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. (Section 34 of the Specific Relief Act). The essential requisites for a declaratory relief may be summed up as follows:— (1) The plaintiff must, at the time of the suit, be entitled to some legal character or to any right as to any property.
The section does not postulate every form of declaration but only a declaration that the plaintiff is entitled to specific legal character or to any right as to any property where such character is denied or is likely to be denied by the defendant. The term “legal” character includes the status of a person. It is the status or the position which a person occupies in the eye of the law. (Channu Dut v. Babu Nandan, 33 All. 527). The section, however, relates only to the declaration of legal character or status which has legal incidents and is likely to affect the rights of the parties. If the declaration relates to legal status or legal character, no right to any property need be involved for that relief is in itself a substantial relief and, under the provisions of section 34, the claim is maintainable.
(Naqi Hasan v. Chhaji Begum, A.I.
R. 1925 Oudh. 210). Where in a suit the plaintiff does not claim any legal character, and it cannot be said that there is any person denying or interested to deny such character, the suit is not maintainable under S. 34.
A suit by a wife against her husband, for a declaration that the defendant not having been heard of for about 12 years it may be declared that he is deemed to be dead is, therefore, incompetent. (Free mental v. Free mental, 52 Bom.
A suit or a mere declaration of relationship as to the plaintiff being related to the defendant in a certain way is not within contemplation of this section, unless that relationship carries with it certain legal consequences. It has been held in Haji Abdul Karem v. Mst. Sarraya Begum, (AIR 1945 Lah. 226) that a suit for declaration of the legitimacy of a Muslim child is a suit for a declaration of status maintainable under section 34, for it carries with it legal incidents as to his right to claim maintenance during the lifetime of the father and the right to succeed to the property which the father may leave un-disposed of. A right of vote or a right to stand as a candidate for being elected as a Municipal Commissioner or a member of Legislative Assembly or Parliament fall within the expression a “legal character” and is covered by S. 34.
A suit for a declaration that plaintiff belongs or does not belong to a certain caste is maintainable under the present section. (Secretary of State v. Dhabu Ram, I. L. R.
1944 Lah. 168).
Right as to any property:
(1) The section does not require that the plaintiff should have a right in the property which is the subject-matter of the suit. The right to property referred to in this section means the individual right in a particular property and not a general right which he possesses in common with all or some of his fellow citizens. (2) There must be some danger or detriment to such interest. In other words, the defendant must have denied or be interested to deny the plaintiffs title to such character or right. Where in a suit the plaintiff does not claim any legal character, and there is not any person denying or interested to deny such character, no suit lies under S. 42, which postulates the existence of a defendant who denies or is interested to deny the legal character.
In order to maintain a suit under this section, a cloud must be thrown on the plaintiff’s title by the defendant’s conduct, and the plaintiff need not be dispossessed by any act of the defendant. There must be an invasion of some right by the defendant, which may as well be in the shape of an impediment or obstacle in the way of full enjoyment of the plaintiff’s proprietary right. A mere allegation or a mere threat without action is not enough to entitle a party to a declaration of title. (3) The declaration asked for must be a declaration that the plaintiff is entitled to a legal character or to a right to any property. (4) The plaintiff is not entitled to any further relief that a mere declaration of title and, if he is so entitled, he does not omit to seek such further relief.
(5) The Court, after a consideration of all the circumstances, comes to the conclusion that is a fit case in which it should exercise its discretion to grant the relief. The grant of declaratory relief is in the discretion of the court and cannot be claimed as a matter of right by the plaintiff even if all the above requirements are satisfied. The discretion is, however, not arbitrary or capricious, but is governed by certain well recognised judicial principles capable of correction by a court of appeal. There is a long line of precedents to guide the court in the exercise of its discretion according to the circumstances of the case. The court will also consider the conduct of the parties and merits of the claim in the exercise of its discretion.
Proviso: Consequential Relief:
The further relief referred to in the proviso is the consequential relief which flows directly from the declaration sought. Consequential relief in relation to a suit for declaration of right, therefore, implies some further relief than a mere declaration of right.
This refers to the relief which a plaintiff can claim from the defendant in an ordinary suit by virtue of the title which he seeks to establish in the suit for declaration. But the proviso lies down that the plaintiff must seek the consequential relief as well if it is available in order to obtain a declaration of title. The object of the proviso is to avoid a multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then later seeking the remedy without which the declaration would be useless.
It is mandatory in the sense that the court shall not grant a declaration where the plaintiff omits to seek further or consequential relief, if available.