42. Discretion of Court as to
declaration of status or right. Bar
to such declaration.
43. Effect of declaration.
Details :
42. Discretion of Court as to
declaration of status or right.
Bar to such declaration .– 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
some one who is not in existence,
and for whom, if in existence, he
would be a trustee.
Illustrations
(a) 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.
(b) A bequeaths his property to B,
C and D, “to be equally divided
amongst all and each of them, if
living at the time of my death,
then amongst their surviving
children”. No such children are in
existence. In a suit against A’s
executor, the Court may declare
whether B, C and D took the
property absolutely, or only for
their lives, and it may also declare
the interests of the children
before their rights are vested.
(c) A covenants that, if he should
at any time be entitled to property
exceeding one lakh of rupees, he
will settle it upon certain trusts.
Before any such property accrues,
or any persons entitled under the
trusts are ascertained, he
institutes a suit to obtain a
declaration that the covenant is
void for uncertainty. The Court
may make the declaration.
(d) A alienates to B property in
which A has merely a life interest.
The alienation is invalid as against
C, who is entitled as reversioner.
The Court may in a suit by C
against A and B declare that C is
so entitled.
(e) 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 survive her may, in a suit
against the alliance, obtain a
declaration that the alienation was
made without legal necessity and
was therefore void beyond the
widow’s lifetime.
(f) 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.
(g) 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 hold
the property.
(h) A bequeaths 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 wife and
children of B.
43. Effect of declaration .– 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 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.
declaration of status or right. Bar
to such declaration.
43. Effect of declaration.
Details :
42. Discretion of Court as to
declaration of status or right.
Bar to such declaration .– 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
some one who is not in existence,
and for whom, if in existence, he
would be a trustee.
Illustrations
(a) 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.
(b) A bequeaths his property to B,
C and D, “to be equally divided
amongst all and each of them, if
living at the time of my death,
then amongst their surviving
children”. No such children are in
existence. In a suit against A’s
executor, the Court may declare
whether B, C and D took the
property absolutely, or only for
their lives, and it may also declare
the interests of the children
before their rights are vested.
(c) A covenants that, if he should
at any time be entitled to property
exceeding one lakh of rupees, he
will settle it upon certain trusts.
Before any such property accrues,
or any persons entitled under the
trusts are ascertained, he
institutes a suit to obtain a
declaration that the covenant is
void for uncertainty. The Court
may make the declaration.
(d) A alienates to B property in
which A has merely a life interest.
The alienation is invalid as against
C, who is entitled as reversioner.
The Court may in a suit by C
against A and B declare that C is
so entitled.
(e) 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 survive her may, in a suit
against the alliance, obtain a
declaration that the alienation was
made without legal necessity and
was therefore void beyond the
widow’s lifetime.
(f) 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.
(g) 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 hold
the property.
(h) A bequeaths 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 wife and
children of B.
43. Effect of declaration .– 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 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.
