Meaning of "interested to deny"
Guest
(Querist) 02 March 2013
This query is : Resolved
Section 34 in The Specific Relief Act, 1963 provides as follows:
"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 some one who is not in existence, and for whom, if in existence, he would be a trustee."
Please elaborate the meaning of the words
"interested to deny" used in the above section.
R.K Nanda
(Expert) 03 March 2013
state real facts.
Guest
(Querist) 03 March 2013
Facts are that a settlement deed has been entered into among 4 partners. They have given legal notice of this fact to a person, who they apprehend can challenge such deed. However, that person has not responded for the last 6 months. Can that person be considered as "Interested to deny" under Section 34 of the Specific Relief Act, 1963, if the partners file declaration suit.
Experts may kindly opine.
prabhakar singh
(Expert) 03 March 2013
"They have given legal notice of this fact to a person, who they apprehend can challenge such deed."
WHAT RELATION THIS PERSON HAS WITH THE PARTNERSHIP OR ITS' PARTNERS?
Guest
(Querist) 03 March 2013
He was a partner earlier but left partnership after taking his share well before such settlement deed.
prabhakar singh
(Expert) 03 March 2013
Then why he was served with notice of settlement?
Was the partnership firm registered before his retirement and his retirement and reconstitution was corrected in firms' registrar record.????
Guest
(Querist) 03 March 2013
In fact no registration was done. Only, legal notice of the fact of settlement was given. Now it is apprehended that he can challenge such deed because of which they are proposing to file a suit for declaration.
Please advise.
prabhakar singh
(Expert) 03 March 2013
First take care of provisions contained in section 69 of the Partnership Act before contemplating any suit.
Was his share in partnership given to him by cheque and under any deed of retirement signed by him and was also notarized?
Actually I do not see any reason in finding a retired partner to be a person interested
for a settlement taking place between other 4 partners much after his retirement unless
it is apprehended that he would still dispute his retirement for want of sufficient evidence of his retirement.
Guest
(Querist) 03 March 2013
Thanks very much.
H.M.Patnaik
(Expert) 03 March 2013
Great advice Mr. Singh. You have analysed the problem from all possible angles and advised
very well.
Raj Kumar Makkad
(Expert) 04 March 2013
In the given case, neither notice was warranted to the retired partner nor the remaining partners should care about his reaction thereto rather they are free to get execution to their mutual settlement as is being done by filing a suit for declaration.
Kuummaar AS
(Expert) 05 March 2013
Respected experts are requested to elaborate the meaning of the words
"interested to deny" used in Section 34 in The Specific Relief Act, 1963 which provides as follows:
"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 some one who is not in existence, and for whom, if in existence, he would be a trustee."
Guest
(Querist) 05 March 2013
Experts are requested to give some examples of cases which can fall under "Interested to deny" mentioned in Section 34 of Specific Relief Act, 1963.
Raj Kumar Makkad
(Expert) 07 March 2013
It is certainly for the interest of the State that this jurisdiction of the court should be maintained and the causes of apprehended litigation, respecting real property necessarily affecting its use and enjoyment, should be removed; for as long as they remain, they will prevent improvement and consequent benefit to the public. It is a matter of everyday observation that many plots of lands in our cities remain unimproved because of conflicting claims.
The section does not lay down as a rule, that any one who claims any interest in property, present or future, may ask the court to give an opinion, on his title. ILR 8 Cal 761; it does not warrant every kind of declaration but only a declaration that the Plaintiff is entitled to a legal character or to any right as to any property, and it warrants this kind of relief only under certain special circumstances. AIR 1916 PC 78; ILR 47 All 434;
Where a Suit is simpliciter for perpetual injunction under Section 38, on the basis of possession only, Section 34 does not apply. Fabrica do Igreja versus Union of India – (1995) 2 Cur CC 100 at 105 Bom.
A declaratory decree is not capable of execution as it does not require the judgment debtor to do or not to do anything. No proceeding for contempt of court lies against the judgment debtor if he ignores the decree, the decree holder can seek his remedy by Suit on the basis of the declaratory decree. 1975 CrLJ 679 (P&H) (FB)
