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.
35. 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 declaration, such parties would be trustees.
In the State of M.P. vs.Khan Bahadur Bhiwandiwala and Co. AIR 1971 MP 65 the High Court
observed that in order to obtain the relief of declaration the plaintiff must establish that
(1) the plaintiff was at the time of the suit entitled to any legal character or any right to any property
(ii) the defendant had denied or was interested in denying the character or the title of the plaintiff,
(iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property
(iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. Since
declaration is an equitable remedy the court still has discretion to grant or refuse the relief depending on the circumstances of each case.
Anderson’s ” Actions for Declaratory Judgments “, Vol. 1, p. 340, under art. 177, is relevant:-
” A claim of legal or equitable rights and denial thereof on behalf of an adverse interest or party constitutes a ripe cause for a proceeding, seeking declaratory relief. A declaration of rights is not proper where the defendant seeks to uphold the plaintiff-, in such an action. The required element of adverse parties is absent.”
” In others words the controversy must be between the plaintiff and the respondent who asserts an interest adverse to the plaintiff. In the absence of such a situation there is no justiciable controversy and the case must be characterized as one asking for an advisory opinion, and as being academic rather than justiciable……………” ” i.e., there must be an actual controversy of justiciable character between parties having adverse interest.” Hence, if the court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the, court, in pursuance of the terms of s. 42 of the Specific Relief Act, decides, in a given case, to insist upon clear proof of even admitted facts, the court could not be said to have exceeded its judicial powers. That the plaintiff herself or her legal advisers did not take the view contended for on her behalf, is shown by the fact that a few days after the filing of the written statement of the Prince, on April 27, Barkat Ali, the Mujtahid, who is alleged to have solemnized the marriage, was examined in court, and he gave his statement on oath in support of the plaintiff’s claim. He also proved certain documents in corroboration of the plaintiff’s case and his own evidence. This witness was not cross-examined on behalf of the defendant.
It was stated before us, on behalf of respondents 1 and 2, that there were pieces of documentary evidence apart from certain alleged admissions made by or on behalf of the plaintiff, which seriously militate against the plaintiff’s case and the statement of the witness referred to above. We need not go into all that controversy, because we are not, at this stage, concerned with the truth or otherwise of the plaintiffs case. At this stage we are only concerned with the question whether in adding respondents I and 2 as defendants in the action, the courts below have exceeded their powers.
It is enough to point out at this stage that the plaintiff did not invite the court to exercise its powers under r. 6 of 0. 12 of the Code of Civil Procedure, and, therefore, we are not called upon to decide whether the trial court was right in not pronouncing judgment on mere admission. The court, when it is called upon to make a solemn declaration of the plaintiff’s alleged status as the defendant’s wife, has, naturally, to be vigilant and not to treat it as a matter of course, as it would do in a mere money claim which is admitted by the defendant. The adjudication of status, the declaration of which is claimed by the plaintiff, is a more serious matter, because by its intendment and in its ultimate result it affects not only the persons actually before,the court in the suit as originally framed, but also the plaintiff’s progeny who are not parties to the action, and the respondents 1 and 2.
If the declaration of status claimed by the plaintiff is granted by the court, naturally the three daughters by the plaintiff would get the status of legitimate children of the Prince. If the decision is the other way, they become branded as illegitimate. The suit clearly is not only in the interest of the plaintiff herself but of her children also. It is equally clear that not only the Prince is directly affected by the declaration sought, but his whole family, including respondents I and 2 and their descendants, are also affected thereby. This, naturally leads us to a discussion of the effect of s. 43 of the Specific Relief Act, which goes with and is an integral part of the scheme of declaratory decrees which form the subject-matter of Ch. VI of the Act.
That section is in these terms:-
” 43. A declaration made under this Chapter is binding only oil 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.” On behalf of the appellant it was contended by the learned Attorney-General that the declaration of status sought in this suit by the plaintiff will be binding only upon her and the Prince, and being a rule of’ res judicata will bind only the parties to the suit and their privies. It was further contended that respondents I and 2 are in no sense such privies.
The argument proceeds thus: Section 43 lays down a rule of res judicata in a modified form, and it was so framed as to make it clear beyond all doubt by the use of the word ” only ” that a declaration under s. 42 is binding on the parties to the suit and on persons claiming through them respectively. If any question arises in the future after the inheritance to the estate of the, Prince opens out, it could not be said that the plaintiff and respondents 1 and 2 were claiming through different persons under a conflicting title which was the core of the rule of res judicata.
In this connection, reliance was placed upon the decision of the Judicial Committee of the Privy Council ‘in the case of Syed’ Ashgar Reza Khan v. Syed Mahomed Mehdi Hossein Khan (1903) L.R. 30 I.A. 71). That case lays down that a decision in a former suit that the common ancestor of all the parties to the subsequent suit was entitled to the whole of the profit of a market in dispute in the two litigations, as against his co- sharers in the zamindari in which the market was situate, does not operate as res judicata in a subsequent dispute between those who claim under him. In this connection, reliance was also placed upon a decision of the Madras High Court in the case of Vythilinga Muppanar v. Vijayathammal (1882) I.L. R. 6 ivlad. 43), to the same effect. Mr. Pathak, appearing on behalf of the .Prince, the third respondent, supported the appellant by raising a further point that the words ” claiming through ” mean the same thing as ” claiming under in s. 11 of the Code of Civil Procedure, laying down the rule of res judicata, and that those words are not apt to refer to a declaration. of a more personal status, and that they mean the same thing as pi-ivy in estate ,is understood under the common law. He called our attention to the following passage in ‘ Bigelow on Estoppel’, 6th Edn., at pp. 158 and 159:-
” In the law of estoppel one person becomes privy to another (1) by succeeding to the position of that other as regards the Subject of the estoppel, (2) by holding in subordination to that other……But it should be noticed that the ground of privity is property and not personal relations To make a man a privy to an action he must have acquired an interest in the subject-matter of the, action either by inheritance, succession, or purchase from a party subsequently to the action, or he must hold property sub-ordinately.”
