News

Loading...

Thursday, August 19, 2010

DECLARATORY DECREES



DECLARATORY DECREES


Definition: 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 field by the person so denied is called a declaratory suit. This suit is filed if any legal character of any person pr any legal rights of any property is denied or is interested to be denied by any other person. Simple declaratory suit requires fixed court fee; which is fixed at Tk- 200.
Illustration: X owns a land by inheritance of plot no. 501 in C.S Khatian. Afterwards, in the R.S Khatian it was wrongfully recorded in the name of Y under plot no.401. Y forcefully attempted to take possession of the land on the basis of the wrongful record. X may obtain a declaration of his right to whole the property.

Discretion of court as to declaration of status or right: According to section 42 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 its discretion make therein a declaration that he is so entitled, 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.
Illustration: A is in possession of certain property. B alleging that he is the owner of the property requires A to deliver it to him. A may obtain a declaration of his right to whole the property.

Applicability of Article 120- declaration as to right to property under section 42 of the Specific Relief Act.
          Article 120 of the Limitation Act which prescribes six years limitation.
Case: Mono Mohini Devi vs. Sirajud Ahmed Bhuiya, 21 DLR

Case Law-Not only a person entitled to any legal character but also any person entitled to any right as to any property can institute a suit for decoration.

     Case: Jinnat Mukhtean Vs. Abdul Majid, 27 DLR.

Essentials of the relief/ Requisite for a declaratory action: In order to obtain relief under section 42, plaintiff must establish that –

1.     The plaintiff is at the time of the suit entitle to any legal character or to any right as to any property.
    Case: Ahmed Vs. Haji Khan, AIR.

2.     The defendant has denied or is interested in denying to the character or title of the plaintiff. There must be some present danger or determent to his interest. So that a declaration is necessary to safeguard his right and clear the mist.

3.     The denial must be communicated to the plaintiff in order to give him cause of action.
Case: Mahabir Vs. Sarju, 43 IC.

4.     The declaration asked for is a declaration that the plaintiff is entitled a
Legal character or to a right to property.

5.     The plaintiff is not a possession to claim further relief than a bare
declaration of his title. A person who is able to seek for further relief,   
Should not be allowed mere declaratory relief, if he omits to do so.
Case: Chinnammal Vs. Varadarajulu, 15 Mad.

When relief under section 42 would be refused: Though no hard or fast rules can be laid down as to the circumstances in which the court should exercise or refuse to exercise its discretionary jurisdiction under section 42, the following may be mentioned as the circumstances in which the court may refuse the relief;

a)     The courts will not grand relief unless there is substantial injury.
Case: Chhakowri vs. Secy. of State, 5 pat.

b)    No declaration will be made where the plaintiff claim as never been denied by the defendant.
Case: Pitchai Vs. Devaji, AIR.
Even a denial is not sufficient to justify a declaratory decree, where a mere denial is not likely to injure the plaintiff materially.
Case: Ahmad Vs. Haji, AIR.
c)      A declaration can not be given to a plaintiff whose conduct is fraudulent.
          Case: Narainbhai Vs. Narbada, AIR.

d)    No declaration would be granted where it could be rendered nugatory by the defendant Narain Vs. Sashi, 37 All, as where it would be contrary to the provisions of a statute.
         Case: Ali Khan Vs. Bhagwan, 1943.

e)     No declaration should be made which will be in fructuous or useless.
        Case: Biswanath Vs. Mytaba, AIR.

f)      A declaration may be refused where some other remedy would be more effective, e.g. a proceedings for recovery of possession.
         Case: Thakurji Vs. Kamta, AIR.
g)      Non-joinder of necessary parties is a good ground for refusing to grant a declaration decree in the exercise of discretionary power, because the court will not make a decree which is ineffective.
          Case: Maharaja of Benares Vs. Ramji, 27 All.

h)      Great delay in bringing a suit may of itself be sufficient to refuse the declaratory relief of a declaration.
          Case: Shiambehari Vs. Madan, AIR.

Effect of declaration: According to section 43-

A declaration made under this chapter is binding only on the parties to suit, persons claiming through them respectively, 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.
Illustration: A, a Hindu, in a suit to which B, his alleged wife and her mother, are defendants, seeks a declaration that his marriage was duly solemnized 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.
          Abdul Kader Rani and others Vs. Kaiser Ahmed Howlader and others, 5 BLC.

…………………………….


Lecturer _ Mosume Madam.




No comments:

Post a Comment