(A) CONTRACTS WHICH MAY BE
SPECIFICALLY ENFORCED
12. Cases in which specific
performance enforceable.
13. Contract of which the subject
has partially ceased to exist.
14. Specific performance of part
of contract where part
unperformed is small.
15. Specific performance of part
of contract where part
unperformed is large.
16. Specific performance of
independent part of contract.
17. Bar in other cases of specific
performance of part of contract.
18. Purchaser’s rights against
vendor with imperfect title.
19. Power to award compensation
in certain cases.
20. Liquidation of damages not a
bar to specific performance.
(B) CONTRACTS WHICH CANNOT
BE SPECIFICALLY ENFORCED
21. Contracts not specifically
enforceable.
(C) OF THE DISCRETION OF THE
COURT
22. Discretion as to decreeing
specific performance
(D) FOR WHOM CONTRACTS MAY
BE SPECIFICALLY ENFORCED
23. Who may obtain specific
performance.
(E) FOR WHOM CONTRACTS
CANNOT BE SPECIFICALLY ENFORCED
24. Personal bars to the relief.
25. Contracts to sell property by
one who has no title or who is a
voluntary settler.
(F) FOR WHOM CONTRACTS CAN
NOT BE SPECIFICALLY ENFORCED,
EXCEPT WITH A VARIATION
26. Non-enforcement except with
variation.
(G) AGAINST WHOM CONTRACTS
MAY BE SPECIFICALLY ENFORCED
27. Relief against parties and
persons claiming under them by
subsequent title.
27A. Specific performance in case
of part performance of contract to
lease.
(H) AGAINST WHOM CONTRACTS
CANNOT BE SPECIFICALLY ENFORCED
28. What parties cannot be
compelled to perform.
(I) THE EFFECT OF DISMISSING A
SUIT FOR SPECIFIC PERFORMANCE
29. Bar of suit for breach after
dismissal.
(J) AWARDS AND DIRECTIONS TO
EXECUTE SETTLEMENTS
30. Application of preceding
sections to awards and
testamentary directions to
execute settlements.
DETAILS :
(A) CONTRACTS WHICH MAY BE
SPECIFICALLY ENFORCED
12. Cases in which specific
performance enforceable .–
Except as otherwise provided in
this Chapter, the specific
performance of any contract may
in the discretion of the Court be
enforced–
(a) when the act agreed to be
done is in the performance, wholly
or partly, of a trust;
(b) when there exists no standard
for ascertaining the actual damage
caused by non-performance of the
act agreed to be done;
(c) when the act agreed to be
done is such that pecuniary
compensation for its non-
performance would not afford
adequate relief; or
(d) when it is probable that
pecuniary compensation cannot
be got for the non-performance of
the act agreed to be done.
Explanation.– Unless and until
the contrary is proved, the Court
shall presume that the breach of a
contract to transfer immoveable
property cannot be adequately
relieved by compensation in
money, and that the breach of a
contract to transfer moveable
property can be thus relieved.
Illustrations
[15] [* * * * * * * * * * * * *]
of clause (b)–
A agrees to buy, and B agrees to
sell, a picture by a dead painter
and two rare China vases. A may
compel B specifically to perform
this contract, for there is no
standard for ascertaining the
actual damage which would be
caused by its non-performance.
of clause (c)–
A contracts with B to sell him a
house for Rs.1,000. B is entitled to
a decree directing A to convey the
house to him, he paying the
purchase-money.
In consideration of being released
from certain obligations imposed
on it by its act of incorporation, a
railway-company contracts with Z
to make an archway through their
railway to connect lands of Z
severed by the railway, to
construct a road between certain
specified points, to pay a certain
annual sum towards the
maintenance of this road, and also
to construct a siding and a wharf
as specified in the contract. Z is
entitled to have this contract
specifically enforced, for his
interest in its performance cannot
be adequately compensated for by
money: and the Court may
appoint a proper person to
superintend the construction of
the archway, road, siding and
wharf.
A contracts to sell, and B
contracts to buy, a certain
number of railway-shares of a
particular description. A refuses to
complete the sale. B may compel
A specifically to perform this
agreement, for the shares are
limited in number and not always
to be had in the market, and their
possession carries with it the
status of a share-holder, which
cannot otherwise be procured.
A contracts with B to paint a
picture for B, who agrees to pay
therefor Rs.1,000. The picture is
painted. B is entitled to have it
delivered to him on payment or
tender of the Rs.1,000.
of clause (d)–
A transfers without endorsement,
but for valuable consideration, a
promissory note to B. A becomes
insolvent, and C is appointed his
assignee. B may compel C to
endorse the note, for C has
succeeded to A’s liabilities, and a
decree for pecuniary
compensation for not endorsing
the note would be fruitless.
13. Contract of which the
subject has partially ceased to
exist .– Notwithstanding anything
contained in section 56 of the
Contract Act, 1872 [16] , a contract
is not wholly impossible of
performance because a portion of
its subject-matter, existing at its
date, has ceased to exist at the
time of the performance.
[17] [* * * * * * * * * * * * *]
14. Specific performance of part
of contract where part
unperformed is small.– Where a
party to a contract is unable to
perform the whole of his part of
it, but the part which must be left
unperformed bears only a small
proportion to the whole in value,
and admits of compensation in
money, the Court may, at the suit
of either party, direct the specific
performance of so much of the
contract as can be performed, and
award compensation in money for
the deficiency.
Illustrations
(a) A constracts to sell B a piece
of land consisting of 100 bighas. It
turns out that 98 bighas of the
land belong to A, and the two
remaining bighas to a stranger,
who refuses to part with them.
The two bighas are not necessary
for the use or enjoyment of the 98
bighas, nor so important for such
use of enjoyment that the loss of
them may not be made good in
money. A may be directed at the
suit of B to convey to B the 98
bighas and to make compensation
to him for not conveying the two
remaining bighas; or B may be
directed, at the suit of A, to pay to
A, on receiving the conveyance and
possession of the land, the
stipulated purchase-money less a
sum awarded as compensation for
the deficiency.
(b) In a contract for the sale and
purchase of a house and lands for
two lakhs of rupees, it is agreed
that part of the furniture should
be taken at a valuation. The Court
may direct specific performance of
the contract notwithstanding the
parties are unable to agree as to
the valuation of the furniture, and
may either have the furniture
valued in the suit and include it in
the decree for specific
performance, or may confine its
decree to the house.
15. Specific performance of part
of contract where part
unperformed is large.– Where a
party to a contract is unable to
perform the whole of his part of
it, and the part which must be left
unperformed forms a
considerable portion of the whole,
or does not admit of
compensation in money, he is not
entitled to obtain a decree for
specific performance. But the
Court may, at the suit of the other
party, direct the party in default
to perform specifically so much of
his part of the contract as he can
perform, provided that the
plaintiff relinquishes all claim to
further performance, and all right
to compensation either for the
deficiency, or for the loss or
damage sustained by him through
the default of the defendant.
Illustrations
(a) A contacts to sell to B a piece
of land consisting of 100 bighas. It
turns out that 50 bighas of the
land belong to A, and the other 50
bighas to a stranger, who refuses
to part with them. A cannot
obtain a decree against B for the
specific performance of the
contract; but if B is willing to pay
the price agreed upon, and to take
the 50 bighas which belong to A,
waiving all right to compensation
either for the deficiency or for loss
sustained by him through A’s
neglect or default, B is entitled to
a decree directing A to convey
those 50 bighas to him on
payment of the purchase-money.
(b) A contracts to sell to B an
estate with a house and garden
for a lakh of rupees. The garden is
important for the enjoyment of
the house. It turns out that A is
unable to convey the garden. A
cannot obtain a decree against B
for the specific performance of the
contract, but if B is willing to pay
the price agreed upon, and to take
the estate and house without the
garden, waiving all right to
compensation either for the
deficiency or for loss sustained by
him through A’s neglect or
default, B is entitled to a decree
directing A to convey the house to
him on payment of the purchase-
money.
16. Specific performance of
independent part of contract .–
When a part of a contract which,
taken by itself, can and ought to
be specifically performed, stands
on a separate and independent
footing from another part of the
same contract which cannot or
ought not to be specifically
performed, the Court may direct
specific performance of the
former part.
17. Bar in other cases of specific
performance of part of
contract .– The Court shall not
direct the specific performance of
a part of a contract except in
cases coming under one or other
of the three last preceding
sections.
18. Purchaser’s rights against
vendor with imperfect title .–
Where a person contracts to sell
or let certain property, having only
an imperfect title thereto, the
purchaser or lessee (except as
otherwise provided by this
Chapter) has the following rights:-
(a) if the vendor or lessor has
subsequently to the sale or lease
acquired any interest in the
property, the purchaser or lessee
may compel him to make good the
contract out of such interest;
(b) where the concurrence of
other persons is necessary to
validate the title, and they are
bound to convey at the vendor’s
or lessor’s request, the purchaser
or lessee may compel him to
procure such concurrence;
(c) where the vendor professes to
sell unincumbered property, but
the property is mortgaged for an
amount not exceeding the
purchase-money, and the vendor
has in fact only a right to redeem
it, the purchaser may compel him
to redeem the mortgage and to
obtain a conveyance from the
mortgagee;
(d) where the vendor or lessor
sues for specific performance of
the contract, and the suit is
dismissed on the ground of his
imperfect title, the defendant has
a right to a return of his deposit
(if any) with interest thereon, to
his costs of the suit, and to a lien
for such deposit, interest and
costs on the interest of the vendor
or lessor in the property agreed
to be sold or let.
19. Power to award
compensation in certain cases.–
Any person suing for the specific
performance of a contract may
also ask for compensation for its
breach, either in addition to, or in
substitution for, such
performance.
If in any such suit the Court
decides that specific performance
ought not to be granted, but that
there is a contract between the
parties which has been broken by
the defendant and that plaintiff is
entitled to compensation for that
breach, it shall award him
compensation accordingly.
If in any such suit the Court
decides that specific performance
ought to be granted, but that it is
not sufficient to satisfy the justice
of the case, and that some
compensation for breach of the
contract should also be made to
the plaintiff, it shall award him
such compensation accordingly.
Compensation awarded under this
section may be assessed in such
manner as the Court may direct.
Explanation.– The circumstance
that the contract has become
incapable of specific performance
does not preclude the Court from
exercising the jurisdiction
conferred by this section.
Illustrations
of the second paragraph–
A contracts to sell a hundred
mounds of rice to B. B brings a
suit to compel A to perform the
contract or to pay compensation.
The Court is of opinion that A has
made a valid contract and has
broken it, without excuse, to the
injury of B but that specific
performance is not the proper
remedy. It shall award to B such
compensation as it deems just.
of the third paragraph–
A contracts with B to sell him a
house for Rs.1,000, the price to be
paid and the possession given on
the 1st January, 1877. A fails to
perform his part of the contract,
and B brings his suit for specific
performance and compensation,
which is decided in his favour on
the 1st January, 1878. The decree
may, besides ordering specific
performance, award to B
compensation for any loss which
he has sustained by A’s refusal.
of the Explanation–
A, a purchaser, sues B, his vendor,
for specific performance of a
contract for the sale of a patent.
Before the hearing of the suit the
patent expires. The Court may
award A compensation for the
non-performance of the contract,
and may, if necessary, amend the
plaint for that purpose.
A sues for the specific
performance of a resolution
passed by the Directors of a
public company, under which he
was entitled to have a certain
number of shares allotted to him,
and for compensation for the non-
performance of the resolution. All
the shares had been allotted
before the institution of the suit.
The Court may, under this section,
award A compensation for the
non-performance.
20. Liquidation of damages not a
bar to specific performance.– A
contract, otherwise proper to be
specifically enforced, may be thus
enforced, though a sum be named
in it as the amount to be paid in
case of its breach, and the party
in default is willing to pay the
same.
Illustration
A contracts to grant B an under-
lease of property held by A under
C, and that he will apply to C for a
license necessary to the validity of
the under-lease, and that, if the
license is not procured, A will pay
B Rs.10,000. A refuses to apply for
the license and offers to pay B the
Rs.10,000. B is nevertheless
entitled to have the contract
specifically enforced if C consents
to give the license.
(B) CONTRACTS WHICH CANNOT
BE SPECIFICALLY ENFORCED
21. Contracts not specifically
enforceable .– The following
contracts cannot be specifically
enforced:-
(a) a contract for the non-
performance of which
compensation in money is an
adequate relief;
(b) a contract which runs into
such minute or numerous details,
or which is so dependent on the
personal qualifications or volition
of the parties, or otherwise from
its nature is such, that the Court
cannot enforce specific
performance of its material terms;
(c) a contract the terms of which
the Court cannot find with
reasonable certainty;
(d) a contract which is in its
nature revocable;
(e) a contract made by trustees
either in excess of their powers or
in breach of their trust;
(f) a contract made by or on
behalf of a corporation or public
company created for special
purposes, or by the promoters of
such company, which is in excess
of its powers;
(g) a contract the performance of
which involves the performance of
a continuous duty extending over
a longer period than three years
from its date;
(h) a contract of which a material
part of the subject-matter,
supposed by both parties to exist,
has, before it has been made,
ceased to exist.
And, save as provided by the [18]
[Arbitration Act, 1940[19] ], no
contract to refer [20] [present or
future differences] to arbitration
shall be specifically enforced; [21]
but if any person who has made
such a contract [22] [other than an
arbitration agreement to which
the provisions of the said Act
apply] and has refused to perform
it sues in respect of any subject
which he has contracted to refer,
the existence of such contract
shall bar the suit.
Illustrations
to (a)–
A contracts to sell, and B
contracts to buy, a lakh of rupees
in the four percent loan of the
[23] [ [24] [* * *] Government].
A contracts to sell, and B
contracts to buy, 40 chests of
indigo at rupees 1,000 per chest:
In consideration of certain
property having been transferred
by A to B, B contracts to open a
credit in A’s favour to extent of
rupees 10,000, and to honour A’s
drafts to that amount:
The above contracts cannot be
specifically enforced, for in the
first and Second both A and B, and
in the third A, would be
reimbursed by compensation in
money.
to (b)–
A contracts to render personal
service to B:
A contracts to employ B on
personal service:
A, an author, contracts with B, a
publisher, to complete a literary
work: B cannot enforce specific
performance of these contracts.
A contracts to buy B’s business at
the amount of a valuation to be
made by two valuers, one to be
named by A and the other by B. A
and B each name a valuer, but
before the valuation is made, A
instructs his valuer not to
proceed:
By a charter-party entered into in
[25] [Chittagong] between A, the
owner of a [26] [aeroplane], and B,
the charterer, it is agreed that the
[27] [aeroplane] shall proceed to
[28] [Lahore] and there load a
cargo of rice, and thence proceed
to London, freight to be paid, one-
third on arrival at [29] [Lahore],
and two-thirds on delivery of the
cargo in London: A lets land to B
and B contracts to cultivate it in a
particular manner for three years
next after the date of the lease:
A and B contract that, in
consideration of annual advances
to be made by A, B will for three
years next after date of the
contract grow particular crops on
the land in his possession and
deliver them to A when cut and
ready for delivery:
A contracts with B that, in
consideration of rupees 1,000 to
be paid to him by B, he will paint
a picture for B:
A contracts with B to execute
certain works which the Court
cannot superintend:
A contracts to supply B with all
the goods of a certain class which
B may require:
A contracts with B to take from B
a lease of a certain house for a
specified term, at a specified rent,
“if the drawing-room is
handsomely decorated”, even if it
is held to have so much certainty
that compensation can be
recovered for its breach:
A contracts to marry B:
The above contracts cannot be
specifically enforced.
to (c)–
A, the owner of a refreshment-
room, contracts, with B to give
him accommodation there for the
sale of his goods and to furnish
him with the necessary appliances.
A refuses to perform his contract.
The case is one for compensation
and not for specific performance,
the amount and nature of the
accommodation and appliances
being undefined.
to (d)–
A and B contract to become
partners in a certain business, the
contract not specifying the
duration of the proposed
partnership. This contract cannot
be specifically performed, for, if it
were so performed, either A or B
might at once dissolve the
partnership.
to (e)–
A is a trustee of land with power
to lease it for seven years. He
enters into a contract with B to
grant a lease of the land for seven
years, with a covenant to renew
the lease at the expiry of the
term. This contract cannot be
specifically enforced.
The Directors of a company have
power to sell the concern with the
sanction of a general meeting of
the shareholders. They contract to
sell it without any such sanction.
This contract cannot be
specifically enforced.
Two trustees, A and B, empowered
to sell trust-property worth a lakh
of rupees contract to sell it to C
for Rs.30,000. The contract is so
disadvantageous as to be a breach
of trust. C cannot enforce its
specific performance.
The promoters of a company for
working mines contract that the
company, when formed, shall
purchase certain mineral
property. They take no proper
precautions to ascertain the value
of such property- and in fact
agree to pay an extravagant price
therefore. They also stipulate that
the vendors shall give them a
bonus out of the purchase-money.
This contract cannot be
specifically enforced.
to (f)-
A company existing for the sole
purpose of making and working a
railway contract for the purchase
of a piece of land for the purpose
of erecting a cotton-mill thereon.
This contract cannot be
specifically enforced.
to (g)–
A contracts to let for twenty-one
years to B the right to use such
part of certain railway made by A
as was upon B’s land, and that B
should have a right of running
carriages over the whole line on
certain terms, and might require A
to supply the necessary engine-
power, and that A should during
the term keep the whole railway in
good repair. Specific performance
of this contract must be refused
to B.
to (h)–
A contracts to pay an annuity to B
for the lives of C and D. It turns
out that, at the date of the
contract, C, though supposed by A
and B to be alive, was dead. The
contract cannot be specifically
performed.
(C) OF THE DISCRETION OF THE
COURT
22. Discretion as to decreeing
specific performance.– The
jurisdiction to decree specific
performance is discretionary, and
the Court is not bound to grant
such relief merely because it is
lawful to do so; but the discretion
of the Court is not arbitrary but
sound and reasonable, guided by
judicial principles and capable of
correction by a Court of appeal.
The following are cases in which
the Court may properly exercise a
discretion not to decree specific
performance:-
I. Where the circumstances under
which the contract is made are
such as to give the plaintiff an
unfair advantage over the
defendant, though there may be
no fraud or misrepresentation on
the plaintiff’s part.
Illustrations
(a) A, a tenant for life of certain
property, assigns his interest
therein to B. C contracts to buy,
and B contracts to sell, that
interest. Before the contract is
completed, A receives a mortal
injury from the effects of which he
dies the day after the contract is
executed. If B and C were equally
ignorant or equally aware of the
fact, B is entitled to specific
performance of the contract. If B
knew the fact, and C did not,
specific performance of the
contract should be refused to B.
(b) A contracts to sell to B the
interest of C in certain stock-in-
trade. It is stipulated that the sale
shall stand good, even though it
should turn out that C’s interest is
worth nothing. In fact, the value
of C’s interest depends on the
result of certain partnership-
accounts, on which he is heavily in
debt to his partners. This
indebtedness is known to A, but
not to B. Specific performance of
the contract should be refused to
A.
(c) A contracts to sell, and B
contracts to buy, certain land. To
protect the land from floods, it is
necessary for its owner to
maintain an expensive
embankment. B does not know of
this circumstance, and A conceals
it from him. Specific performance
of the contract should be refused
to A.
(d) A’s property is put up to
auction. B requests C, A’s
attorney, to bid for him. C does
this inadvertently and in good
faith. The persons present, seeing
the vendor’s attorney bidding,
think that he is a mere puffer and
cease to compete. The lot is
knocked down to B at a low price.
Specific performance of the
contract should be refused to B.
II. Where the performance of the
contract would involve some
hardship on the defendant which
he did not foresee, whereas its
non-performance would involve
no such hardship on the plaintiff.
Illustrations
[30] [* * * * * * * * * * * * *]
(f) A and B, trustees, join their
beneficiary, C, in a contract to sell
the trust-estate to D, and
personally agree to exonerate the
estate from heavy encumbrances
to which it is subject. The
purchase-money is not nearly
enough to discharge those
encumbrances, though, at the
date of the contract, the vendors
believed it to be sufficient. Specific
performance of the contract
should be refused to D.
(g) A, the owner of an estate,
contracts to sell it to B, and
stipulates that he, A, shall not be
obliged to define its boundary. The
estate really comprises a valuable
property, not known to either to
be part of it. Specific performance
of the contract should be refused
to B unless he waives his claim to
the unknown property.
(h) A contracts with B to sell him
certain land, and to make a road
to it from a certain railway-
station. It is found afterwards that
A cannot make the road without
exposing himself to litigation.
Specific performance of the part
of the contract relating to the
road should be refused to B, even
though it may be held that he is
entitled to specific performance of
the rest with compensation for
loss of the road.
(i) A, a lessee of mines, contracts
with B, his lessor, that at any time
during the continuance of the
lease B may give notice of his
desire to take the machinery and
plant used in and about the
mines, and that he shall have the
articles specified in his notice
delivered to him at a valuation on
the expiry of the lease. Such a
contract might be most injurious
to the leasee’s business, and
specific performance of it should
be refused to B.
(j) A contracts to buy certain land
from B. The contract is silent as to
access to the land. No right of way
to it can be shown to exist.
Specific performance of the
contract should be refused to B.
(k) A contracts with B to buy from
B’s manufactory and not
elsewhere all the goods of a
certain class used by A in his
trade. The Court cannot compel B
to supply the goods, but if he does
not supply them, A may be ruined
unless he is allowed to buy them
elsewhere. Specific performance
of the contract should be refused
to B.
The following is a case in which
the Court may properly exercise a
discretion to decree specific
performance:-
III. Where the plaintiff has done
substantial acts or suffered losses
in consequence of a contract
capable of specific performance.
Illustration
A sells land to a railway-company,
who contracts to execute certain
works for his convenience. The
company takes the land and use it
for their railway. Specific
performance of the contract to
execute the works should be
decreed in favour of A.
(D) FOR WHOM CONTRACTS MAY
BE SPECIFICALLY ENFORCED
23. Who may obtain specific
performance.– Except as
otherwise provided by this
Chapter, the specific performance
of a contract may be obtained by–
(a) any party thereto;
(b) the representative in interest,
or the principal, of any party
thereto: provided that, where the
learning, skill, solvency or any
personal quality of such party is a
material ingredient in the
contract, or where the contract
provides that his interest shall not
be assigned, his representative in
interest or his principal shall not
be entitled to specific
performance of the contract,
unless where his part thereof has
already been performed;
(c) where the contract is a
settlement on marriage, or a
compromise of doubtful rights
between members of the same
family, any person beneficially
entitled thereunder;
(d) where the contract has been
entered into by a tenant for life in
due exercise of a power, the
remainderman;
(e) a reversioner in possession,
where the agreement is a
covenant entered into with his
predecessor in title and the
reversioner is entitled to the
benefit of such covenant;
(f) a reversioner in remainder,
where the agreement is such a
covenant, and the reversioner is
entitled to the benefit thereof and
will sustain material injury by
reason of its breach;
(g) when a public company has
entered into a contract and
subsequently becomes
amalgamated with another public
company, the new company which
arises out of the amalgamation;
(h) when the promoters of a
public company have, before its
incorporation, entered into a
contract for the purposes of the
company, and such contract is
warranted by the terms of the
incorporation, the company.
(E) FOR WHOM CONTRACTS
CANNOT BE SPECIFICALLY
ENFORCED
24. Personal bars to the relief.–
Specific performance of a contract
cannot be enforced in favour of a
person-
(a) who could not recover
compensation for its breach;
(b) who has become incapable of
performing, or violates, any
essential term of the contract that
on his part remains to be
performed;
(c) who has already chosen his
remedy and obtained satisfaction
for the alleged breach of contract;
or
(d) who, previously to the
contract, had notice that a
settlement of the subject-matter
thereof (though not founded on
any valuable consideration) had
been made and was then in force.
Illustrations
to clause (a)–
A, in the character of agent for B,
enters into an agreement with C
to buy C’s house. A is in reality
acting, not as agent for B, but on
his own account. A cannot enforce
specific performance of this
contract.
to clause (b)–
A contracts to sell B a house and
to become tenant thereof for a
term of fourteen years from the
date of the sale at a specified
yearly rent. A becomes insolvent.
Neither he nor his assignee can
enforce specific performance of
the contract. A contracts to sell B
a house and garden in which there
are ornamental trees, a material
element in the value of the
property as a residence. A,
without B’s consent, fells the
trees. A cannot enforce specific
performance of the contract.
A, holding land under a contract
with B for a lease, commits waste,
or treats the land in an
unhusbandlike manner. A cannot
enforce specific performance of
the contract.
A contracts to let, and B contracts
to take, an unfinished house, B
contracting to finish the house
and the lease to contain covenants
on the part of A to keep the house
in repair. B finishes the house in a
very defective manner: he cannot
enforce the contract specifically,
though A and B may sue each
other for compensation for breach
of it.
to clause (c)–
A contracts to let, and B contracts
to take, a house for a specified
term at a specified rent. B refuses
to perform the contract. A
thereupon sues for, and obtains,
compensation for the breach. A
cannot obtain specific
performance of the contact.
25. Contracts to sell property by
one who has no title or who is a
voluntary settler.– A contracts
for the sale or letting of property,
whether moveable or immoveable,
cannot be specifically enforced in
favour of a vendor or lessor–
(a) who, knowing himself not to
have any title to the property, has
contracted to sell or let the same;
(b) who, though he entered into
the contract believing that he had
a good title to the property,
cannot, at the time fixed by the
parties or by the Court for the
completion of the sale or letting,
give the purchaser or lessee a title
free from reasonable doubt;
(c) who, previous to entering into
the contract, has made a
settlement (though not founded
on any valuable consideration) of
the subject-matter of the
contract.
Illustrations
(a) A, without C’s authority,
contracts to sell to B an estate
which A knows to belong to C. A
cannot enforce specific
performance of this contract, even
though C is willing to confirm it.
(b) A bequeaths his land to
trustees declaring that they may
sell it with the consent in writing
of B. B gives a general prospective
assent in writing to any sale which
the trustees may make. The
trustees then enter into a contract
with C to sell him the land. C
refuses to carry out the contract.
The trustees cannot specifically
enforce this contract, as, in the
absence of B’s consent to the
particular sale to C, the title which
they can give C is, as the law
stands, not free from reasonable
doubt.
(c) A, being in possession of
certain land, contracts to sell it to
Z. On inquiry it turns out that A
claims the land as heir of B, who
left the country several years
before, and is generally believed to
be dead, but of whose death there
is no sufficient proof. A cannot
compel Z specifically to perform
the contract.
(d) A, out of natural love and
affection, makes a settlement of
certain property on his brothers
and their issue, and afterwards
enters into a contract to sell the
property to a stranger. A cannot
enforce specific performance of
this contract so as to override the
settlement, and thus prejudice the
interest of the persons claiming
under it.
(F) FOR WHOM CONTRACTS CAN
NOT BE
SPECIFICALLY ENFORCED,
EXCEPT WITH A VARIATION
26. Non-enforcement except
with variation .– Where a plaintiff
seeks specific performance of a
contract in writing, to which the
defendant sets up a variation, the
plaintiff cannot obtain the
performance sought, except with
the variation so set up, in the
following cases (namely):-
(a) where by fraud or mistake of
fact the contract of which
performance is sought is in terms
different from that which the
defendant supposed it to be when
he entered into it;
(b) where by fraud, mistake of
fact, or surprise the defendant
entered into the contract under a
reasonable misapprehension as to
its effect as between himself and
the plaintiff;
(c) where the defendant, knowing
the terms of the contract and
understanding its effect, has
entered into it relying upon some
misrepresentation by the plaintiff,
or upon some stipulation on the
plaintiff’s part, which adds to the
contract, but which he refuses to
fulfil;
(d) where the object of the parties
was to produce a certain legal
result, which the contract as
framed is not calculated to
produce;
(e) where the parties have,
subsequently to the execution of
the contract, contracted to vary it.
Illustrations
(a) A, B and C sign a writing by
which they purport to contract
each to enter into a bond to D for
Rs.1,000. In a suit by D, to make
A, B and C separately liable each
to the extent of Rs.1,000, they
prove that the word “each” was
inserted by mistake; that the
intention was that they should
give a joint bound for Rs.1,000. D
can obtain the performance
sought only with the variation
thus set up.
(b) A sues B to compel specific
performance of a contract in
writing to buy a dwelling-house. B
proves that he assumed that the
contract included an adjoining
yard, and the contract was so
framed as to leave it doubtful
whether the yard was so included
or not. The Court will refuse to
enforce the contract, except with
the variation set up by B.
(c) A contracts in writing to let to
B a wharf, together with a strip of
A’s land delineated in a map.
Before signing the contract, B
proposed orally that he should be
at liberty to substitute for the
strip mentioned in the contract
another strip of A’s land of the
same dimensions, and to this A
expressly assented. B then signed
the written contract. A cannot
obtain specific performance of the
written contract, except with the
variation set up by B.
(d) A and B enter into negotiations
for the purpose of securing land
for B for his life, with remainder
to his issue. They execute a
contract, the terms of which are
found to confer an absolute
ownership on B. The contract so
framed cannot be specifically
enforced.
(e) A contracts in writing to let a
house to B, for a certain term, at
the rent of Rs.100 per month,
putting it first into tenantable
repair. The house turns out to be
not worth repairing, so, with B’s
consent, A pulls it down and
erects a new house in its place: B
contracting orally to pay rent at
Rs.120 per mensem. B then sues
to enforce specific performance of
the contract in writing. He cannot
enforce it except with the
variations made by the
subsequent oral contract.
(G) AGAINST WHOM CONTRACTS
MAY BE SPECIFICALLY
ENFORCED
27. Relief against parties and
persons claiming under them by
subsequent title.– Except as
otherwise provided by this
Chapter, specific performance of a
contract may be enforced against–
(a) either party thereto;
(b) any other person claiming
under him by a title arising
subsequently to the contract,
except a transferee for value who
has paid his money in good faith
and without notice of the original
contract;
(c) any person claiming under a
title which, though prior to the
contract and known to the
plaintiff, might have been
displaced by the defendant;
(d) when a public company has
entered into a contract and
subsequently becomes
amalgamated with another public
company, the new company which
arises out of the amalgamation;
(e) when the promoters of a
public company have, before its
incorporation, entered into a
contract, the company: provided
that the company has ratified and
adopted the contract and the
contract is warranted by the
terms of the incorporation.
Illustrations
to clause (b)–
A contracts to convey certain land
to B by a particular day, A dies
intestate before that day without
having conveyed the land. B may
compel A’s heir or other
representative in interest to
perform the contract specifically.
A contracts to sell certain land to
B for Rs.5,000. A afterwards
conveys the land for Rs.6,000 to C,
who has notice of the original
contract. B may enforce specific
performance of the contract as
against C.
A contracts to sell land to B for
Rs.5000. B takes possession of the
land. Afterwards A sells it to C for
Rs.6,000. C makes no inquiry of B
relating to his interest in the land.
B’s possession is sufficient to
affect C with notice of his interest,
and he may enforce specific
performance of the contract
against C.
A contracts, in consideration of
Rs.1,000, to bequeath certain of
his lands to B. Immediately after
the contract A dies intestate, and
C takes out administration to his
estate. B may enforce specific
performance of the contract
against C.
A contracts to sell certain land to
B. Before the completion of the
contract, A becomes a lunatic and
C is appointed his committee. B
may specifically enforce the
contract against C.
to clause (c)–
A, the tenant for life of an estate,
with remainder to B, in due
exercise of a power conferred by
the settlement under which he is
tenant for life, contracts to sell the
estate to C, who has notice of the
settlement. Before the sale is
completed, A dies. C may enforce
specific performance of the
contract against B.
A and B are joint tenants of land,
his undivided moiety of which
either may alien in his life time,
but which, subject to that right,
devolves on the survivor. A
contracts to sell his moiety to C
and dies. C may enforce specific
performance of the contract
against B.
[31] [27A. Specific performance in
case of part performance of
contract to lease .–Subject to the
provisions of this Chapter, where
a contract to lease immoveable
property is made in writing signed
by the parties thereto or on their
behalf, either party may,
notwithstanding that the contract,
though required to be registered,
has not been registered, sue the
other for specific performance of
the contract if,–
(a) where specific performance is
claimed by the lessor, he has
delivered possession of the
property to the lessee in part
performance of the contract; and
(b) where specific performance is
claimed by the lessee, he has, in
part performance of the contract,
taken possession of the property,
or, being already in possession,
continues in possession in part
performance of the contract, and
has done some act in furtherance
of the contract:
Provided that nothing in this
section shall affect the rights of a
transferee for consideration who
has no notice of the contract or of
the part performance thereof.
This section applies to contracts
to lease executed after the first
day of April, 1930.]
(H) AGAINST WHOM CONTRACTS
CANNOT BE SPECIFICALLY
ENFORCED
28. What parties cannot be
compelled to perform .– Specific
performance of a contract cannot
be enforced against a party
thereto in any of the following
cases:-
(a) if the consideration to be
received by him is so grossly
inadequate, with reference to the
state of things existing at the date
of the contract, as to be either by
itself or coupled with other
circumstances evidence of fraud
or of undue advantage taken by
the plaintiff;
(b) if his assent was obtained by
the misrepresentation (whether
wilful or innocent), concealment,
circumvention or unfair practices,
of any party to whom
performance would become due
under the contract, or by any
promise of such party which has
not been substantially fulfilled;
(c) if his assent was given under
the influence of mistake of fact,
misapprehension or surprise:
Provided that, when the contract
provides for compensation in case
of mistake, compensation may be
made for a mistake within the
scope of such provision, and the
contract may be specifically
enforced in other respects if
proper to be so enforced.
Illustrations
to clause (c)–
A, one of two executors, in the
erroneous belief that he had the
authority of his co-executor,
enters into an agreement for the
sale to B of his testator’s
property. B cannot insist on the
sale being completed.
A directs an auctioneer to sell
certain land. A afterwards revokes
the auctioneer’s authority as to 20
bighas of this land, but the
auctioneer inadvertently sells the
whole to B, who has not notice of
the revocation. B cannot enforce
specific performance of the
agreement.
(I) THE EFFECT OF DISMISSING A
SUIT FOR SPECIFIC
PERFORMANCE
29. Bar of suit for breach after
dismissal.– The dismissal of a suit
for specific performance of a
contract or part thereof shall bar
the plaintiff’s right to sue for
compensation for the breach of
such contract or part, as the case
may be.
(J) AWARDS AND DIRECTIONS TO
EXECUTE SETTLEMENTS
30. Application of preceding
sections to awards and
testamentary directions to
execute settlements .– The
provisions of this Chapter as to
contracts shall, mutatis mutandis,
apply to awards and to directions
in a will or codicil to execute a
particular settlement.
SPECIFICALLY ENFORCED
12. Cases in which specific
performance enforceable.
13. Contract of which the subject
has partially ceased to exist.
14. Specific performance of part
of contract where part
unperformed is small.
15. Specific performance of part
of contract where part
unperformed is large.
16. Specific performance of
independent part of contract.
17. Bar in other cases of specific
performance of part of contract.
18. Purchaser’s rights against
vendor with imperfect title.
19. Power to award compensation
in certain cases.
20. Liquidation of damages not a
bar to specific performance.
(B) CONTRACTS WHICH CANNOT
BE SPECIFICALLY ENFORCED
21. Contracts not specifically
enforceable.
(C) OF THE DISCRETION OF THE
COURT
22. Discretion as to decreeing
specific performance
(D) FOR WHOM CONTRACTS MAY
BE SPECIFICALLY ENFORCED
23. Who may obtain specific
performance.
(E) FOR WHOM CONTRACTS
CANNOT BE SPECIFICALLY ENFORCED
24. Personal bars to the relief.
25. Contracts to sell property by
one who has no title or who is a
voluntary settler.
(F) FOR WHOM CONTRACTS CAN
NOT BE SPECIFICALLY ENFORCED,
EXCEPT WITH A VARIATION
26. Non-enforcement except with
variation.
(G) AGAINST WHOM CONTRACTS
MAY BE SPECIFICALLY ENFORCED
27. Relief against parties and
persons claiming under them by
subsequent title.
27A. Specific performance in case
of part performance of contract to
lease.
(H) AGAINST WHOM CONTRACTS
CANNOT BE SPECIFICALLY ENFORCED
28. What parties cannot be
compelled to perform.
(I) THE EFFECT OF DISMISSING A
SUIT FOR SPECIFIC PERFORMANCE
29. Bar of suit for breach after
dismissal.
(J) AWARDS AND DIRECTIONS TO
EXECUTE SETTLEMENTS
30. Application of preceding
sections to awards and
testamentary directions to
execute settlements.
DETAILS :
(A) CONTRACTS WHICH MAY BE
SPECIFICALLY ENFORCED
12. Cases in which specific
performance enforceable .–
Except as otherwise provided in
this Chapter, the specific
performance of any contract may
in the discretion of the Court be
enforced–
(a) when the act agreed to be
done is in the performance, wholly
or partly, of a trust;
(b) when there exists no standard
for ascertaining the actual damage
caused by non-performance of the
act agreed to be done;
(c) when the act agreed to be
done is such that pecuniary
compensation for its non-
performance would not afford
adequate relief; or
(d) when it is probable that
pecuniary compensation cannot
be got for the non-performance of
the act agreed to be done.
Explanation.– Unless and until
the contrary is proved, the Court
shall presume that the breach of a
contract to transfer immoveable
property cannot be adequately
relieved by compensation in
money, and that the breach of a
contract to transfer moveable
property can be thus relieved.
Illustrations
[15] [* * * * * * * * * * * * *]
of clause (b)–
A agrees to buy, and B agrees to
sell, a picture by a dead painter
and two rare China vases. A may
compel B specifically to perform
this contract, for there is no
standard for ascertaining the
actual damage which would be
caused by its non-performance.
of clause (c)–
A contracts with B to sell him a
house for Rs.1,000. B is entitled to
a decree directing A to convey the
house to him, he paying the
purchase-money.
In consideration of being released
from certain obligations imposed
on it by its act of incorporation, a
railway-company contracts with Z
to make an archway through their
railway to connect lands of Z
severed by the railway, to
construct a road between certain
specified points, to pay a certain
annual sum towards the
maintenance of this road, and also
to construct a siding and a wharf
as specified in the contract. Z is
entitled to have this contract
specifically enforced, for his
interest in its performance cannot
be adequately compensated for by
money: and the Court may
appoint a proper person to
superintend the construction of
the archway, road, siding and
wharf.
A contracts to sell, and B
contracts to buy, a certain
number of railway-shares of a
particular description. A refuses to
complete the sale. B may compel
A specifically to perform this
agreement, for the shares are
limited in number and not always
to be had in the market, and their
possession carries with it the
status of a share-holder, which
cannot otherwise be procured.
A contracts with B to paint a
picture for B, who agrees to pay
therefor Rs.1,000. The picture is
painted. B is entitled to have it
delivered to him on payment or
tender of the Rs.1,000.
of clause (d)–
A transfers without endorsement,
but for valuable consideration, a
promissory note to B. A becomes
insolvent, and C is appointed his
assignee. B may compel C to
endorse the note, for C has
succeeded to A’s liabilities, and a
decree for pecuniary
compensation for not endorsing
the note would be fruitless.
13. Contract of which the
subject has partially ceased to
exist .– Notwithstanding anything
contained in section 56 of the
Contract Act, 1872 [16] , a contract
is not wholly impossible of
performance because a portion of
its subject-matter, existing at its
date, has ceased to exist at the
time of the performance.
[17] [* * * * * * * * * * * * *]
14. Specific performance of part
of contract where part
unperformed is small.– Where a
party to a contract is unable to
perform the whole of his part of
it, but the part which must be left
unperformed bears only a small
proportion to the whole in value,
and admits of compensation in
money, the Court may, at the suit
of either party, direct the specific
performance of so much of the
contract as can be performed, and
award compensation in money for
the deficiency.
Illustrations
(a) A constracts to sell B a piece
of land consisting of 100 bighas. It
turns out that 98 bighas of the
land belong to A, and the two
remaining bighas to a stranger,
who refuses to part with them.
The two bighas are not necessary
for the use or enjoyment of the 98
bighas, nor so important for such
use of enjoyment that the loss of
them may not be made good in
money. A may be directed at the
suit of B to convey to B the 98
bighas and to make compensation
to him for not conveying the two
remaining bighas; or B may be
directed, at the suit of A, to pay to
A, on receiving the conveyance and
possession of the land, the
stipulated purchase-money less a
sum awarded as compensation for
the deficiency.
(b) In a contract for the sale and
purchase of a house and lands for
two lakhs of rupees, it is agreed
that part of the furniture should
be taken at a valuation. The Court
may direct specific performance of
the contract notwithstanding the
parties are unable to agree as to
the valuation of the furniture, and
may either have the furniture
valued in the suit and include it in
the decree for specific
performance, or may confine its
decree to the house.
15. Specific performance of part
of contract where part
unperformed is large.– Where a
party to a contract is unable to
perform the whole of his part of
it, and the part which must be left
unperformed forms a
considerable portion of the whole,
or does not admit of
compensation in money, he is not
entitled to obtain a decree for
specific performance. But the
Court may, at the suit of the other
party, direct the party in default
to perform specifically so much of
his part of the contract as he can
perform, provided that the
plaintiff relinquishes all claim to
further performance, and all right
to compensation either for the
deficiency, or for the loss or
damage sustained by him through
the default of the defendant.
Illustrations
(a) A contacts to sell to B a piece
of land consisting of 100 bighas. It
turns out that 50 bighas of the
land belong to A, and the other 50
bighas to a stranger, who refuses
to part with them. A cannot
obtain a decree against B for the
specific performance of the
contract; but if B is willing to pay
the price agreed upon, and to take
the 50 bighas which belong to A,
waiving all right to compensation
either for the deficiency or for loss
sustained by him through A’s
neglect or default, B is entitled to
a decree directing A to convey
those 50 bighas to him on
payment of the purchase-money.
(b) A contracts to sell to B an
estate with a house and garden
for a lakh of rupees. The garden is
important for the enjoyment of
the house. It turns out that A is
unable to convey the garden. A
cannot obtain a decree against B
for the specific performance of the
contract, but if B is willing to pay
the price agreed upon, and to take
the estate and house without the
garden, waiving all right to
compensation either for the
deficiency or for loss sustained by
him through A’s neglect or
default, B is entitled to a decree
directing A to convey the house to
him on payment of the purchase-
money.
16. Specific performance of
independent part of contract .–
When a part of a contract which,
taken by itself, can and ought to
be specifically performed, stands
on a separate and independent
footing from another part of the
same contract which cannot or
ought not to be specifically
performed, the Court may direct
specific performance of the
former part.
17. Bar in other cases of specific
performance of part of
contract .– The Court shall not
direct the specific performance of
a part of a contract except in
cases coming under one or other
of the three last preceding
sections.
18. Purchaser’s rights against
vendor with imperfect title .–
Where a person contracts to sell
or let certain property, having only
an imperfect title thereto, the
purchaser or lessee (except as
otherwise provided by this
Chapter) has the following rights:-
(a) if the vendor or lessor has
subsequently to the sale or lease
acquired any interest in the
property, the purchaser or lessee
may compel him to make good the
contract out of such interest;
(b) where the concurrence of
other persons is necessary to
validate the title, and they are
bound to convey at the vendor’s
or lessor’s request, the purchaser
or lessee may compel him to
procure such concurrence;
(c) where the vendor professes to
sell unincumbered property, but
the property is mortgaged for an
amount not exceeding the
purchase-money, and the vendor
has in fact only a right to redeem
it, the purchaser may compel him
to redeem the mortgage and to
obtain a conveyance from the
mortgagee;
(d) where the vendor or lessor
sues for specific performance of
the contract, and the suit is
dismissed on the ground of his
imperfect title, the defendant has
a right to a return of his deposit
(if any) with interest thereon, to
his costs of the suit, and to a lien
for such deposit, interest and
costs on the interest of the vendor
or lessor in the property agreed
to be sold or let.
19. Power to award
compensation in certain cases.–
Any person suing for the specific
performance of a contract may
also ask for compensation for its
breach, either in addition to, or in
substitution for, such
performance.
If in any such suit the Court
decides that specific performance
ought not to be granted, but that
there is a contract between the
parties which has been broken by
the defendant and that plaintiff is
entitled to compensation for that
breach, it shall award him
compensation accordingly.
If in any such suit the Court
decides that specific performance
ought to be granted, but that it is
not sufficient to satisfy the justice
of the case, and that some
compensation for breach of the
contract should also be made to
the plaintiff, it shall award him
such compensation accordingly.
Compensation awarded under this
section may be assessed in such
manner as the Court may direct.
Explanation.– The circumstance
that the contract has become
incapable of specific performance
does not preclude the Court from
exercising the jurisdiction
conferred by this section.
Illustrations
of the second paragraph–
A contracts to sell a hundred
mounds of rice to B. B brings a
suit to compel A to perform the
contract or to pay compensation.
The Court is of opinion that A has
made a valid contract and has
broken it, without excuse, to the
injury of B but that specific
performance is not the proper
remedy. It shall award to B such
compensation as it deems just.
of the third paragraph–
A contracts with B to sell him a
house for Rs.1,000, the price to be
paid and the possession given on
the 1st January, 1877. A fails to
perform his part of the contract,
and B brings his suit for specific
performance and compensation,
which is decided in his favour on
the 1st January, 1878. The decree
may, besides ordering specific
performance, award to B
compensation for any loss which
he has sustained by A’s refusal.
of the Explanation–
A, a purchaser, sues B, his vendor,
for specific performance of a
contract for the sale of a patent.
Before the hearing of the suit the
patent expires. The Court may
award A compensation for the
non-performance of the contract,
and may, if necessary, amend the
plaint for that purpose.
A sues for the specific
performance of a resolution
passed by the Directors of a
public company, under which he
was entitled to have a certain
number of shares allotted to him,
and for compensation for the non-
performance of the resolution. All
the shares had been allotted
before the institution of the suit.
The Court may, under this section,
award A compensation for the
non-performance.
20. Liquidation of damages not a
bar to specific performance.– A
contract, otherwise proper to be
specifically enforced, may be thus
enforced, though a sum be named
in it as the amount to be paid in
case of its breach, and the party
in default is willing to pay the
same.
Illustration
A contracts to grant B an under-
lease of property held by A under
C, and that he will apply to C for a
license necessary to the validity of
the under-lease, and that, if the
license is not procured, A will pay
B Rs.10,000. A refuses to apply for
the license and offers to pay B the
Rs.10,000. B is nevertheless
entitled to have the contract
specifically enforced if C consents
to give the license.
(B) CONTRACTS WHICH CANNOT
BE SPECIFICALLY ENFORCED
21. Contracts not specifically
enforceable .– The following
contracts cannot be specifically
enforced:-
(a) a contract for the non-
performance of which
compensation in money is an
adequate relief;
(b) a contract which runs into
such minute or numerous details,
or which is so dependent on the
personal qualifications or volition
of the parties, or otherwise from
its nature is such, that the Court
cannot enforce specific
performance of its material terms;
(c) a contract the terms of which
the Court cannot find with
reasonable certainty;
(d) a contract which is in its
nature revocable;
(e) a contract made by trustees
either in excess of their powers or
in breach of their trust;
(f) a contract made by or on
behalf of a corporation or public
company created for special
purposes, or by the promoters of
such company, which is in excess
of its powers;
(g) a contract the performance of
which involves the performance of
a continuous duty extending over
a longer period than three years
from its date;
(h) a contract of which a material
part of the subject-matter,
supposed by both parties to exist,
has, before it has been made,
ceased to exist.
And, save as provided by the [18]
[Arbitration Act, 1940[19] ], no
contract to refer [20] [present or
future differences] to arbitration
shall be specifically enforced; [21]
but if any person who has made
such a contract [22] [other than an
arbitration agreement to which
the provisions of the said Act
apply] and has refused to perform
it sues in respect of any subject
which he has contracted to refer,
the existence of such contract
shall bar the suit.
Illustrations
to (a)–
A contracts to sell, and B
contracts to buy, a lakh of rupees
in the four percent loan of the
[23] [ [24] [* * *] Government].
A contracts to sell, and B
contracts to buy, 40 chests of
indigo at rupees 1,000 per chest:
In consideration of certain
property having been transferred
by A to B, B contracts to open a
credit in A’s favour to extent of
rupees 10,000, and to honour A’s
drafts to that amount:
The above contracts cannot be
specifically enforced, for in the
first and Second both A and B, and
in the third A, would be
reimbursed by compensation in
money.
to (b)–
A contracts to render personal
service to B:
A contracts to employ B on
personal service:
A, an author, contracts with B, a
publisher, to complete a literary
work: B cannot enforce specific
performance of these contracts.
A contracts to buy B’s business at
the amount of a valuation to be
made by two valuers, one to be
named by A and the other by B. A
and B each name a valuer, but
before the valuation is made, A
instructs his valuer not to
proceed:
By a charter-party entered into in
[25] [Chittagong] between A, the
owner of a [26] [aeroplane], and B,
the charterer, it is agreed that the
[27] [aeroplane] shall proceed to
[28] [Lahore] and there load a
cargo of rice, and thence proceed
to London, freight to be paid, one-
third on arrival at [29] [Lahore],
and two-thirds on delivery of the
cargo in London: A lets land to B
and B contracts to cultivate it in a
particular manner for three years
next after the date of the lease:
A and B contract that, in
consideration of annual advances
to be made by A, B will for three
years next after date of the
contract grow particular crops on
the land in his possession and
deliver them to A when cut and
ready for delivery:
A contracts with B that, in
consideration of rupees 1,000 to
be paid to him by B, he will paint
a picture for B:
A contracts with B to execute
certain works which the Court
cannot superintend:
A contracts to supply B with all
the goods of a certain class which
B may require:
A contracts with B to take from B
a lease of a certain house for a
specified term, at a specified rent,
“if the drawing-room is
handsomely decorated”, even if it
is held to have so much certainty
that compensation can be
recovered for its breach:
A contracts to marry B:
The above contracts cannot be
specifically enforced.
to (c)–
A, the owner of a refreshment-
room, contracts, with B to give
him accommodation there for the
sale of his goods and to furnish
him with the necessary appliances.
A refuses to perform his contract.
The case is one for compensation
and not for specific performance,
the amount and nature of the
accommodation and appliances
being undefined.
to (d)–
A and B contract to become
partners in a certain business, the
contract not specifying the
duration of the proposed
partnership. This contract cannot
be specifically performed, for, if it
were so performed, either A or B
might at once dissolve the
partnership.
to (e)–
A is a trustee of land with power
to lease it for seven years. He
enters into a contract with B to
grant a lease of the land for seven
years, with a covenant to renew
the lease at the expiry of the
term. This contract cannot be
specifically enforced.
The Directors of a company have
power to sell the concern with the
sanction of a general meeting of
the shareholders. They contract to
sell it without any such sanction.
This contract cannot be
specifically enforced.
Two trustees, A and B, empowered
to sell trust-property worth a lakh
of rupees contract to sell it to C
for Rs.30,000. The contract is so
disadvantageous as to be a breach
of trust. C cannot enforce its
specific performance.
The promoters of a company for
working mines contract that the
company, when formed, shall
purchase certain mineral
property. They take no proper
precautions to ascertain the value
of such property- and in fact
agree to pay an extravagant price
therefore. They also stipulate that
the vendors shall give them a
bonus out of the purchase-money.
This contract cannot be
specifically enforced.
to (f)-
A company existing for the sole
purpose of making and working a
railway contract for the purchase
of a piece of land for the purpose
of erecting a cotton-mill thereon.
This contract cannot be
specifically enforced.
to (g)–
A contracts to let for twenty-one
years to B the right to use such
part of certain railway made by A
as was upon B’s land, and that B
should have a right of running
carriages over the whole line on
certain terms, and might require A
to supply the necessary engine-
power, and that A should during
the term keep the whole railway in
good repair. Specific performance
of this contract must be refused
to B.
to (h)–
A contracts to pay an annuity to B
for the lives of C and D. It turns
out that, at the date of the
contract, C, though supposed by A
and B to be alive, was dead. The
contract cannot be specifically
performed.
(C) OF THE DISCRETION OF THE
COURT
22. Discretion as to decreeing
specific performance.– The
jurisdiction to decree specific
performance is discretionary, and
the Court is not bound to grant
such relief merely because it is
lawful to do so; but the discretion
of the Court is not arbitrary but
sound and reasonable, guided by
judicial principles and capable of
correction by a Court of appeal.
The following are cases in which
the Court may properly exercise a
discretion not to decree specific
performance:-
I. Where the circumstances under
which the contract is made are
such as to give the plaintiff an
unfair advantage over the
defendant, though there may be
no fraud or misrepresentation on
the plaintiff’s part.
Illustrations
(a) A, a tenant for life of certain
property, assigns his interest
therein to B. C contracts to buy,
and B contracts to sell, that
interest. Before the contract is
completed, A receives a mortal
injury from the effects of which he
dies the day after the contract is
executed. If B and C were equally
ignorant or equally aware of the
fact, B is entitled to specific
performance of the contract. If B
knew the fact, and C did not,
specific performance of the
contract should be refused to B.
(b) A contracts to sell to B the
interest of C in certain stock-in-
trade. It is stipulated that the sale
shall stand good, even though it
should turn out that C’s interest is
worth nothing. In fact, the value
of C’s interest depends on the
result of certain partnership-
accounts, on which he is heavily in
debt to his partners. This
indebtedness is known to A, but
not to B. Specific performance of
the contract should be refused to
A.
(c) A contracts to sell, and B
contracts to buy, certain land. To
protect the land from floods, it is
necessary for its owner to
maintain an expensive
embankment. B does not know of
this circumstance, and A conceals
it from him. Specific performance
of the contract should be refused
to A.
(d) A’s property is put up to
auction. B requests C, A’s
attorney, to bid for him. C does
this inadvertently and in good
faith. The persons present, seeing
the vendor’s attorney bidding,
think that he is a mere puffer and
cease to compete. The lot is
knocked down to B at a low price.
Specific performance of the
contract should be refused to B.
II. Where the performance of the
contract would involve some
hardship on the defendant which
he did not foresee, whereas its
non-performance would involve
no such hardship on the plaintiff.
Illustrations
[30] [* * * * * * * * * * * * *]
(f) A and B, trustees, join their
beneficiary, C, in a contract to sell
the trust-estate to D, and
personally agree to exonerate the
estate from heavy encumbrances
to which it is subject. The
purchase-money is not nearly
enough to discharge those
encumbrances, though, at the
date of the contract, the vendors
believed it to be sufficient. Specific
performance of the contract
should be refused to D.
(g) A, the owner of an estate,
contracts to sell it to B, and
stipulates that he, A, shall not be
obliged to define its boundary. The
estate really comprises a valuable
property, not known to either to
be part of it. Specific performance
of the contract should be refused
to B unless he waives his claim to
the unknown property.
(h) A contracts with B to sell him
certain land, and to make a road
to it from a certain railway-
station. It is found afterwards that
A cannot make the road without
exposing himself to litigation.
Specific performance of the part
of the contract relating to the
road should be refused to B, even
though it may be held that he is
entitled to specific performance of
the rest with compensation for
loss of the road.
(i) A, a lessee of mines, contracts
with B, his lessor, that at any time
during the continuance of the
lease B may give notice of his
desire to take the machinery and
plant used in and about the
mines, and that he shall have the
articles specified in his notice
delivered to him at a valuation on
the expiry of the lease. Such a
contract might be most injurious
to the leasee’s business, and
specific performance of it should
be refused to B.
(j) A contracts to buy certain land
from B. The contract is silent as to
access to the land. No right of way
to it can be shown to exist.
Specific performance of the
contract should be refused to B.
(k) A contracts with B to buy from
B’s manufactory and not
elsewhere all the goods of a
certain class used by A in his
trade. The Court cannot compel B
to supply the goods, but if he does
not supply them, A may be ruined
unless he is allowed to buy them
elsewhere. Specific performance
of the contract should be refused
to B.
The following is a case in which
the Court may properly exercise a
discretion to decree specific
performance:-
III. Where the plaintiff has done
substantial acts or suffered losses
in consequence of a contract
capable of specific performance.
Illustration
A sells land to a railway-company,
who contracts to execute certain
works for his convenience. The
company takes the land and use it
for their railway. Specific
performance of the contract to
execute the works should be
decreed in favour of A.
(D) FOR WHOM CONTRACTS MAY
BE SPECIFICALLY ENFORCED
23. Who may obtain specific
performance.– Except as
otherwise provided by this
Chapter, the specific performance
of a contract may be obtained by–
(a) any party thereto;
(b) the representative in interest,
or the principal, of any party
thereto: provided that, where the
learning, skill, solvency or any
personal quality of such party is a
material ingredient in the
contract, or where the contract
provides that his interest shall not
be assigned, his representative in
interest or his principal shall not
be entitled to specific
performance of the contract,
unless where his part thereof has
already been performed;
(c) where the contract is a
settlement on marriage, or a
compromise of doubtful rights
between members of the same
family, any person beneficially
entitled thereunder;
(d) where the contract has been
entered into by a tenant for life in
due exercise of a power, the
remainderman;
(e) a reversioner in possession,
where the agreement is a
covenant entered into with his
predecessor in title and the
reversioner is entitled to the
benefit of such covenant;
(f) a reversioner in remainder,
where the agreement is such a
covenant, and the reversioner is
entitled to the benefit thereof and
will sustain material injury by
reason of its breach;
(g) when a public company has
entered into a contract and
subsequently becomes
amalgamated with another public
company, the new company which
arises out of the amalgamation;
(h) when the promoters of a
public company have, before its
incorporation, entered into a
contract for the purposes of the
company, and such contract is
warranted by the terms of the
incorporation, the company.
(E) FOR WHOM CONTRACTS
CANNOT BE SPECIFICALLY
ENFORCED
24. Personal bars to the relief.–
Specific performance of a contract
cannot be enforced in favour of a
person-
(a) who could not recover
compensation for its breach;
(b) who has become incapable of
performing, or violates, any
essential term of the contract that
on his part remains to be
performed;
(c) who has already chosen his
remedy and obtained satisfaction
for the alleged breach of contract;
or
(d) who, previously to the
contract, had notice that a
settlement of the subject-matter
thereof (though not founded on
any valuable consideration) had
been made and was then in force.
Illustrations
to clause (a)–
A, in the character of agent for B,
enters into an agreement with C
to buy C’s house. A is in reality
acting, not as agent for B, but on
his own account. A cannot enforce
specific performance of this
contract.
to clause (b)–
A contracts to sell B a house and
to become tenant thereof for a
term of fourteen years from the
date of the sale at a specified
yearly rent. A becomes insolvent.
Neither he nor his assignee can
enforce specific performance of
the contract. A contracts to sell B
a house and garden in which there
are ornamental trees, a material
element in the value of the
property as a residence. A,
without B’s consent, fells the
trees. A cannot enforce specific
performance of the contract.
A, holding land under a contract
with B for a lease, commits waste,
or treats the land in an
unhusbandlike manner. A cannot
enforce specific performance of
the contract.
A contracts to let, and B contracts
to take, an unfinished house, B
contracting to finish the house
and the lease to contain covenants
on the part of A to keep the house
in repair. B finishes the house in a
very defective manner: he cannot
enforce the contract specifically,
though A and B may sue each
other for compensation for breach
of it.
to clause (c)–
A contracts to let, and B contracts
to take, a house for a specified
term at a specified rent. B refuses
to perform the contract. A
thereupon sues for, and obtains,
compensation for the breach. A
cannot obtain specific
performance of the contact.
25. Contracts to sell property by
one who has no title or who is a
voluntary settler.– A contracts
for the sale or letting of property,
whether moveable or immoveable,
cannot be specifically enforced in
favour of a vendor or lessor–
(a) who, knowing himself not to
have any title to the property, has
contracted to sell or let the same;
(b) who, though he entered into
the contract believing that he had
a good title to the property,
cannot, at the time fixed by the
parties or by the Court for the
completion of the sale or letting,
give the purchaser or lessee a title
free from reasonable doubt;
(c) who, previous to entering into
the contract, has made a
settlement (though not founded
on any valuable consideration) of
the subject-matter of the
contract.
Illustrations
(a) A, without C’s authority,
contracts to sell to B an estate
which A knows to belong to C. A
cannot enforce specific
performance of this contract, even
though C is willing to confirm it.
(b) A bequeaths his land to
trustees declaring that they may
sell it with the consent in writing
of B. B gives a general prospective
assent in writing to any sale which
the trustees may make. The
trustees then enter into a contract
with C to sell him the land. C
refuses to carry out the contract.
The trustees cannot specifically
enforce this contract, as, in the
absence of B’s consent to the
particular sale to C, the title which
they can give C is, as the law
stands, not free from reasonable
doubt.
(c) A, being in possession of
certain land, contracts to sell it to
Z. On inquiry it turns out that A
claims the land as heir of B, who
left the country several years
before, and is generally believed to
be dead, but of whose death there
is no sufficient proof. A cannot
compel Z specifically to perform
the contract.
(d) A, out of natural love and
affection, makes a settlement of
certain property on his brothers
and their issue, and afterwards
enters into a contract to sell the
property to a stranger. A cannot
enforce specific performance of
this contract so as to override the
settlement, and thus prejudice the
interest of the persons claiming
under it.
(F) FOR WHOM CONTRACTS CAN
NOT BE
SPECIFICALLY ENFORCED,
EXCEPT WITH A VARIATION
26. Non-enforcement except
with variation .– Where a plaintiff
seeks specific performance of a
contract in writing, to which the
defendant sets up a variation, the
plaintiff cannot obtain the
performance sought, except with
the variation so set up, in the
following cases (namely):-
(a) where by fraud or mistake of
fact the contract of which
performance is sought is in terms
different from that which the
defendant supposed it to be when
he entered into it;
(b) where by fraud, mistake of
fact, or surprise the defendant
entered into the contract under a
reasonable misapprehension as to
its effect as between himself and
the plaintiff;
(c) where the defendant, knowing
the terms of the contract and
understanding its effect, has
entered into it relying upon some
misrepresentation by the plaintiff,
or upon some stipulation on the
plaintiff’s part, which adds to the
contract, but which he refuses to
fulfil;
(d) where the object of the parties
was to produce a certain legal
result, which the contract as
framed is not calculated to
produce;
(e) where the parties have,
subsequently to the execution of
the contract, contracted to vary it.
Illustrations
(a) A, B and C sign a writing by
which they purport to contract
each to enter into a bond to D for
Rs.1,000. In a suit by D, to make
A, B and C separately liable each
to the extent of Rs.1,000, they
prove that the word “each” was
inserted by mistake; that the
intention was that they should
give a joint bound for Rs.1,000. D
can obtain the performance
sought only with the variation
thus set up.
(b) A sues B to compel specific
performance of a contract in
writing to buy a dwelling-house. B
proves that he assumed that the
contract included an adjoining
yard, and the contract was so
framed as to leave it doubtful
whether the yard was so included
or not. The Court will refuse to
enforce the contract, except with
the variation set up by B.
(c) A contracts in writing to let to
B a wharf, together with a strip of
A’s land delineated in a map.
Before signing the contract, B
proposed orally that he should be
at liberty to substitute for the
strip mentioned in the contract
another strip of A’s land of the
same dimensions, and to this A
expressly assented. B then signed
the written contract. A cannot
obtain specific performance of the
written contract, except with the
variation set up by B.
(d) A and B enter into negotiations
for the purpose of securing land
for B for his life, with remainder
to his issue. They execute a
contract, the terms of which are
found to confer an absolute
ownership on B. The contract so
framed cannot be specifically
enforced.
(e) A contracts in writing to let a
house to B, for a certain term, at
the rent of Rs.100 per month,
putting it first into tenantable
repair. The house turns out to be
not worth repairing, so, with B’s
consent, A pulls it down and
erects a new house in its place: B
contracting orally to pay rent at
Rs.120 per mensem. B then sues
to enforce specific performance of
the contract in writing. He cannot
enforce it except with the
variations made by the
subsequent oral contract.
(G) AGAINST WHOM CONTRACTS
MAY BE SPECIFICALLY
ENFORCED
27. Relief against parties and
persons claiming under them by
subsequent title.– Except as
otherwise provided by this
Chapter, specific performance of a
contract may be enforced against–
(a) either party thereto;
(b) any other person claiming
under him by a title arising
subsequently to the contract,
except a transferee for value who
has paid his money in good faith
and without notice of the original
contract;
(c) any person claiming under a
title which, though prior to the
contract and known to the
plaintiff, might have been
displaced by the defendant;
(d) when a public company has
entered into a contract and
subsequently becomes
amalgamated with another public
company, the new company which
arises out of the amalgamation;
(e) when the promoters of a
public company have, before its
incorporation, entered into a
contract, the company: provided
that the company has ratified and
adopted the contract and the
contract is warranted by the
terms of the incorporation.
Illustrations
to clause (b)–
A contracts to convey certain land
to B by a particular day, A dies
intestate before that day without
having conveyed the land. B may
compel A’s heir or other
representative in interest to
perform the contract specifically.
A contracts to sell certain land to
B for Rs.5,000. A afterwards
conveys the land for Rs.6,000 to C,
who has notice of the original
contract. B may enforce specific
performance of the contract as
against C.
A contracts to sell land to B for
Rs.5000. B takes possession of the
land. Afterwards A sells it to C for
Rs.6,000. C makes no inquiry of B
relating to his interest in the land.
B’s possession is sufficient to
affect C with notice of his interest,
and he may enforce specific
performance of the contract
against C.
A contracts, in consideration of
Rs.1,000, to bequeath certain of
his lands to B. Immediately after
the contract A dies intestate, and
C takes out administration to his
estate. B may enforce specific
performance of the contract
against C.
A contracts to sell certain land to
B. Before the completion of the
contract, A becomes a lunatic and
C is appointed his committee. B
may specifically enforce the
contract against C.
to clause (c)–
A, the tenant for life of an estate,
with remainder to B, in due
exercise of a power conferred by
the settlement under which he is
tenant for life, contracts to sell the
estate to C, who has notice of the
settlement. Before the sale is
completed, A dies. C may enforce
specific performance of the
contract against B.
A and B are joint tenants of land,
his undivided moiety of which
either may alien in his life time,
but which, subject to that right,
devolves on the survivor. A
contracts to sell his moiety to C
and dies. C may enforce specific
performance of the contract
against B.
[31] [27A. Specific performance in
case of part performance of
contract to lease .–Subject to the
provisions of this Chapter, where
a contract to lease immoveable
property is made in writing signed
by the parties thereto or on their
behalf, either party may,
notwithstanding that the contract,
though required to be registered,
has not been registered, sue the
other for specific performance of
the contract if,–
(a) where specific performance is
claimed by the lessor, he has
delivered possession of the
property to the lessee in part
performance of the contract; and
(b) where specific performance is
claimed by the lessee, he has, in
part performance of the contract,
taken possession of the property,
or, being already in possession,
continues in possession in part
performance of the contract, and
has done some act in furtherance
of the contract:
Provided that nothing in this
section shall affect the rights of a
transferee for consideration who
has no notice of the contract or of
the part performance thereof.
This section applies to contracts
to lease executed after the first
day of April, 1930.]
(H) AGAINST WHOM CONTRACTS
CANNOT BE SPECIFICALLY
ENFORCED
28. What parties cannot be
compelled to perform .– Specific
performance of a contract cannot
be enforced against a party
thereto in any of the following
cases:-
(a) if the consideration to be
received by him is so grossly
inadequate, with reference to the
state of things existing at the date
of the contract, as to be either by
itself or coupled with other
circumstances evidence of fraud
or of undue advantage taken by
the plaintiff;
(b) if his assent was obtained by
the misrepresentation (whether
wilful or innocent), concealment,
circumvention or unfair practices,
of any party to whom
performance would become due
under the contract, or by any
promise of such party which has
not been substantially fulfilled;
(c) if his assent was given under
the influence of mistake of fact,
misapprehension or surprise:
Provided that, when the contract
provides for compensation in case
of mistake, compensation may be
made for a mistake within the
scope of such provision, and the
contract may be specifically
enforced in other respects if
proper to be so enforced.
Illustrations
to clause (c)–
A, one of two executors, in the
erroneous belief that he had the
authority of his co-executor,
enters into an agreement for the
sale to B of his testator’s
property. B cannot insist on the
sale being completed.
A directs an auctioneer to sell
certain land. A afterwards revokes
the auctioneer’s authority as to 20
bighas of this land, but the
auctioneer inadvertently sells the
whole to B, who has not notice of
the revocation. B cannot enforce
specific performance of the
agreement.
(I) THE EFFECT OF DISMISSING A
SUIT FOR SPECIFIC
PERFORMANCE
29. Bar of suit for breach after
dismissal.– The dismissal of a suit
for specific performance of a
contract or part thereof shall bar
the plaintiff’s right to sue for
compensation for the breach of
such contract or part, as the case
may be.
(J) AWARDS AND DIRECTIONS TO
EXECUTE SETTLEMENTS
30. Application of preceding
sections to awards and
testamentary directions to
execute settlements .– The
provisions of this Chapter as to
contracts shall, mutatis mutandis,
apply to awards and to directions
in a will or codicil to execute a
particular settlement.
