Preparation for BJS Examination(Notes on Specific Relief Act,1877-Part-2)
Notes
On
Part-2
Ø RECTIFICATION OF INSTRUMENTS-
#When
instrument may be rectified-
Section:-31.
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, execute 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 taka 5,000. 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.
Discussion:-
RECTIFICATION OF
INSTRUMENTS-Limitation Period- 3YR.
Ø RESCISSION OF CONTRACTS
# When rescission may be adjudged:
Section:-35.
Any person interested in a contract in writing 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rescinded, and such rescission may be adjudged by the Court in any of the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;
Illustrations-
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rescinded.
(b) where the contract is unlawful for causes not
apparent on its face, and the defendant
is more to blame than the plaintiff;
Illustrations-
A, an Advocate, 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.
(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.
Discussion:-
RESCISSION OF CONTRACTS
-Limitation Period- 1 YR.
#Rescission
for mistake-
Section:-36.
Rescission of a contract in writing 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.
#Alternative
prayer for rescission in suit for specific performance-
Section:-37.
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.
#Court
may require party rescinding to do equity-
Section:-38.
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.
Ø CANCELLATION OF INSTRUMENTS
***Examples
are important here for exam.
#When
cancellation may be ordered -
Section:-39.
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 Registration Act, 1908, 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.(M.C.Q.+
WRITTEN)***}
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 Indian Registration Act. 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 taka 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.
Discussion:-
CANCELLATION OF
INSTRUMENTS -Limitation Period- 3 YR.
#What
instruments may be partially cancelled-
Section:-40.
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.
#Power
to require party for whom instrument is cancelled to make compensation-
Section:-41.
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.
Ø DECLARATORY DECREES
#Discretion
of Court as to declaration of status or right Bar to such declaration-
Section:-42.
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.
Illustration
***All
examples are important for exam.
(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 taka, 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.
Discussion:-
***ONLY
DECLARATORY SUITS-Court-Fee -300 Taka
***DECLARATORY
SIUTS + CONSEQUENTIAL RELIEF=AD-VALOREM COURT FEE.
***Limitation
Period-6YR/12YR
#Effect
of declaration -
Section:-43.
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.
Ø APPOINTMENT OF RECEIVERS
#Appointment
of receivers discretionary Reference to Code of Civil Procedure-
Section:-44.
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.
Ø INJUNCTIONS GENERALLY
#Preventive
relief how granted-
Section:-52.
Preventive relief is granted at the discretion
of the Court by injunction, temporary or perpetual.
Temporary
injunctions Perpetual injunctions-
Section:-53.
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 Code of Civil Procedure.
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.
Ø PERPETUAL INJUNCTIONS
Perpetual
injunctions when granted-
Section:54.
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.(i.e.
specific performance of contract)
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.
Illustrations
(a) A lets certain lands
to B and B contracts not to dig sand or gravel there out. 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 after-wards 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 contracts 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 or 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 Chittagong, becomes insolvent
B buys them from the Official Assignee and enters into possession. A persists
in trespassing on and damaging the houses, and B is thereby compelled, at
considerable expense, to employ men to protect the possession. B may sue for an
injunction to restrain further acts of trespass.
(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. 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.
Discussion:-
Minimum Court-Fee in
-PERPETUAL INJUNCTIONS-200 Taka.
Ø Mandatory injunctions
Section:-55.
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
***Examples
are important for exam.
(a) A, by new buildings,
obstructs lights to the access and use of which B has acquired a right under
the Limitation Act, 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) ***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. The Court may also order all written communications
made by B, as patient, to A, as medical adviser, to be destroyed.
(d)***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. The
Court may also order A's letters to be destroyed.
(e)*** A threaten to publish statement concerning B which would be
punishable under Chapter XXI of the Penal Code. The Court may grant an
injunction to restrain the publication, even though it may be shown not to be
injurious to B's property. The Court may also order that the statements to be
given up or destroyed.
(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. The Court may also order that the
communications to be given up or destroyed.
(g) 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. The Court may also order
that the copies produced by piracy to be given up or destroyed.
(h) 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. The Court may also order that the
trade-marks to be given up or destroyed.
Ø Refusal of Injunctions
Section:-56.
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 the
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
***Examples
are important for exam.
(a) A seeks an injunction to restrain
his partner, B, from receiving the partner-ship-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.
#Injunction
to perform negative agreement -
Section:-57.
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
{N.B.-These
examples are related to the SPC also. You have to read these examples with the
examples of SPC of this Act.}
(a)A contracts to sell to
B for taka 1,000 the good-will of a certain business unconnected with
business-premises, and further agrees not to carry on that business in
Chittagong. B pays A the taka 1,000 but A carries on the business in
Chittagong. The Court cannot compel A to
send his customers to B, but B may obtain an injunction restraining A from
carrying on the business in Chittagong.
(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 taka 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.
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