Chapter six of the Specific Relief Act 1877 deals with the declaratory decree. Section 42 provides that “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 declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief”.
Bar to such declaration:
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.
The object of S. 42 is merely to perpetuate and strengthen testimony regarding the title of the plaintiff so that adverse attack on it may not weaken it. Section 42 gives a remedy to a person against all persons who not only claim an interest adverse to his interest, but also against all those who may do so and it is intended that all such claim may once and for all be determined in one suit. The object of S. 42 is to express in definite terms the kind of cases in which the specific relief of a declaration of right apart from all further relief, may be granted. At the same time care has to be taken to avoid multiplicity of suits and to prevent a person getting a declaration of right in one suit, and immediately after, the remedy available in the other. This is clear from the provision of S. 42 which refers to the status of plaintiff at the time of filing of suits.
The applicability of the section and maintainability of suit is to be determined on the state of affairs which were prevalent on the date of institution of the suit and not on the date of the decree passed. Section 42 contemplates the following conditions.
- That the plaintiff is entitled.
a. To any legal character.
b. To any right as to any property; and
2. That the defendant is a person who denied or is interested in denying his title to such character or right. 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.
Breach of contract:
A suit based on breach of contract would give rise only two relief i.e., damages or specific performance. Suit for declaration and consequential relief for injunction was barred by provisions of s. 21 and 42 SRA.
Declaration as to entitlement to money:
A party entitled to money from other party cannot seek declaration simpliciter in a suit as it would not relate to legal character or interest in property and would not fall within ambit of S. 42. The proper remedy for such party would be to file a suit for money decree instead of filing suit for declaration decree.
Person entitled to legal character:
U/S 42 a person can come to court for the declaratory relief with regard to his legal character or any right to property. Relief u/s 42 is provided to safeguard right to plaintiff’s own legal character or property and not to right of third party. Plaintiff, for seeking such declaration ought to establish entitlement to any legal character or right to property or any alleged denial by defendant.
Requirement of s.42 is the existence of legal character or a legal right. Where a suit was not based on legal character or legal right, discretionary relief of declaration could not be granted. Suit u/s 42 can be filed only in case of adverse order affecting right to property, status or character. Suit in absence of adverse order would not be competent.
Legal character is conferred by law and not by contract:
The expression legal character or status denotes a character or status conferred by law and not one created by contract. It is conferred by law on an individual or a number of individuals, viewed as a unit of society, and not shared by the generality of the community but only be individuals, placed in same category of character. The character itself must be conferred by law on person viewed from the stand point of membership of the community. The status or character is not a creature of contract but of law. Indeed, in most cases one cannot contract out of the status with which the law clothes one. For example, a minor cannot contract out of the status to contract into majority, nor can one who has attained majority under law, contract himself into minority.
Right to property:
The word property refers to all objects whether moveable or immovable, may be tangible or may be intangible one, as for instance, patents, copyright, trademarks or rights to franchise, right of fishery, rights of ferry hats, and the line. Money is also property.
Where plaintiff was found to have exclusive right to the property in question while the defendant had no right, title or interest therein, plaintiff was entitled to declaration and injunction with regard to property in question and her suit was decreed.
Further and consequential relief:
Proviso to S. 42 places a limitation on plaintiff to ask for further relief where such relief flows directly from the declaration sought by him. The object of the proviso to s. 42 is to prevent a multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then later on seeking the remedy without which the declaration would be useless. The further relief referred to in the proviso must be a relief flowing directly and necessarily from the declaration sought and a relief appropriate to and necessarily consequent on the right or title asserted. The declaratory suit with regard to immoveable property is not maintainable if plaintiff does not seek consequential relief to which he is entitled.
Further relief available, but not asked for:
The court will not make a declaration of title where the plaintiff, being able to seek further relief than a mere declaration omits to do so. It follows that a court will not grant a declaration if the real object is to get declaration which will enable plaintiff thereafter to seek a further relief.