THE SPECIFIC
RELIEF ACT 1877
(I of 1877)
C O N T E N T S
Section Heading
Part I
Preliminary
1. Short title – Local Extent –
Commencement.
2. [Repealed]
3. Interpretation-clause.
4. Savings.
5. Specific relief how given.
6. Preventive relief.
7. Relief not granted to enforce
penal law.
Part II
Of Specific Relief
Chapter I
Of Recovering
Possession of Property
(A) Possession of Immovable Property
8. Recovery of specific immovable
property.
9. Suit by person dispossessed of
immovable property.
(B) Possession of Moveable Property
10. Recovery
of specific moveable property.
11. Liability of person in possession,
not as owner, to deliver to person entitled to immediate possession.
Chapter II
Of the Specific
Performance of Contract
(A) Contracts which may be specifically enforced
12. Cases in which specific
performance enforceable.
13. Contract of which the subject has
partially ceased to exist.
14. Specific performance of part of
contract where part unperformed is small.
15. Specific performance of part of
contract where part unperformed is large.
16. Specific performance of
independent part of contract.
17. Bar
in other cases of specific performance of part of contract.
18. Purchaser’s rights against vendor
with imperfect title.
19. Power to award compensation in
certain cases.
20. Liquidation of damages not a bar
to specific performance.
(B) Contracts which
cannot be
specifically enforced
21. Contracts not specifically
enforceable.
(c) Of The Discretion
Of The Court
22. Discretion as to decreeing
specific performance.
(D) For whom contracts
may be
specifically enforced
23. Who
may obtain specific performance.
(E) For whom contracts
cannot be
specifically enforced
24. Personal bars to the relief.
25. Contracts to sell property by one who
has no title or who is a voluntary settler.
(F) For whom contracts can not
be
specifically enforced,
except with a variation
26. Non-enforcement except with
variation.
(g) Against whom
contracts may be
specifically enforced
27. Relief against parties and persons
claiming under them by subsequent title.
27A. Specific performance in case of
part performance of contract to lease.
(h) Against whom
contracts cannot be
specifically enforced
28. What
parties cannot be compelled to perform.
(I) The effect of
dismissing a suit
for specific
performance
29. Bar of suit for breach after
dismissal.
(j) Awards and
directions to
execute settlements
30. Application of preceding sections
to awards and testamentary directions to execute settlements.
Chapter III
Of the Rectification of Instruments
31. When instrument may be rectified.
32. Presumption as to intent of
parties.
33. Principles of rectification.
34. Specific enforcement of rectified
contract.
Chapter IV
Of the Rescission of Contracts
35. When rescission may be adjudged.
36. Rescission for mistake.
37. Alternative prayer for rescission in suit for specific
performance.
38. Court may require
party rescinding to do equity.
Chapter V
Of the Cancellation of Instruments
39. When
cancellation may be ordered.
40. What instruments may
be partially cancelled.
41. Power to require party for whom
instrument is cancelled to make compensation.
Chapter VI
Of Declaratory Decrees
42. Discretion of Court as to declaration of status or
right. Bar to such declaration.
43. Effect of
declaration.
Chapter VII
Of the Appointment of Receivers
44. Appointment of receivers discretionary. Reference to Code of Civil Procedure.
Chapter VIII
Of the Enforcement of Public duties
45 to 51. [Omitted].
Part III
Of Preventive Relief
Chapter ix
Of Injunctions Generally
52. Preventive relief how granted.
53. Temporary injunctions.
Chapter X
Of Perpetual Injunctions
54. Perpetual injunctions when granted.
55. Mandatory injunction.
56. Injunction when refused.
57. Injunction to
perform negative agreement.
Schedule (Repealed)
[1]THE SPECIFIC RELIEF ACT, 1877
(Act I of 1877)
[7 February 1877]
An Act to define
and amend the law
relating to certain kinds of specific relief.
Preamble.– WHEREAS it is expedient to
define and amend the law relating to certain kinds of specific relief
obtainable in civil suits;
It is
hereby enacted as follows:-
Part I
Preliminary
1. Short title.– This Act may be called the Specific Relief Act, 1877.
Local
Extent.– It extends to the whole of [2][the
Commencement.– And it shall come into force on the first day of May,
1877.
2. [3][* * * * * * * * * * * * *].
3. Interpretation-clause.– In this Act, unless there be something repugnant in the subject or
context,–
“obligation” includes every
duty enforceable by law;
“trust” includes every
species of express, implied, or constructive fiduciary ownership;
“trustee” includes every
person holding, expressly, by implication, or constructively, a fiduciary
character;
Illustrations
(a) Z bequeaths land to A, “not doubting that he
will pay there out an annuity of Rs.1,000 to B for his
life”. A accepts the bequest. A is a trustee, within the meaning of this Act,
for B, to the extent of the annuity.
(b) A
is the legal, medical, or spiritual adviser of B. By availing himself of his
situation as such adviser, A gains some pecuniary advantage which might
otherwise have accrued to B. A is trustee, for B, within the meaning of this
Act, of such advantage.
(c) A,
being B’s banker, discloses for his own purpose the state of B’s account. A is
a trustee, within the meaning of this Act, for B, of the benefit gained by him
by means of such disclosure.
(d) A,
the mortgagee of certain leaseholds, renews the lease in his own name. A is a trustee,
within the meaning of this Act, of the renewed lease, for those interested in
the original lease.
(e) A,
one of several partners, is employed to purchase goods for the firm. A, unknown
to his co-partners, supplies them, at the market price, with goods previously
bought by himself when the price was lower, and thus makes a considerable
profit. A is a trustee for his co-partners, within the meaning of this Act, of
the profit so made.
(f) A, the manager of B’s indigo-factory, becomes agents for C, a
vendor of indigo-seed, and receives, without B’s assent, commission on the seed
purchased from C for the factory. A is trustee, within the meaning of this Act,
for B, of the commission so received.
(g) A
buys certain land with notice that B has already contracted to buy it. A is a
trustee, within the meaning of this Act, for B, of the land so bought.
(h) A buys land from B, having notice that C is in occupation of the
land. A omits to make any inquiry as to the nature of C’s interest therein. A
is a trustee, within the meaning of this Act, for C, to the extent of that
interest.
“settlement”
means any instrument (other than a will or codicil as defined by the Succession
Act, 1925[4], whereby the destination or
devolution of successive interests in moveable or immoveable property is
disposed of or is agreed to be disposed of;
And all
words occurring in this Act, which are defined in the Contract Act, 1872[5], shall be deemed to have the
meanings respectively assigned to them by that Act.
4. Savings.– Except where it is herein otherwise expressly enacted, nothing in
this Act shall be deemed–
(a) to give any right to relief in respect of any agreement
which is not a contract;
(b) to deprive any person of any right to relief, other than
specific performance, which he may have under any contract; or
(c) to affect the operation of the [6][* * *] Registration
Act, 1908[7], on
documents.
5. Specific
relief how given.– Specific relief is given–
(a) by taking possession of certain property
and delivering it to a claimant;
(b) by ordering a party to do the very act which he is under an
obligation to do;
(c) by preventing a party from doing that which he is under an
obligation not to do;
(d) by determining and declaring the rights of parties otherwise
than by an award of compensation; or
(e) by appointing a receiver.
6. Preventive
relief.–
Specific relief granted under clause (c) of section 5 is called preventive
relief.
7. Relief not
granted to enforce penal law.– Specific relief cannot be
granted for the mere purpose of enforcing a penal law.
Part
II
Of
Specific Relief
Chapter
I
Of
Recovering Possession of Property
(a) Possession of Immovable Property
8. Recovery of
specific immoveable property.– A person entitled to the
possession of specific immoveable property may recover it in the manner
prescribed by the Code of Civil Procedure, 1908[8].
[9]9. Suit by person dispossessed of immoveable property.– If any person is
dispossessed without his consent of immoveable property otherwise than in due
course of law, he or any person claiming through him may, by suit [10][* * *] recover possession
thereof, notwithstanding any other title that may be set up in such suit.
Nothing in
this section shall bar any person from suing to establish his title to such
property and to recover possession thereof.
No suit
under this section shall be brought against [11][the [12][Federal Government] or any
Provincial Government].
No
appeal shall lie from any order or decree passed in any suit instituted under
this section, nor shall any review of any such order or decree be allowed.
(B) Possession Of Moveable Property
10. Recovery of
specific moveable property.– A person entitled to the possession of specific
moveable property may recover the same in the manner prescribed by the Code of
Civil Procedure[13].
Explanation 1.– A trustee may sue under this section for the
possession of property to the beneficial interest in which the person for whom
he is trustee is entitled.
Explanation 2.– A special or temporary right to the present
possession of property is sufficient to support a suit under this section.
Illustrations
(a) A bequeaths land to B for his life, with
remainder to C. A dies. B enters on the land, but C,
without B’s consent, obtained possession of the title-deeds. B may recover them
from C.
(b) A pledges certain jewels to B to secure a
loan. B disposes of them before he is entitled to do so. A, without having paid
or tendered the amount of the loan, sues B for possession of the jewels. The
suit should be dismissed, as A is not entitled to their possession, whatever right
he may have to secure their safe custody.
(c) A receives a letter addressed to him by B. B
gets back the letter without A’s consent. A has such a property therein as
entitles him to recover it from B.
(d) A deposits books and papers for safe custody
with B. B losses them, and C finds them, but refuses
to deliver them to B when demanded. B may recover them from C, subject to C’s
right, if any, under section 168 of the Contract Act, 1872[14].
(e) A, a warehouse-keeper, is charged with the
delivery of certain goods to Z, which B takes out of A’s possession. A may sue
B for the goods.
11. Liability of
person in possession, not as owner, to deliver to person entitled to immediate
possession.– Any
person having the possession or control of a particular article of moveable
property, of which he is not the owner, may be compelled specifically to
deliver it to the person entitled to its immediate possession, in any of the
following cases:-
(a) when the thing claimed is held by the defendant as the agent
or trustee of the claimant;
(b) when compensation in money would not afford the claimant
adequate relief for the loss of the thing claimed;
(c) when it would be extremely difficult to ascertain the actual
damage caused by its loss;
(d) when the possession of the thing claimed has been wrongfully
transferred from the claimant.
Illustrations
of clause (a)–
A,
proceeding to
of clause (b)–
Z has got
possession of an idol belonging to A’s family, and of which A is the proper
custodian. Z may be compelled to deliver the idol to A.
of clause (c)–
A
is entitled to a picture by a dead painter and a pair of rare
Chapter
II
Of
the Specific Performance of Contracts
(A) Contracts Which May Be Specifically
Enforced
12. Cases in
which specific performance enforceable.– Except as otherwise provided
in this Chapter, the specific performance of any contract may in the discretion
of the Court be enforced–
(a) when the act agreed to be done is in the performance, wholly
or partly, of a trust;
(b) when there exists no standard for ascertaining the actual
damage caused by non-performance of the act agreed to be done;
(c) when the act agreed to be done is such
that pecuniary compensation for its non-performance would not afford adequate
relief; or
(d) when it is probable that pecuniary compensation cannot be
got for the non-performance of the act agreed to be done.
Explanation.– Unless and until the contrary is proved, the Court
shall presume that the breach of a contract to transfer immoveable property
cannot be adequately relieved by compensation in money, and that the breach of
a contract to transfer moveable property can be thus relieved.
Illustrations
[15][* * * * * * * * * * * * *]
of clause (b)–
A agrees to
buy, and B agrees to sell, a picture by a dead painter and two rare
of clause (c)–
A
contracts with B to sell him a house for Rs.1,000. B
is entitled to a decree directing A to convey the house to him, he paying the
purchase-money.
In
consideration of being released from certain obligations imposed on it by its
act of incorporation, a railway-company contracts with Z to make an archway
through their railway to connect lands of Z severed by the railway, to
construct a road between certain specified points, to pay a certain annual sum
towards the maintenance of this road, and also to construct a siding and a
wharf as specified in the contract. Z is entitled to have this contract
specifically enforced, for his interest in its performance cannot be adequately
compensated for by money: and the Court may appoint a proper person to
superintend the construction of the archway, road, siding and wharf.
A
contracts to sell, and B contracts to buy, a certain number of railway-shares
of a particular description. A refuses to complete the sale.
B may compel A specifically to perform this agreement, for the shares are
limited in number and not always to be had in the market,
and their possession carries with it the status of a share-holder, which cannot
otherwise be procured.
A contracts
with B to paint a picture for B, who agrees to pay therefor Rs.1,000. The picture is painted. B is entitled to have it
delivered to him on payment or tender of the Rs.1,000.
of clause (d)–
A transfers without endorsement, but for valuable
consideration, a promissory note to B. A becomes insolvent, and C is appointed
his assignee. B may compel C to endorse the note, for C has succeeded to A’s
liabilities, and a decree for pecuniary compensation for not endorsing the note
would be fruitless.
13. Contract of
which the subject has partially ceased to exist.– Notwithstanding anything
contained in section 56 of the Contract Act, 1872[16], a contract is not wholly
impossible of performance because a portion of its subject-matter, existing at
its date, has ceased to exist at the time of the performance.
[17][* * * * * * * * * * * * *]
14. Specific
performance of part of contract where part unperformed is small.– Where a party to a contract
is unable to perform the whole of his part of it, but the part which must be
left unperformed bears only a small proportion to the whole in value, and
admits of compensation in money, the Court may, at the suit of either party,
direct the specific performance of so much of the contract as can be performed,
and award compensation in money for the deficiency.
Illustrations
(a) A constracts to
sell B a piece of land consisting of 100 bighas. It
turns out that 98 bighas of the land belong to A, and
the two remaining bighas to a stranger, who refuses
to part with them. The two bighas are not necessary
for the use or enjoyment of the 98 bighas, nor so
important for such use of enjoyment that the loss of them may not be made good
in money. A may be directed at the suit of B to convey to B the 98 bighas and to make compensation to him for not conveying
the two remaining bighas; or B may be directed, at
the suit of A, to pay to A, on receiving the conveyance and possession of the
land, the stipulated purchase-money less a sum awarded as compensation for the
deficiency.
(b) In
a contract for the sale and purchase of a house and lands for two lakhs of
rupees, it is agreed that part of the furniture should be taken at a valuation.
The Court may direct specific performance of the contract notwithstanding the
parties are unable to agree as to the valuation of the furniture, and may
either have the furniture valued in the suit and
include it in the decree for specific performance, or may confine its decree to
the house.
15. Specific
performance of part of contract where part unperformed is large.– Where a party to a contract
is unable to perform the whole of his part of it, and the part which must be
left unperformed forms a considerable portion of the whole, or does not admit of
compensation in money, he is not entitled to obtain a decree for specific
performance. But the Court may, at the suit of the other party, direct the
party in default to perform specifically so much of his part of the contract as
he can perform, provided that the plaintiff relinquishes all claim to further
performance, and all right to compensation either for the deficiency, or for
the loss or damage sustained by him through the default of the defendant.
Illustrations
(a) A contacts to sell to B a piece of land consisting of 100 bighas. It turns out that 50 bighas
of the land belong to A, and the other 50 bighas to a
stranger, who refuses to part with them. A cannot obtain a decree against B for
the specific performance of the contract; but if B is willing to pay the price
agreed upon, and to take the 50 bighas which belong
to A, waiving all right to compensation either for the deficiency or for loss
sustained by him through A’s neglect or default, B is entitled to a decree
directing A to convey those 50 bighas to him on
payment of the purchase-money.
(b) A
contracts to sell to B an estate with a house and garden for a lakh of rupees.
The garden is important for the enjoyment of the house. It turns out that A is
unable to convey the garden. A cannot obtain a decree against B for the
specific performance of the contract, but if B is willing to pay the price
agreed upon, and to take the estate and house without the garden, waiving all
right to compensation either for the deficiency or for loss sustained by him
through A’s neglect or default, B is entitled to a decree directing A to convey
the house to him on payment of the purchase-money.
16. Specific
performance of independent part of contract.– When a part of a contract which, taken by
itself, can and ought to be specifically performed, stands on a separate and
independent footing from another part of the same contract which cannot or
ought not to be specifically performed, the Court may direct specific
performance of the former part.
17. Bar in other cases of specific performance of part of contract.– The Court shall not direct the specific performance
of a part of a contract except in cases coming under one or other of the three
last preceding sections.
18. Purchaser’s
rights against vendor with imperfect title.– Where a person contracts to sell or let
certain property, having only an imperfect title thereto, the purchaser or
lessee (except as otherwise provided by this Chapter) has the following
rights:-
(a) if the vendor or lessor has subsequently to the sale or
lease acquired any interest in the property, the purchaser or lessee may compel
him to make good the contract out of such interest;
(b) where the concurrence of other persons is necessary to
validate the title, and they are bound to convey at the vendor’s or lessor’s
request, the purchaser or lessee may compel him to procure such concurrence;
(c) where
the vendor professes to sell unincumbered property,
but the property is mortgaged for an amount not exceeding the purchase-money,
and the vendor has in fact only a right to redeem it, the purchaser may compel
him to redeem the mortgage and to obtain a conveyance from the mortgagee;
(d) where the vendor or lessor sues for
specific performance of the contract, and the suit is dismissed on the ground
of his imperfect title, the defendant has a right to a return of his deposit
(if any) with interest thereon, to his costs of the suit, and to a lien for
such deposit, interest and costs on the interest of the vendor or lessor in the
property agreed to be sold or let.
19. Power to award compensation in certain cases.– Any person suing for the specific performance of a
contract may also ask for compensation for its breach, either in addition to,
or in substitution for, such performance.
If in any
such suit the Court decides that specific performance ought not to be granted,
but that there is a contract between the parties which has been broken by the
defendant and that plaintiff is entitled to compensation for that breach, it
shall award him compensation accordingly.
If in any
such suit the Court decides that specific performance ought to be granted, but
that it is not sufficient to satisfy the justice of the case, and that some
compensation for breach of the contract should also be made to the plaintiff, it
shall award him such compensation accordingly.
Compensation
awarded under this section may be assessed in such manner as the Court may
direct.
Explanation.– The circumstance that the
contract has become incapable of specific performance does not preclude the
Court from exercising the jurisdiction conferred by this section.
Illustrations
of the second paragraph–
A contracts to sell a hundred mounds of rice to B. B brings a
suit to compel A to perform the contract or to pay compensation. The Court is of
opinion that A has made a valid contract and has broken it, without excuse, to
the injury of B but that specific performance is not the proper remedy. It
shall award to B such compensation as it deems just.
of the third paragraph–
A contracts
with B to sell him a house for Rs.1,000, the price to be paid and the
possession given on the 1st January, 1877. A fails to perform his part of the
contract, and B brings his suit for specific performance and compensation,
which is decided in his favour on the 1st January, 1878. The decree may,
besides ordering specific performance, award to B compensation for any loss
which he has sustained by A’s refusal.
of the Explanation–
A, a purchaser, sues B, his vendor, for
specific performance of a contract for the sale of a patent. Before the hearing
of the suit the patent expires. The Court may award A
compensation for the non-performance of the contract, and may, if necessary,
amend the plaint for that purpose.
A sues for the specific performance of a
resolution passed by the Directors of a public company, under which he was
entitled to have a certain number of shares allotted to him, and for
compensation for the non-performance of the resolution. All the shares had been
allotted before the institution of the suit. The Court may, under this section,
award A compensation for the non-performance.
20. Liquidation
of damages not a bar to specific performance.– A contract, otherwise proper to be
specifically enforced, may be thus enforced, though a sum be named in it as the
amount to be paid in case of its breach, and the party in default is willing to
pay the same.
Illustration
A contracts
to grant B an under-lease of property held by A under C, and that he will apply
to C for a license necessary to the validity of the under-lease, and that, if
the license is not procured, A will pay B Rs.10,000. A
refuses to apply for the license and offers to pay B the Rs.10,000. B is nevertheless entitled to have the contract
specifically enforced if C consents to give the license.
(B) Contracts Which Cannot Be Specifically Enforced
21. Contracts not
specifically enforceable.– The following contracts cannot be specifically
enforced:-
(a) a contract for the non-performance of which compensation in
money is an adequate relief;
(b) a
contract which runs into such minute or numerous details, or which is so
dependent on the personal qualifications or volition of the parties, or
otherwise from its nature is such, that the Court cannot enforce specific performance
of its material terms;
(c) a contract the terms of which the Court cannot find with
reasonable certainty;
(d) a contract which is in its nature revocable;
(e) a contract made by trustees either in excess of their powers
or in breach of their trust;
(f) a
contract made by or on behalf of a corporation or public company created for
special purposes, or by the promoters of such company, which is in excess of
its powers;
(g) a contract the performance of which involves the performance
of a continuous duty extending over a longer period than three years from its
date;
(h) a contract of which a material part of the
subject-matter, supposed by both parties to exist, has, before it has been
made, ceased to exist.
And, save as provided by the [18][Arbitration
Act, 1940[19]], no
contract to refer [20][present
or future differences] to arbitration shall be specifically enforced; [21]but if
any person who has made such a contract [22][other
than an arbitration agreement to which the provisions of the said Act apply]
and has refused to perform it sues in respect of any subject which he has
contracted to refer, the existence of such contract shall bar the suit.
Illustrations
to (a)–
A contracts
to sell, and B contracts to buy, a lakh of rupees in the four percent loan of
the [23][[24][* * *] Government].
A contracts
to sell, and B contracts to buy, 40 chests of indigo
at rupees 1,000 per chest:
In
consideration of certain property having been transferred by A to B, B
contracts to open a credit in A’s favour to extent of rupees 10,000, and to honour A’s drafts to that amount:
The above
contracts cannot be specifically enforced, for in the first and Second both A
and B, and in the third A, would be reimbursed by compensation in money.
to (b)–
A contracts to render personal service to B:
A contracts to employ B on personal service:
A, an
author, contracts with B, a publisher, to complete a literary work: B cannot
enforce specific performance of these contracts.
A contracts
to buy B’s business at the amount of a valuation to be made by two valuers, one to be named by A and the other by B. A and B
each name a valuer, but
before the valuation is made, A instructs his valuer
not to proceed:
By a charter-party entered into in [25][Chittagong]
between A, the owner of a [26][aeroplane], and B, the charterer, it is agreed that the [27][aeroplane] shall proceed to [28][Lahore]
and there load a cargo of rice, and thence proceed to London, freight to be
paid, one-third on arrival at [29][Lahore],
and two-thirds on delivery of the cargo in London: A lets land to B and B
contracts to cultivate it in a particular manner for three years next after the
date of the lease:
A and B contract that, in consideration of
annual advances to be made by A, B will for three years next after date of the
contract grow particular crops on the land in his possession and deliver them
to A when cut and ready for delivery:
A contracts with B that, in consideration
of rupees 1,000 to be paid to him by B, he will paint a picture for B:
A contracts with
B to execute certain works which the Court cannot superintend:
A contracts to
supply B with all the goods of a certain class which B may require:
A contracts with
B to take from B a lease of a certain house for a specified term, at a
specified rent, “if the drawing-room is
handsomely
decorated”, even if it is held to have so much certainty that compensation can
be recovered for its breach:
A contracts to
marry B:
The above contracts cannot be specifically
enforced.
to (c)–
A, the owner of a
refreshment-room, contracts, with B to give him accommodation there for the
sale of his goods and to furnish him with the necessary appliances. A refuses to perform his contract. The case is one for
compensation and not for specific performance, the amount and nature of the
accommodation and appliances being undefined.
to (d)–
A and B contract to
become partners in a certain business, the contract not specifying the duration
of the proposed partnership. This contract cannot be specifically
performed, for, if it were so performed, either A or B might at once dissolve
the partnership.
to (e)–
A is a trustee of land with power to lease
it for seven years. He enters into a contract with B to grant a lease of the
land for seven years, with a covenant to renew the lease at the expiry of the
term. This contract cannot be specifically enforced.
The Directors of a company have power to
sell the concern with the sanction of a general meeting of the shareholders.
They contract to sell it without any such sanction. This contract cannot be
specifically enforced.
Two trustees, A and B, empowered to sell
trust-property worth a lakh of rupees contract to sell it to C for Rs.30,000. The contract is so disadvantageous as to be a breach
of trust. C cannot enforce its specific performance.
The promoters of a company for working
mines contract that the company, when formed, shall purchase certain mineral
property. They take no proper precautions to ascertain the value of such
property- and in fact agree to pay an extravagant price therefore. They also
stipulate that the vendors shall give them a bonus out of the purchase-money.
This contract cannot be specifically enforced.
to (f)-
A company existing for the sole purpose of
making and working a railway contract for the purchase of a piece of land for
the purpose of erecting a cotton-mill thereon. This contract cannot be
specifically enforced.
to (g)–
A contracts to let for twenty-one years to
B the right to use such part of certain railway made by A as was upon B’s land,
and that B should have a right of running carriages over the whole line on certain
terms, and might require A to supply the necessary engine-power, and that A
should during the term keep the whole railway in good repair. Specific
performance of this contract must be refused to B.
to (h)–
A contracts to
pay an annuity to B for the lives of C and D. It turns out that, at the date of
the contract, C, though supposed by A and B to be alive, was dead. The contract
cannot be specifically performed.
(c) Of The Discretion Of The Court
22. Discretion as
to decreeing specific performance.– The jurisdiction to decree
specific performance is discretionary, and the Court is not bound to grant such
relief merely because it is lawful to do so; but the discretion of the Court is
not arbitrary but sound and reasonable, guided by judicial principles and
capable of correction by a Court of appeal.
The
following are cases in which the Court may properly exercise a
discretion not to decree specific performance:-
I. Where the circumstances under which the contract is made are such
as to give the plaintiff an unfair advantage over the defendant, though there
may be no fraud or misrepresentation on the plaintiff’s part.
Illustrations
(a) A,
a tenant for life of certain property, assigns his interest therein to B. C
contracts to buy, and B contracts to sell, that interest. Before the contract
is completed, A receives a mortal injury from the effects of which he dies the
day after the contract is executed. If B and C were equally ignorant or equally
aware of the fact, B is entitled to specific performance of the contract. If B
knew the fact, and C did not, specific performance of the contract should be
refused to B.
(b) A
contracts to sell to B the interest of C in certain stock-in-trade. It is
stipulated that the sale shall stand good, even though it should turn out that
C’s interest is worth nothing. In fact, the value of C’s interest depends on
the result of certain partnership-accounts, on which he is heavily in debt to
his partners. This indebtedness is known to A, but not to B. Specific
performance of the contract should be refused to A.
(c) A contracts to sell, and B contracts to buy,
certain land. To protect the land from floods, it is necessary for its owner to
maintain an expensive embankment. B does not know of this circumstance, and A
conceals it from him. Specific performance of the contract should be refused to
A.
(d) A’s
property is put up to auction. B requests C, A’s attorney, to bid for him. C
does this inadvertently and in good faith. The persons present, seeing the
vendor’s attorney bidding, think that he is a mere puffer and cease to compete.
The lot is knocked down to B at a low price. Specific performance of the
contract should be refused to B.
II. Where the performance
of the contract would involve some hardship on the defendant which he did not
foresee, whereas its non-performance would involve no such hardship on the
plaintiff.
Illustrations
[30][* * * * * * * * * * * * *]
(f) A
and B, trustees, join their beneficiary, C, in a contract to sell the
trust-estate to D, and personally agree to exonerate the estate from heavy
encumbrances to which it is subject. The purchase-money is not nearly enough to
discharge those encumbrances, though, at the date of the contract, the vendors
believed it to be sufficient. Specific performance of the contract should be
refused to D.
(g) A, the owner of an estate, contracts to sell
it to B, and stipulates that he, A, shall not be obliged to define its
boundary. The estate really comprises a valuable property, not known to either
to be part of it. Specific performance of the contract should be refused to B
unless he waives his claim to the unknown property.
(h) A
contracts with B to sell him certain land, and to make a road to it from a
certain railway-station. It is found afterwards that A cannot make the road
without exposing himself to litigation. Specific performance of the part of the
contract relating to the road should be refused to B, even though it may be
held that he is entitled to specific performance of the rest with compensation
for loss of the road.
(i) A,
a lessee of mines, contracts with B, his lessor, that at any time during the
continuance of the lease B may give notice of his desire to take the machinery
and plant used in and about the mines, and that he shall have the articles
specified in his notice delivered to him at a valuation on the expiry of the
lease. Such a contract might be most injurious to the leasee’s
business, and specific performance of it should be refused to B.
(j) A contracts to buy certain land from B. The
contract is silent as to access to the land. No right of way to it can be shown
to exist. Specific performance of the contract should be refused to B.
(k) A
contracts with B to buy from B’s manufactory and not elsewhere all the goods of
a certain class used by A in his trade. The Court cannot compel B to supply the
goods, but if he does not supply them, A may be ruined unless he is allowed to
buy them elsewhere. Specific performance of the contract should be refused to
B.
The following
is a case in which the Court may properly exercise a
discretion to decree specific performance:-
III. Where
the plaintiff has done substantial acts or suffered losses in consequence of a
contract capable of specific performance.
Illustration
A sells land to a
railway-company, who contracts to execute certain works for his convenience.
The company takes the land and use it for their
railway. Specific performance of the contract to execute the works should be
decreed in favour of A.
(D) For whom contracts may be specifically enforced
23. Who may obtain specific performance.– Except
as otherwise provided by this Chapter, the specific performance of a contract
may be obtained by–
(a) any party thereto;
(b) the
representative in interest, or the principal, of any party thereto: provided
that, where the learning, skill, solvency or any personal quality of such party
is a material ingredient in the contract, or where the contract provides that
his interest shall not be assigned, his representative in interest or his
principal shall not be entitled to specific performance of the contract, unless
where his part thereof has already been performed;
(c) where the contract is a settlement on marriage, or a
compromise of doubtful rights between members of the same family, any person
beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for
life in due exercise of a power, the remainderman;
(e) a reversioner in possession, where
the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where
the agreement is such a covenant, and the reversioner
is entitled to the benefit thereof and will sustain material injury by reason
of its breach;
(g) when a public company has entered into a contract and
subsequently becomes amalgamated with another public company, the new company
which arises out of the amalgamation;
(h) when the promoters of a public company have, before its
incorporation, entered into a contract for the purposes of the company, and
such contract is warranted by the terms of the incorporation, the company.
(E) For whom contracts cannot be specifically
enforced
24. Personal bars
to the relief.– Specific performance of a contract cannot be enforced
in favour of a person-
(a) who could not recover compensation for its breach;
(b) who has become incapable of performing, or violates, any
essential term of the contract that on his part remains to be performed;
(c) who has already chosen his remedy and obtained satisfaction
for the alleged breach of contract; or
(d) who,
previously to the contract, had notice that a settlement of the subject-matter
thereof (though not founded on any valuable consideration) had been made and
was then in force.
Illustrations
to clause (a)–
A, in the character of agent for B, enters
into an agreement with C to buy C’s house. A is in reality acting, not as agent
for B, but on his own account. A cannot enforce specific performance of this
contract.
to clause (b)–
A contracts to
sell B a house and to become tenant thereof for a term of fourteen years from
the date of the sale at a specified yearly rent. A becomes insolvent. Neither
he nor his assignee can enforce specific performance of the contract. A contracts to sell B a house and garden in which there are
ornamental trees, a material element in the value of the property as a
residence. A, without B’s consent, fells the trees. A
cannot enforce specific performance of the contract.
A, holding land under a contract with B
for a lease, commits waste, or treats the land in an unhusbandlike
manner. A cannot enforce specific performance of the contract.
A contracts to let, and B contracts to
take, an unfinished house, B contracting to finish the house and the lease to
contain covenants on the part of A to keep the house in repair. B finishes the
house in a very defective manner: he cannot enforce the contract specifically,
though A and B may sue each other for compensation for
breach of it.
to clause (c)–
A contracts to let, and B contracts to
take, a house for a specified term at a specified rent. B refuses to perform
the contract. A thereupon sues for, and obtains, compensation for the breach. A
cannot obtain specific performance of the contact.
25. Contracts to sell
property by one who has no title or who is a voluntary settler.– A contracts for the sale or
letting of property, whether moveable or immoveable, cannot be specifically
enforced in favour of a vendor or lessor–
(a) who, knowing himself not to have any title to the property,
has contracted to sell or let the same;
(b) who,
though he entered into the contract believing that he had a good title to the
property, cannot, at the time fixed by the parties or by the Court for the
completion of the sale or letting, give the purchaser or lessee a title free
from reasonable doubt;
(c) who, previous to entering into the contract, has made a
settlement (though not founded on any valuable consideration) of the
subject-matter of the contract.
Illustrations
(a) A,
without C’s authority, contracts to sell to B an estate which A knows to belong
to C. A cannot enforce specific performance of this contract, even though C is
willing to confirm it.
(b) A bequeaths his land to trustees declaring that they may sell it
with the consent in writing of B. B gives a general prospective assent in
writing to any sale which the trustees may make. The trustees then enter into a
contract with C to sell him the land. C refuses to carry out the contract. The
trustees cannot specifically enforce this contract, as, in the absence of B’s
consent to the particular sale to C, the title which
they can give C is, as the law stands, not free from reasonable doubt.
(c) A,
being in possession of certain land, contracts to sell it to Z. On inquiry it
turns out that A claims the land as heir of B, who
left the country several years before, and is generally believed to be dead,
but of whose death there is no sufficient proof. A cannot compel Z specifically
to perform the contract.
(d) A, out of natural love and affection, makes a settlement of certain
property on his brothers and their issue, and afterwards enters into a contract
to sell the property to a stranger. A cannot enforce specific performance of
this contract so as to override the settlement, and thus prejudice the interest
of the persons claiming under it.
(F) For whom contracts can not be
specifically enforced, except with a
variation
26. Non-enforcement
except with variation.– Where a plaintiff seeks specific performance of a contract in
writing, to which the defendant sets up a variation, the plaintiff cannot
obtain the performance sought, except with the variation so set up, in the
following cases (namely):-
(a) where by fraud or mistake of fact the contract of which
performance is sought is in terms different from that which the defendant
supposed it to be when he entered into it;
(b) where by fraud, mistake of fact, or surprise the defendant
entered into the contract under a reasonable misapprehension as to its effect
as between himself and the plaintiff;
(c) where the defendant, knowing the terms of the
contract and understanding its effect, has entered into it relying upon some
misrepresentation by the plaintiff, or upon some stipulation on the plaintiff’s
part, which adds to the contract, but which he refuses to fulfil;
(d) where the object of the parties was to produce a certain
legal result, which the contract as framed is not calculated to produce;
(e) where the parties have, subsequently to the execution of the
contract, contracted to vary it.
Illustrations
(a) A,
B and C sign a writing by which they purport to contract each to enter into a
bond to D for Rs.1,000. In a suit by D, to make A, B and C separately liable
each to the extent of Rs.1,000, they prove that the word “each” was inserted by
mistake; that the intention was that they should give a joint bound for Rs.1,000.
D can obtain the performance sought only with the variation thus set up.
(b) A sues B to compel specific performance of a contract in writing to
buy a dwelling-house. B proves that he assumed that the contract included an
adjoining yard, and the contract was so framed as to leave it doubtful whether
the yard was so included or not. The Court will refuse to enforce the contract,
except with the variation set up by B.
(c) A
contracts in writing to let to B a wharf, together with a strip of A’s land
delineated in a map. Before signing the contract, B proposed orally that he
should be at liberty to substitute for the strip mentioned in the contract
another strip of A’s land of the same dimensions, and to this A expressly
assented. B then signed the written contract. A cannot obtain specific
performance of the written contract, except with the variation set up by B.
(d) A
and B enter into negotiations for the purpose of securing land for B for his
life, with remainder to his issue. They execute a contract, the terms of which
are found to confer an absolute ownership on B. The contract so framed cannot
be specifically enforced.
(e) A
contracts in writing to let a house to B, for a certain term, at the rent of Rs.100
per month, putting it first into tenantable repair. The house turns out to be
not worth repairing, so, with B’s consent, A pulls it down and erects a new
house in its place: B contracting orally to pay rent at Rs.120 per mensem. B then sues to enforce specific performance of the
contract in writing. He cannot enforce it except with the variations made by
the subsequent oral contract.
(g) Against whom contracts may be specifically
enforced
27. Relief
against parties and persons claiming under them by subsequent title.– Except as otherwise provided
by this Chapter, specific performance of a contract may be enforced against–
(a) either party thereto;
(b) any
other person claiming under him by a title arising subsequently to the
contract, except a transferee for value who has paid his money in good faith
and without notice of the original contract;
(c) any person claiming under a title which,
though prior to the contract and known to the plaintiff, might have been
displaced by the defendant;
(d) when a public company has entered into a contract and
subsequently becomes amalgamated with another public company, the new company
which arises out of the amalgamation;
(e) when the promoters of a public company have, before its
incorporation, entered into a contract, the company: provided that the company
has ratified and adopted the contract and the contract is warranted by the
terms of the incorporation.
Illustrations
to clause (b)–
A contracts to convey certain land to B by
a particular day, A dies intestate before that day
without having conveyed the land. B may compel A’s heir or other representative
in interest to perform the contract specifically.
A contracts to sell certain land to B for Rs.5,000. A afterwards conveys the land for Rs.6,000 to C, who has notice of the original contract. B may
enforce specific performance of the contract as against C.
A contracts to
sell land to B for Rs.5000. B takes possession of the land. Afterwards A sells
it to C for Rs.6,000. C makes no inquiry of B relating
to his interest in the land. B’s possession is sufficient to affect C with
notice of his interest, and he may enforce specific performance of the contract
against C.
A contracts, in consideration of Rs.1,000, to bequeath certain of his lands to B. Immediately
after the contract A dies intestate, and C takes out administration to his
estate. B may enforce specific performance of the contract against C.
A contracts to
sell certain land to B. Before the completion of the contract, A becomes a
lunatic and C is appointed his committee. B may specifically enforce the
contract against C.
to clause (c)–
A, the tenant for life of an estate, with
remainder to B, in due exercise of a power conferred by the settlement under
which he is tenant for life, contracts to sell the estate to C, who has notice
of the settlement. Before the sale is completed, A dies. C may enforce specific
performance of the contract against B.
A and B are joint tenants of land, his
undivided moiety of which either may alien in his life time, but which, subject
to that right, devolves on the survivor. A contracts
to sell his moiety to C and dies. C may enforce specific performance of the
contract against B.
[31][27A. Specific performance in case of part performance of contract to
lease.–Subject
to the provisions of this Chapter, where a contract to lease immoveable
property is made in writing signed by the parties thereto or on their behalf,
either party may, notwithstanding that the contract, though required to be
registered, has not been registered, sue the other for specific performance of
the contract if,–
(a) where specific performance is claimed by
the lessor, he has delivered possession of the property to the lessee in part
performance of the contract; and
(b) where
specific performance is claimed by the lessee, he has, in part performance of
the contract, taken possession of the property, or, being already in
possession, continues in possession in part performance of the contract, and has
done some act in furtherance of the contract:
Provided that nothing in this section shall affect the rights of a
transferee for consideration who has no notice of the contract or of the part
performance thereof.
This section applies to contracts to lease executed
after the first day of April, 1930.]
(h) Against whom contracts cannot be specifically
enforced
28. What parties cannot be compelled to perform.– Specific performance of a contract cannot be enforced
against a party thereto in any of the following cases:-
(a) if the consideration to be received by him is so grossly
inadequate, with reference to the state of things existing at the date of the
contract, as to be either by itself or coupled with other circumstances
evidence of fraud or of undue advantage taken by the plaintiff;
(b) if his assent was obtained by the
misrepresentation (whether wilful or innocent),
concealment, circumvention or unfair practices, of any party to whom
performance would become due under the contract, or by any promise of such
party which has not been substantially fulfilled;
(c) if his assent was given under the influence of mistake of fact,
misapprehension or surprise: Provided that, when the contract provides for
compensation in case of mistake, compensation may be made for a mistake within
the scope of such provision, and the contract may be specifically enforced in
other respects if proper to be so enforced.
Illustrations
to clause (c)–
A, one of two executors,
in the erroneous belief that he had the authority of his co-executor, enters
into an agreement for the sale to B of his testator’s property. B cannot
insist on the sale being completed.
A directs an auctioneer to sell certain
land. A afterwards revokes the auctioneer’s authority as to 20 bighas of this land, but the auctioneer inadvertently sells
the whole to B, who has not notice of the revocation. B cannot enforce specific
performance of the agreement.
(I) The effect of dismissing a suit for specific
performance
29. Bar of suit
for breach after dismissal.– The dismissal of a suit for specific performance of a
contract or part thereof shall bar the plaintiff’s right to sue for
compensation for the breach of such contract or part, as the case may be.
(j) Awards and directions to execute settlements
30. Application
of preceding sections to awards and testamentary directions to execute
settlements.–
The provisions of this Chapter as to contracts shall, mutatis mutandis, apply
to awards and to directions in a will or codicil to execute a particular
settlement.
Chapter
III
Of
the Rectification of Instruments
31. When
instrument may be rectified.– When, through fraud or a mutual mistake of the parties, a contract
or other instrument in writing does not truly express their intention, either
party, or his representative in interest, may institute a suit to have the
instrument rectified; and if the Court find it clearly proved that there has
been fraud or mistake in framing the instrument, and ascertain the real
intention of the parties in executing the same, the Court may in its discretion
rectify the instrument so as to express that intention, so far as this can be
done without prejudice to rights acquired by third persons in good faith and
for value.
Illustrations
(a) A,
intending to sell to B his house and one of three godowns
adjacent to it, executes a conveyance prepared by B, in which, through B’s
fraud, all three godowns are included. Of the two godowns which were fraudulently included, B gives one to C
and lets the other to D for a rent, neither C nor D having any knowledge of the
fraud. The conveyance may, as against B and C, be rectified so as to exclude
from it the godown given to C; but it cannot be
rectified so as to affect D’s lease.
(b) By a marriage settlement, A, the father of B, the intended wife,
covenants with C, the intended husband, to pay to C, his executors,
administrators and assigns, during A’s life, an annuity of Rs.5,000.
(c) C
dies insolvent and the official assignee claims the annuity from A. The Court,
on finding it clearly proved that the parties always intended that this annuity
should be paid as a provision for B and her children,
may rectify the settlement and decree that the assignee has no right to any
part of the annuity.
32. Presumption
as to intent of parties.– For the purpose of rectifying a contract in writing,
the Court must be satisfied that all the parties thereto intended to make an
equitable and conscientious agreement.
33. Principles of
rectification.–
In rectifying a written instrument, the Court may inquire what the instrument
was intended to mean, and what were intended to be its legal consequences, and
is not confined to the inquiry what the language of the instrument was intended
to be.
34. Specific
enforcement of rectified contract.– A contract in writing may be
first rectified and then, if the plaintiff has so prayed in his plaint and the
Court thinks fit, specifically enforced.
Illustration
A contracts in writing to pay his attorney, B, a fixed sum
in lieu of costs. The contract contains mistakes as to the name and rights of
the client, which, if construed strictly, would exclude B from all rights under
it. B is entitled, if the Court thinks fit, to have it rectified, and to an
order for payment of the sum, as if at the time of its execution it had
expressed the intention of the parties.
Chapter
IV
Of
the Rescission of Contracts
35. When
rescission may be adjudged.– Any person interested in a contract in writing[32] may sue to have it rescinded,
and such rescission may be adjudged by the Court in any of the following cases,
namely:-
(a) where the contract is voidable or terminable by the
plaintiff;
(b) where the contract is unlawful for causes not apparent on
its face, and the defendant is more to blame than the plaintiff;
(c) where a decree for specific performance of a contract of
sale, or of a contract to take a lease, has been made, and the purchaser or
lessee makes default in payment of the purchase-money or other sums which the
Court has ordered him to pay.
When the
purchaser or lessee is in possession of the subject-matter, and the Court finds
that such possession is wrongful, the Court may also order him to pay to the
vendor or lessor the rents and profits, if any, received by him as such
possessor.
In
the same case, the Court may, by order in the suit in which the decree has been
made and not complied with, rescind the contract, either so far as regards the
party in default, or altogether as the justice of the case may require.
Illustrations
to (a)–
A sells a field to B.
There is a right of way over the field of which A has direct personal
knowledge, but which he conceals from B. B is entitled to have the contract
rescinded.
to (b)–
A, an Attorney, induces his client B, a
Hindu widow, to transfer property to him for the purpose of defrauding B’s creditors.
Here the parties are not equally in fault, and B is entitled to have the
instrument of transfer rescinded.
36. Rescission
for mistake.– Rescission of a contract in writing[33] cannot be adjudged for mere
mistake, unless the party against whom it is adjudged can be restored to
substantially the same position as if the contract had not been made.
37. Alternative
prayer for rescission in suit for specific performance.– A plaintiff instituting a
suit for the specific performance of a contract in writing may pray in the
alternative that, if the contract cannot be specifically enforced, it may be
rescinded and delivered up to be cancelled; and the Court, if it refuses to
enforce the contract specifically, may direct it to be rescinded and delivered
up accordingly.
38. Court may require party rescinding to do equity.– On adjudging the rescission of a contract, the Court
may require the party to whom such relief is granted to make any compensation
to the other which justice may require.
Chapter
V
Of
the Cancellation of Instruments
39. When
cancellation may be ordered.– Any person against whom a written instrument is void
or voidable, who has reasonable apprehension that such instrument, if left
outstanding, may cause him serious injury, may sue to have it adjudged void or
voidable; and the Court may, in its discretion, so adjudge it and order it to
be delivered up and cancelled.
If
the instrument has been registered under the [34][* * *] Registration
Act, 1908[35], the
Court shall also send a copy of its decree to the officer in whose office the
instrument has been so registered; and such officer shall note on the copy of
the instrument contained in his books the fact of its cancellation.
Illustrations
(a) A,
the owner of a ship by fraudulently representing her to be seaworthy, induces
B, an underwriter, to insure her. B may obtain the cancellation of the policy.
(b) A
conveys land to B, who bequeaths it to C and dies. Thereupon D gets possession
of the land and produces a forged instrument stating that the conveyance was
made to B in trust for him. C may obtain the cancellation of the forged
instrument.
(c) A,
representing that the tenants on his land were all at will, sells it to B, and
conveys it to him by an instrument, dated the 1st January, 1877. Soon after that
day, A fraudulently grants to C a lease of part of the lands, dated the 1st
October, 1876, and procures the lease to be registered under the [36][* * *] Registration Act, 1908[37]. B may obtain the
cancellation of this lease.
(d) A agrees to sell and deliver a ship to B, to be paid for by B’s
acceptances of four bills of exchange, for sums amounting to Rs.30,000, to be
drawn by A on B. The bills are drawn and accepted, but the ship is not
delivered according to the agreement. A sues B on one of the bills. B may
obtain the cancellation of all the bills.
40. What instruments may be partially cancelled.– Where an instrument is evidence of different rights
or different obligations, the Court may, in a proper case, cancel it in part
and allow it to stand for the residue.
Illustration
A
draws a bill on B, who endorses it to C, by whom it appears to be endorsed to
D, who endorses it to E. C’s endorsement is forged. C is entitled to have such
endorsement cancelled, leaving the bill to stand in other respects.
41. Power to
require party for whom instrument is cancelled to make compensation.– On adjudging the cancellation
of an instrument, the Court may require the party to whom such relief is
granted to make any compensation to the other which justice may require.
Chapter
VI
Of
Declaratory Decrees
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.
Chapter
VII
Of
the Appointment of Receivers
44. Appointment
of receivers discretionary. Reference to Code of Civil Procedure.– The appointment of a receiver
pending a suit is a matter resting in the discretion of the Court.
The mode
and effect of his appointment, and his rights, powers, duties and liabilities, are regulated by the Code of Civil Procedure,
1908[38].
Chapter
VIII
[Of
the Enforcement of Public duties.]
45 to 51. [39][* * * * * * * * * * * *]
Part
III
Of Preventive
Relief
Chapter
ix
Of Injunctions
Generally
52. Preventive
relief how granted.– Preventive relief is granted at the discretion of the
Court by injunction, temporary or perpetual.
53. Temporary
injunctions.– Temporary injunctions are such as are to continue
until a specified time, or until the further order of the Court. They may be
granted at any period of a suit, and are regulated by the [40][Code of Civil Procedure 1908
(V of 1908)].
Perpetual
injunctions
A perpetual
injunction can only be granted by the decree made at the hearing and upon the
merits of the suit: the defendant is thereby perpetually enjoined from the
assertion of a right, or from the commission of an act, which would be contrary
to the rights of the plaintiff.
Chapter
X
Of
Perpetual Injunctions
54. Perpetual
injunctions when granted.– Subject to the other provisions contained in, or referred to by,
this Chapter, a perpetual injunction may be granted to prevent the breach of an
obligation existing in favour of the applicant, whether expressly or by
implication.
When such obligation arises from contract, the Court shall be
guided by the rules and provisions contained in Chapter II of this Act.
When the
defendant invades or threatens to invade the plaintiff’s right to, or enjoyment
of, property, the Court may grant a perpetual injunction in the following cases
(namely):-
(a) where the defendant is trustee of the property for the
plaintiff;
(b) where there exists no standard for ascertaining the actual
damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that pecuniary compensation would
not afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be
got for the invasion;
(e) where the injunction is necessary to prevent a multiplicity
of judicial proceedings.
Explanation.– For the purpose of this
section a trademark is property.
Illustrations
(a) A
lets certain lands to B and B contracts not to dig sand or gravel thereout. A may sue for an injunction to restrain B from
digging in violation of his contract.
(b) A trustee threatens a breach of trust. His co-trustees, if any,
should, and the beneficial owners may, sue for an injunction to prevent the
breach.
(c) The
directors of a public company are about to pay a dividend out of capital or
borrowed money. Any of the shareholders may sue for an injunction to restrain
them.
(d) The
directors of a fire and life-insurance company are about to engage in marine
insurances. Any of the shareholders may sue for an injunction to restrain them.
(e) A,
an executor, through misconduct or insolvency, is bringing the property of the
deceased into danger. The Court may grant an injunction to restrain him from
getting in the assets.
(f) A,
a trustee for B, is about to make an imprudent sale of a small part of the
trust-property. B may sue for an injunction to restrain the sale, even though
compensation in money would have afforded him adequate relief.
(g) A
makes a settlement (not founded on marriage or other valuable consideration) of
an estate on B and his children. A then contracts to
sell the estate to C. B or any of his children may sue for an injunction to
restrain the sale.
(h) In the course of A’s employment as a vakil, certain papers belonging to his client, B, come into
his possession. A threatens to make these papers public, or to communicate
their contents to a stranger. B may sue for an injunction to restrain A from so
doing.
(i) A
is B’s medical adviser. He demands money of B which B declines to pay. A then
threatens to make known the effect of B’s communications to him as a patient.
This is contrary to A’s duty, and B may sue for an injunction to restrain him
from so doing.
(j) A, the owner of two adjoining houses, lets one to B and afterwards
lets the other to C. A and C begin to make such alterations in the house let to
C as will prevent the comfortable enjoyment of the house let to B. B may sue
for an injunction to restrain them from so doing.
(k) A
lets certain arable lands to B for purposes of husbandry, but without any
express contract as to the mode of cultivation. Contrary to the mode of
cultivation customary in the district, B threatens to sow the lands with seed
injurious thereto and requiring many years to eradicate. A may sue for an
injunction to restrain B from sowing the lands in contravention of his implied
contract to use them in a husband like manner.
(l) A, B and C are partners, the partnership being determinable at
will. A threatens to do an act tending to the destruction of the
partnership-property. B and C may, without seeking a
dissolution of the partnership, sue for an injunction to restrain A from
doing the act.
(m) A,
a Hindu widow in possession of her deceased husband’s property, commits
destruction of the property without any cause sufficient to justify her in so
doing. The heir-expectant may sue for an injunction to restrain her.
(n) A, B and C are members of an undivided Hindu
family. A cuts timber growing on the family-property, and threatens to destroy
part of the family-house and to sell some of the family-utensils. B and C may
sue for an injunction to restrain him.
(o) A, the owner of certain houses in [41][
(p) The
inhabitants of a village claim a right of way over A’s land. In a suit against
several of them, A obtains a declaratory decree that his land is subject to no
such right. Afterwards each of the other villagers sues A for obstructing his
alleged right of way over land. A may sue for an injunction to restrain them.
(q) A, in an administration-suit to which a creditor, B, is not a
party, obtains a decree for the administration of C’s assets. B proceeds
against C’s estate for his debt. A may sue for an injunction to restrain B.
(r) A and B are in possession of contiguous lands and of the mines
underneath them[42]. A works
his mine so as to extend under B’s mines and threatens to remove certain
pillars which help to support B’s mine. B may sue for an injunction to restrain
him from so doing.
(s) A
rings bells or makes some other unnecessary noise so near a house as to
interfere materially and unreasonably with the physical comfort of the
occupier, B. B may sue for an injunction restraining A from making the noise.
(t) A pollutes the air with smoke so as to interfere materially with
the physical comfort of B and C, who carry on business in a neighbouring
house. B and C may sue for an injunction to restrain the pollution.
(u) A
infringes B’s patent. If the Court is satisfied that the patent is valid and
has been infringed, B may obtain an injunction to restrain the infringement.
(v) A
pirates B’s copyright. B may obtain an injunction to restrain the piracy,
unless the work of which copyright is claimed is lebellous
or obscene.
(w) A improperly uses the trademark of B. B may obtain an injunction to
restrain the user, provided that B’s use of the trademark is honest.
(x) A,
a trades man, holds out B as his partner against the wish and without the
authority of B. B may sue for an injunction to restrain A from so doing.
(y) A, a very eminent man, writes letters on
family-topics to B. After the death of A and B, C, who is B’s
residuary legatee, proposes to make money by publishing A’s letters. D,
who is A’s executor, has a property in the letters, and may sue for an
injunction to restrain C from publishing them.
(z) A
carries on a manufactory and B is his assistant. In the course of his business,
A imparts to B a secret process of value. B afterwards demands money of A,
threatening, in case of refusal, to disclose the process to C, a rival
manufacturer. A may sue for an injunction to restrain B from disclosing the
process.
55. Mandatory
injunction.– When,
to prevent the breach of an obligation, it is necessary to compel the
performance of certain acts which the Court is capable of enforcing, the Court
may in its discretion grant an injunction to prevent the breach complained of,
and also to compel performance of the requisite acts.
Illustrations
(a) A,
by new buildings, obstructs lights to the access and use of which B has
acquired a right under the [43][Limitation Act, 1908 (IX of
1908)] Part IV. B may obtain an injunction, not only to restrain A from going
on with the buildings, but also to pull down so much of them as obstructs B’s
lights.
(b) A
builds a house with eaves projecting over B’s land. B may sue for an injunction
to pull down so much of the eaves as so project.
(c) In
the case put as illustration (i) to section 54, the Court may also order all
written communications made by B, as patient, to A, as medical adviser, to be
destroyed.
(d) In
the case put as illustration (y) to section 54, the Court may also order A’s
letters to be destroyed.
(e) A
threaten to publish statements concerning B which would be punishable under
Chapter XXI of the Pakistan Penal Code, 1860[44]. The Court may grant an
injunction to restrain the publication, even though it may be shown not to be
injurious to B’s property.
(f) A,
being B’s medical adviser, threatens to publish B’s written communications with
him, showing that B has led an immoral life. B may obtain an injunction to
restrain the publication.
(g) In
the cases put as illustrations (v) and (w) to section 54 and in illustrations
(e) and (f) to this section, the Court may also order the copies produced by
piracy, and the trade-marks, statements and communications, therein
respectively mentioned, to be given up or destroyed.
56. Injunction
when refused.– An injunction cannot be granted–
(a) to stay a judicial proceeding pending at the institution of
the suit in which the injunction is sought, unless such restraint is necessary
to prevent a multiplicity of proceedings;
(b) to stay proceedings in a Court not subordinate to that from
which the injunction is sought;
(c) to restraint persons from applying to any legislative body;
(d) to interfere with the public duties of any department of [45][the [46][Federal Government], [47][* * *] or any Provincial
Government], or with the sovereign acts of Foreign Government;
(e) to stay proceedings in any criminal matter;
(f) to prevent the breach of a contract the performance of which
would not be specifically enforced;
(g) to prevent, on the ground of nuisance, an act of which it is
not reasonably clear that it will be a nuisance;
(h) to prevent a continuing breach in which
the applicant has acquiesced;
(i) when equally
efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust;
(j) when the conduct of the applicant or his agents has been
such as to disentitle him to the assistance of the Court;
(k) where the applicant has no personal interest in the matter.
Illustrations
(a) A
seeks an injunction to restrain his partner, B, from receiving the
partnership-debts and effects. It appears that A had improperly possessed himself
of the books of the firm and refused B access to them. The Court will refuse
the injunction.
(b) A
manufactures and sells crucibles, designating them as “patent plumbago crucibles,” though, in fact, they have never been
patented. B pirates the designation. A cannot obtain an injunction to restrain
the piracy.
(c) A sells an article called “Mexican Balm,” stating that it is
compounded of divers rare essences, and has sovereign
medicinal qualities. B commences to sell a similar article to which he gives a
name and description such as to lead people into the belief that they are
buying A’s Mexican Balm. A sues B for an injunction to restrain the sale. B
shows that A’s Mexican Balm consists of nothing but scented hog’s lard. A’s use
of his description is not an honest one and he cannot obtain an injunction.
57. Injunction to perform negative agreement.– Notwithstanding
section 56, clause (f), where a contract comprises an affirmative agreement to
do a certain act, coupled with a negative agreement, express or implied, not to
do a certain act, the circumstance that the Court is unable to compel specific
performance of the affirmative agreement shall not preclude it from granting an
injunction to perform the negative agreement: provided that the applicant has
not failed to perform the contract so far as it is binding on him.
Illustrations
(a) A
contracts to sell to B for Rs.1,000 the good-will of a
certain business unconnected with business-premises, and further agrees not to
carry on that business in [48][
(b) A contracts to sell to B the good-will of a business. A then sets
up similar business close by B’s shop and solicits his old-customers to deal
with him. This is contrary to his implied contract, and B may obtain an
injunction to restrain A from soliciting the customers, and from doing any act
whereby their good-will may be withdrawn from B.
(c) A
contracts with B to sing for twelve months as B’s theatre and not to sing in
public elsewhere, B cannot obtain specific performance of the contract to sing,
but he is entitled to an injunction restraining A from singing at any other
place of public entertainment.
(d) B
contracts with A that he will serve him faithfully for twelve months as a
clerk. A is not entitled to a decree for specific performance of the contract.
But he is entitled to an injunction restraining B from serving a rival house as
clerk.
(e) A contracts with B that, in consideration of Rs.1,000
to be paid to him by B on a day fixed, he will not set up a certain business
within a specified distance. B fails to pay the money. A cannot be restrained
from carrying on the business within the specified distance.
Schedule.
[51][* * * * * * * * * *]
[1]For the
Statement of Objects and Reasons, see Gazette of India, 1875, Pt.V, p.258; for the Report of the Select Committee, see ibid., 1876, Pt. V, p. 1445; for
discussions in Council, see ibid., 1875,
Supplement, pp.981 and 1025; ibid., 1876,
Supplement, p.1284 and ibid., 1877,
Supplement, p.177.
It had
been extended, by notification under s.5 of the Scheduled Districts Act, 1874 (XIV
of 1874), to the following Scheduled Districts, namely:-
Punjab
See Gazette of India, 1877, Pt.I, p.562.
Sind
See Gazette of
It had
been applied to Phulera in the Excluded Area of Upper Tanawal
to the extent the Act is applicable in the NWFP, (now KP) subject to certain
modifications; and extended to the Excluded Area of Upper Tanawal
(NWFP) other than Phulera with effect from such date
and subject to such modifications as may be notified, see N.W.F.P. (Upper Tanawal) (Excluded Area) Laws Regulation, 1950.
S.9 had
been declared to be in force in Balochistan by the
British Balochistan Laws Regulation, 1913 (II of
1913), s.3. (w.e.f. 18th August, 1913).
It had also been extended to the Leased Areas
of Balochistan, see the Leased Areas (Laws) Order,
1950 (G.G.O. III of 1950) (w.e.f. 15th August, 1947); and applied in the Federated
Areas of Balochistan, see Gazette of India, 15th August, 1937, Pt.I, p. 1499.
This
Act was originally in the Federal ambit, however, the subject on which this law
was enacted, devolved to the provinces by virtue of 18th Amendment in the
Constitution, hence it was adopted, with amendments, for the province of the
Punjab by the Specific Relief (Amendment) Act 2012 (VI of 2012).
[2]Substituted
for the word “
[3][Repeal of enactments]. Repealed by the Amending Act,
1891 (XII of 1891).
[4]XXXIX of
1925.
[5]IX of 1872.
[6]The word
“Indian” repealed by the Specific Relief (Amendment) Act 2012 (VI of 2012).
[7]XVI of 1908.
[8]V of 1908.
[9]Section 51
of the Punjab Tenancy Act, 1887 (XVI of 1887), reads as under:-
“51. Bar
of relief by suit under section 9, Act I of 1877.–
Possession of a tenancy or of any land comprised in a tenancy shall not be
recoverable under section 9 of the Specific Relief Act, 1877, by a tenant
dispossessed thereof.”
[10]The words
“instituted within six months from the date of the dispossession” repealed by
the Repealing and Amending Act, 1891 (XII of 1891) (w.e.f. 21st March, 1891).
[11]The
original words “the Government” were first substituted by Adaptation Order,
1937 (w.e.f. 1st April,
1937) and then amended by Adaptation Order, 1949 (w.e.f. 28th March, 1949) to read as
above.
[12]Substituted by Federal Adaptation Order, 1975, Art. 2, for “Central Government” (w.e.f. 28th July, 1975).
[13]See the
Code of Civil Procedure, 1908 (V of 1908).
[14]IX of 1872.
[15]The first
Illustration omitted by the Federal Laws (Revision and Declaration) Ordinance,
1981 (XXVII of 1981), s.3 and 2nd Sch.
[16]IX of 1872.
[17]Illustrations
omitted by the Specific Relief (Amendment) Ordinance, 1983 (XXII of 1983).
[18]Substituted
by the Arbitration Act, 1940 (X of 1940), s.49 and IV Sch., (w.e.f. 1st July, 1940) for “Code of Civil Procedure, [and
the Indian Arbitration Act, 1899,]”. The words in brackets had been inserted by
the Indian Arbitration Act, 1899 (IX of 1899), s. 21 (w.e.f. 1st July, 1899).
[19](X of 1940).
[20]Substituted
by the Indian Arbitration Act, 1899 (IX of 1899), s.21 for “a controversy”.
[21]The last
thirty-seven words of s.21, do not apply to any submission or arbitration to
which the provisions of the Indian Arbitration Act, 1899 (IX of 1899), for the
time being apply (see s.3 of that Act), or to any agreement to refer to
arbitration or to any award to which Sch.II of the Code of Civil Procedure,
1908, applies, see para 22 of that Schedule.
[22]Inserted by
the Arbitration Act, 1940 (X of 1940), s. 49 and IV Sch.
[23]Substituted by Federal Adaptation Order, 1975, Art. 2, for “Central Government” (w.e.f. 28th July, 1975)
which had been substituted by Adaptation Order, 1937, for “Government of India”.
[24]The word
“Federal” omitted by the Specific Relief (Amendment) Act 2012 (VI of 2012).
[25] Substituted by the Central Laws (Statute
Reform) Ordinance, 1960 (XXI of 1960), s.3 and 2nd Sch., for “
[26] Substituted for the word “ship” by the
Specific Relief (Amendment) Act 2012 (VI of 2012).
[27]Ibid.
[28]Ibid., for the
word “
[29]Ibid.
[30]Illustration
(e) omitted by the Specific Relief (Amendment) Ordinance, 1983 (XXII of 1983).
[31] S.27A inserted by the Transfer of Property (Amendment)
Supplementary Act, 1929 (XXI of 1929), s.3 (w.e.f. 1st April, 1930).
[32] The words “in writing” are repealed
wherever the Transfer of Property Act, 1882 (IV of 1882), is in force, see ss.1
and 2 of that Act.
[33]The words
“in writing” are repealed wherever the Transfer of Property Act, 1882 (IV of
1882), is in force, see ss.1 and 2 of that Act.
[34]The word
“Indian” omitted by the Specific Relief (Amendment) Act 2012 (VI of 2012).
[35]XVI of 1908.
[36]The word “Indian”
omitted by the Specific Relief (Amendment) Act 2012 (VI of 2012).
[37](XVI of 1908).
[38]V of 1908.
[39]Sections 45 to 51 omitted by
the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981),
s.3 and IInd Sch.
[40]Substituted
by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981),
s.3 and 2nd Sch., for
“Code of Civil Procedure”.
[41]Substituted
by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981),
s.3 and 2nd Sch., for “
[42]As to the
working of mines under land, the surface of which has been acquired by
Government, see the Land Acquisition (Mines) Act, 1885 (XVIII of 1885).
[43]Substituted
by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981),
s.3 and 2nd Sch., for
“Indian Limitation Act”.
[44]LXV of 1860.
[45]Substituted
by Adaptation Order, 1937 for “the Government of India or the Local Government”
(w.e.f. 1st April, 1937).
[46]Substituted by Federal Adaptation, 1975, Art.2, for “Central
Government” (w.e.f. 28th July,
1975).
[47]The words
“the Crown Representative” omitted by Adaptation Order, 1949, Sch., (w.e.f. 28th March, 1949).
[48]Substituted
for the word “
[49]Ibid.
[50]Ibid.
[51][Enactments Repealed] Repealed by the Repealing and
Amending Act, 1891 (XII of 1891).