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CHAPTER IV.

OF THE RESCISSION OF CONTRACTS.

SECTION

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When rescission may be adjudged
Rescission for mistake
Alternative prayer for rescission in suit for specific performance
Court may require party rescinding to do equity

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CHAPTER V.

OF THE CANCELLATION OF INSTRUMENTS.

39

40

When cancellation may be ordered
What instruments may be partially cancelled
Power to require party for whom instrument is cancelled to make com-

pensation.

41

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Power to order public servants and others to do certain specific acts
Exemptions from such power
Application how made
Procedure thereon
Order in alternative.
Peremptory order
Execution of, and appeal from, orders
Costs
Bar to issue of mandamus
Power to frame rules

45 ib. 46 ib. ib. 47

48

49 50 51 55 56

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Perpetual injunctions when granted
Mandatory injunctions
Injunction when refused .
Injunction to perform negative agreement
SCHEDULE.-Enactments repealed.

ACT No. I OF 1877.

PASSED BY THE GOVERNOR GENERAL OF

INDIA IN COUNCIL.

(Received the assent of the Governor General on the 7th February, 1877.)

An Act to define and amend the law relating to

certain kinds of Specific Relief.

WHEREAS it is expedient to define and amend the law Preamble. relating to certain kinds 1 of specific relief obtainable in civil suits; It is hereby enacted as follows :

PART I.

PRELIMINARY.

1. This Act may be called The Specific Relief Act, 1877:' Short title. It extends to the whole of British India, except the Sche- Local

extent. duled Districts as defined in Act No. XIV of 18742; And it shall come into force on the first day of May 1877. Commence

ment. 2. On and from that day the Acts specified in the Schedule Repeal of hereto annexed shall be repealed to the extent mentioned in enact

ments. its third column.

1 The Act is not exhaustive. See for instance the Code of Civil Procedure, sched. iv. Nos. 105-110, 113.

? And under Act XX of 1886, sec. 8, and the second Schedule, the Specific

VOL. I.

Relief Act, sec. 9 (but no other part
of the Act) is in force in Upper Burma
generally, except the Shan States.
The whole Act seems in force in the
town of Mandalay.

3 P

Interpre-
tation
clause.
obliga-
tion.'
*trust.'

trustee.'

3. In this Act, unless there be something repugnant in the subject or context,

obligation’ includes every duty enforceable by lawl:

trust' includes every species of express, implied, or constructive fiduciary ownership:

trustee’ includes every person holding, expressly, by implication, or constructively, a fiduciary character 2 :

Ilustrations. (a) 2 bequeaths land to A, 'not doubting that he will pay thereout an annuity of Rs. 1000 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

(6) 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 a trustee, for B, within the meaning of this Act, of such advantage :

(c) A, being B's banker, discloses for his own purpose the state of B's account. A is a trustee, within the meaning of this Act, for B, of the benefit gained by him by means of such disclosure.

(d) A, the mortgagee of certain leaseholds, renews the lease in his own name. A is a trustee, within the meaning of this Act, of the renewed lease, for those interested in the original lease 5.

(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 agent 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 a trustee, within the meaning of this Act, for B, of the commission so received (9) A buys certain land with notice that B has already con

whether the duty arise out of tween the parties. tort or out of contract.

5 Rushworth's Case, Freem. 13. : A director of a company, for in- Bentley v. Craven, 18 Bear. 75stance, 9 Bom. 394.

See Massey's Case, 2 Ves. 317. : Parsons v. Baker, 18 Ves. 476. Illustration (e) was suggested by Mfr.

• Here A has gained the advantage Pitt Kennedy, who said that in the by 'undue influence.' The burden of course of his practice he had found establishing the fairness of the trans- that in a considerable district in action is on A, at least when he is Bengal, not only the managers of B's legal adviser, L. R. 1 Ind. App. indigo factories, but the judicial off206. The same principle appears in cers, seemed to consider the gain per case of parent and child, guardian and fectly legitimate for the managers. ward, trustee and beneficiary, and in. : This Act contains no definition of deed wherever confidence exists be- notice,' nor is there one in the

7

tracted to buy it. A is a trustee, within the meaning of this Act, for B, of the land so bought.

(1) 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 'settle

ment.' codicil: as defined by the Indian Succession Act) whereby the destination or devolution of successive interests in moveable or immoveable property is disposed of or is agreed to be disposed of : and all words occurring in this Act, which are defined in Words

defined in the Indian Contract Act, 18724, shall be deemed to have the Contract meanings respectively assigned to them by that Act.

Act. 4. Except where it is herein otherwise expressly enacted, Savings. nothing in this Act shall be deemed

(a) to give any right to relief in respect of any agreement which is not a contract ;

(6) to deprive any person of any right to relief 6, other than specific performance, which he may have under any contract ;

or

(c) to affect the operation of the Indian Registration Act on documents. 5. Specific relief is given

Specific

relief how (a) by taking possession of certain property and delivering

given. it to a claimant7;

(6) by ordering a party to do the very act which he is under an obligation to do 8 ;

(c) by preventing a party from doing that which he is under an obligation not to doo;

General Clauses Act. The Courts coercion,'' undue influence,' • fraud,' would probably adopt that contained misrepresentation,' and 'mistake.' in the Transfer of Property Act The definitions in the General Clauses (supra, p. 747) and the Trusts Act Act, supra pp. 487-489, also apply to (supra, p. 838).

the Specific Relief Act. 1 See previous note.

5 Such as an agreement to perform · Taylor v. Stibbert, 2 Ves. Jun. some merely moral or religious duty. 437 : Daniel v. Davison, 16 Ves. 249: e. g. damages, the ght to dissolve 17 Ves. 433.

a partnership. 9 where the instrument is a will Chap. I. or codicil, see infra, sec. 12, cl. (a), • Chaps. II and V. and sec. 30.

• Chaps. IX and X. * such as agreement,' 'contract,'

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