CHANAKYA NATIONAL LAW UNIVERSITY

Project Report of CONTRACT - I

On
INSTRUMENT OF CANCELLATION UNDER SPECIFIC RELIEF ACT

Submitted To:- Submitted by:-

Mrs. Sushmita Singh Prasun Vardhan
Faculty of Laws of Contract Roll no. - 1352
1st year B.A., LL.B. (Hons)
Date of submission:-21st April, 2016

DECLARATION PAGE

I Prasun Vardhan, student of B.A., LL.B. (First year) in Chanakya National Law University
declare that the research project entitled INSTRUMENT OF CANCELLATION UNDER
SPECIFIC RELIEF ACT submitted by me for the fulfillment of Contract -I course is my
own work. This project has not been submitted for any other Degree / Certificate / Course in
any Institution / University.
 ACKNOWLEDGEMENT

I am highly elated to have worked on my research topic INSTRUMENT OF

CANCELLATION under the guidelines of Mrs. Sushmita Singh, (Faculty of Contract-I).
I am very grateful to her for the proper guidance.

I would like to take this opportunity to express my profound gratitude and deep regard to her
for her exemplary guidance, valuable feedback and constant encouragement throughout the
duration of the project.

Her valuable suggestions were of immense help throughout my project work.

Her perceptive criticism kept me working to make this project in a much better way. Working
under her was an extremely knowledgeable experience for me.

I would also like to thank all my friends and my seniors. Apart from all these I would like to
give special regard to the librarian and other staffs of the library of my university who made a
relevant effort regarding to provide the materials to my topic and also assisting me.

Finally, I would also like to extend my gratitude to my parents and all those unseen hands
that helped me out at every stage of my project.

THANK YOU

Prasun Vardhan
Roll no. - 1352
1st year B.A.,LL.B.(Hons)
 TABLE OF CONTENT

S.NO. CHAPTER

1. Declaration...

2. Acknowledgement....

3. Introduction......

3.1 Aims and objective of the project.........................................................

3.2 Hypothesis

3.3 Research Question....

3.4 Research methodology.

3.5 Sourceof data.

4. Instrument of Cancellations,meaning and its types

5. Landmark Cases Related to Chapter 6.

6. Conclusion and suggestion..

 INTRODUCTION
The 'Specific Relief Act 1963' is an Act of the Parliament of India. It covers large number of
remedial aspects of law. It replaced the earlier Act of 1877. Protection of life and property
cannot be assured by a simple declaration of rights and duties. The enumeration of rights and
duties must be supplemented by legal devices which help the individual to enforce his rights.
Social redress must be provided to every person who is injured in the social process.
Basically, the mission of the Specific Act is to assure that whenever there is a wrong there
must be a remedy.

Remedies are generally provided by the branch of substantive law which defines its rights
and duties for its own purposes. The law of contract provides the remedy of damages for
breach of contract. Similarly the law of tort provides for recovery in cases of tortuous
wrongs. However, substantive laws can never afford to be exhaustive in terms of their
remedies and reliefs. Scope of the Act remains specific to provide a network of relief. The
Act does not confer any Rights on itself. Specific relief is only provided for the violation of a
legal right.

The Specific Relief Act, 1963 was came into force on 1st March 1964. The Parliament
enacted the Act by repealing the Specific Relief Act, 1877. The Act is based on the principle
of equity and is used for granting specific relief for enforcing civil rights. It has no
application in enforcing penal laws. The Specific Relief Act, 1877 contained the principles of
equity, justice and good conscience. The need for a new statute suited for the new
requirements lead to the enactment of the Act of 1963. The Bill of the new Act was drafted
on the basis of the 9th Report of the Law Commission of India. From the preamble of the
Act, it is clear that the Act was not an exhaustive one. It only deals with certain kinds of
specific reliefs and there are other reliefs about which the Act was silent and are used by the
courts.

The Act is a procedural law and provides a network of reliefs. The plaintiff, under the Act
gets his relief in specific. The reliefs contained in the Act include,

(I) Recovery of Possession of Property,

(II) Specific Performance of Contracts,
(III)Rectification of Instruments,
(IV)Rescission of Contracts,
(V) Cancellation of Instruments,
(VI)Declarative Relief, and
(VII) Preventive Reliefs (Injunctions).

Sections 5 to 7 of the Act contained provisions regarding recovery of possession of property.

It includes both immovable property (Section 5) and movable property (Section 7). Any
person having right of possession of the property can recover it by the application of
provisions of Code of Civil Procedure. Section 6 prevents a person from possessing
immovable property of another without his consent otherwise than by due process of law,
without considering the question of title. A suit for recovery of such property under S.6
cannot be filed against the Government.1

Chapter II of the Act deals with the specific performance of contracts. This is an equitable
relief granted by the court to perform the contract when there is a breach of the same. Courts
jurisdiction to grant specific performance is only discretionary and Section 14 of the Act
enumerated certain circumstances under which the suit for specific performance will be
rejected.

The provisions regarding rectification and cancellation of instruments and the rescission of
contract were incorporated in Chapter III, IV and V respectively. The Act enable the parties
to rectify the documents which are mistakenly executed. The instruments in writing and
written contracts can be rectified on the ground of fraud and mutual mistake. Unilateral
mistake is not a reason to seek rectification. The Act prescribed no time limit for a suit for
rectification. Sections 27 to 30 deals with rescission of voidable and terminable contracts.
This is opposite to the relief of specific performance since it discharged a party from the
obligations by avoiding the contract. The relief is available to any interested person to the
contract. The remedy is available if the contract is voidable or terminable at the instance of
the plaintiff. Under section 31 of the Act, a person can sue for the cancellation of the
document when he had an apprehension of serious injury from it.

1
Hameed v kKanhaiya AIR 2004 All 405, 2005 (1) AWC 738
*Recovery of possession of property

Though the Specific Relief Act is concerned only with the enforcement of civil rights and not
penal laws, even civil law has to take care of certain rights, the violation of which is capable
of creating serious violent clashes, and these are rights to possession of property. The very
first chapter provides relief to those who have been dispossessed of their property:Nair
Services Society Vs. K C Alexander [All India Reporter] AIR Year of Judgment-1968 SC
[Supreme Court of India] Page No.1165No suit for dispossession against the government is
maintainable under Specific Relief Act.

*Specific performance of contracts

The base of almost all economic relations are made of contracts. Every profession is contract
bound. Property, whether owned by businesses or individuals are locked up under contracts.
For example, money in banks and other forms of investment are contractually bound. As a
result, contracts constitute modern wealth. They are sacred per se. Moreover a particular
contract is not an isolated transaction. Often it is a link in the chain of several contracts. A
failure at one place could cause serious dislocation to economic and social life. Contracts,
thus must be enforced. But awarding compensation to an injured person is the only way that
the law of contract can enforce a contract. However, in many cases compensation fails to
serve the economic purpose of a contract. For example, a hospital is interested in the
fulfillment of its requirements and not in receiving compensation from a failed supplier. Thus
there was a need for a remedy which would compel a defaulting contractor to actually
perform his contract.2

*Rectification and cancellation of instruments and rescission of contracts

By law, many transactions are required to be in writing. Because of expediency, many more
transactions are put into writing. A written transaction is called an instrument. An instrument
is a result of negotiations. Sometimes, an instrument may fail to express the intention of the
involved parties. Rectification of such an instrument may become necessary. Help towards
parties who want to have their documents (which are mistakenly executed) rectified, is
provided in Chapter III of the Specific Relief Act. Closely related with documents mistakenly
executed, is the category of documents which are at a later point found to be void or which
become void. These documents ought to be cancelled. Chapter V provides relief from such

2
A.I.R 1998GAU.22.
kinds of documents. Also, there is a category of contracts which, for some reason or the other
(e.g. lack of free consent) can be deemed voidable by the party which consent was not free.
This party has the right to have the contract rescinded. Relief by way of rescission is provided
by Chapter IV of the Specific Relief Act.

*Preventive relief

There can be cases where the nature of the contract do not allow damages to likely serve any
purpose nor admit to specific performance. In such cases, the court may have to restrain the
party who threatens the breach, to the possible extent. For example, a person undertakes a
contract to sing at a particular place and also undertakes not to sing anywhere else during the
same period. In case the singer threatens breach, the court cannot force him to sing. The
positive side of the bargain is not specifically enforceable. But the negative undertaking i.e.
not to sing elsewhere, can be enforced by restraining him from singing elsewhere. When he is
prevented from resorting to other openings, it may exert some pressure upon his mind and he
may be persuaded to go ahead with the performance of his contract. This type of remedy is
known as preventive relief. This is granted by issuing an order known as injunction.
Injunction is an order issued upon the party concerned directing him/them to omit the
performance of a particular duty or act. This is also known as a mandatory injunction. Such
relief is granted under the provisions of Part III of the Act.

*Declaratory relief

This is the final matter which is taken care of by the Specific Relief Act. Sometimes it may
happen, that a person who is entitled to some status or character or has a right in some
property but is being denied the enjoyment of his right by other parties. Under Chapter VI of
the Specific Relief Act, he is allowed to proceed against any person who is denying or is
3
interested in denying him his right.Ushaben V. Bhagayalakshmi

3.1 AIMS AND OBJECTIVES.................

:-The researcher tends to find:-

1:-meaning and use of instrument of cancellation underS.R.A

2:-types of instrument of cancellation underS.R.A

3
Prem Singh & Ors vs Birbal & Ors on 2 May, 2006
3:-basis of formation of instrument of cancellation underS.R.A

3.2 HYPOTHESIS
The researcher presumes that meaning and use of instrument of cancellation under S.R.A is
similar to like all the sections in S.R.A

3.3 RESEARCH QUESTIONS

1:-what is S.R.A?
2:-types of cancellation of instrument under S.R.A?
3:-basis of its foirmation?
4:-what are the ground of cancellation?

3.4 RESEARCH METHADOLOGY.

*The researcher adapted doctrinal method of research to complete this project
3.5 SOURCES OF DATA.

The researcher relied on both primary and secondary sources of data

1:-primary sources :-Acts , Statutes and case laws

2:-saecondary sources:- books and websites

INSTRUMENT OF CANCELLATION UNDER SPECIFIC RELIEF ACT

*IN Specific Relief Act basically sections 31,32,33 are the instrument of cancellation

SECTION 31:

When cancellation may be ordered UNDER SECTION 31 0F

(1) Any person against whom a written instrument is void or 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
adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of
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.

1:-case law:-Asokan vs Lakshmikutty & Ors on 14 December, 20074

In my judgment, learned counsel for the appellants is justified in his complaint that the courts
below have wrongly thrown the onus of proving that this requirement as to delivery of
possession had been complied with on the contesting defendants. It is no doubt true that
delivery of possession of gifted properties is an essential condition of the validity of the gift
and its operative nature under the Muslim Law and it would be for the donees to establish it.

20. When a registered document is executed and the executors are aware of the terms and
nature of the document, a presumption arises in regard to the correctness thereof. [See Prem
Singh and Ors. v. Birbal and Ors. (2006) 5 SCC 353] When such a presumption is raised
coupled with the recitals in regard to putting the donee in possession of the property, the onus
should be on the donor and not on the donee.

2:-CASE LAW:- Prem Singh and Ors. v. Birbal and Ors.

SECTION 32:-

Section 32 in The Specific Relief Act, 1963

What instruments may be partially cancelled.Where an instrument is evidence of different

rights or different obligations, the court may, in a proper case, cancel it in part and allow it to
stand for the residue.

case law:- Wan Ten Lang vs Collector Of Customs on 5 July, 1939

4
Ajay Goel vs K.K. Bhandari & Others on 14 October, 1998
SECTION 33:-

Section 33 in The Specific Relief Act, 1963

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.

(1) 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.

(2) Where a defendant successfully resists any suit on the ground

(a) that the instrument sought to be enforced 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;

(b) that the 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 the Indian Contract Act, 1872 (9 of
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 has benefited thereby.

case law:-Kishan Chand vs The Union Of India And Anr. on 20 January, 1976

LANDMARK CASES:-

*RELATED TO THE SECTIONS OF CHAPTER SIX OF SPECIFIC RELIEF ACT :-

CASES RELATED TO SECTION 31 :-5

1:- CASE LAW:-

Calcutta High Court

Dunia Lal Datta vs Nagendra Nath Datta And Anr. on 15 September, 1981

Bench: P Bonnerjea

5
K.Indirani vs K.Manjula on 22 July, 2011
JUDGMENT Pratibha Bonnerjea, J.nerjea

1. The present suit was instituted by the plaintiff against the defendants for adjudication that
the decree passed in T. Suit No. 451 of 1971 by the learned 9th Bench, City Civil Court at
Calcutta and registered on 7-2-1974 was void, inoperative and not binding upon the plaintiff,
for an order that the said registered decree be delivered up and cancelled, injunction etc. The
circumstances under which the suit was instituted will appear from the short list of dates set
out below.

Aug. 1946 -- The defendant No. 2 Balai was inducted as a tenant by the defendant No. 1
Nagendra in respect of premises No. 50 Doctor Lane, Calcutta. Nagendra was the owner of
this property.

9th Spet. 1946 -- A deed of sale was executed by Nagendra in favour of Balai in respect of
the premises No. 50 Doctor Lane to avoid creditors. Nagendra alleged that the deed was a
benami transaction.

5th June 1971 -- T. Suit No. 451 of 1971 was instituted by Nagendra against Balai for
declaration that the deed executed on 9-9-1946 in favour of Balai was invalid, inoperative
and was never acted upon. The plaintiff ih the present suit, Dunialal, was not a party to the
said suit.

1971 _ Dunialal filed T. Suit No. 676 of 1971 against Balai in the City Civil Court for
partition of the premises No. 50. Doctor Lane. Nagendra was not a party to the said suit.

12th Sept. 1973 -- A decree was passed in the said T. Suit No. 451 of 1971 on contest
declaring the deed dated 9-9-1946 was invalid, inoperative etc. 8th Feb. 1974 -- Nagendra
again filed another T. Suit No. 176 of 1974 against Balai and Dunialal for their eviction from
the premises No. 50, Doctor Lane and for recovery of possession on the allegation that Balai
had surrendered the tenancy on 6-1-1974 and had informed Nagendra that Dunialal was in
wrongful occupation of the said property. Balai contested the said suit but Dunialal did not
enter appearance, did not contest the suit.

2nd Jan. 1975 -- In T. Suit No. 176 of 1974 a decree for eviction was passed on contest
against Balai and ex parte against Dunialal -- the present plaintiff.

Thereafter Nagendra started execution Case No. 21 of 1975 for evicting Balai and Dunialal.

April 1975 -- In execution of the decree in T. Suit No. 176 of 1974, Nagendra started another
Misc. Case No. 329 of 1975 for possession with the help of police.

11th April 1975 -- A partition decree was passed in Dunialal's partition Suit No. 676 of 1971.

21st April 1975 -- Another Misc. Case No. 331 of 1975 arose as Dunialal took out an
application under Order 9. Rule 13 of the C. P. C. for setting aside the ex parte decree dated
2-1-1975 against him in Suit No. 176 of 1974.

16th Sept. 1976 -- Dunialal's application under Order 9, Rule 13 of the C, P. C. was
dismissed.

3rd Jan. 1977 -- Dunialal preferred an appeal with an application under Section 5 of the
Limitation Act against the order of dismissal of his application under Order 9, Rule 13 of the
C. P. C. and obtained C. R. No. 12 (M) of 1977 and C. R. No. 907 (M) of 1977 both of which
were . subsequently discharged.

1977 -- Dunialal thereafter filed T. Suit No. 597 of 1977 in the City Civil Court for setting
aside the ex parte decree in T. Suit No. 176 of 1974.

2:-CASE LAW6:- Saraswati Kunj Welfare Society vs M/S L.N.Gadodia & Son Ltd. & Ors.
on 17 November, 2008

Section 31 of the Specific Relief Act, 1963 and at Sections 19, 19A, 20, 23, 24 and 25 of
the Contract Act, which were relied on by the learned counsel to buttress his contention that

6
Yanala Malleshwari And Ors. vs Ananthula Sayamma And Ors. on 24 October, 2006
only contracting parties could seek the cancellation of an instrument. Section 31 of the
Specific Relief Act reads as under:-

"31. When cancellation may be ordered.-(1) Any person against whom a written instrument
is void or 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 adjudge it and order it to be delivered up and cancelled.

25. The aforesaid decision, in my view, squarely meets the contention of the learned senior
counsel appearing for the applicants/defendants that the plaintiff has no locus standi to file
the present suit for cancellation of the sale deeds executed by the defendant No.1 in favour
of the defendants No.3 and 4.

Page No. 24 of 26 CS(OS) 508/2008

26. A Full Bench of the Orissa High Court in Keshab Chandra Nayak v. Laxmidhar Nayak
and Others AIR 1993 Orissa 1, which was a case dealing in benami transactions, taking the
same view that Section 31 of the Specific Relief Act could be called into aid by a person
who was not a party to the agreement, held that in certain circumstances, "even a sham
transaction can also be treated as voidable at the instance of some persons and these persons
may approach the appropriate authority for getting it so adjudged and for its cancellation, as
permitted by Section 31 of the Specific Relief Act, 1963."

8-6-1978 -- Dunialal's T. Suit No. 597 of 1977 was dismissed for default.

CASES RELATED TO SECTION 32:-

1:-CASE LAW:-

Calcutta High Court

Wan Ten Lang vs Collector Of Customs on 5 July, 1939

ORDER Ameer Ali, J.

1. This is an application under Section 45, Specific Relief Act for an order upon the Customs
Authorities to proceed under Section 32, Sea Customs Act. The questions are three, (1)
whether the Court has any jurisdiction at all, a point of demurrer, (2) whether on a proper
construction of the Act,, the Customs Authorities are refusing to perform a statutory duty; in
other words, what if anything have the Customs Authorities done wrong? (3) Whether
assuming jurisdiction, relief under Section 45, should be granted. The particular facts are as
follows:

The goods in question arrived on 17th February 1939. On the previous day, OB 16th
February 1939 we find a bill of entry which is annexed to the affidavit in support of this
application. It shows that the-consignment consisted of a number of miscellaneous goods.
The amount or real value appears in the appropriate column inserted by the importer or his
agent. At the bottom of the bill of entry is a printed note Clause 3 of which is material. It
reads-as follows:

It is hereby declared that the acceptance of the-deposit of duty calculated on the declared
value and description of the goods specified in this bill of entry before examination and
assessment shall not be deemed to imply acceptance by Government of such declared value
or description or to affect the rights of Government under Sections 31 and 32, Sea Customs
Act, until the Appraising Department shall have finally accepted such declared value and
description.7

2:-CASE LAW:- Rai Kiran Chandra Roy Bahadur And ... vs Tarak Nath Gangopadhyay And
Ors. on 5 December, 1935

JUDGMENT R.C. Mitter, J.

1. The subject matter of the suit out of which this appeal arises are settlement plots Nos. 58
and 63. In the Record of Rights published in 1922 the Narail Babus, who are the appellants
before me, and the contesting defendants in the lower Court, are recorded as proprietors.
There is a further entry in the settlement record that defendants 1 and 2 are occupancy raiyats
under the Narail Babus, and that the plaintiffs are Korfa raiyats under defendants 1 and 2. On
23rd December 1927 certain persons, whom I may call the Chakraburtties, as plaintiffs
instituted the suit out of which this appeal arises. In the plaint they stated that the said two
plots were their Niskar Brahmatter lands, that defendants 1 and 2 are tenure-holders under
them and the plaintiffs are under-tenure-holders under defendants 1 and 2. They further stated

7
Kanailal Dholey And Ors. vs Kalicharan Chatterjee And Ors. on 7 April, 1977
that the settlement record in rendering the lands as the mal lands of the Narail Babus had cast
a cloud upon their title and for that purpose they wanted a declaration of title and
confirmation of possession through their tenants. In the suit as originally filed the present
plaintiffs were pro forma defendants. Later on the Chakraburtties filed an application in Court
to withdraw from the suit on the ground that they were satisfied that the said two plots were
not their Niskar Brahmatter, but they were the mal lands of the Narail Babus. On that the
present plaintiffs, who were then pro forma defendants, made an application for their transfer
to the category of plaintiffs.

2. They stated that the lands in suit appertained to the Niskar of the Chakraburtties, that
defendants 1 and 2 were permanent tenure-holders under the Chakraburtties and they are also
permanent under-tenure-holders under defendants 1 and 2, and that the entry in the Record of
Rights which had recorded them as Korfas was wrong. They wanted a declaration of their
title as Kaimi under-tenure-holders in respect of the lands. The Court passed an order by
which they were transferred to the category of plaintiffs and Chakraburtties were transferred
to the category of pro forma defendants being made pro forma defendants 15 to 25 and the
allegations made in the application for the transfer were ordered to be made part of the plaint
by way of amendment. The plaint was corrected, but all the said allegations were not
embodied. After that the suit proceeded and both the Courts granted a decree in favour of the
present plaintiffs. A point was raised that so far as the present plaintiffs were concerned, the
plaint disclosed no cause of action. That point was considered by the learned Subordinate
Judge who held that the suit was maintainable at the instance of the present plaintiffs and the
plaint disclosed a cause of action. In my judgment Section 111-A, Ben. Ten. Act, is no bar to
the suit, inasmuch as the suit is one for declaration of plaintiffs' title. The plaintiffs claim in
the plaint that they have the status of Kaimi Mokarari Mouresidars, a status higher than that
recorded in the settlement record.

3. The decision in the case in Keshab Chandra Banerjee Bahadur v. Madan Mohan Poddar
1935 Cal 801, delivered by Mukerjee, J., fully supports the view which I am taking. The
plaint in my opinion discloses a cause of action. The Record of Rights having recorded the
status of the present plaintiffs as Korfas, had certainly cast a cloud upon the plaintiffs' title.
The case in Nagendra Kishore Roy Chowdhury v. Brojendra Kishore Roy Chowdhury 1932
Cal 842 has been cited before me by Mr. Sen appearing on behalf of the appellants for the
purpose of supporting his contention that if a plaintiff simply states that the Record of Rights
is incorrect and by reason of that great obstacles in the matter of exercising plaintiff's
possession will arise in future, the plaint does not disclose any cause of action. In that case
however the Record of Rights was prepared more than six years before the suit, and the
allegations in the plaint, were that great obstacles will arise in future. A Division Bench of
this Court said that the plaint did not disclose any cause of action, and if the entry in the
settlement record be taken as furnishing the cause of action in the suit, it would be a serious
question as to whether the suit was not then barred by limitation. In that case however the
earlier cases decided by this Court were not cited. As I read the law, the position seems to be
this: that if there is an entry adverse to the plaintiff he is not bound to institute a suit for
declaration that the entry is wrong. He can wait, and when an invasion on his rights is made
on the basis of the entry, he can come and sue for a declaration of his title on the ground that
the record is wrong, and the suit is in time if brought within six years of the threatened
invasion. But he can also make the entry in the Record of Rights as the basis of his cause of
action on the ground that the said entry has cast a cloud upon his title. One of the purposes of
a suit for declaration is the removal of the cloud. If he makes the said entry as his cause of
action he has to institute the suit within six years from the date of the final publication of the
Record of Rights and not from the date of the certificate of the final publication. In Keshab
Chandra Banerjee Bahadur v. Madan Mohan Poddar 1935 Cal 801 that position is clearly
indicated and a number of cases beginning from the case in Rajani Nath v. Manaram Mondal
1919 Cal 151 is noticed in the judgment. In my judgment, therefore, the very fact that the
present plaintiffs have been recorded as Korfa raiyats, gives them a cause of action for this
suit. Their case is that the entry is wrong as according to them their status is that of a Mourasi
Mokararidars. For these reasons I hold that the plaint did disclose a cause of action, even after
the Chakraburtties had been transferred to the category of pro forma defendants. This
disposes of the main point argued before me.

4. In the merits Mr. Sen urges that the findings of the learned Subordinate Judge are vitiated
inasmuch as he relied upon inadmissible evidence for the purpose of supporting his argument,
he says that the kabuliat executed by Abhoy is inadmissible in evidence, as also the cess
returns which have been filed by the predecessors of the Chakraburtties, namely pro forma
defendants 15 to 25. In so far as the said kabuliat is concerned it is a kabuliat given by Abhoy
in favour of Narail Babus in respect of some mal lands. The Narail Babus accepted the
kabuliat. In the southern boundary is given the land of Bhawani Prosad Chakraburty, that is
to say the Niskar Brahmatter land of the Chakraburtties. The plaintiffs identified Abhoy's
land to be the northern boundary of the lands in suit. Having regard to these facts, I do not see
why the statement made in that kabuliat should not be admissible in evidence against the
Narail Babus. It is not a case of recital of boundaries in a third party document.

5. Regarding the cess returns the position is this: in them the lands in suit are described as
Niskar lands. It is admitted that the predecessors of the Chakraburtties had Niskar lands
somewhere in the same village and the question is as to the identity of the said lands. Mr. Sen
says that under the provisions of Section 95 of the Cess Act, these cess returns could not be
used in evidence. He says that a person who files a cess return cannot use the statement made
therein in his favour and the same disability attaches to his heirs and legal representatives of
the person actually filing the same and also to persons who claim derivative title either by
sale or lease from the persons filing the returns. It seems to me that there is great force in this
argument, but it is not necessary for me to decide that point having regard to certain
circumstances present in this case which I am going to recite just now. In the application for
withdrawing the suit the Chakraburtties stated that the lands were not Niskar lands and that
they were satisfied to that extent after the filing of the suit. In fact this was the reason which
they gave for abandoning the suit. The present plaintiffs thereafter filed these cess returns and
they wanted to show that the statement of the Chakraburtties was false, and the position they
had taken at the time when they were transferred to the category of the plaintiff was a
position which could not be maintained by them having regard to the admissions made in the
cess returns. In my view the cess returns could be used for the said purpose, because of the
express provisions of Section 95 of the Cess Act, which says that a Cess return can be used
against the person filing it. If they can be used against persons filing them, certainly they can
be used against the heirs of the persons filing them. If they are admissible in evidence for one
purpose, then according to the principles laid down in Higham v. Ridgway 2 S M L C 284
(the same case appears in Campbell's Leading Cases, Vol. 11, p. 266), the cess returns will be
admissible for all purposes. In fact that is how Best in his book on Evidence takes the scope
of Higham v. Ridgway 2 S M L C 284 to be. At p. 423, Edn. 12, the learned author says this:
"the evidence if admissible, is admissible as evidence for all purposes." In this view of the
matter I do hold that the cess returns had been properly admitted in evidence, and the
contention of Mr. Sen must be overruled.

6. The result is that this appeal must be dismissed with costs.

7. The prayer for leave to appeal under Section 15, Letters Patent is refused.
CASES RELATED TO SECTION 33:-8

Delhi High Court

Kishan Chand vs The Union Of India And Anr. on 20 January, 1976

Equivalent citations: AIR 1976 Delhi 265, ILR 1976 Delhi 457

Author: T Tatacharj

Bench: T Tatachari, M Ansari

JUDGMENT T.V.R. Tatacharj, C.J.

This second appeal was filed in the year 2002 by the appellant to set aside the judgment and
decree dated 28th January, 1987 passed by Sub-Judge, First Class, Delhi and to set aside the
judgment dated 31st January, 2002 passed by first appellate court upholding the order of Sub-
Judge in R.C.A. No.17 of 2001. No questions of law were framed by the appellant in the
memorandum of appeal. Only grounds of appeal were mentioned in general. The following
grounds could be culled out by this court on the basis of which the order of first appellant
court was assailed :-

a. That the court below passed the judgment and decree relying upon a document Ex. PW
3/D1 a Bank Statement which was inadmissible in evidence and not relying on the document
Ex. PW 4/1 which was issued by the appellants bank.

b. That the court below misread the evidence as the court overlooked the fact that all the 3
witnesses produced by the respondent with regard to the payment were interested witnesses.

c. The court wrongly held that since the document Ex. DW 3/Z1, DW 3/9, Ex. PW 3/12 &
Ex. PW 3/13 were not confronted to the respondent so they cannot be used against him.

d. That the courts below did not discuss material and relevant documents such as deposit
applications.

8
Muruga Mudaliar (Deceased) And ... vs Subba Reddiar on 3 April, 1950
e. That the court below did not consider the reply dated 29.09.1977 in as much as the
respondent admitted the fact that there was no dispute between the appellant and respondent
as to payment of the decreetal amount.

2:-CASE LAW9:- Thaikandiyil Parambath Assiya vs Mannamchalil Rajeevan And Anr. on

13 August, 1993

7. Almost on identical facts a Division Bench of this Court in Cheriathu Varkey v.

Meenakshi Amma (1964 KLT 952) observed that in equity the property purchased by
utilising the consideration of the impugned alienation has to be held as a benefit that accrued
to the estate of the plaintiffs under the impugned alienation and that plaintiffs should be
directed to give that benefit to the disappointed alienees. The Division Bench has applied the
equitable principle embodied in three Sections viz. (1) Section 35 of the Transfer of Property
Act. (2) Section 64 of the Indian Contract Act, and (3) Section 41 of the Specific Relief Act,
1877 corresponding to Section 33 of the Specific Relief Act, 1963. Section 35 of the
Transfer of Property Act reads :

"The part, rescinding a voidable contract shall, if he has received any benefit thereunder from
another party to such contract, restore such benefit, so far as may be, to the person from
whom it was received."

9. Reference was also made to Section 41 of the Specific Relief Act, 1877 which provides :

"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."

That Section corresponds to Section 33 of the Specific Relief Act, 1963. Under the Old Act
a plaintiff who obtained cancellation of a document could be asked to make compensation to
the defendant. That provision has now been expanded by virtue of Section 33 which reads :

14. In Devinder Singh's case (supra) the Punjab and Haryana High Court held that the benefit
under the contract of sale received by the minor from the vendees was only in the form of
cash consideration and not the land purchased with that consideration. It is observed that the
purchase of the land for the minor and the sale of the land in favour of the vendees were not
one integrated transaction. It was therefore held that the land purchased cannot be said to be
9
Ganesh Traders vs District Collector, Karimnagar ... on 12 November, 2001
a benefit received by the minor for the vendees under the contract of sale. The absence of a
stipulation in the sale deed enabling the purchaser to claim the land purchased with the
consideration was also taken note of. On attaining majority the minor had accepted the
purchase of the land and for that reason also the contract of the purchase could not be said to
be a part of the voidable contract of sale with the vendees. The decisions of this Court is
Chandrasekhara Pillai's case (1961 KLT 1018) and in Cheriathu Varkey's case (1964 KLT
952) were distinguished by the Punjab & Haryana High Court and it was held that the
vendees are entitled to receive back only the sums paid by them to the mother of the minors.
With respect I disagree with the views expressed in this decision. The provision contained in
Section 33 of the Specific Relief Act, 1963 is not seen to have been considered by the Punjab
& Haryana High Court There is a marked distinction between the acquisition of a property
with the consideration paid by the vendee and any profit derived by the minors by utilising
that consideration. I am bound by the Division Bench decision in Cheriathu Varkey's case
where the law on this aspect has been laid down in clear terms. Devinder Singh's case (supra)
is therefore of no assistance to respondents

15. Section 33 of the Specific Relief Act, 1963 empowers the Court to restore any benefit
received by any party on adjudging the cancellation of an instrument. This cannot be claimed
as a matter of right, but the Court has to exercise its discretion and grant relief which justice
may require. This discretionary power of the Court to restore the benefit or to make any
compensation rests on the principle of equity that parties are to be restored to the position
which they occupied before the contract was entered into. The principle that he who seeks
equity must do equity on which Section 30 of the Specific Relief Act, 1963 is based has
therefore to be applied while granting restitution in the case of a void contract. Section 30
provides that 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 may have
received from the other party and to make any compensation to him which justice may
require. More or less similar phraseology is used in Section 33 also which empowers the
Court to restore the benefit to the other party on adjudging the cancellation of an instrument.
Whether the transaction is void or voidable, any party obtaining cancellation cannot therefore
retain the benefit which he had secured under the contract which is seeks to set aside. As
observed by the Mysore High Court in Dyaviah's case (supra) the party cannot be allowed to
reap a double advantage. While exercising this discretion under Section 33 of the Specific
Relief Act, the Court should have regard to all the circumstances of the case.
 CONCLUSION AND SUGGESTION
The 'Specific Relief Act 1963' is an Act of the Parliament of India. It covers large number of
remedial aspects of law. It came in the replacement of the earlier Act of 1877. Protection of
life and property cannot be assured by a simple declaration of rights and duties. The
enumeration of rights and duties must be supplemented by legal devices which help the
individual to enforce his rights. Social redress must be provided to every person who is
injured in the social process. Basically, the mission of the Specific Act is to assure that
whenever there is a wrong there must be a remedy.

Remedies are generally provided by the branch of substantive law which defines its rights
and duties for its own purposes. The law of contract provides the remedy of damages for
breach of contract. Similarly the law of tort provides for recovery in cases of tortuous
wrongs. However, substantive laws can never afford to be exhaustive in terms of their
remedies and reliefs. Scope of the Act remains specific to provide a network of relief. The
Act does not confer any Rights on itself. Specific relief is only provided for the violation of a
legal right.

The Specific Relief Act, 1963 was came into force on 1st March 1964. The Parliament
enacted the Act by repealing the Specific Relief Act, 1877. The Act is based on the principle
of equity and is used for granting specific relief for enforcing civil rights. It has no
application in enforcing penal laws. The Specific Relief Act, 1877 contained the principles of
equity, justice and good conscience. The need for a new statute suited for the new
requirements lead to the enactment of the Act of 1963. The Bill of the new Act was drafted
on the basis of the 9th Report of the Law Commission of India. From the preamble of the
Act, it is clear that the Act was not an exhaustive one. It only deals with certain kinds of
specific reliefs and there are other reliefs about which the Act was silent and are used by the
courts.
Many people are not aware by meaning and use of this act. so our law statutes and
gobvernment have to aware the people abouyt its meaning and how and when it can be use
and how it can be benifitted for them?

BIBLIOGRAPHY
BOOKS:-

(i) Bangia R.K. Contract-I, Allahabad law agency, 2009.

(ii) Singh Avatar. Contract and Specific Relief Act, Eastern Book
Publication,
2010.

(iii) Sarkar Sudipto And Kannan K. Sarkar on Specific Relief Act, New Delhi, Lexis Nexis,
2009

(iv) Sharma Kriti. Specific Relief Act, Mumbai, Lexis Nexis, 2013

(v) Pollock and Mulla. The Specific Relief Act, 1963, New Delhi: Lexis Nexis,
2014

WEBSITES:-

(i) https://indiankanoon.org/doc/1028815/

(ii) http://lawcommissionofindia.nic.in/101-169/report147.pdf

(iii) http://lawyerslaw.org/the-specific-relief-act-1963/

(iv)https://articlesonlaw.wordpress.com/2013/10/22/law-on-specific-performance-of-
contract/

(v) https://india.gov.in/specific-relief-act-1963