( ACT NO. I Of 1877 )
[ 7th 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
Short title1. This Act may be called the Specific Relief Act, 1877.
Local ExtentIt extends to the whole of Bangladesh.
CommencementAnd it shall come into force on the first day of May, 1877.
[Repealed]2. [Repealed by the Amending Act, 1891 (Act No. XII of 1891).]
Interpretation-clause3. 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 Taka 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 the 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 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 the 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 2[Succession Act, 1925] whereby the destination or devolution of successive interests in moveable or immoveable property is disposed of or is agreed to be disposed of:
Words defined in Contract Actand all words occurring in this Act, which are defined in the Contract Act, 1872, shall be deemed to have the meanings respectively assigned to them by that Act.
Savings4. 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 3[Registration Act, 1908] on documents.
Specific relief how given5. 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.
Preventive relief6. Specific relief granted under clause (c) of section 5 is called preventive relief.
Relief not granted to enforce penal law7. 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
Recovery of specific immoveable property8. A person entitled to the possession of specific immoveable property may recover it in the manner prescribed by the Code of Civil Procedure.
Suit by person dispossessed of immoveable property9. 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 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 the 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
Recovery of specific moveable property10. A person entitled to the possession of specific moveable property may recover the same in the manner prescribed by the Code of Civil Procedure.
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.
(e) 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.
Liability of person in possession, not as owner to deliver to person entitled to immediate possession11. 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 Europe, leaves his furniture in charge of B as his agent during his absence. B, without A’s authority, pledges the furniture to C, and C, knowing that B had no right to pledge the furniture, advertises it for sale. C may be compelled to deliver the furniture to A, for he holds it as A’s trustee.
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 China vases. B has possession of them. The articles are of too special a character to bear an ascertainable market value. B may be compelled to deliver them to A.
CHAPTER II
OF THE SPECIFIC PERFORMANCE OF CONTRACTS
(a) Contracts which may be specifically enforce
Cases in which specific performance enforceable12. 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 4[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
5[ * * *]
of clause (b)-
A agrees to buy, and B agrees to sell, a picture by a dead painter and two rare china vases. A may compel B specifically to perform this contract, for there is no standard for ascertaining the actual damage which would be caused by its non-performance.
of clause (c)-
A contracts with B to sell him a house for taka 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 contract with Z to make an archway through there 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 taka 1,000. The picture is painted. B is entitled to have it delivered to him on payment or tender of the taka 1,000.
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.
Contract of which the subject has partially ceased to exist13. Notwithstanding anything contained in section 56 of the Contract Act, 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.
Illustrations
(a) A contracts to sell a house to B for a lakh of taka. The day after the contract is made the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchase-money.
(b) In consideration of a sum of money payable by B, A contracts to grant an annuity to B for B’s life. The day after the contract has been made, B is thrown from his horse and killed. B’s representative may be compelled to pay the purchase-money.
Specific performance of part of contract where part unperformed is small14. 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 contracts 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 Taka, 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.
Specific performance of part of contract where part unperformed is large15. 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 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 taka. 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.
Specific performance of independent part of contract16. 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.
Bar in other cases of specific performance of part of contract17. 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.
Purchaser’s rights against vendor with imperfect title18. Where a person contracts to sell or let certain property, having only an imperfect title thereto, the purchaser or lessee (except as otherwise provide 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.
Power to award compensation in certain cases19. 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 taka 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.