DECLARATORY DECREE

SECTION 34 AND SECTION 35 OF

SPECIFIC RELIEF ACT, 1963
 Declaratory Decree
– Declaratory decree is a specific relief that can be
obtained by the plaintiff against the defendant
– When the plaintiff is entitled to any right and the
defendant denies or is interested to deny the
plaintiff’s title to such right.
Cause of Action
– Entitlement of legal character or right to any
property
– Denying of that right (violation)
 Policy behind declaratory decree

• To bring greater amount of certainty and

stability in person’s status and legal relations.
• To avoid multiplicity of proceeding i.e. to
prevent future litigation by removing the
existing cause of controversy.
• Declaration may provide the extra assurance
to the plaintiff regarding his legal status.
 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 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 some one
who is not in existence, and whom, if in existence, he would
be a trustee.
 Essential to be set up for relief under sec.34

• 1. That the plaintiff is entitled to a legal character at

the time of the suit, or to any right as to any property

• 2. That defendant has denied these or he is

interested in denying that character or right of the
plaintiff.

• 3. The plaintiff is not in a position to ask for relief

consequential upon the declaration.

If these conditions are satisfied the plaintiff need not

ask for any further relief than a mere declaration but
the court shall not make any such declaration if he,
being able to seek further relief than a mere
declaration of title, omits to do so.
 Entitlement to legal right

• Entitlement should be present entitlement

and not something which existed in past or
arise in future.
• In case of joint family property if a member
seeks declaration to declare him as
coparcener and also to declare his share in
property, here, court will declare his
coparcenaries right but not his share.
 Right with respect to “entitle to any
legal character”

• Legal character means legal status with

respect to something or with respect to some
person. It is a position recognized by law. For
e.g. right of franchise, right of election.
• Section 34 of the SRA does not sanction every
kind of declaration but only a declaration that
the plaintiff is entitled to any legal character
or to any property..
• A is a mahant of a temple seeks declaration
from court that the temple trust is a private
trust.
• Temple – a property
mahantship – legal character
mahant of a temple – proprietary right
similarly if a director of an organization is not
allowed to participate in a meeting then he
can seek declaration for as director.
 The words “Right as to any property
The word “right to property” has not been used
rather it is “right as to property” right as to
property has got wider application, it will
include not only cases of ownership of
property or possessory title upon property but
it will include other rights like easementary
right, right to get someone property attached,
or right upon which a person has been
charged upon that property
 Against any person denying and interested to
denying
• denying means that the defendant person is at
present denying the title of plaintiff. Denial has to
be tangible and realistic denial i.e. denial in
substance.
• Interested in denying doesn’t mean the desire of
defendant to deny in future rather it relates to
circumstances existing in present which gives a
legal capacity , a legal tangibility, a substance
which is suggestive to any reasonable person that
those circumstances can be taken help off by the
defendant to deny plaintiff legal rights in future
 Discretion of court

• The word discretion used in sec 34 is

suggestive that despite the plaintiff having
prove his title the court holds discretion not to
grant decree in interest of equity and justice
• H files a suit for declaration that 2 yr old boy
allegedly born to W was not his son. The
objection is taken that suit is pre mature and
that no proprietary or maintenance related
rights were claimed from W and also at
present stage if declaration is made that
would effect interest of the minor and suit
should be dismissed.
 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 .
 SECTION 35 OF SPECIFIC RELIEF ACT

• Effect of declaration.-A declaration made

under this Chapter is binding only on the
parties to the suit, persons claiming through
them respectively, and, where any of the
parties are trustees, on the persons for whom,
if in existence at the date of the declaration,
such parties would be trustees.
• A declaratory decree is decree in personam
and not in rem.
• The decree will be binding upon the two
parties or upon any person claiming through
such parties.
• If there is a suit between trustee and third
party the decree shall be binding upon
beneficiary also.
 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, SC
746)
Declaration and Res Judicata