Encyclopedia of Indian LawCIVIL

Law of Declaration

Chapter VI of the Specific Relief Act, 1963 provides for passing of declaratory decrees. Sections 34 and 35 are the only two Sections in the said Chapter.

They read as follows:-

“Section 34. 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 for whom, if in existence, he would be a trustee.

Section 35. 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.”

Plain reading of Section 34 makes it abundantly clear that in such cases the plaintiff has to fall within the scope and ambit ‘entitled to any legal character’ as evidently such a declaration would not have any relevance to any right as to any property. What is legal character has been the subject matter of many decisions. This Court has, in Duggamma – v. – Ganeshayya AIR 1965 Mys 97 held as follows while dealing with the very words occurring in Section 41 of the Specific Relief Act, 1877.

“It is difficult to predicate what are all the matters comprehended by the term ‘status’. The status of a person means his ‘personal legal condition’, that is to say, a man’s legal condition only so far as his personal rights and burdens are concerned, to the exclusion of his ‘proprietary relation’. An adjudication on adoption will in law amount to a declaration of status and is decided according to the law of domicile of the party making the adoption. But the claim to succession is not a matter of status in this sense and would relate to the proprietary relation of the claimant……..”

The Bombay High Court has, in the decision in Major General Shanta Shamsher Jung Bahadur Rana Vs. Kamani Brothers Private Ltd. and Ors, while dealing with the provisions of Section 42 of the Specific Relief Act, 1877, held that legal character has been taken to mean legal status, a phrase known to jurisprudence. It has observed as follows:-

“When the legislature used the phrase ‘legal character’ in the said two Sections (i.e., Section 42 of the Specific Relief Act and Section 41 of the Indian Evidence Act) it is legitimate to assume that the legislature was using the same in respect of some known legal concept and the context in Section 42 of the Specific Relief Act indicates that what was intended to be meant by ‘legal character’ was ‘legal status’, It is necessary to ascertain what is meant by ‘rights’, ‘legal rights’ and ‘legal status’.”

It has been further held as follows :-

“A legal right must be either proprietary, i.e., in the nature of property, or personal and it is only the latter that creates a status.”

In Abdul Karim Sarraya Begam AIR 1965 Lah. 266 the Full Bench of the Lahore High Court has dealt with this aspect and laid down that the words ‘legal character’ would attract a suit for declaration of legitimacy as legal character would be legal status of a person. This position in law is, in my opinion, no longer open to argument as the same has been held by various High Courts also.

It was argued that if such a declaration does not satisfy the requirements of ‘legal status’ so as to attract the provisions of Section 34 of the Specific Relief Act, 1963, such a declaration can be sought and granted in exercise of the ordinary civil jurisdiction of Civil Court by virtue of Section 9 of the Code of Civil Procedure. In this connection it was further argued that the Supreme Court has, in Veruareddi Ramaraghava Reddy and Others Vs. Konduru Seshu Reddy and Others, ruled that Section 42 of the Specific Relief Act, 1877 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 said Section. It is plain that the provisions in Section 42 of the old Act and the provisions in Section 34 of the new Act are not different from each other. It is further seen that in the decision in Supreme General Films Exchange Ltd. Vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Others, the same is the position of law laid down by the Supreme Court.

If the ingredients of the main provision in Section 34 of the Specific Relief Act are not satisfied in view of the conclusions reached in the preceding paragraphs, seeking for consequential relief will not take the matter any further in favour of the plaintiff. Even when the main provisions in Section 34 of the Specific Relief Act, 1963 are satisfied, the Court has got to exercise its judicial discretion in deciding whether declaratory decree should or should not be granted. Even that discretion would be lost when the plaintiff omits to pray for the consequential relief even when it arises out of the declaratory decree. That is the effect of the proviso to Section 34 of the Specific Relief Act, 1963.

Section 42 of the Specific Relief Act [Section 34 of the Act 1963]

s. 42 of the 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.

The provisions of Section 34 of the Act and the provisions of Section 9 of the Code are not in pari materia. u/s 34 of the Act, 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. The remedy u/s 34 of the Act is a discretionary remedy subject to the proviso mentioned therein, i.e., no Court shall make such a declaration where the plaintiff being able to seek a further relief than a mere declaration of title, omits to do so. But, u/s 9 of the Code, the jurisdiction of the Civil Court is extended to all suits of a civil nature excepting suit of which their cognizance is either expressly or impliedly barred. In our view, the words ‘legal character’ u/s 34 of the Act do not have the same meaning as the words ‘civil nature’ u/s 9 of the Code. The words ‘legal character’ are not defined under the Act; nor the words ‘civil nature’ defined under the Code and, therefore, we have to fall back on the meaning of these words as understood in civil law, that means to say, in the law of jurisprudence that deals with the branch of civil law. The words ‘legal character’ are found in our Constitution with reference to the duties of the Attorney General and Advocate General-See Articles 76(2) and 165(2) of our Constitution. But, it would be correct to proceed on the basis that the words ‘legal character’ mean ‘legal status’. The learned Judge in Vishwanath Rao (supra) has also proceeded on the basis that ‘legal character’ means ‘legal status’. If that be so, what is the meaning of ‘legal status’ as is generally understood in civil law. In ‘Salmond on Jurisprudence’, dealing with the word ‘status’ it is observed thus :

“Although the term ‘estate’ includes only rights (in the generic sense), the term status includes not only rights, but also duties, co-rights, subjections and disabilities. A minor’s contractual disabilities are part of his status, though a man’s debts are not part of his estate.

The term ‘status’ is used in a variety of senses. It is used to refer to a man’s legal condition of any kind, whether personal or proprietary. A man’s status in this sense includes his whole position in the law-the sum total of his legal rights, duties, liabilities or other legal relations, whether proprietary or personal, or any particular group of them separately considered. Thus we may speak of the status of a landowner, of a trustee, of an executor, of a solicitor and so on.

More commonly it is used to denote his personal legal condition in so far as concerns his personal rights and burdens to the exclusion of his proprietary relations. A person’s status, in this sense, is made up of similar groups of personal rights and their correlative burdens, and each of these constituent groups is itself also called a status. Thus the same person may have at the same time the status of a free man, of a citizen, of a husband, of a father and so on. So we speak of the status of an alien, a lunatic, or an infant; but not of a landowner or …

The term may be used to refer to personal capacities and incapacities as opposed to other elements of personal status. The law of status in this sense would include the rules as to the contractual capacities and incapacities of married women, but not the personal rights and duties existing between her and her husband.

Status is used by some writers to signify a man’s personal legal condition, so far only as it is imposed upon him by the law without his own consent, as opposed to the condition which he has acquired for himself by agreement. The position of a slave is a matter of status, the position of a free servant is a matter of contract. Marriage creates a status in this sense, for although it is entered into by way of consent, it cannot be dissolved in that way, and the legal condition created by it is determined by the law, and cannot be modified by the agreement of the parties. A business partnership, on the other hand, pertains to the law of contract and not to that of status.”

In Chapter XVI of ‘A Text-Book of Jurisprudence’ by George white cross Paton, the learned author dealing with the term ‘status’ has said :

“The test is that status is a condition which affects generally, although in varying degree, a person’s claims, liberties, powers and immunities. In the case of a trustee, there are particular powers relating to the trust property and particular duties owed to the beneficiary of the trust. But the fact that a man is a trustee does not affect his general powers. The particular rights and duties of a trustee spring from one particular title (the trust) and extend no farther. But an infant suffers from a lack of contractual power which affects not only one contract or relationship but all his contracts save those which relate to necessaries.”

11. So, the juristic concept of ‘status’ in relation to a person’s age has to be understood in the context of his right as a natural person, the moment he is born. No doubt, birth is an event in a man’s life. Likewise marriage is also an event in his life. Birth occurs only once in one’s life. But, marriage being left to the volition of the parties may occur more than once depending on the circumstances. But once a marriage is performed, one acquires a marital status. Likewise, a person as soon as he is born acquires a status and that status in jurisprudence is the status of a natural person. To quote G. W. Paton again.

“In ancient systems not all human beings were granted legal personality. The case of the slave is too well known to need stressing. A monk who enters a monastery is regarded in some systems, as being ‘civilly dead’, and his property is distributed just as if death had in fact taken place. In modern times it is normal to grant legal personality to all living within the territory of the State.

Most systems lay down the rule that, in cases where legal personality is granted to human beings, personality begins at birth and ends with death.”

The Decree and adjudication

‘Decree’ is defined in subjection (2) of Section 2 of the Code of Civil Procedure. It reads as follows;-

“2(2) ‘Decree’ means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include:-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.”

A plain reading of the definition shows that by the decree the rights between the parties would be adjudicated and the relief prayed for by the plaintiff would either be granted or refused. Therefore, the decree has to relate to a relief.

Valuation of the Suit

In Tara Devi Vs. Sri Thakur Radha Krishna Maharaj, through Sebaits Chandeshwar Prasad and Meshwar Prasad and Another, , also it has been held by the Hon’ble Supreme Court that in a suit for declaration with consequential relief, falling u/s 7(iv)(c) of the Court Fees Act, plaintiff is free to make his own estimation of the relief sought in the plaint and such valuation both for the purposes of court fee and jurisdiction has to be ordinarily accepted. But, in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstrably undervalued, the Court can examine the valuation and can revise the same.

What is the nature of relief sought in the plaint is a matter of construction of the plaint in each case. The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Article 17 (iii) and the Court fee payable would be as prescribed therein i.e. Rs. 19.50 in Delhi.[

Declaration and Execution 

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 or refrain from doing any particular act or since in the present case decree does not direct reinstatement or payment of arrears of salary the executing court could not issue any process for the purpose as that would be going outside or beyond the decree. Respondent as a decree holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not How directly and necessarily from the declaratory decree. It is not that if in a suit for declaration where the plaintiff is able to seek further relief he must seek that relief though he may not be in need of that further relief. In the present suit the plaintiff while seeking relief of declaration would certainly have asked for other reliefs like the reinstatement, arrears of salary and consequential benefits. He was however, satisfied with a relief of declaration knowing that the Government would honour the decree and would reinstate him. We will therefore assume that the suit for mere declaration filed by the respondent-plaintiff was maintainable, as the question of maintainability of the suit is not in issue before us.

A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the Defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana, etc. Vs. Harnam Singh and Others, and State of M.P. Vs. Mangilal Sharma,

In Muni Lal Vs. The Oriental Fire and General Insurance Company Ltd. and another, , this Court dealt with declaratory decree, and observed that “mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the Plaintiff to seek both reliefs. The omission thereof mandates the court to refuse the grant of declaratory relief.”

In Shakuntla Devi Vs. Kamla and Others, this Court while dealing with the issue held:

…a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier 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.

The Section is not Exhaustive

Incidentally, the decision of the Supreme Court in Supreme General Films Exchange Ltd. Vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Others, requires to be considered since that decision was cited before the learned Judge but he was of the view that it was of no assistance for the purpose of this case. That decision lays down the scope of Section 42 of the old Specific Relief Act which is on pari materia with Section 34 of the Act. The Supreme Court observed :

“Section 42 merely gives statutory recognition to a well recognised type of declaratory relief and subject it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42. The circumstances in which a declaratory decree u/s 42 should be awarded is a matter of discretion depending upon the facts of each 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 u/s 42 with reference to the legal character or the property involved.”

In view of this enunciation of the law by the Supreme Court, even assuming for a moment that the relief claimed by the plaintiff was beyond the scope of Section 34 of the Act. Section 34 is not exhaustive of all kinds of declaratory reliefs. In a proper case, therefore, independently of Section 34 of the Act, the plaintiff could have got the relief, i.e., the declaration sought for u/s 9 of the Code. In Veruareddi Ramaraghava Reddy and Others Vs. Konduru Seshu Reddy and Others, the same view is reiterated by the Supreme Court. Of course, the facts in that case are not relevant for the purpose of the case before us.

Declaration in Service Matter

In State of Punjab and others Vs. Krishan Dayal Sharma, the plaintiff obtained a decree that he was entitled to be promoted from the post of Inspector of Police to that of Deputy Superintendent of Police with effect from the date when his juniors were promoted and further claimed relief for all consequential benefits, rights and privileges. The suit was decreed and in the execution application filed by the plaintiff in addition to the benefits flowing from the decree, he also claimed compound interest at the rate of 12% per annum on the amount found due to him. The claim of interest was allowed by the executing court. This Court noticed that the decree which was put to execution did not contain any order or direction for the payment of any interest on the amount which was payable to the decree holder’consequent to the declaration made by the Court decreeing a suit. It was also not disputed that no relief for interest had been claimed by the decree holder in his suit nor any such claim was discussed or Awarded by the Court decreeing the suit. This Court held that the executing court was bound by the terms of the decree and could not add or alter the decree on its notion of fairness or justice. The Court further observed that no doubt the Courts had power to award interest on the arrears of salary or pension or other amount to which a Government servant was found entitled to having regard to the facts and circumstances of the case but that power could not be exercised by the executing court in the absence of any direction in the decree. In Prakash Chand v. S.S. Grewal and Ors. [1975] Cr. LJ. 679, (Full Bench) (Punjab and Haryana High Court), the petitioner had a decree in his favour declaring his dismissal from service to be illegal, void and of no effect. The Punjab Government did not reinstate him nor paid him the arrears of salary. He, therefore, filed a writ petition for taking contempt of courts proceedings against certain officials of the Stale Government. The Court held as under :

“A declaratory decree, in my opinion, cannot be executed as it only declares the rights of the 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 remedies by way of suit or otherwise on the basis of the declaration given in his favour.”

 In our view, it is a correct statement of law except that it may not be fully applicable in the case of a Government servant who acquires a status and his service conditions are governed by statutory rules as noticed above.

Judicial vs legislative Declaration

The distinction between a “legislative” act and a judicial” act is well known, though in some specific instance the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of this function the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. On the other hand, it is for the legislature to lay down the law, prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law.

 While, in view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Article 245 & 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering of changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray C.J. in Indira Nehru Gandhi V. Raj Narain (1975) SCC Supp., the rendering ineffective of judgments or orders of competent court and tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts Such validating legislation which removes the cause’s for ineffectiveness or invalidity of actions or proceedings is hot an encroachment on judicial power.

Declaration if there is an Industrial dispute

The decision which will have to be considered for the purpose of coming to a proper conclusion on this question is the decision of the Supreme Court in the The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, That is the leading case of the Supreme Court on the applicability of Section 9 of the Code in relation to the rights of a workman as provided for under the Industrial Disputes Act. It is well settled that the workman who is governed by the Industrial Disputes Act can raise an industrial dispute and have such dispute adjudicated by the Industrial Tribunal or the Labour Court as the case may be. Whether such a person can approach the Civil Court and obtain the same relief from the Civil Court was the point for consideration before the Supreme Court in Premier Automobiles (supra). The Supreme Court laid down the following Rules while considering the scope of Section 9 of the Code vis-a-vis the special provisions applicable to the workmen who are governed by the Industrial Disputes Act :-

“To sum up, the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus :

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA, then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.”

Title and Mutation in Records of Right

It is a settled law that mutation in municipal record is only for the purposes of recording the name of a person who is primarily liable to pay property taxes. The said mutation is no proof of title. Further, if there is a dispute to title, municipal authorities have no jurisdiction to determine the dispute and it is for the parties to obtain necessary declaratory decree or a decree otherwise pertaining to a title from a Civil Court.

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