Guided by:

submitted by
Professor Eqbal Hussain
rizvi

Shuja haider

B.a ll.b 1st semester

Index
(i) Index. 2
(ii) Acknowledgement.. 3
(ii) Introduction to Contract... 4
(iii) Definition of Specific Relief Act... 4-5
(iv) Contracts which are specifically enforceable..5
(a) where no other suitable remedy.. 5
(b) Valid Contract in existence...5-6
(c) Contract not extinguished by decree........
6
(d) Agreement for reconveyance or
repurchase.6
(e) Delay...
...6
(f) Sale by joint owners.......7
(v) Specific Performance of Contracts......7
(vi) Rescission of contract....
7
(a) Sec 27. When rescission may be adjudged or refused...8
(b) Affirmation....8
(c) Where restitution is not possible...9
(d) Intervention of third parties..9
(e) Severance...9
(vii) Cases.... .910
(viii) Rescission in certain circumstances of contracts for the sale or lease of
immovable property, specific performance of which has been decreed10-11
(ix) Alternative prayer for rescission for specific performance..12
(x) Rescission and equity...13
(xi) Cancellation to instrument.1314
(a) Who can seek cancellation?...................................................................................14
(b) When instruments may be partially cancelled............15
(c) When agreement void...........
15
(d) When contract is voidable.....16
(e) Reasonable apprehension...16-17
(f) Partial Cancellation..17

(xii) Declaratory Decrees.. 1718

(a) Essentials to be set up for relief under Section 34...18
(b) Frame of plant.........18
(c) Further relief where plaintiff entitled to it (Proviso)...18
(d) Questions on the ground of fraud...19
(xiii) Injunctions.. 20
(xiv) Kinds of
Injunctions....20
(a) Temporary injunctions...20
(b) Perpetual Injunctions.21
(c) Mandatory Injunctions..21

Acknowledgment
It is my imperative duty to thank the following people for the
successful completion of my Contract law project,
Professor Eqbal Husain for the clarity he brings into
teaching thus enabling us to have a better understanding of
his subject. I also feel obliged to thank him for providing us
with such wonderful topics to choose from.

Idrish Mohammed & Jaya Sharma, My resourceful

classmate, it has to be noted that given some of our group
members insistence on not depending on one single book led
to all of us giving in equal contribution to the completion of
this project.

 The very cooperative and friendly staff members in the Law

Library who were instrumental in our finding the necessary
books without wasting much time. It has to be noted that
their contribution is essential as our University is yet to get a
fully functional centralized database for its libraries.

Introduction of Contract:
A contract is like a promise between people. It is an understanding, a deal between
two or more people or organizations to do certain things. Each person or organization
who agrees to do something in a contract is called a party. Contracts may be made
entirely orally or by conduct. The remedy for breach of contract can be "damages" in
the form of compensation of money or specific performance enforced through an
injunction.
It is a agreement which is enforceable by law. Parties are legally bound by
the promise made by them. It is an obligation to perform a promise. A contract is
consists of following things1. An offer.
2. An acceptance of that offer which results in a meeting of the minds.
3. Promise to perform.
4. A valuable consideration (which can be a promise or payment in some form).
5. A time or event when performance must be made (meet commitments).
6. Terms and conditions for performance, including fulfilling promises.
7. Performance.

Definition of Specific Relief Act:

The Specific Relief Act provides for specific reliefs. Specific relief means relief of a
certain species i.e., an exact or particular, a named, fixed or determined relief. The term
is generally understood as providing relief of a specific kind rather than general relief.
For example in the case of a contract between two parties if one of them fails to deliver a
certain goods he may be required to pay damages for breach of contract but under the

specific relief act he may be required to perform the contract specifically i.e., specific
performance of a contact may require to deliver the promised goods. The Specific Relief
Act is concerned only with the enforcement of civil rights and not penal laws. This is
mentioned in Sec 3 of this act which says: Specific relief can be granted only for the
purpose of enforcing individual civil rights and not for the mere purpose of enforcing
civil law.
Specific performance is generally granted when there exists no standard for ascertaining
actual damage, for instance when the object of sale is a picture by a dead painter or where
compensation in money will not provide adequate relief to the plaintiff. Sometimes an
instrument in writing does not express the real intention of the parties due to fraud or
mutual mistake, rectification of such instruments is permitted by the specific relief act.
Specific relief could also be in the form of rescission of a contract. The court may order
rescission when the contract is voidable or terminable by the plaintiff or it is unlawful.
When a written instrument which is void or voidable, such instrument is left outstanding
could cause serious injuries to the plaintiff, the court may order the cancellation of such
instrument, under the Specific Relief Act. The Specific Relief Act also enables the court
to issue a declaratory degree, to a person entitled to any legal character, or to any right as
to property, which is denied by the other. An important equitable relief under the Specific
Relief Act is injunction. Injunction could be a direction to a person to do something,
which is his duty to do, or abstain from doing something, which he is legally bound not
to do.

Contract which are specifically enforceable. [S. 10]

where no other suitable remedy
In a case before the Supreme Court a family women borrowed a sum of money from a
family member and executed a deed of sale of her property in favor of the lenders minor
son with a agreement of reconveyance on repayment of the loan. The dues under the
loan were paid back and on denial of recvonvenyance, The Supreme Court upheld the
decree of the specific performance ordering reconveyance. The mortgage having
disposed of the property, the decree was allowed to be enforced against such buyer also.1
The share of a private company have been held to
be goods of such a nature as they are not easily obtainable in the market. The court,
1

Nivarti Govind Ingale v. Revana Bhimanagauda patil, (1997) 1 SXX 475, Kaulshwari Devi v. Nawal
Kishor, 1955 Supp (1) SCC 141: AIR 1994 sc 1200, subsequent buyer of the property affected by the
decree. M. Ramalingam v. Subramanyam, AIR 2003 Mad 305, registered sale deed, the seller could not
prove that it was a mortgage transaction. Consideration not low, thus the agreement was for sale, The
defendant compellable to perform his part of contract. Aniglase Yahonnan v. Ramlatha, (2005) 7 SCC 534;
AIR 2005 SC 3503, found from averments in the plaint and from evidence that the plaintiff had compied
with the statutory requirements. He was entitled to specific relief. Vishwa Nath Sharma v. Shanker Goenka,
(2007) 10 SCC 595, sale of sub-lease of a plot taken from DDA, permission of the authority being
necessary, the decree had to be molded accordingly. P.S Ranakrishnan Reddy v. M.K Bhagyalakshmi,
(2007) 10 SCC 231; AIR 2007 SC 1256, agreement found to be one of the sale and not loan, a provision for
damages in case of default was not a determination factor.

therefore, laid down that specific performance should be granted in such cases.2 The
court cited the following opinion of the Privy Council:3 It is also the opinion of the
board that having regard to the nature of the company and limited market for its shares,
damages would not be an adequate remedy.

Valid Contract in existence

There should be a concluded contract. In the present, there was an agreement for
transfer of property. The transferor did not dispute the agreement in his reply to the notice
from the transferee. He did not even dispute in the written statements averments made the
plaint as to the agreement. No such plea was raised before the High Court to the trial
Court. Hence, existence of the agreement was not disputed.4
The other two requirements for seeking specific relief are that the defendant
committed breach of contract and that the plaintiff was always ready and willing to
perform his part of the obligations in terms of the contract.5

Contract not extinguished by decree

The passing of the decree for specific performance does not extinguish the contract
between the parties. The parties continues to be entitled to their rights and bound by their
obligations under the contract. The decree fore specific performance merely recognize
entitlement to the claim for specific performance.6

Agreement for reconveyance or repurchase

The agreement to repurchase property which had been sold, popularly know as
agreement for reconveyance, has been held to be specifically enforceable. Referring to
such agreements in V. Penchimuthu v Gowrammal,7 the Supreme Court said:
Such an agreement, not being merely a privilege or concession, such as an option to
purchase, granted to the owner, remains an agreement for sale of immovable property and
must be governed by the same provision of law as are applicable to the ordinary
agreements for sale. Decision as to weather an agreement is an option to purchase or an
ordinary agreement is an option to purchase or an ordinary agreement depends on
interpretation of its terms. It was held on the facts that the reconveyance agreement in the
favour of the appellant-plaintiff, the original vendor, was an ordinary agreement for sale.
2

M.S Madhusoodhan v. Kerala Kaumudi P Ltd. (2004) 9 SCC 204; AIR 2004 SC 909.
Bank of India Ltd. v. Jamsetji A.H Chinoy & Chinoy and Co, (1949-50) 77 IA 76; AIR 1950 PC 90
4
Kammana Sambamurthy v Kalipatnapu Atchutamma, (2011)11 SC 153; AIR 2011 SC103.
5
Man Kaur v Hartar Singh Sangha, (2010) 10 SCC 153: AIR 2011 SC 103.
6
Amol v Deorao, AIR 2011 NOC 215 (Bom.)
7
(2001) 7 SCC 617: AIR 2001 SC 2446. Bismillah Begum v Rahmatullah Khan, (1998) 2 SCC 266: AIR
1998 SC 970, time is of the essence in a contract of reconveyance.
3

The High Court in second appeal erred in reversing the decree of the specific
performance in the favour of granted trail court and affirmed by the first appellate court

Delay
Unreasonable delay by the plaintiff in performing his part of the contract operates as a
bar to his obtaining specific performance, provided that(i) time was originally the essential element of the contract; or
(ii) it was made an essential element by the subsequent notice; or
(iii) The delay has been so unreasonable and long that it amounts to abandonment of the
contract.8
As a general preposition of law, in the case of the sale of immovable property there is
no presumption as to time being the essence of the contract. Even if it is not the essence
of the contract the Court may infer that it is to be performed within a reasonable time if
the conditions are evident:
(i) from the express terms of the contract;
(ii) from the nature of the property;
(iii) from the surrounding circumstances, for example, the object of making the contract.

Sale by joint owners

The Supreme Court propounded the following propositions: Where any property is
held jointly, and once any party to the contract has agreed to sell such joint property by
agreement, then, even if the other co-sharer has not joined, at least the extent of his share,
he is bound to execute the sale deed. However, in the absence of other co-sharer there
could not be any decree of any specified part of the property to the partitioned and
possession given. The decree could only be to the extent of transferring the share of the
appellants in such property to other such contracting party.

Specific Performance of Contracts:

Specific Performance is equitable relief given by a court in case of breach of contract in
the form of a judgment that the defendant is to actually perform the contract according to
the terms and conditions.
A contract, according to Indian Contract Act, is an agreement enforceable by law. From
every contract there immediately and directly results as obligations on each of the
contracting parties towards the other to perform such of the terms of the contract as he
8

K.S. Vidyanandam v Vairavan, (1997) 3 SCC 1: AIR 1997 SC 1751, delay of 2 years after paying a small
amount by way of the earnest money for purchasing immovable property, disentitled from claiming
specific recovery of the property.

has undertaken to perform9

An obligations includes every duty enforceable by law. Consequently, whenever a man
comes under the liability to do or forbears from doing anything, he remains under an
obligation. This liability may be consequence of either a contract or a tort. An obligation
to forbear is a positive duty generally imposed by a contract.

Rescission of contract:
Rescission of contract means the termination or annulment of a contract the rescission of
a contract necessary constitute a bar to its performance by either of the party to it. The
grounds of bringing a suit of rescission have been given in sections 27 and 28 of the
SPECIFIC RELIEF ACT, 1963.
Sec 27. When rescission may be adjudged or refused:

Any person interested in a contract may sue to have rescinded, and such rescissions
may be adjudged by the court in any of the following cases, namely:-

Where the contract is voidable or terminable by the plaintiff.

Where the contact is unlawful for causes not apparent on its face and a defendant is
more to be blamed than the plaintiff.

Notwithstanding anything contained in sub section (1), the court may refuse to
rescind the contract:-

Where the plaintiff has expressly or impliedly ratified the contract; or

Where, owing to the change of circumstances which have taken place since the
making if the contract (not being due to any act of the defendant himself), the parties
cannot be substantially restored to the position in which they stood when the contract was
made; or

Where the third parties have, during the subsistence of the contract, acquired rights in
good faith without notice and for value; or

Where only a part of the contract is sought to be rescinded and such part is not
severable from the rest of the contract.
Explanation: In this section Contract in relation to the territories to which the Transfer
of Property Act, 1882, does not aaply.
The relief of rescisionn is available subject to very important limits. This is so because
every voidable contract is valid as long as it is not avoided. If the relief of rescission is
9

Kumari Ananda v T Balamukunda Rao, AIR 2002 Mad 472,. Ameer Mohd v Barkat Ali, AIR 2002 Raj
406, in both these cases the action was founded upon oral agreement, but the details of the agreement were
not proved and, therefore, no relief could be allowed.
Balwinder Kaur v. Bawa Singh, AIR 2002 P&H 378, execution of the agreement not proved. No relief.

not quickly obtained, circumstances may so seriously change that it would then not be
desirable to put an end to the contract sub section(2) accordingly provides that the right
of rescission is not available in the following cases

Affirmation:
The plaintiff looses the right of rescission when on becoming aware of his right, he
chooses to ratify the contract. Once the contract is affirmed it cannot be avoided
afterwards. It may be expressed or implied. An expressed affirmation takes place when
the right to rescind is openly waived. An implied affirmation takes place when the party
having the right to rescind is instead enjoying the benefits of the contract

Where restitution is not possible:

The right of rescission is also lost where the position of the party has been altered to such
an extent that they cannot be put back to their original status. Where one party has
already resold the goods or consumed them, restoration of the status quo ante becomes
impossible.
The transferee obtained the possession of the property in part performance of the
contract. The court said that possession over property was to be protected even if the
period of limitation for bringing a suit for specific performance had expired. The
transferee was required to fulfill the necessary conditions in order to defend and protect
his possession. The Limitation Act does not extinguish defenses it only bars remedy.

Intervention of third parties:

Where rights of third parties have intervened, rescission cannot be allowed to prejudice
of such rights. Where, for example, a person has obtained goods by fraud and before the
seller is able to catch him he transfers the goods to a bona fide buyer, the deceived seller
would not now be allowed to get rid of the sale on the account of fraud.

Severance:
Rescission is not allowed where the plaintiff is seeking rescission as only the part of
contract and that part is not severable from the rest of the contract.

Cases :
Affirmation:
In Long v. Lloyd10 A sold his lorry to B by making a false representation that the lorry
was in excellent condition. On the lorrys first journey B discovered serious defects in
the lorry. He did not rescind the contract, but instead accepted As offer of half the cost of
repairs. The lorry completely broke in the next journey and then B wanted to rescind the
contract. It was held that B, by accepting the offer of sharing the cost or repairs by a and
thereafter continuing using the lorry, had affirmed the contract the contract and he has
now no right to rescind it.

When restitution is not possible:

In Wallis v. Pratt11, the buyer purchased seeds described as English sainfoin seeds. The
seeds supplied by the seller were of an inferior and different variety known as Giant
sainfoin seeds at the time of the supply of seeds the buyer could not make out the defect
as the two varieties were indistinguishable. The defect could be known only after the
seeds were sown and the crops were ready. The buyer could claim compensation only
there was no chance of avoiding the contract and rejecting the goods as a contract of sale
was not severable.

Intervention of third parties:

In Phillips v. Brookes12 a person, North, when to the plaintiffs shop and selected some
pulse worth 2550 pounds and a ring worth 450 pounds. He took out a cheque book to
write a cheque for a sum of 3000 pounds. While writing the cheque he told the plaintiff I
am Sir George Bullogh and he also mentioned Sir George Bulloghs residential address.
Plaintiff had heard about Sir George Bullogh, being a person of credit and he confirmed
the address from the directory. North then told the plaintiff I should like to take the ring,
as it was my wifes birthday tomorrow, and offered to collect the pearls after the cheque
was cashed. Plaintiff handed over the ring to north under the impression that he was Sir
George Bullogh. North then pledged the ring to defendants for 350 pounds, who took the
same in good faith and without of fraud. The plain plaintiff sued the defendants for the
return of the ring contending that no property in the ring has past to North because of
mistake regarding his identity. It was held that the agreement was not void on the ground
of mistaken so far as the plaintiff contracted to dell and deliver the ring to the person who
present in the shop. The contract was only voidable on the ground of fraud. It may be
10

11
12

[1958] 1 WLR 753

[1911] AC 394
[1919] 2 KB 243

noted that when a person receives some goods under a voidable contract and he transfers
the further before the contract has been avoided, to a bona fide transferee, whose acting
in good faith and without notice about the defective title of the transferor, the transferee
gets a good title. The defendants have therefore acquired a good title in this case.
Sec 28. Rescission in certain circumstances of contracts for the sale or lease of
immovable property, specific performance of which has been decreed:-

(1) Where in any suit a decree for specific performance of a contract for the sale or
lease of immovable property has been made and purchaser or lessee does not, within the
period allowed by the decree or such further period as a court may allow, pay the
purchase money or other sum which the court has ordered him to pay, the vendor or
lesser may apply in the same suit in which the decree is made, to have the contract
rescinded and on such application the court may, by order, rescind the contract, either so
far as regards the party in default or altogether, as the justice of the case may require

(2) Where the contract is rescinded under sub section (1), the court-

Shall direct the purchaser or lessee, if he has obtained possession of the property
under the contract, to restore such possession to the vendor or lessee, and

May direct payment to the vendor or lessor of all the rents and profits which have
accrued in respect of the property from the date in which possession was so obtained by
the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the
justice of the case so requires, the refund of any sum paid by the vendee or lessee as
earnest money or deposit in connection with the contract.

(3) If the purchaser or lessee pays the purchase money or some other sum which he
ordered to pay under the decree within the period referred to in sub section(1), the court
may, on application made in the same suit, award the purchaser or lessee such further
relief as he may be entitled to, including in appropriate cases all or any of the following
reliefs, namely:-

The execution of the proper conveyance or lease by the vendor or lessor ;

The delivery of possession, or partition and separate possession on the execution of

such conveyance or lease.

No separate suit in respect of any relief which may be claimed under this section shall
lie at the instance of a vendor, purchaser, lessor or lesse, as the case may be

The cost of any proceedings under this section shall be in the discretion of the court.

Section 28 enables the court to put inbuilt remedy of rescission in a decree of specific
performance. Where a decree of a specific performance has been passed in respect of a
contract for the sale or lease of immoveable property, but the party to whom such relief
has been granted does not pay the price within the time delimited, the seller may ask the

court for rescission. The court will direct the purchaser or lessee, if he has already taken
over possession, to restore it to the seller and also pay to him rent for the period during
which he enjoyed the benefits of possession. Where justice so requires the court may
order refund of the earnest money, if any, paid by the vendee or lessee. Where, on the
other hand, the vendee or lessee has deposited the money as directed by the court, he may
be allowed any relief as same just to the court in the circumstances13.

Alternative prayer for rescission for specific performance:

As provided by Sec 29 of SPECIFIC RELIEF ACT 1963, the plaintiff may in a suit for
specific performance make a prayer that if such prayer may not be granted the contract
may be rescinded. He has to make delivery of the instrument for being cancelled.
But the converse is not true. So, the prayer for decision of the contract or, in the
alternative, for a decree of a specific performance is not permissible.14
Sec 29. Alternative prayer for rescission for specific performanceA 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.
In Smt. Krishnabhai v, Wellworth Developers15, there was suit for declaration that
agreement for development and construction thereon was void as the plaintiff had been
deceived to accept for lesser consideration than the value of the property. The plaintiff
also made alternative prayer for a decree of specific performance of the contract in full.
In their submissions, defendants had also showed willingness to perform and
complete the transaction knowing fully well that the plaintiff had prayed for specific
performance as an alternative relief contenting that the agreement was void.
It was held that in the above said situation plea of alternative relief was
maintainable.
13

Relief was allowed even where the deposit was late but it was made during the pendency of the appeal.
The court retains control over the matter even after the passing of the decree, Ramankutty Guptan v Avara,
(1994) 2 SCC 642: AIR 1994 SC 1699. V.S. Palanichamy Chettiar v. C Algaoppan. (1999) 4 SCC 702: AIR
1999 SC 1918, application to the execution court for the extension of time. The court explained the factor
which have to be taken into the account in dealing with such aaplications.
14
FRY, SPECIFIC PERFORMANCE, S. 1058 (5TH EDITION).
15
AIR 2001 Bom 9, 2000 (4) BomCR 757, 2000 (4) MhLj 532

Rescission and equity

Section 30 lays down that the court may require parties rescinding to do equity. It
provides:
Sec 30. Court may require parties rescinding to do equity.On adjudging the rescission of a contract the court may require the party to whom
such relief is granted to restore, so far as may be, any benefit which he may have
received from the other party to make any compensation to him which justice may
require.
It is a maxim of law that he who seeks equity must do equity in the transaction in
respect of which relief is sought. So while decreeing rescission the court might direct not
only payment of compensation to the defendant but also restoration of any benefit
received by the plaintiff under the contract.
A party seeking special relief may at the same
time ask that if specific performance cannot be allowed, the contract may be ordered to be
retraint. If the rectification of an award decree on the grounds of fraud.

In Akshayalingam Pillai v. Ayyamba16,: the DB held that a decree for specific

performance ensures not only for the benefit of the plaintiff but also that of the
defendant; the passing of the decree does not terminate the suit because all reliefs open to
the plaintiff after judgment are equally available to the defendant.
In Mohammad Alli Sahib v. Abdul Khadir Sahe17, after directing the purchaser to pay the
price within three months, the court had the power to grant extension of time on
sufficient cause shown though the application was made after the time fixed for
performance and expired.

Cancellation of Instruments (sec 31-33)

Section 31 to 33 of the SPECIFIC RELIEF ACT 1963 provide for the cancellation of
instruments. They are reproduced below:
Sec 31. When cancellation may be ordered-

16
17

1993 64 MAD LJ 536

1927 59 MAD LJ 351

any person against whom a written instrument is voidable, and 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 adjudged
it an order it to be delivered up and cancelled.

If the instrument has been registered under the Indian 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 not on the copy of the instrument contained in his
books the fact of its cancellation.
A sale deed which was executed by practicing a fraud on the transferor, who was also not
of sound mind, was held liable to be quashed and not to be specifically enforced.18
Who can seek cancellation?
A sale deed was executed in respect of an ancestral property the transferors sons
challenged it and sought a declaration that the sale was null and void. There was nothing
to show their ages and whether they had birth right in the property. They were not
allowed to challenge it on the ground of the competence of the transferor, the suit was
also time barred because it could be filed only within three years of the cause of action
whereas thirteen years had already passed.19
In a case of cancellation of a sale deed on the ground that the deed was void, it was held
that the suit could be filed in civil court by the recorded tenure holder, executants of the
deed or his successor. The suit filed by a third party was not maintainable.20
When a document is valid, no question arises of its cancellation. When a document is
void abnitio, a decree of setting aside the same would not be necessary of the same is non
est in the eye of the law.
18

This section correspondence with Sec. 39 of the repealed Specific Relief Act, 1877. This section carried
the following Illustrations:
1. A, the owner of a ship, by fraudulently representing her to be seaworthy, induced B, an
underwriter, to insure her. B may obtain the cancellation of the policy.
2. A convey land to B, who bequeaths it to C and dies. Thereupon D gets possession of the land
and produced a forged instrument stating that the conveyance was made to B in trust of him. C
may obtain the cancellation of the forged instrument.
3. 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 on 1st Jan, 1887. Soon after the day, A fraudulently grant to C a lease of
parts of the land, dated on 1st Oct, 1876, and procures the lease to be registered under the Indian
Registration Act. B may obtain the cancellation of this deed.
4. A agrees to sell and deliver the ship to B, to be paid for the Bs acceptance of four bills of
exchange, for sum amounting to Rs 30,000, to be drawn by A or 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.
19

Dayanand v. Madan Lal Verma, AIR 2003 All 276, Arts. 58 and 59 of the Limitation Act, 1963
Kishor Prasad v Addl Distt Judge, AIR 2003 All 58. Lalit Kumar Jain v. Jaipur Traders Corpn (P) Ltd,
(2002) 5 SCC 383, unexplained delay in filing the suit after the exchange of notice, vendee remained in
possession of the mill and used it for the long period of 30 years, in the circumstances of the case, the
supreme court directed transfer of the mill to the vendee subject to his paying 30 lacks in addition to
balance account. Hameed v Kanhaiya, AIR 2004 All 405, the plaintiff was able to prove that he was the son
at the owner of the property on whom fraud was committed. He was allowed to sue.
20

Sec 32. When instruments may be partially cancelled:

Where an instrument is evidence of different rights or obligations, the court may,
in a proper case, cancel it in part and allow it to stand for the residue.
Illustration in Preceding Act 1877
This section corresponds with Section 40 of the repealed Specific Act 1877. That
section carried the following 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. Cs endorsement is forged. C is entitled to have such instrument
cancelled, leaving the bills to stand in other respects.
Sec 33. Power to require benefit to be restored or compensation to be made when
instrument is cancelled or is successfully resisted as being void or voidable:
On adjudging the cancellation of an instrument the court may require the party to
whom such relief is granted to restore so far as may be any benefit which he may have
received from the other party and to make any compensation to him which justice may
require.

Where a defendant successfully resist any suit on the grounds1. That the instrument sought to be enforced or to against him in
the suit is voidable, the court may, if the defendant has received
any benefit under the instrument from the other party require him
to restore, so far as may be, such benefit to that party or to make
compensation for it.
2. That agreement sought to be enforced against him in the suit is
void by reason of his not having been competent to contract
under section 11 of Indian Contract Act, 1872, the court may, if
the defendant has received any benefit under the agreement from
the other party, require him to restore, so far as may be, such
benefit to that party, to the extent to which he or his estate
thereby.

The relief provided in Section 33 of the Specific Relief Act is based on the principle of protective
or preventive justice. This section applies to instruments executed by the plaintiff as well as to
other instruments which he seeks to have adjudged void or voidable. 21 It is not necessary that the
plaintiff must be a party to the contract; he can maintain the suit under this section if the
instrument is against his interest.

21

Surajket v Chandra Mal, AIR 1934 All 1071

When agreement void:

An agreement not enforceable by law is said to be void [sec 2(8) of Indian Contract Act].
A contract is void-

Where the consideration or object or an agreement is forbidden by law.

Is of such nature that if permitted it would defeat the provisions of law.
It is fraudulent
It involves injury to a person or property

If the court regards it as immoral or opposed to public policy (sec 23 Indian Contract
Act 1872)
It will also be noted that an agreement in restraint of marriage of any person other than a
minor22 or by which anyone is restraint from exercising a lawful profession, trade or
business23 or legal proceedings or agreements of unmeaning or of wagering nature and an
agreement without consideration as general rule are void, a contract by a minor is void.24
When contract is voidable:
An agreement which is enforceable by law at the option of one or many parties thereto,
but not at the option of the other or others, is a voidable contract.
When consent to an agreement is caused by coercion, fraud or
misrepresentation, the agreement is contract voidable at the option of the party, whose
consent was so caused.25
A contract induced by undue influence is voidable at the option of the party, whose
consent was so caused.26

Reasonable apprehension:

22

Section 26, Indian Contact Act.

23

Section 28, Indian Contract Act

24

Section 25, Indian Contract Act.

25

Section 19, Indian Contract Act

26

Section 19-A, Indian Contract Act

The relief provided under section 31 of the SPECIFIC RELIEF ACT is based upon
protective justice and upon idea of quia time (for fear) and, therefore, where there is no
apprehension of injury to the plaintiff, no suit can be instituted27. Reasonable
apprehension is to be determined with the reference to the circumstances of each case
which the court has to deal with.
Requirement of ground of relief

The relief under section 31 of the SPECIFIC RELIEF ACT cannot be claimed as a
matter of right; the court will act upon the principle of the exercise of sound discretion,
having due regard to the conduct of the parties.28

Where there the parties are in pari delicto and fraud is alleged as the ground for
cancellation, the court may refuse relief to the plaintiff, as he is equally to be blame as is
defendant.29

Relief cannot be granted under section 31 of the SPECIFIC RELIEF ACT where
there is a question of mere inadequacy of consideration.30

No suit for the cancellation of a will can be instituted during a testators lifetime.

Partial cancellation
Section 32 of the SPECIFIC RELIEF ACT will be applicable only when rights and
obligation under an instrument are distinct and separable.31

Declaratory Decrees
Sections 34 and 35 law down the law relating to declaratory decrees. A declaratory
decree is a decree declaratory of a right which is doubtful or which requires to be cleared.
The object of declaratory decree is to prevent future litigation by removing the existing
cause of the controversy.
27

Chagalal v. Dharamdas, 7 Bom 607

28

Valley v. Dallubhoy, 25 Bom 10

.
29

Bindeshwari v. Lekhraj, 20 CWN 760

30

Kelam v. Polavampur, 191 Cal 746

31

Khub Singh v. Jahan Lal, 12 CPCR 13

Section 34 of the Specific Relief Act lays down the circumstances under which a
declaratory decree may be passed.
Section 34. Discretion of the court as to declaration of status or right: Any person entitled
to any legal character, or to any right as to any property, may institute a suit against any
person denying or interested to deny, his title to such character or right, and 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.
Explanation- A trustee of property is a person interested to deny a title of someone
who is not in existence, and for whom, if in existence, he would be a trustee.
(i) Essentials to be set up for relief under Section 34
1. That the plaintiff is entitled to a legal character at the time of the suit, or to any
right as to any property.32
2. Defendant has denied these or he is interested in denying that character or right
of the plaintiff, and
The plaintiff is not in a position to ask for relief consequential upon the declaration.
(ii) Frame of plant
The plaint must disclose(1) the title or right claimed by the plaintiff.
(2) the circumstances in which the cloud were cast over the same or the same was
denied or threatened,
(3) the prayer.33
In Qabool Singh V Board of Revenue34, it was held that the plaintiff must
show subsisting right not only on the date of the suit but also on the date of decree.
The defendant should be a person who actually denies or is interested to
deny the plaintiffs title, status, rights to any property; even the lease denied by a
person or a agent of a person who is interested to invest the plaintiff with a cause of
32

Padmini Chandrasekharan v. Rajagopal Reddy, (1996) 8 SCC 632, entitlement to property on family
partition. Sowrashtra Vipra Sabha v Namakal Municipality, (1996) 11 SCC 584, title perfected by
formalities. Prabhakar Adsule v State of M.P., (2004), 11 SCC 249; AIR 2004 SC 3557, suit for restraining
interference in possession, but title to the property not made out. No relief allowed. Niranjan Singh v Bant
Singh v Bant Singh, AIR 2004 P&H 334, persons who failed to prove they were relatives of the deceased
owner, exclusive ownership of the other party, declaratory relief allowed.
33
State v Gudge, Pat (HC) 262. Sama Devi v Guin Devi, AIR 2993 HP 158, a prayer for declaration of
genuineness of signature on a document rejected because of the long delay in seeking the declaration and
also because of the lack of the bona fide. Ramachandran v Angamuthu Ammal, AIR 2004 NOC 469 (Mad),
no proof that there were continuous and uninterrupted possessions of 12 years, Venkataramana v Annayya
Hedge, AIR 2012 Kant 24, documents produced by the plaintiff showed his title and possession since the
date of purchase. The defendant did not deny the specific allegations about the trespass, plaintiff to
declaration of the title and possession.
34
AIR 1973 All 158*

action for a declaratory suit under Section 34, Specific Relief Act35, but a mere
apprehension existing in the mind of the plaintiff does not give him any right to bring
a suit for declaration.36
(iii) Further relief where plaintiff entitled to it (Proviso)
All that the proviso to Section 34 of the Specific Relief Act forbids is a suit for
mere declaration without further relief, if the plaintiff can sue for further relief. The
term further relief means the relief to which the plaintiff is necessarily entitled on
the basis of declaration of the title. This is done in order to avoid multiplicity of suit.
Further, relief must be in relation to the legal character or right to such character or the
relief which the defendant denies or is interested in denying. It must be relief
appropriate to, consequent on the right asserted.37
For example, where A claims that he is entitled to half portion of the house in the
occupation of B, he must pay in his suit(i) that a declaration be made that A is entitled to half portion of the house and;
(ii) that the defendant be asked to deliver the half portion of the house to A. This
is consequential relief.
In Ram Saran v Ganga Devi38, the defendant was in possession of some of the
suit properties and the plaintiffs in their suit did not ask for the possessions of those
properties. They merely prayed for declaration that they were the owner of the suit
properties. It was held that the suit was not maintainable and was hit by Section 42 of
1877 (now Section 34 of Specific Relief Act)
A declaration was sought in respect of a property which was in the possession
of the charitable trust. The property was purchased by the adoptive mother of the
plaintiff in his name and given over to the trust under a valid trust deed. The plaintiff
was minor at that time. He himself was the party to the trust deed and convener of the
trust. There was no evidence to show that he had let out the property to the trust.
Documentary evidence showed that he was in possession of the property and was
paying in respect of it property tax, electricity, water tax, etc. it was held that in
circumstances the plaintiff was not entitled to the relief of the declaration of the title.39
Questions on the ground of fraud

35

Nankhar Singh v Qaddir Bux, 1251 Cal 14.

Jagtu Mal v Laxman Das, 157 IC 523
37
26 CWN 207.
38
(1973) 2 SCC 60: AIR 1972 SC 2695. Shiv Charan v Sukh Ram, AIR 2003 P&H 251 (NOC): (2003) 2
Rec Cri R 149, acquisition of the ownership by the plaintiff under gift deed not disputed, the defendant
claimed permanent lease and ownership, the lease had expired, but the defendant continued in possession
even after expiry both under the original owner and the plaintiff. It was held that the plaintiff was entitled
to claim ownership and possession.
39
Pradeep Kumar v Mahveer Prashad, AIR 2003 AP 107. Heirs Kanital Purshottamdas Patel v Dahiben
Jagesh Rathod, AIR 2003 Guj. 82, the suit was filed by the widow of the deceased on the grounds that the
sale of the ancestral property was without legal necessity. She was herself was one of the witness to the
registered sale deed, which contained clear recitals about legal necessity. No suit was filed for 4 years for
setting aside the sale. The bank account into which the sale consideration was deposited was being operated
by her after her husbands death. The court said the deed was valid and effective.
36

The document containing the sale deed was questioned on the ground of fraud
alleged to have been practiced by the purchaser. But fraud was not proved. The
translation, was therefore, not void. The translation could have repudiated in
accordance with the time-limit prescribed by Article 59 of the Limitation Act, 1963.40

Injunctions
The term injunction has been subjected of various attempts at a definition. It has been
defined by Joyce as An order remedial, the general purpose of which is to restrain the
commission or continuance of some wrongful act of the party informed
In Burney injunction has been defined to be a judicial process by which one who
has invaded or is threatening to invade the rights, legal or equitable, of another is
restrained from continuing or commencing such wrongful act.41

Kinds of Injunction
(i)

Temporary injunctions
The procedure of granting temporary injunction is governed by the rules
laid down in Order XXXIX, Rules 1 & 2, Civil Procedure Code42 which reads
as under:
Cases in which temporary injunctions may be granted:
A temporary may be granted in following cases:

1. For protection of interest in property

(a) that any property in dispute in a suit in danger of being wasted,
damaged or alienated by any party to the suit, or wrongfully sold in execution of a
decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his
property with a view to defraud his creditors.
(c) that the defendant threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute in the suit.43
40

Mathuri Bewa v Prafulla Rautray, AIR 2003 Ori 136

ENCYCLOPAEDIA OF THE LAWS OF ENGLAND, by A.W. Renton, p. 464 (1st Edn, Vol 6)
42
For the U.P amendment of Order XXXIX Rules 1 & 2, see Section 13 of the U.P Civil Laws Act 1976.
43
Volition investments (P) Ltd v Madhuri Jindra, AIR 2003 Bom 360, sale of premises which were in
possession of tenants, full payment was to be made by the buyer without waiting for consent letters from
tenant to vacate, presumption that time was not the essence. Even in the absence of such letters the
memorandum of understanding for transfer of premises did not end.
41

2. Injunction to restrain repetition of breach

(a) In a suit for restraining the defendant from committing a breach of
contract or other injury, of any kind, weather compensation is claimed in the suit or
not, plaintiff may, at any time after the commencement of the suit, and either before
or after the judgment, apply to the court for a temporary injunction to restrain the
defendant from committing the breach of contract or injury of a like kind arising out
of the same contract or relating to the same property or right.
(b) The court may be order grant such injunctions, on such terms as to the
duration of the injunction, keeping an account, giving security, or otherwise, as the
court thinks fit.

(ii)

Perpetual Injunctions
Section 37(2) lays down that the permanent injunction can be granted only by
a decree at the hearing and upon the merit of the suit. In other words for
obtaining a permanent injunctions, a regular suit is required to be filed in
which the right claimed by the plaintiff is examined on merits and finally the
injunction is granted by the means of the decree. A permanent injunction
therefore finally decides the rights of the parties whereas a temporary
injunctions does not do so. A permanent injunction forbids the defendant from
asserting a right or committing a act which be contrary to the right of the
plaintiff.
Restraint on a person or property outside jurisdiction
The court which passed a decree has a power to restrain a person from
handling over property in his possession to the judgment debtor (suit
property) alongwith the title documents and keeping them in safe custody.
Such an order is in the nature of a freezing order, or mareva injunctions and
order akin to a Anton piller order even if the property or the person concerned
is outside the jurisdiction of the Court.44

(iii)

Mandatory Injunctions
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 injunctions to prevent the breach complained of,
and also to compel performance of the requisite acts.
The injunction which commands the defendant to do something is termed

44

Mohit Bhargava v Bharat Bhushan Bhargava, (2007) 4 SCC 795

as Mandatory Injunctions. Salmond defines mandatory injunctions as an

order requiring the defendant to do a positive act for the purpose of putting an
end to a wrongful state of things created by him, or otherwise, in fulfillment
of the legal obligations, for example, an order to pull down a building which
has already erected to the obstructions of the plaintiffs lights.45
Section 39 of the Specific Relief Act, 1963 reads, When, to prevent the
breach of an obligations, 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 injunctions to prevent the breach complained of, and also to compel
performance of the requisite acts.

45

Salmond. THE LAW OF TORTS, 186 (13th Edn, 1961, changed in later editions.)