Wednesday, 3 February 2016

Declaratory decree under Specific Relief Act

If any person entitled to any legal character, or to any rights as to any property is denied by another
and if any suit is filed by the person so denied it is called a declaratory suit. A Declaratory decree is a binding declaration of right in equity without consequential relief. In simple terms, a declaratory decree is cone which settles the right and removes the confusion of the status of the party.
Provision regarding declaratory decree has been provided in sections 34 and 35 of the Specific Relief Act, 1963. Section 34 of Specific Relief Act reads as:

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 someone who is not in existence, and for whom, if in existence, he would be a trustee.”

Essentials of a declaratory suit
The person filing the suit must be entitled to legal right or any right as to any property
The person against whom the suit is to be filed must actually be denying the right or is interested in denying the right of the plaintiff
Passing a declaratory decree is on the discretion of the court.

Effect of declaration
The provision for the effect of declaration has been provided under section 35 of Specific Relief Act. Section 35 reads as:

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.”

That means a declaratory decree is binding only on the parties to the suit and upon the representatives of the parties to the suit. So, declaratory decree is “in personam” and not “in rem”.

So a declaratory decree is one which resolves the legal uncertainty of the rights and status of the parties. However, passing of a declaratory decree is a matter of discretion of court and it cannot be claimed a right.

1 comment:

  1. what if the party to the suit is a dissolved company. what happens then?

    ReplyDelete