Specific Relief Act
DECLARATORY DECREES
Declaratory Relief
It is important to note that Sections 34 and
35 of the Specific Relief Act, 1963 talk about the
declaratory decrees. If any person entitled to any
legal character, or to any rights as to any property
and is denied of such legal character or right
to property by another then any suit filed by the
person so denied to declare his legal character or
right is called a declaratory suit. Main objective
of declaratory decrees is to prevent future dispute
by removing the existing controversy. It is rightly
opined that Section 34 not only perpetuate and
strengthen testimony regarding title but also protect
it from adverse attacks. The policy of legislature is
not only to secure to a wronged party possession of
the property taken away from him but also to see
that he is allowed to enjoy that property peacefully
(http://www.lawyersclubindia.com).
Example 1- A is lawfully in possession of
certain land. The inhabitants of a neighboring
village claim a right of way across the land. A may
sue for a declaration that he is entitled to conclusive wife and children of B.
enjoyment of the property and they are not entitled
to the right so claimed.
Example 2- A owns a land by inheritance of
plot no. 401 in Sector 38, Chandigarh. Afterwards,
it was wrongfully recorded in the name of B
under plot no. 401. B forcefully attempted to take
possession of the land on the basis of the wrongful
record. A may obtain a declaration of his right to
the whole property.
Example 3: A has life interest in a property in
which C is reversionary. A alienates property to B.
The alienation is invalid as against C. The Court
may in a suit by C against A and B declare that C
is so entitled.
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Part
Example 4: The widow of a sonless Hindu
alienates part of the property of which she is in
possession as such. The person presumptively
entitled to possess the property if he survives her
may, in a suit obtain a declaration that the alienation
was made without legal necessity and was therefore
void beyond the widow’s lifetime.
Example 5: A Hindu widow in possession of
property adopts a son to her deceased husband. The
person presumptively entitled to possession of the
property on her death without a son may, in a suit
against the adopted son, obtain a declaration that
the adoption was invalid.
Example 6: A bequeaths (leaves in will)
property to B for his life, with remainder to B’s
wife and her children, if any, by B, but if B die
without any wife or children, to C. B has a putative
wife, D, and children, but C denies that B and D
were ever lawfully married. D and her children,
may, in B’s lifetime, institute a suit against C and
obtain therein a declaration that they are truly the
Essentials of declaratory relief/Requisite for a
declaratory action:
In order to obtain relief under Section 34, plaintiff
must prove the following:
(i) The plaintiff at the time of the suit must
be entitled to any legal character or to
any right as to any property
(ii) The defendant has denied or is interested
in denying the character or title of the
plaintiff.
(iii) The denied must be communicated to
the plaintiff in order to give him cause
of action.
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 (iv) The declaration asked for is a declaration Right to property:- Another right to which
that the plaintiff is entitled to a legal the plaintiff must be entitled is right to property. In
character or to a right to property. Achalsingh Kerisingh v Dolatsingh Surajmalji
(1924 Bom), the Court held that for claiming
(v) The plaintiff is not in a position to claim
relief under Section 34 of the plaintiff must have
further relief than a bare declaration of
a present existing right in some property and at the
his title.. A person, who is able to seek
date of the suit. The right of the owner of a building
for further relief, should not be allowed to receive compensation for a public body for the
mere declaratory relief, if he omits to do removal of fixtures attached to the building is a
so. right to property, and he may sue for a declaration
Three expressions which need clarification are: of such right (1916 PC). Declaration may be
entitle, legal right and right to property. Let’s granted for the right to attach a particular property
understand these expressions: (1968 Punj), that a certain sale is void (1936 Pat),
for charge of maintenance on wakf property (1975
Entitle:- The plaintiff “must be entitled to”, It
AII).
means he must have a title to some legal character
or right to property. Therefore, a plaintiff cannot Example 1: A is lawfully in possession
succeed where he is a stranger to title or has no of certain land. The inhabitants of a neighboring
right to property. village claim a right of way across the land. Here
the inhabitants of a neighboring village are denying
In case of City Municipal Council Bhalki right to property of A so suit can be filed against
v Gurappa (2016 SCC), the right to any property, them.
mentioned in this Section, must be a right actually
existing at the date of the suit, though the enjoyment Example 2: A owns a land b inheritance of
plot no. 401 in Sector 38, Chandigarh. Afterwards,
itself may be deferred, e.g. a right to reversioner. In
it was wrongfully recorded in the name of B
Deokali Koer v Kedar Nath (1912 ILR Cal), It
under plot no. 401. B forcefully attempted to take
is stated that title, however, need not be a perfect
possession of the land on the basis of the wrongful
or absolute one, against the whole world. It is record. Here B is denying A’s right to property so
sufficient if he has a title superior to the alleged A may obtain a declaration of his right to the whole
cloud (Kennedy v Elliot, 85 F 832). The plaintiff property.
may have proprietary title or possessory one.
Interested to deny: It means, a person who has
Plaintiff must show subsisting right not only on the
some interest in denying legal character or right to
date of the suit, but also on the date of the decree
property of the plaintiff. A trustee of property is a
(1959 Bom). “person interested to deny” a title adverse to the
Legal Character: One of the important title of some one who is not in existence, and for
essentials of Section 34 is that the plaintiff must whom, if in existence, he would be a trustee.
be entitled to legal character or legal status. In
Example:- A created a trust with B as
Rashmeet Kaur Kohli v. Central Boardof trustee for the benefit of C. After death of A, B
Secondary Education (2007 Del), questions does not use that property for the benefit of C and
relating to minority, rank, caste, official position, denies legal character of C as beneficiary. If C files
civil death, illegitimacy or legitimacy, nationally a suit for declaration that he is beneficiary then B
are about legal character of a person. It refers to a may deny legal character of A as creator of trust for
position recognised by law. whom, if alive, he would have been trustee.
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 In case of Governor-General in Council v.
Mulla Mahommad Bhai (1944 Nag), a suit may
be brought under this Section not only against a
person denying, but a person interested to deny, the
plaintiff’s right to property. The words ‘interested
to deny’ to mean that ‘the person interested to
den a legal character or a right to property is a
person with a rival claim of some sort and with
some interest resembling in its nature that of the
person whose legal character or right is denied. In
case of Federation of All India Hire Purchaser
Financiers Secunderabad v Union of India
(2008 Bom), a general declaration, though can be
granted by its nature, cannot be granted unless it
is sought against a person denying or interested
in denying the right or title of the plaintiff. Thus,
financers who faced innumerable police complaints
from customers that the financer did the business
of money lending statute did not apply to their
transactions, unless they set out who were the
person interested in denying their right etc.
No declaratory relief:- No declaratory
relief is granted when there is no defendant who
deny or interested in denying legal character or
legal right of the plaintiff to property.
In case Pilla Appala Nasamma v Record
Officer for OIC Record (2011 AP), where a wife
sought a declaration that the husband being not
heard of for over seven years should be deemed
to be dead, the suit was held not maintainable as
the plaintiff did not claim to be entitled to any
legal character, nor was there a person denying or
interested to deny any character.
Denial must be communicated- Denial
must be communicated to the plaintiff. Therefore,
where denial is not communicated under Section 34
no cause of action will arise and hence suit cannot
be filed.
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Example:- A is lawfully in possession of certain
land. The inhabitants of a neighboring village claim
a right of way across the land. A may sue for a
declaration that they are not entitled to the right so
claimed. Here denial of A’s absolute right to land
was communicated to A when neighbour used that
land.
Declaration must be that the plaintiff is
entitled to legal character or right to property-
In the plaint the plaintiff must make a request for
declaration that he is entitled to legal character or
right to property.
Declaration to legal character- A plaintiff
may, under this Section, sue for a declaration that
the defendant is not his son (1910 ILR Bom), or
is not his illegitimate son (1914 Oudh), or that
the defendant is not an adopted son (2008 Jhar),
and the natural parents who have given their son
in adoption, can seek declaration that that son, and
not another (named in the suit) was the adopted son
of the adoptive parents (2013 KLJ). Conversely,
a plaintiff may sue for a declaration that he is the
legitimate child of a deceased person (1945 Lah),
or a declaration relating to illegitimacy (1963 AII),
or that he is the son of A, and not the son of B (1952
AII). Declaration may be sought that the plaintiff is
the adoptive father of defendant (1933 Nag), or of
non paternity, and consequent non-liability to pay
maintenance (1940 Rang).
A Hindu widow in possession of property
adopts a son to her deceased husband. The person
presumptively entitled to possession of the property
on her death without a son may, in a suit against the
adopted son, obtain a declaration that the adoption
was invalid (1959 SC). A woman may sue for a
declaration that she is not the wife of the defendant
(1955 Tri). A suit for the declaration that the
marriage between the parties to the suit is dissolved
is maintainable when the defendant is interested to
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deny the legal character claimed by the plaintiff or right to property and not in position to
(1953 Mad), as also a suit but that the marriage claim further relief than a bare declaration
between the parties is void on grounds not falling of his title can be claimed without asking
under Sections 11 & 12 of the Hindu Marriage Act, for further relief. It means mere declaration
1955 (Sections 11 & 12 of the Act provide for regarding legal character or right to property
the relief of nullity) e.g. on the ground that in a can be claimed.
marriage performed according to Hindu rites, the Example- A is lawfully in possession of certain
defendant was not a Hindu (1993 MP). land. The inhabitants of a neighboring village
A suit by a servant for a declaration that he was claim a right of way across the land. A may sue for
wrongfully dismissed is not a suit to assert a legal a declaration that he is entitled to the property and
character (1951 Mad). they are not entitled to the right so claimed.
In a case High Commissioner for India v I.M. (b) Where plaintiff is entitled to declaration
Lall (1948 PC), a suit by a person for a declaration as well as further relief- It means in such
that an order of removal from the Indian Civil situation he must claim both, declaratory
Service was illegal thereof will lie, but not that he relief as well as further relief.
was still a member. The term ‘further relief’ means ‘the relief to
Declaration regarding Right to property which the plaintiff is necessarily entitled on the
basis of declaration of the title’. For example,
The plaintiff must claim in the plaint that he is
possession or partition and possession, injunction
entitled to right in the property and must request
etc. Significantly, the main objective is to avoid
the court to make a declaration that he has such
multiplicity of suits. However, further relief must
right.
be in relation to the legal character or right to such
Example- A alienates to B property in which A
character or the right which the defendant denies or
had merely a life interest. The alienation is invalid is interested in denying.
as against C, who is entitled as reversionary. The
Example- A claims that he is biological son of
Court may, in a suit by C against A and B declare
B. And he is entitled to share in the property. He
that C is so entitled.
must pray for two reliefs, one a declaration that he
Further relief [Proviso to Section 34] is biological son of B, and second that the partition
Proviso to Section 34 provides that no court must be reopened and he must be given his share in
shall make any such declaration where the plaintiff, the property.
being able to seek further relief than a mere In Rohit Shekhar v. Narayan Dutt Tiwari
declaration of title, omits to do so. (FAQ (OS) No. 547/2011), the appellant filed an
Significantly, plane reading of Section 34 and appeal before the Delhi High Court for declaration,
proviso cover two possibilities; that he is the natural born son of Narayan Dutt
(a) Where plaintiff is entitled to declaration Sharma and that Narayan Dutt Sharma is the
only and no further relief- This is covered father of the appellant and for perpetual injunction
under Section 34 only and it provides restraining Narayan Dutt Sharma from denying in
that where the plaintiff is entitled to the public or otherwise the fact that he is the father of
declaration that he is has some legal character the appellant. Narayan Dutt Tiwari took plea that
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conducting DNA test would violate his privacy. The High Court held that out of right of paternity of the
plaintiff and right of privacy of the respondent balance of convenience is in favour of paternity, therefore,
the court held that DNA test must be conducted and directed to take his blood sample at his residence.
After the result, the court made declaration that Narayan Dutt Tiwari is biological father of Rohit Shekher.
No declaratory relief when further relief not claimed
There are number of cases decided by the judiciary where no declaratory relief is granted when no
further relief to which the plaintiff is entitled is not claimed in the plaint. In Ram Saran V. Ganga Devi
(1973 SCC), the defendant was in possession of some of the suit properties and the plaintiffs in their suit
did not ask for the possession of those properties. They merely prayed for a declaration that they were the
owners of the suit properties.
In Ataul Huq v Chairman Manicktala Municipality (1921 Cal), it was held that mandatory
injunction can also be claimed as ‘further relief’. Thus, the plaintiff seeking a declaration that he is a
qualified voter, can seek mandatory injunction that his name be entered in the register of voters.
Amendment of the plaint where further relief not claimed: Where the plaintiff is entitled to further
relief in addition to the declaratory relief and he fails to claim then no declaratory relief shall be granted.
However, he has option to amend his plaint and claim the further relief.
Discretion of court as to declaration of status or right- According to Section 34 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 it
discretion make therein a declaration that he is so entitled, the plaintiff need not in such suit ask for any
further relief. In case of Jammuna Choudhuri v Ramanup Singh (1960 Pat), a decree of declaration
is not a matter of right, but is in the discretion of the Court. The discretion must be exercised with great
care and caution, having regard to all the circumstances of the case, and based on sound legal principles
(1980 Del). It is capable of correction by a Court of Appeal, if it has not been fairly exercised by the lower
Court, or has been exercised arbitrarily or wrongly.
When suit for declaration cannot be filed- A suit for declaration will not lie in the following cases:
(1) For a declaration that the plaintiff did not infringe the defendant’s trademark (111 IC 176). Negative
declaration will not be allowed.
(2) For a declaration that a disposition made by the father of the plaintiff in a will is invalid and that
the property is ancestral and that the plaintiff is entitled to a share in it. This suit would be barred
by the proviso of Section 34, Specific Relief Act, because the plaintiff can claim further relief or
partition (25 Mad 504).
Relief of cancellation under Sections 31 and relief of declaration under 34- Section 34 talks about
cancellation relief and provides that any person against whom a written instrument is void or voidable,
and who has reasonable apprehension that such instrument, if left outstanding may cause him serious
injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it
and order it to be delivered up and cancelled.
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 The difference …….. can be brought out by the executants of the deed, seeks cancellation of the
the following illustration relating to ‘A’ and ‘B’ deed, he has to pay ad-valorem Court (estimated
– two brother. ‘A’ executes a sale deed in favour value of goods or property or transaction) fee on
of ‘C’. Subsequently, ‘A’ wants to avoid the sale. the consideration stated in the sale deed. If ‘B’,
‘A’ has to sue for cancellation of the deed. On who is a non-executant is in possession and sues
the other hand, if ‘B’, who is not the executants for a declaration that the deed is null or void and
of the deed, wants to avoid it, he has to sue for a does not bind him or his share, he has to merely
declaration that the deed executed by ‘A’ is invalid/ pay a fixed court fee. However, where ‘B’, a non-
void and non-est/illegal and he is not bound by it. executant, is not in possession, and he seeks not
In essence both may be suing to have the deed set only a declaration that the sale deed is invalid, but
aside or declared as non-binding. But the form is also the consequential relief of possession, he has
different and Court fee is also or different. If ‘A’, to pay an ad valorem Court fee as provide.
Situation Cancellation relief under Section 31 Declaratory relief under Sec-
tion 34
1. Who can claim this Any person against whom a written Any person entitled to legal char-
relief instrument is void or voidable, and acter or right to property
who has reasonable apprehension that
such instrument, if left outstanding
may cause him serious injury
2. Whether applicable It is applicable to written instrument It is not applicable to written in-
to written instrument strument
3. Court fee Ad valorem fee Fixed Court fee when suit is for
declaration. However, where the
plaintiff is claiming further relief
then he has to pay ad valorem
fee.
Declaratory Relief under Sections 34 and Ori). This does not, however, absolve the plaintiff
preventive relief (injunction) under Section 37 of his obligation to prove his right (1999 Ker).
& 38
Effect of declaration [Section 35]
Section 34 talks about declaratory relief where
A declaration made under this Chapter is
as Section 38 talks about injunction. The difference
binding only on the parties to the suit, persons
between Section 34 on the one hand and Sections 37
& 38 on the other is that in the case of declaratory claiming through them respectively, and, where
relief the Court cannot grant such relief where any of the parties are trustees, on the persons for
further relief is capable of being granted but not whom, if in existence at the date of the declaration,
claimed by the plaintiff. However, in the case of such parties would be trustees.
preventive relief there is no such restriction, and Example- A, a Hindu, in a suit to which B, his
injunction can be granted without any prayer for alleged wife, and her mother, are defendants, seeks
declaration, although in many cases declaration is
a declaration that his marriage was duly solemnised
inherent in the grant of an injunction (2000 NOC
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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.
(i) Persons claiming through them
respectively; and
Example- A files a suit to declare that he is
biological son of B and also request for further
relief to reopen partition and decide his share
in the property. The Court passed declaratory
order but B dies before that. Declaratory order
is binding on C and D who got share in the
partition.
(ii) 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.
Example- A created a trust with B as trustee for
the benefit of C. A suit involving trust property
was defended by B in the capacity of trustee.
During pendency of suit A, settler of trust dies.
The decision of the court in that suit will be
binding on A’s heirs and beneficiaries of the
trust.
Limitation period- Significantly, limitation
period to obtain declaratory decree is mentioned
in PART III- Suits relating to Declarations under
Articles 56, 57 & 58 of the Indian Limitation
Act, 1963 which provides a period of three
years.

PART III- Limitation period When starts

Suits re-
lating to
declara-
tions
56. To declare the forgery of an Three years When the issue or registration be-
instrument issued or regis- comes known to the plaintiff.
tered.
57. To obtain a declaration that Three years When the alleged adoption be-
an alleged adoption is in- comes known to the plaintiff.
valid, or never, in fact, took
place.
58. To obtain any other declara- Three years When the right to sue first accrues.
tion

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