in the hands of the court.

In the case of Maharaja Benares vs. Ramji khan, it was declared that if the suit is
filed and the necessary party is absent then the court will dismiss the suit for the declaration.
So, it is necessary that both parties should be available. There is no specific rule to decide
whether the discretionary power of the courts should be granted or not, the discretionary
power of the court is being exercised according to the case and there are no specific criteria
to decide in which cases the court will exercise its discretionary power.

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 When suit for declaration is not Maintainable

A suit for the declaration will not be maintainable under some circumstances which
are to be mentioned below.
• In the case of a declaration that the Plaintiff did not infringe the defendant’s
trademark.
• For a declaration that during the lifetime of the testator, the will is invalid.
• No one can ask for a declaration of a non-existent right of succession.
• A suit by a student against a university for a declaration that he has passed an
examination.
If any person is seeking for a mere injunction without seeking for any declaration of
title to which the Plaintiff is entitled so, then the suit will not be maintainable and will not
be laid down within its ambit. In the case of P. Buchi Reddy and Others vs. Ananthula
Sudhakar, it was held that the Plaintiff’s suit for a mere injunction without seeking a
declaration of the title is not maintainable.
‘Suit for a bare injunction’ is a condition where the suit is not maintainable because
in the case of the bare injunction, Plaintiff and Defendant both are claiming the title on
which effective possession cannot be proved. And the suit for bare injunction is not
maintainable under Section 41(h) of the Specific Relief Act, 1963.
‘Suit for a bare injunction’ is a condition where the suit is not maintainable because
in the case of the bare injunction, Plaintiff and Defendant both are claiming the title on
which effective possession cannot be proved. And the suit for bare injunction is not
maintainable under Section 41(h) of the Specific Relief Act, 1963.

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 Effect of declaration
Before going into an in-depth analysis of what is the effect of the Declaration, first,
we should look at what it is according to Section 35 of the Special Relief Act, 1963.
According to this Section, a declaration made under this section is binding on both the
parties to the suit and the persons claiming through them respectively and, where any of the
Parties are trustees, on the persons for whom, if in existence at the date of declaration, such
parties would be trustees.
Lets understand how the effect of the declaration is being in process with the help of
an illustration i.e. Ram, a Hindu, in a suit to which Komal, his alleged wife, and her mother,
are defendants, seeks a declaration that his marriage was duly commemorated and an order
for the restitution of his conjugal rights. The court makes the declaration and order.
Shumbham claims that Komal is his wife, then sues Ram for the recovery of Komal. The
declaration made in the former suit is not binding upon shubham.

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 Case laws
There are several case laws related to the declaratory decree under the Special relief
Act, 1963 in which several aspects of the Declaratory decree has been covered up and
Judgment have been declared on that and were setting precedents to be followed up in the
new cases of Declaratory Decree.
Some of the Cases are mentioned below with their judgment related to Declaratory
decree for the sake of convenience of Reader.
Tarak Chandra Das vs. Anukul Chandra Mukherjee, it was held that the court had
absolute discretion to refuse the relief if considered the claim to be too remote or the
declaration if given, would be ineffective. In this same case, it was observed that the term
mentioned above in this article ‘Right to Property’ showed that Plaintiff should have an
existing right in any property, not the mere interest in that property would lead to special
relief.
Ram Lal vs. Secretary of Staten this case was held that by virtue of section 35 of
Special relief Act, 1963, a judgment is binding only upon the inter partes, which is not in
rem and does not operate as res-judicata. No other party who is not the party of the suit does
not come under the ambit of Section 35 of Special relief Act, 1963.

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 Proviso to section 34
• Proviso to S. 34 talks about the situation where plaintiff is entitled to
further relief.
• Further relief means the relief to which the plaintiff is necessarily entitled
on the basis of declaration of the title.
• Object is to avoid multiplicity of suits by creating harmony between the
main section and the proviso.
Alternative relief vs. further relief
• Alternative relief is a set of relief which are available to plaintiff
simultaneously upon proving the cause of action
• Relief for damages , specific performance are alternative relief in case of
breach of contract.
• Further relief is a circumstance where grant of one relief depends upon
other relief. For e.g. in case of declaration of title right to possession is
further relief
Proviso enables plaintiff to claim further relief under order 6 rule
17 of CPC.

• In Rajasthan bhavan trust v. Pradlya devi (AIR 2003) defendant in violation of an

agreement with the plaintiff sold the property to another by registered deed. The Plaintiff
sought the mere declaration that sale deed was void and not seeking decree for specific
performance in his favour. Court held seeking mere declaration and not seeking main relief
as self defeating.
Section 34 is not Exhaustive In Nature

• The conflict of opinion as to whether this section is exhaustive of the circumstance

in which declaration may be granted, can be taken finally settled by the decision of the SC
in Rama Raghava v Sesha Reddy (1966 SCR,AIR)
• Section 34 of SR act is not Exhaustive.

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 Nature of Declaration

• Generally Positive declaration. A positive declaration is related with plaintiff legal

right or his legal character.

• the word "he” refers to plaintiff and “is” refer to fact that plaintiff is entitled, thus
the declaration that the section provides for is in favor of plaintiff.

The court can refuse to grant declaratory decree in following cases

1. Declaration of a non-existent right
2. The subject matter is already destroyed
3. There is more comprehensive suit pending before same court or any other court
4. There is another alternative more comprehensive remedy available
5. The plaintiff has malafide intention
6. The suit has been filed after unreasonable and unexplained delay
7. The interested parties are not presented before the
court.
Limitation period for declaratory decree
• Article 56, 57 and 58 of schedule I of limitation Act 1963 provides three years as
the limitation period for filing suit for declaration.
Execution of Decree
• A decree of declaration is not capable of execution. It does not require the
defendant to do anything. No proceeding for contempt of court lie against the defendant if
he ignores or does not comply with the decree.
State of M.P v Mangilal Shanna (AIR 1998, SC746)

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 Conclusion
Declaratory decree is a provision which focuses on the rights of the Plaintiff and
gives immense power to the Plaintiff to deal effectively against the defendant. How the
court uses their discretionary power under what circumstances and other aspects analysis
helps the reader also to analyse and understand the Declaratory decree concept in the
simplest way. According to my opinion and analysis, Declaratory decree is a concept which
is to be wider and covers more aspects than it currently does and the main thing according
to my opinion should be amended in a long-term is that there should be a limitation on the
use of discretionary power by the different courts and fixation should be done in which
cases or in which type of cases, the discretion of court can be used.

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Webliography
• https://blog.ipleaders.in/declaratory-decree-under-the-
special-relief-act-1963/
• https://www.legalbites.in/declaratory-decrees/
• http://jurislawchamber.blogspot.com/2016/07/declarat
ory-decree-under-specific.html
• https://legalsarcasm.com/legal-notes/declaratory-
decree-under-specific-relief-act/
• https://indiankanoon.org/search/?formInput=declarato
ry%20decree
• https://racolblegal.com/declaratory-suits/
• https://www.casemine.com/search/in/execution%2Bof
%2Bdeclaratory%2Bdecree
• https://www.legalcrystal.com/dictionary/definition/940
41/declaratory-decree
• https://en.wikipedia.org/wiki/Declaratory_judgment

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Biblography

1. Mulla: Indian Contract Act (Author: Sir D.F. Mulla)

2. Contract & Specific Relief (Author: Avtar Singh)

3. Contract Law in India: Text and Cases (Author: Akhileshwar Pathak)

4. Contract Law in India Nilima Bhadbhade

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