Section 42 of Specific Relief Act, 1877
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.
— Necessity of seeking declaratory relief, possession, and injunction in title disputes — Scope — If the plaintiff is in possession but his title to the property is disputed or clouded, or if the defendant claims title and poses a threat of dispossession, the plaintiff must sue for a declaration of title and seek injunctive relief — Likewise, if the plaintiff’s title is clouded or disputed, and he is not in possession or not able to establish possession, he must file suit for a declaration, possession, and injunction. [2025 SCLR 4 =2025 SCMR 34 = 2024 SCP 375]
— S. 42 — Balochistan Land Revenue Act (XVII of 1967), S. 172 — Suit for declaration — Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers — Scope — Section 172 relates to exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of revenue officer — S. 172(2)(vi) applies when there is no dispute with regard to the title and character of a property, but where there is factual controversy with regard to the title then the suit is competent and S. 172(2)(vi) would not bar the suit. [2024 CLS 24 = 2024 CLC 195]
— Suit for declaration — Benami transaction — Scope — Benami transaction, being a transaction where somebody recompenses for the property but does not get hold of it in his personal name — The person in whose name such a property is purchased is called “Benamidar” and the property so purchased is called the benami property — Despite the fact a benami property is purchased in the name of someone else, the person who sponsored the transaction is considered to be the real owner — The burden of proving whether a particular person is a benamidar lies upon the person alleging it — The main consideration, as one would expect boils down to the source of funds, but one could also imagine that source of funds would not always be the conclusive and significant factor to prove the real ownership, though it may prima facie show that the person who provided money did not intend to relinquish or give up the beneficial interest in the property, but at the same time some additional factors are also needed to be considered i.e. possession of title documents; conduct of the parties concerned in dealing with the property once it is purchased; who administers and oversees the property; and who is recognized as titleholder in general. [2024 CLS 12 = 2024 CLC 95]
— Suit for declaration — Benami transaction — Scope — Where there was no rival version, nor there was any other party claiming the suit property, High Court observed that such facts forced it to believe that property one way or the other was purchased for the benefit of the plaintiff. [2024 CLS 12 = 2024 CLC 95]
— Suit for declaration on the basis of contract for sale — Scope — Contract for sale does not create any right and or an interest in immovable property, therefore, suit for declaration on the basis thereof is not maintainable under section 42, the Specific Relief Act, 1877. [2024 CLS 9 = 2024 CLC 75]
— Suit for declaration and cancellation — Mutation entry, a new cause of action — Scope — Defendant attacked the suit on the point of limitation claiming that the suit for cancellation of registered gift deed was filed after 20 years of its registration — Supreme Court observed that just before filing of the suit the defendant had got entered the mutation of gift in his name, on the basis of impugned gift in the government record which gave cause of action to the plaintiff — The stance of the plaintiff in this situation was correct and covered the point of limitation when gift deed was first time used against him which gave him the cause of action. [2024 SCLR 41 = 2024 SCMR 24]
— Suit for declaration and cancellation of documents — Burden of proof — Scope — The burden of proving sale and the mutation associated with the sale rests on the beneficiary — However, if he is unable to fulfill this obligation, it can be interpreted as an indication of fraudulent behavior. [2024 SCLR 32 = 2024 SCMR 178 = 2023 SCP 333]
— Suit for declaration — Correction in mutation entry — Limitation — Scope — It is not an established legal principle that no limitation can be imposed against a wrong entry — The law states that if a wrong entry is made and, in accordance with the prevailing Land Revenue Act, 1967 the ownership entry is recorded in the Register Haqdaran Zameen/Jamabandi/periodical record, each new entry in the latest record, typically updated every four years, creates a new cause of action. [2023 SCLR 67 = 2023 SCMR 2103 = 2023 SCP 318]
— Suit for declaration — Alteration in date of birth — Scope — An alteration/correction in the date of birth requires a declaration, which can only be issued by the Civil Court of competent jurisdiction based on evidence presented during the proceedings concerning the authenticity of the subject matter. [2023 SCLR 65 = 2023 SCMR 2096 = 2023 SCP 272]