Rescission for mistake. Alternative prayer for rescission in suit for specific performance. Court may require party rescinding to do equity. (Part II.-Of Specific Relief. Chapter IV.-Of the Rescission of Contracts. Secs. 36-38. Chapter V-Of the Cancellation of Instruments. Sec. 39.) regards the party in default, or altogether, as the justice of the case ma require. Illustrations- A sells a field to B. There is a right of way over the field of which A has direct persona knowledge, but which he conceals from B. B is entitled to have the contract rescinded. to (b) A, an attorney, induces his client B, a Hindu widow, to transfer property to him for purpose of defrauding B's creditors. Here the parties are not equally in fault, and B is entitled to have the instrument of transfer rescinded. the 1 36. Rescission of a contract in writing cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made. 37. A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the Court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly. 38. On adjudging the rescission of a contract, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require. When cancel. lation may be ordere d. CHAPTER V. OF THE CANCELLATION OF INSTRUMENTS. 39. Any person against whom a written instrument is void or voidable, 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. If the instrument has been registered under the Indian Registration Act,2 the Court shall also send a copy of its decree to the officer in whose 'The words "in writing" are repealed wherever the Transfer of Property Act, 1882, is in force, see Act IV of 1882, ss. 1 and 2, printed, General Acts, Vol. IV. 2 See now the Indian Registration Act, 1877 (III of 1877), printed, infra, p. 37. (Part II-Of Specific Relief. Chapter V.-Of the Cancellation of Instruments. Secs. 40-41. Chapter VI.-Of Declaratory Decrees. Sec. 42.) 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. Illustrations. (a) A, the owner of a ship, by fraudulently representing her to be seaworthy, induces B, an underwriter, to insure her. B may obtain the cancellation of the policy. (b) A conveys land to B, who bequeaths it to C and dies. Thereupon D gets possession of the land and produces a forged instrument stating that the conveyance was made to B in trust for him. C may obtain the cancellation of the forged instrument. (c) A, representing that the tenants on his land were all at will, sells it to B, and conveys it to him by an instrument, dated the 1st January, 1877. Soon after that day, A fraudu lently grants to C a lease of part of the lands, dated the 1st October, 1876, and procures the lease to be registered under the Indian Registration Act. B may obtain the cancellation of this lease. (d) A agrees to sell and deliver a ship to B, to be paid for by B's acceptances of four bills of exchange, for sums amounting to Rs. 30,000, to be drawn by A on B. The bills are drawn and accepted, but the ship is not delivered according to the agreement. A sues B on one of the bills. B may obtain the cancellation of all the bills. 40. 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. What instru ments may be partially cancelled. Illustration. A draws a bill on B, who endorses it to C, by whom it appears to be endorsed to D, who endorses it to E. C's endorsement is forged. C is entitled to have such endorsement cancelled, leaving the bill to stand in other respects. 41. 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. CHAPTER VI.2 OF DECLARATORY DECREES. Power to require party for whom instrument is cancelled to make com pensation. declaration 42. Any person entitled to any legal character, or to any right as to any Discretion of property, may institute a suit against any person denying, or interested to Court as to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: See now the Indian Registration Act, 1877 (III of 1877), printed, infra, p. 37. As to the Punjab, see also the Punjab Land-revenue Act, 1887 (XVII of 1887), s. 45, printed, Punjab Code, Ed. 1888, p. 335. of status or right. Bar to such declaration, Effect of declaration. (Part II-Of Specific Relief. Chapter VI-Of Declaratory Decrees. Sec. 43.) Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do SO. EXPLANATION.-A trustee of property is a "person interested to deny "a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee. Illustrations. (a) A is lawfully in possession of certain land. The inhabitants of a neighbouring village claim a right of way across the land. A may sue for a declaration that they are not entitled to the right so claimed. (b) A boqueaths his property to B, C and D, " to be equally divided amongst all and each of them, if living at the time of my death, then amongst their surviving children." No such children are in existence. In a suit against A's executor, the Court may declare whether B, C and D took the property absolutely, or only for their lives, and it may also declare the interests of the children before their rights are vested. (c) A covenants that, if he should at any time be entitled to property exceeding one lakh of rupees, he will settle it upon certain trusts. Before any such property accrues, or any persons entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainty. The Court may make the declaration. (d) A alienates to B property in which A has merely a life interest. The alienation is invalid as against C, who is entitled as reversioner. The Court may in a suit by C against A and B declare that C is so entitled. (e) The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survive her may in a suit against the alienee, obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow's lifetime. (f) A Hindu widow in possession of property adopts a son to her deceased husband. The person presumptively entitled to possession of the property on her death without a son may in a suit against the adopted son, obtain a declaration that the adoption was invalid. (g) A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property. (h) A bequeaths property to B for his life, with remainder to B's wife and her children, if any, by B, but, if B die without any wife or children, to C. B has a putative wife, D, and children, but C denies that B and D were ever lawfully married, D and her children may, in B's lifetime, institute a suit against C and obtain therein a declaration that they are truly the wife and children of B. 43. A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees. (Part II.-Of Specific Relief. Chapter VII.-Of the Appointment of Receivers. Sec. 44. Chapter VIII-Of the Enforcement of Public Duties. Sec. 45.) Illustration. A, a Hindu, in a suit to which B, his alleged wife, and her mother, are defendants, seeks a declaration that his marriage was duly solemnized and an order for the restitution of his conjugal rights. The Court makes the declaration and order. C, claiming that B is his wife, then sues A for the recovery of B. The declaration made in the former suit is not binding upon C. CHAPTER VII. OF THE APPOINTMENT OF RECEIVERS. 44. The appointment of a Receiver pending a suit is a matter resting in Appointment the discretion of the Court. of Receivers discretionary. The mode and effect of his appointment, and his rights, powers, duties and Reference to liabilities, are regulated by the Code of Civil Procedure.1 Code of Civil CHAPTER VIII. OF THE ENFORCEMENT OF PUBLIC DUTIES. 45. Any of the High Courts of Judicature at Fort William, Madras and Bombay may make an order requiring any specific act to be done or forborne, within the local limits of its ordinary original civil jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or inferior Court of Judicature : Provided (a) that an application for such order be made by some person whose pro- (b) that such doing or forbearing is, under any law for the time being in (d) that the applicant has no other specific and adequate legal remedy; (e) that the remedy given by the order applied for will be complete. 1 See now the Code of Civil Procedure, 1882 (Act XIV of 1882), printed, General Acts, Vol. IV. Power to order public servants and certain speci others to do fic 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. (Part II.-Of Specific Relief. Chapter VIII.-Of the Enforcement of Public Duties. Secs. 46-51.) Nothing in this section shall be deemed to authorize any High Court- (g) to make any order on any other servant of the Crown, as such, merely (4) to make any order which is otherwise expressly excluded by any law for the time being in force. 46. Every application under section 45 must be founded on an affidavit of the person injured, stating his right in the matter in question, his demand of justice and the denial thereof; and the High Court may, in its discretion, make the order applied for absolute in the first instance, or refuse it, or grant a rule to show cause why the order applied for should not be made. If, in the last case, the person, Court or corporation complained of shows no sufficient cause, the High Court may first make an order in the alternative, either to do or forbear the act mentioned in the order, or to signify some reason to the contrary and make an answer thereto by such day as the High Court fixes in this behalf. 47. If the person, Court or corporation to whom or to which such order is directed makes no answer, or makes an insufficient or a false answer, the High Court may then issue a peremptory order to do or forbear the act absolutely. 48. Every order under this Chapter shall be executed, and may be appealed from, as if it were a decree made in the exercise of the ordinary original civil jurisdiction of the High Court. 49. The costs of all applications and orders under this Chapter shall be in the discretion of the High Court. 50. Neither the High Court nor any Judge thereof shall hereafter issue any writ of mandamus. 51. Each of the said High Courts shall, as soon as conveniently may be, frame rules1 to regulate the procedure under this Chapter; and, until such rules are framed, the practice of such Court as to applications for and grants of writs of mandamus shall apply, so far as may be practicable, to applications and orders under this Chapter. 1 For rules made by the High Court of Bombay at Bombay under this section, see Bombay List of Local Rules and Orders, Vol. I, Ed. 1896, p. 163. |