Declaratory Decrees

Section 34 broken down

The conditions

Four, and the fourth is where most suits fail.

1. The plaintiff is entitled to a legal character, or to a right as to property.
2. The defendant denies, or is interested to deny, his title to that character or right.
3. The court exercises its discretion to make the declaration. It is not a matter of right.
4. The proviso is not attracted, that is the plaintiff is not able to seek further relief and omitting to ask for it.

"Legal character"

Status recognised by law: legitimacy, adoption, marriage, caste in the legal sense, membership of a body, the office of a trustee or director, citizenship.

It is not the same as a good reputation. A declaration is about status, not about character in the everyday sense.

"Any right as to any property"

Wide enough to cover ownership, a share, an easement, a tenancy or a mortgagee's interest.

"Denying, or interested to deny"

The defendant need not have denied the plaintiff's title in terms. It is enough that he is interested to deny it, so that he would have reason to dispute it. This prevents a defendant escaping by silence.

The Explanation adds a specific case: a trustee of property is a person interested to deny a title adverse to the title of someone not in existence, for whom, if in existence, he would be trustee. So a suit may be brought against the trustee where the person whose interest is at stake is unborn.

The proviso: the bar on a bare declaration

This is the most examined part of the section, and it is a trap.

No court shall make a declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Why it exists. To prevent a multiplicity of suits. A plaintiff who has been dispossessed should sue for a declaration and possession in one suit, not obtain a declaration and then start again.

How it works in practice, in three steps:

1. Ask what further relief the plaintiff could claim on these facts, typically possession, an injunction, or cancellation.
2. If there is such relief and he has not asked for it, the proviso bars the declaration entirely.
3. If there is no further relief he could seek, a bare declaration is proper, and the section says in terms that he need not ask for any further relief.

The bar is mandatory in form: "no court shall make any such declaration". Contrast the discretionary "may" in the body of the section.

Section 35: the limits of a declaration

A declaration binds only:

• the parties to the suit;
• persons claiming through them respectively; and
• where any party is a trustee, the persons for whom, if in existence at the date of the declaration, that party would be trustee.

The point to write: a declaration is not a judgment in rem. It does not bind the world. A stranger who was not a party, and does not claim through one, is unaffected and may assert his own case later.

The trustee limb matters because it makes a declaration obtained against a trustee bind the beneficiaries, including those not yet in existence, which is what makes suing the trustee worthwhile.

Declaration compared with its neighbours

A worked example

Ishita is the recorded owner of a plot. Her cousin Jatin claims that a family settlement gave it to him and has been telling buyers so.

• Can she sue for a declaration? Yes. She claims a right as to property, and Jatin is a person denying her title. Section 34 applies.
• She is in possession and asks only for a declaration. Proper. There is no further relief she needs, and the section says she need not ask for any.
• Jatin has taken possession of the plot, and she still asks only for a declaration. The proviso bars it. She is able to seek further relief, namely possession, and has omitted to do so, so no court shall make the declaration. She must claim possession as well.
• Jatin has also produced a forged settlement deed. She should claim a declaration and cancellation of the deed under section 31, and possession. Again, omitting the further relief is fatal.
• She obtains a declaration against Jatin. His friend Kunal later claims the plot on an unrelated title. Section 35: the declaration binds only the parties and those claiming through them. Kunal does not claim through Jatin, so he is not bound.
• The declaration is obtained against a trustee holding for children not yet born. Section 35 binds those persons, and the Explanation to section 34 made the trustee a person "interested to deny", so the suit was properly framed.

Take a status case. Lalita's legitimacy is denied by her uncle, who stands to inherit if she is illegitimate.

• Legal character? Yes, legitimacy is a legal character.
• Denying or interested to deny? He is doing both.
• Further relief? If no property has yet fallen in, there is none she can seek, so a bare declaration is proper. If the estate has already vested and she could sue for her share, the proviso would require her to claim it.

What it does NOT mean

"A declaration is available as of right." The court may in its discretion make it.

"A plaintiff can always take a declaration first and sue for the rest later." The proviso forbids exactly that where the further relief could have been sought in the same suit.

"Legal character means reputation." It means status recognised by law.

"A declaration binds everybody." Section 35 confines it to the parties, those claiming through them, and the beneficiaries of a trustee party.

"The defendant must have expressly denied the plaintiff's title." It is enough that he is interested to deny it.

"A declaration and an injunction are the same relief." A declaration states the position and orders nothing; an injunction commands.

Quick revision

• s.34: a person entitled to a legal character, or to any right as to any property, may sue a person denying, or interested to deny, his title; the court may in its discretion declare, and the plaintiff need not ask for further relief.
• The proviso: NO court shall make such a declaration where the plaintiff, being able to seek further relief than a mere declaration of title, OMITS to do so. Mandatory, and it defeats the whole suit.
• Legal character = status: legitimacy, adoption, marriage, office, membership. Not reputation.
• Explanation: a trustee is a person "interested to deny" a title adverse to that of someone not in existence for whom he would be trustee.
• s.35: a declaration binds only the parties, persons claiming through them, and, where a party is a trustee, those for whom he would be trustee. Not a judgment in rem.
• The value of the relief is res judicata under s.11 of the Code of Civil Procedure 1908, and settling a cloud before it hardens.

Test yourself

1. State 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 a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. The proviso adds that no court shall make such a declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

2. Explain the proviso and why it exists. It bars a declaration where the plaintiff could have claimed further relief, such as possession, an injunction or cancellation, and has not. It exists to prevent a multiplicity of suits, so that a plaintiff who has been dispossessed cannot obtain a declaration in one suit and then sue for possession in another. The bar is mandatory in form, in contrast to the discretionary power in the body of the section.

3. What is a "legal character"? A status recognised by law, such as legitimacy, adoption, marriage, membership of a body, or the holding of an office such as that of a trustee or a director. It is not the same as reputation or character in the ordinary sense.

4. Whom does a declaration bind? Under section 35, only the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, the persons for whom, if in existence at the date of the declaration, those parties would be trustees. It is not a judgment in rem and does not bind a stranger who does not claim through a party.

5. Must the defendant have denied the plaintiff's title? No. It is enough that he is a person interested to deny it, so that he would have reason to dispute the plaintiff's character or right. The Explanation adds that a trustee is such a person where the adverse title is to that of somebody not in existence for whom he would be trustee.