Supreme Court: Injunction Suit Maintainable Without Declaratory Relief When Plaintiff's Title Isn't Disputed By Defendant

The law is well settled that if the defendants do not dispute

the title of the plaintiffs then the suit should not fail only on

the ground that the matter has been filed only for injunction

simpliciter and no main relief in the form of declaration has been

prayed for. {Para 18}

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.159/2025

(@SPECIAL LEAVE PETITION (CIVIL) No.686/2025

(@Diary No.28071/2024)

KRUSHNA CHANDRA BEHERA & ORS. Vs  NARAYAN NAYAK & ORS. 

Dated: 6TH JANUARY, 2025.

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Maharashtra Govt clarification dated 30-10-2024: No stamp duty is applicable on affidavits and declarations before any Govt. authority.

 Vide notification dated 1.7.2004 Govt of Maharashtra had exempted stamp duty on affidavits and declarations before any Govt. authority. However, affidavits were being asked on stamp paper of Rs.500 (rate was increased from Rs.100 to Rs.500 w.e.f. 14.10.2024). Hence Govt has clarified that exemption notification is still in force and no stamp duty is applicable on affidavits and declarations before any Govt. authority.

https://drive.google.com/file/d/1I0raU5C1yhmImvDQO6Gk-F3sTASNPg_a/view?usp=sharing

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Provisions in Specific relief Act for declaration suit or petition

 Chapter VI

DECLARATORY DECREES

34. Discretion of court as to declaration of status or right.—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.

35. 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.

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Whether plaintiff must pay ad valorem court fees if he is challenging demand notice issued by municipal corporation for specific amount?

 Suit R.C.S. No. 26 of 2021 has been filed challenging the

notice dated 21.06.2021. By this notice a demand has been

raised by the Municipal Corporation for a sum of Rs. 7,57,203/-

seeking reimbursement of expenses incurred in cleaning the

nallah on the basis that it was obligation of the petitioner to

clean the nala, and as the obligation was not complied by the

petitioner, the said work was undertaken by the Municipal

Corporation.{Para 6}

7. It is clear that although one of grounds of challenge is to

the obligation of the Municipal Corporation by relying upon the

provisions of the Corporation Act, what has been challenged in

effect is a demand notice which has been issued by the Municipal

Corporation seeking to recover the amount. In my view, the

submissions raised by the learned counsel for the petitioner as

regards the authority of the corporation and on the lease deed

are in fact grounds in support of the challenge to the demand

notice. The subject matter of the suit has been valued at Rs.

1,000/- on the ground that the petitioner is claiming declaration

and the notice is not susceptible to the monetary valuation and

as such has been valued under Section 6(iv)(a) of the

Maharashtra Court Fees Act. In my view since the demand

notice which is under challenge seeks to recover a monetary

component, it cannot be said that notice is not susceptible to

monetary valuation as submitted.

10. In my view, the Petitioner seeks adjudication of demand

notice seeking to recover a sum of Rs. 7,57,203/ which is capable

of monetary valuation and hence the impugned order directing

to value the suit as per the provisions of Section 6(iv)(a) of the

Maharashtra Court Fees Act is proper and deserves no

interference at the hands of this Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 3692 OF 2022

The Aurangabad Jilha Chemists and Druggists Association Vs

The Municipal Corporation, Aurangabad

CORAM : SHARMILA U. DESHMUKH, J.

DATE : 16TH JANUARY, 2023.

Citation: 2023 Lawweb (Bom HC ) 13.

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Delhi HC: Arbitrator Can Declare Terms Of Contract Null, Even If No Declaration Is Sought By The Party In Its Pleadings

  It further held that because the rate of interest was left blank in Clause 60.8 (b) in the Appendix to the Bid to which a reference was made in the said clause. It was held to be uncertain and ineffective and therefore void under Section 29 of the Indian Contract Act.  {Para 24}

25. In the case of Oriental Structural Engineers Private Limited Vs. State of Kerala (2021) 6 SCC 150, manner of interpretation of Clause 60.8 of COPA, which is the subject matter of the present Award, came up for consideration. The plea of the rate of interest being left blank was specifically considered and the contention of the respondent was that not specifying the rate of interest and leaving it blank in the Appendix document amounted to a waiver and no interest was payable on any amount. Rejecting this plea, it was held that once there was a clause for levy of interest, merely because the rate of interest was not specified it would not amount to waiver but the Arbitrator, exercising his discretion, could award the interest at any reasonable rate. In the said case, the learned Arbitrator granted simple interest @ 8 % which was upheld by the Apex court.

26. The Arbitral Tribunal interpreted the terms of the contract and while rejecting the claim of the petitioner for compound Interest, it gave various reasons in which the clause providing for interest was also considered and held to be defunct, null and void being incomplete and vague. The objections of the Appellant that there being no pleading seeking clause 60.8 (b) to be declared null and void, the Ld. Arbitrator has made out a 3rd case in itself, is totally not tenable as it was within the domain of the Arbitrator to interpret the terms of the contract. The Tribunal exercised its discretion on the rate of interest to be granted, in absence of an agreement to this effect. The MajorityAward has given a well reasoned Award while granting simple interest.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 13th March, 2023

 OMP (COMM.) 283/ 2021

M/S. MODI CONSTRUCTION COMPANY Vs M/S IRCON INTERNATIONAL LIMITED

CORAM:

 MS. JUSTICE NEENA BANSAL KRISHNA

Citation: 2023/DHC/001790

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What is the scope of the suit filed U/S 92 of CPC?

  A suit Under Section 92. Civil Procedure Code is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions pre fulfilled that the suit has got to be brought in conformity with the provision of Section 92, Civil Procedure Code As was observed by the Privy Council in Abdul Rahil v. Md. Barkat Ali. MANU/PR/0084/1927 : 55 Ind, App. 96, Procedure Code a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92 Code of Civil Procedure. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of Section 92 and the suit proceeded on the footing that the Defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The Defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the Plaintiffs, that any direction of the court was necessary for proper administration of the trust, the very foundation of a suit Under Section 92 of the Code of Civil Procedure became wanting and the Plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the Plaintiffs. It has been argued by the learned Counsel for the Respondents that even if the Plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties -- a fact which the Defendant denied. In these circumstances, there was nothing wrong for the court to give the Plaintiffs a lesser relief than what they actually claimed. The reply to this is, that in a suit framed Under Section 92 of the Code of Civil Procedure the only reliefs which the Plaintiff can claim and the court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the Defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the Section if the Plaintiff is held entitled to it; but when the case of the Plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Section 92 of the Code of Civil Procedure. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. {Para 10}

33. Bhagwandasji (supra) lays down the following principles on the ambit of a representative suit Under Section 92 Code of Civil Procedure:

(i) The Plaintiff can only seek reliefs that fall under any of the clauses in Section 92 Code of Civil Procedure. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in Section 92 Code of Civil Procedure and is outside the scope of the provision;

(ii) Merely because the Defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted;

(iii) When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the Plaintiff is entitled to the relief sought Under Section 92 Code of Civil Procedure; and

(iv) If the Plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit.

On applying the principles evolved in Bhagwandasji (supra) to the facts of the case, the relief sought in the first suit Under Section 92 Code of Civil Procedure was for determination of a scheme of management of the mosque. A determination of the title of the suit property with respect to the mosque was ancillary to the main relief, Under Section 92 of the Code of Civil Procedure.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

Read full Judgment here: Click here

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Whether plaintiff can claim permanent injunction against defendant if the court has rejected her prayer for declaration and cancellation of sale deed?

In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff’s possession cannot be said to be “lawful possession”. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.

11. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining defendant No.1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is “not legal or authorised by the law”, the plaintiff shall not be entitled to any permanent injunction.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 1382 OF 2022;

Padhiyar Prahladji Chenaji (Deceased) Through L.R.s Vs Maniben Jagmalbhai (Deceased) Through L.R.s and Ors.

Coram: M.R. SHAH; B.V. NAGARATHNA, JJ. 

Dated:  MARCH 03, 2022

Author: M.R. SHAH, J.

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Whether Suit for declaration based on adverse possession having matured into ownership is Maintainable?

 The High Court on examination of judgment of this Court had opined that the appellant as plaintiff cannot seek a declaration based on adverse possession having matured into ownership on the premise that the plea of adverse possession was only a plea of defence and not of establishing rights as a plaintiff though injunction suit would be maintainable. The moot point is that the legal position in this behalf now stands enunciated to the contrary in terms of the judgment of this Court in Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors.- 2019 (8) SCC 729.

The aforesaid being the position, the application filed by respondent No.1 under Order VII Rule 11, CPC predicated on a contrary legal view could not have been sustained and thus, the order of the High Court is set aside and the application of respondent No.1 stands rejected with the direction to the trial Court to try the suit on merits as expeditiously as possible.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

 CIVIL APPEAL NOS.1701-1702/2022 

DARSHAN KAUR BHATIA Vs RAMESH GANDHI & ANR.

Coram: SANJAY KISHAN KAUL; M.M. SUNDRESH, JJ. 

Dated: FEBRUARY 28, 2022

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Whether court should dismiss the suit for injunction and declaration if it rejects prayer of plaintiff for injunction?

 The bar contained in proviso to Section 34 of the 1963 Act, in our opinion, could not be applied in the case of the plaintiffs as consequential relief for injunction from interference with the suit land was claimed. The prohibition contained in the proviso to Section 34 would operate only if the sole relief is for declaration without any consequential relief. In the plaint of the 1987 suit, relief for injunction was asked for. Such dual relief would protect the suit from being dismissed on maintainability ground. It is a fact that the plaintiff ought to have had asked for recovery of possession, given the factual background of this case, but the plaint as it was originally framed reflected that the original plaintiff was in possession of the suit land. Such plea rightly failed before the Trial Court and the First Appellate Court.

16. The prohibition or bar contained in proviso to Section 34 of the 1963 Act determines the maintainability of a suit and that issue has to be tested on the basis the plaint is framed. If the plaint contains claims for declaratory relief as also consequential relief in the form of injunction that would insulate a suit from an attack on maintainability on the sole ground of bar mandated in the proviso to the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be dismissed on merit so far as plea for consequential relief is concerned but not on maintainability question invoking the proviso to Section 34 of the 1963 Act. If the plaintiff otherwise succeeds in getting the declaratory relief, such relief could be granted.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5884 OF 2009

Akkamma & Ors. Vs Vemavathi & Ors.

Author: ANIRUDDHA BOSE, J.

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When the relief of declaration is not barred by limitation?

  Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.

Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all. {Para 16}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC.

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When a party should not seek declaration that sale deed is void?

  Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.

Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all. {Para 16}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC.

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Can the court declare the sale deed void on the grounds of want of consideration if the sale deed records that consideration was paid?

 Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.

Hence, the issue of bar of limitation of the prayers for declaration incorporated by way of an amendment does not arise at all. The additional submissions made by the respondents on 16th November 2021 have no relevance at all. {Para 16}

Supreme Court

JUSTICE AJAY RASTOGI JUSTICE ABHAY S. OKA

KEWAL KRISHAN Vs. RAJESH KUMAR & ORS. ETC.

CIVIL APPEAL NOS. 6989-6992 OF 2021

22nd November 2021

Citation: 2021 ALL SCR (ONLINE) 678

Author: ABHAY S. OKA, J.

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Whether suit simpliciter for injunction without claiming declaration is maintainable if title of plaintiff is in dispute?

 The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others, (2008) 4 SCC 594 in paragraph 21, which read thus:
“21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”{Para 9}

10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

Supreme Court

JUSTICE L. NAGESWARA RAO JUSTICE B.R. GAVAI

T.V. RAMAKRISHNA REDDY Vs. M. MALLAPPA & ANR.

CIVIL APPEAL NO. 5577 OF 2021

7th September 2021

Author: B.R. GAVAI, J.

Citation:  2021 ALL SCR (ONLINE) 409

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What is the limitation for Suit for a declaration that property was not wakf property?

  Wakf Act (1954), S.3 - Limitation Act (1963), Art.58 - Suit for declaration that property was not wakf property - Limitation for - It is to be filed within period of three years from date of knowledge of notification as wakf property - Suit filed after period of three years from date of knowledge - Suit barred by limitation.  (Para 31)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

T. V. NALAWADE, J.

Bhaskarrao s/o. Bapurao Patil Khatgaonkar & Ors. Vs. The Maharashtra State Board of Wakfs & Anr.

Civil Revision Application No.172 of 2011

20th July, 2016.

Citation: 2017(3) ALL MR 51

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Whether in a declaratory suit, the court can compel the plaintiff against his wishes to undergo the DNA test?

 In circumstances where other evidence is available to

prove or dispute the relationship, the court should

ordinarily refrain from ordering blood tests. This is

because such tests impinge upon the right of privacy of an

individual and could also have major societal repercussions.

Indian law leans towards legitimacy and frowns upon

bastardy. The presumption in law of legitimacy of a child

cannot be lightly repelled. 

12. It was also the view of the Court that normal rule of

evidence is that the burden is on the party that asserts the

positive. But in instances where that is challenged, the

burden is shifted to the party, that pleads the negative.

Keeping in mind the issue of burden of proof, it would be

safe to conclude that in a case like the present, the

Court’s decision should be rendered only after balancing the

interests of the parties, i.e, the quest for truth, and the

social and cultural implications involved therein. The

possibility of stigmatizing a person as a bastard, the

ignominy that attaches to an adult who, in the mature years

of his life is shown to be not the biological son of his

parents may not only be a heavy cross to bear but would also

intrude upon his right of privacy.

13. DNA is unique to an individual (barring twins) and can

be used to identify a person’s identity, trace familial

linkages or even reveal sensitive health information.

Whether a person can be compelled to provide a sample for

DNA in such matters can also be answered considering the

test of proportionality laid down in the unanimous decision

of this Court in K.S Puttaswamy v. Union of India

2019 (1) SCC 1, wherein

the right to privacy has been declared a constitutionally

protected right in India. The Court should therefore examine

the proportionality of the legitimate aims being pursued,

i.e whether the same are not arbitrary or discriminatory,

whether they may have an adverse impact on the person and

that they justify the encroachment upon the privacy and

personal autonomy of the person, being subjected to the DNA

Test. It cannot be overlooked that in the present case, the

application to subject the Plaintiff to a DNA Test is in a

declaratory suit and the plaintiff has already adduced

evidence and is not interested to produce additional

evidence (DNA), to prove his case. It is now the turn of the

defendants to adduce their evidence. At this stage, they

are asking for subjecting the plaintiff to a DNA test.

Questioning the timing of the application the trial Court

dismissed the defendants application and we feel that it was

the correct order.

 [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6153 OF 2021

ASHOK KUMAR Vs  RAJ GUPTA 

Author: Hrishikesh Roy, J.

Dated: OCTOBER 1, 2021

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Whether Suit Simpliciter For Injunction Without Claiming Declaration Of Title is Maintainable If Plaintiff's Title Is Disputed?

  It will also be relevant to refer to the following

observations of this Court in the case of Jharkhand State

Housing Board v. Didar Singh and another (2019) 17 SCC 69:

“11. It is well settled by catena of judgments

of this Court that in each and every

case where the defendant disputes the title

of the plaintiff it is not necessary that in all

those cases plaintiff has to seek the relief of

declaration. A suit for mere injunction does

not lie only when the defendant raises a

genuine dispute with regard to title and

when he raises a cloud over the title of the

plaintiff, then necessarily in those circum stances,

 plaintiff cannot maintain a suit for bare injunction.”

21. In the facts of the present case, it cannot be said

at this stage that the dispute raised by the defendant No.2

with regard to title is not genuine nor can it be said that the

title of the plaintiffappellant

over the suit property is free

from cloud. The issue with regard to title can be decided

only after the fullfledged

trial on the basis of the evidence

that would be led by the parties in support of their rival

claims.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5577 OF 2021

 

T.V. RAMAKRISHNA REDDY Vs M. MALLAPPA & ANR.

AUTHOR: B.R. GAVAI, J.

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Whether a suit for declaration of legal heir is triable by Civil Court or by a Family Court?

          In the case at hand, the plaintiff-petitioners instituted the suit under Section 34 of the Specific Relief Act seeking declaration that plaintiff No. 1 is the only legal heir of one deceased Matangini Suklabaidya and seeking further declaration that the defendant No. 1 is not the heir of said Matangini Suklabaidya and such declaration, in my considered opinion, cannot be given by the Family Court and it is the absolute jurisdiction of the Civil Court to give such declaration as to the status of a person whether the plaintiff No. 1 is a legal heir or the defendant No. 1 is a legal heir or not.

9. The Civil Court jurisdiction cannot be put into a water type compartment. The jurisdiction of the Civil Court is wide. Only where there is a special law enacted to deal with some particular aspect the jurisdiction of the Civil Court will be ousted. The Family Court is a Court established under the Family Courts Act to deal with particular aspect in respect of the dispute concerning family, but here in this case, the status of two persons as to whether they are legal heirs or not is in the dispute which shall be decided by the Civil Court and not by the Family Court. The learned Civil Judge, Jr. Division committed gross error of law in directing transfer of the case from his Court to the Family Court and hence the impugned order is liable to be interfered and set aside.

               TRIPURA HIGH COURT

(Before S.C. Das, J.)

Smt. Pramila Suklabaidya,  Vs Smt. Jyostna Suklabaidya, 

CRP No. 02 of 2008

Decided on May 28, 2015

Citation: 2015 SCC OnLine Tri 529 : (2015) 153 AIC 896

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Whether application for declaration and injunction about the minor's property is maintainable before the High court in the absence of guardianship petition?

This scheme of law indicates that what lies before a court, other than a family court under Section 7 of the Family Courts Act, is an application for appointment of guardian of the property of a minor or an application for permission to deal with such property. It is only these applications which  are made by means of a guardianship or a miscellaneous petition before this court. It is another matter that in such petition, filed for either of these two reliefs, other ancillary reliefs concerning the property of the minor may be prayed for, but no substantive petition can possibly lie simply for such ancillary reliefs without praying for either of the two main reliefs as the main prayer. It is not in dispute that the present application seeks neither of these two reliefs. 

The Act, however, does not provide for any application for the sole relief of perpetual injunction or recovery of the minor’s property dealt with contrary to Section 11 to be made by way of a guardianship petition. The injunction against a de facto guardian for dealing with the minor’s property has been provided for in the Hindu Minority and Guardianship Act concomitantly with the powers to be exercised by the natural guardian for dealing with the minor’s estate or property in accordance with Section 8, which, as we have noted above, provides for seeking of a permission of the court to deal with such estate or property. But that does not mean that relief in enforcement of such injunction can be sought in a guardianship petition under that Act. Such relief can only be sought in an ordinary suit by the next friend or guardian appointed of the minor.

7 Having regard to the foregoing narration, in either event, this

court has no jurisdiction to entertain the present petition as framed.

Accordingly, the guardianship petition is dismissed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

GUARDIANSHIP PETITION NO. 16 OF 2018

WITH

INTERIM APPLICATION (L) NO. 5266 OF 2021

WITH

MISC.APPLICATION NO. 4 OF 2018

Ashu Khurana Dutt  Vs  Aneesha Ashu Dutt 

CORAM : S.C. GUPTE, J.

DATE : 1 APRIL 2021

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Whether the daughter can get a partition of ancestral property by disowning relinquishment deed?

 The plaintiffs, while admitting the execution of sale deed Ex.A-2, refute the release deed. The recital in the release deed refers the execution of sale deed Ex.A-2 in respect of 0.91 cents and about the receipt of Rs. 2,32,060/- each by the plaintiffs 1 and 2, as consideration for relinquishing their right in the remaining property, left by their father.{Para 11}

12. Two reasons are mentioned in Ex.A-4 for the cancellation of the release deed Ex.A-3. First, it was obtained by fraud and misrepresentation. They came to know about it, when they applied for encumbrance certificate. Second, the plaintiffs were not paid the full amount agreed by the defendants 1 to 5. These two reasons found in the deed of cancellation conspicuously not mentioned in the plaint. Further, for the first reason, the plaintiffs have not mentioned the date of their application for E.C (encumbrance certificate) or evidence to show they applied for E.C (encumbrance certificate). For the second reason (i.e.,) short payment of the money agreed, the amount paid and the exact amount unpaid neither pleaded nor proved.

13. By filing the partition suit, the plaintiffs disown their own document namely the release deed Ex.A-4 duly registered and presumed to be an official act performed regularly. If the terms of contract reduced into writing and duly registered is sought to be excluded by oral evidence, the burden is on the plaintiffs to adduce evidence sufficient to exclude the written evidence, as per section 92 of the Evidence Act.

16. Section 91 and section 92 proviso (i) of Indian Evidence Act, clearly lay down the rule when a written evidence could be excluded by oral evidence is permissible. In this case, the due execution of release deed Ex.A-3 is proved through the document and through the attesting witness D.W-2. To disprove it, the plaintiffs have not placed sufficient evidence to establish same was executed by misleading them and the consideration mentioned in the release deed not paid to them.

19. After executing a release deed (Ex.A-3) on 12.07.2006, the plaintiffs had cancelled the said release deed (Ex.A.4) on 17.08.2006 without any notice to the beneficiary of the release deed. Later, without any further relief of declaration in respect of those deeds, the suit for partition filed. When Section 34 of the Specific Relief Act, restrains the Courts from entertaining suits filed for mere declaration as to right when the plaintiffs are able to seek further relief, and same omitted to do so. Therefore, for the reasons stated above, this Court confirms the decree and judgment of the Additional District Court, Fast Track Court No. V, Coimbatore and dismissed the Appeal with costs.

 In the High Court of Madras

(Before G. Jayachandran, J.)

Tmt. Karuppathal  Vs P. Ponnusamy, (deceased) 

A.S. No. 809 of 2009

Decided on February 17, 2021,

Citation: 2021 SCC OnLine Mad 677

The Judgment of the Court was delivered by

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Whether the court can declare a property free of Encumbrance even Against Will Of Encumbrancer?

The provision in reference is Section 57 of the TP Act, which enables any party to the sale of immovable property burdened by an encumbrance, to apply to Court for a declaration that the said property is freed from such encumbrance on deposit of sums to be adjudged by it; and for the issuance of an order of conveyance or vesting order, proper for giving effect to the sale.

6. The purpose of Section 57 of the TP Act is unmistakable from its tenor that it is intended to assist any party to the sale of an immovable property, which is subject to an encumbrance, to fructify the sale for its fair value after receiving in deposit - for payment to the incumbrancer - the capitalised value of the periodical charge, or the capital sum charged on the property, together with incidental charges. It thus enables the parties to a sale to invoke the jurisdiction of the court for the purpose of fulfilling their contracts, notwithstanding the encumbrances on the property.

 Later, in Wilberforce v. Wilberforce ((1915) 1 Ch 94), Sargant, J. spoke on the utility and purpose of the Section as:

"Prima facie, the object of the whole of S.5 is not to disturb any vested or other rights more than is necessary, but to enable a sale to be effected and the property to be transferred to the purchaser notwithstanding there may be on the land a liability for payment of a future sum which would, but for the provisions of the section, clearly have prevented the sale of the land free from incumbrancer of course, a purchaser might think fit to take the land subject to the incumbrance, but the purchase of land subject to an incumbrance is not usually a desirable investment, and the object of the section was to enable the land to be conveyed to the purchaser so that he might get a full and complete title to it."

As I have said supra, the TP Act adopts the spirit and soul of the English Act, with very minor lexical variations and Section 57 also provides that in the case of sale of immovable property subject to an encumbrance being sold by a court, or in execution of a decree, or out of court, any party to it can apply for a declaration that the said property is free of such; in which event, the appropriate court may direct or allow payment, sufficient to meet the encumbrance on the property, into court. There is thus no doubt that this section is intended to facilitate sale out of court, as much as it is for sale by a court or in execution of a decree.

18. That said, however, a note of caution in the exercise of power under Section 57 of the TP Act was voiced by the Hon'ble High Court of Madras in Mallikarjuna Sastri v. Narasimha Rao (MANU/TN/0084/1901 : (1901) ILR 24 Mad 412) to the effect that the section cannot be applied when it comes to a charge or encumbrance already adjudicated by a court and which has become part of a decree or even in a case of adjustment of a decree out of court. This certainly is the golden rule and must guide the minds of courts whenever the section is invoked by a party.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

M.F.A. No. 47 of 2020

Decided On: 05.08.2020

 M.P. Varghese  Vs.  Annamma Yacob and Ors.

Hon'ble Judges/Coram:

Devan Ramachandran, J.

Citation: MANU/KE/2091/2020

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