Specific Relief Act

Q. 1. Delay defeats equity

1.          Preface

·              Equity always assists those who are active in respect of their rights. It does not assist those who are careless in respect of their rights. Once the party knows they have been wronged, they must act relatively swiftly to preserve their rights because delay defeats equity. The maxim means that a party who delays in enforcing rights will not be able to seek equitable relief.

2.        Lexical  Meaning

·              It means that if a person is lazy to claim a remedy for the wrong committed against him then court will refuse to grant him any relief.

Ø   Case law

·              Where an injured party has been slow to demand a remedy for the wrong for a long time with apparent indifference, in this case the court will refuse to provide the remedy to him on the ground of public policy.

3.        Basis of the maxim

·  It is based on Latin maxim “Vigilantibus non deriemtibus jura subverient” it means equity aids the vigilant not those who sleep on violation of their rights.

4.       Doctrine of Laches (Ghaflat)

·              Delay which is sufficient to prevent a party from obtaining an equitable relief is called laches. A plaintiff who is guilty of laches or unreasonable delay is not entitled to equitable relief.

1.  Acquiescence (consent)

§  Acquiescence means awareness of the plaintiff on the violation of his right. And is not ready to take legal action in this regard or he

has waived his right it also can become cause of laches.

2. Position of defendant

§  A court of equity will not allow a latent claim to be set up because by the laps of time the defendant has may lost the necessary evidence for resisting the claim in this case equity will not set up the case

5. When delay is fatal

Following are the cases where delay is fatal for a party who is desirous of enforcing his rights.

1.   Loss of evidence

§  When the available evidence is lost or destroyed as a result of delay

2. Waiver of rights

§  When party has waived his right then delay is fatal.

3. Death of Witness

§  Loss of witnesses could be occurred in case of death

6.   Circumstances when delay can be ignored by the court

Following are the circumstance when court can ignore the delay

I.            Ø    When plaintiff was not aware of his right

II.           Ø    When plaintiff was not aware of his legal position

III.           Ø    Plaintiff was minor

IV.            Ø    Plaintiff was insane

V.            Ø    Due to any fraud which is caused of delay

VI.            Ø    Any natural act which is caused of delay

VII.           Ø    Illness which is caused of delay

VIII.           Ø    Undue influence which is cause of delay

IX.           Ø    Preprocess of the case which is caused of delay

7.   Application of the Maxim

Following are the cases where this maxim can be applied. Details are as under

I.This maxim can be applied only where a right exists and that right is recognized by law

II.This maxim can be applied where wrong has been done and right has been violated clearly.

III.This maxim can be applied where law does not provide any relief or for the breach of right.

8.  Limitation of Actions

Following are the limitations of action in this maxim.

Ø  If the cause of action is the contract and the defendant is not the government then that cause of action must be brought before the court within 6 years if it’s the government it must be brought within 3 years

Ø  If there is a tort the action must be taken within 3 years .If the defendant is government in this case action must be taken within 1 year

Ø  If the cause of action is land it must be brought to the court within 12 years

Ø  Tort of defamation must be brought to the court within 1 year

Ø  Equitable interests or right within 6 years

9.   Position in Pakistan

·              The English doctrine of delay and laches showing negligence in seeking relief in the court of equity cannot be applicable in Pakistan in view of article 113 of limitation act which fixes a period of three years within which a suit of specific performance should be filed. So it has no general application in Pakistan.

Ø  PLD 2000

·              It was held that courts always keep the vigilant who approaches court in time but do not help the person who is indolent in pursuing his matter.

10.    Preclude Remarks

·              To Preclude, we can say that where a person has negligently slept over his right, court will refuse to provide him remedy because equity aids the vigilant not the indolent.

However this maxim has no application when a legal remedy is available to the party as well as time limitation has also been set for the enforcement of rights violated.

Q. 2: Equality is equity, discuss

1.   Preface

·              Equity will not play favorites. If there is a dispute over property in which more than one party has a beneficial interest, that property will be divided equally. This maxim does not apply if there is evidence that the property should be divided amongst the parties in some other manner.

2. Interpretation

·  Equality is an object where everyone is treated in the same way, without giving any importance to any one’s requirements. It is a situation where each and every individual is granted same rights and responsibilities on the basis of equality, equality between rich and poor, men and women, and are not treated on the basis of race, sex, caste, religion, nationality, disability, age etc.

Ø  Example

·              This maxim means that equity will not lose equality. For example, three adult children of a different women who are killed in an accident and women receive money for Wrongful Death action in this case money received will be divided equally.

3. Application of Maxim

This maxim has application on the following matters.

1.  Joint tenancy

·              This maxim will apply in estate law; joint tenancy is a special form of ownership by two or more persons of the same property. The individuals, who are called joint tenants have equal ownership of the property and undivided right to keep or dispose of the property. Joint tenancy creates a Right of Survivorship. This right provides that if any one of the joint tenants dies, the rest of the property is transferred to the other survivors.

2. Equal distribution

·              This maxim will apply if the distribution of the property is needed between the two or more parties due to any reason in this case court will equally distribute the property on the basis of this maxim.

3. Equal Contribution

·              This maxim will apply if equal contribution is needed, in this situation if the persons made any loss in this case they all will have to share the loss by using the method of equal contribution among all the persons and court will use this maxim

4. Abatement (refusal) of Legacies

·              This maxim will apply when a person who has been died and left a property behind him in this case his heirs are entitled to receive the property of deceased person equally in this case in order to avoid any discrimination

court distributes the property equally among the heir according to the will of deceased person which was written by him in his life

5. Power of appointment

·              A power of appointment is a term used in the law of wills to describe the authority of the testator (the person writing the will) to select a person who will be given the authority to dispose of certain property under the will. Although any person can exercise this power at any time during their life, under this maxim court gives right to person on the basis of equality is equity.

4.   Basis of Maxim

·              Equity can be defined as the quality of treating individuals fairly based on their needs and requirements

·              Equality can be defined as treating each and every individual in the same manner irrespective of needs and requirements.

5.   Key Differences Between Equity and Equality

The differences between equity and equality can be drawn clearly on the following grounds

·              Fairness in the manner of treating individuals is called equity. Equality is an object where everyone is at the same level.

·              Equity is a process while equality is the outcome

·              While equity represents impartiality, i.e. the distribution is made in such a way to even opportunities for all the people. Equality indicates uniformity, where everything is evenly distributed among people.

·              In equity, the differences are recognized and efforts are made to respond the manner in which individual opportunities are not equal. On the contrary, equality recognizes sameness and so it aims at treating everyone as equal.

·              In equity, all the people can have access to what they need. The equality, in contrast, all the people get the same thing, i.e. rights, resources and opportunities.

6.   Position in Pakistan

The doctrine of equality is equity bas been recognized in Pakistan under various enactments

Ø  Case Law 2003 MLD

·              It was held that in legal case equality of all persons before the courts of law is the symbol of administration and provision of justice which cannot be secrified at any cost.

7.   Preclude Remarks

·              To Preclude, we can say that equity always tries to keep the parties at same position. A party cannot get any undue advantage over the others. The doctrine of equality is operated in the court of equity than in the court of law. In the distribution of property the highest equity is to make equality between the

Q. 3: Discuss “Who comes to equity must come with clean hands.

1.   Preface

·              The person who is seeking relief must not himself guilty of illegal or immoral conduct against defendant in order to take revenge by his own hands because

plaintiff’s such conduct may dis-title him to receive any assistance from the court. The court of equity will take this conduct into consideration, the personal conduct of the plaintiff in dispute without the help of court; in this case court will refuse to grant him relief.

2. Interpretation of clean hands

·              The clean hands doctrine is a rule of law that someone files a case for equitable relief in the court of law; he must be free from unfair conduct relating to the subject matter of his claim. Because it is a favorable defense for the defendant who can claim that the plaintiff has "unclean hands"

3. Basis of the maxim

Following are the basis of this Maxim.

v  Ø    A person is not competent to sue as a plaintiff who himself is guilty of fraud in

v  the subject matter of the suit.

v  Ø    On an immoral consideration no action can be founded.

v  Ø    Nobody will be allowed to found an action on his own hands.

v  Ø    Nobody can take benefit of his own hands.

4.    Essential element of maxim:

While apply this maxim the court will see the following essential element of this maxim:

(i)  Conduct of the plaintiff.

(ii)  Depravity of the plaintiff

(iii)  Stupidity of the plaintiff

Ø  Case Law 2003

·              It was held that in order to seek justice the plaintiff must be fair and should do justice himself.

6.   Application of Maxim

This maxim has application on the following cases.

1)  Specific performance

·              If the plaintiff is guilty of undue advantage in this situation the court of equity will refuse to give order for the specific performance of a contract.

2) Illegality

·              In Highwaymen case, two robbers were partners in their own business. Due to a disagreement in shares one of them filed a case against another for proper sharing of the profits of robbery. Courts of equity do grant relief in case of partnership but here was a case where the cause of action is an illegal action. So, the court refused to grant relief to anyone.

3) Fraud

·              In case of fraud, court of equity will not grant any relief to a party who has committed fraud.

4) Benami Transaction:

·              The act defines a 'benami' transaction as any transaction in which property is transferred to one person for a consideration paid by another person in this case real owner is not allowed to recover the property.

5) Infant's misrepresentation:

·              Where a minor fraudulently concealing his age and obtained a sum from his agent which he was not entitled before the age of majority. In this case the court will not grant any relief to the infant.

7.     Exception to maxim

Following are exceptions to the maxim.

1.  Against public policy:

·              If a transaction is against the public policy in this case this maximum will not be applied.

2. Unjust plan

·              Where a party with unclean hands files a case against the other party in order to get relief from the court in this case court will not grant any relief under this maxim because plaintiff is unclean handed.

1. Limitations

Following are the limitations on the application of this maxim.

o  This maxim will not apply if a party has waived his right to an equitable remedy by his own will,

o  It will not apply if there is a breach of a moral right only.

o  Court can’t apply this maxim on the cases which are recognized and a proper remedy is given in case of its breach under common law.

o  It will not apply if there are acts of state, because the courts are not authorized to question on the acts of state.

Ø  Example:

o  If a person files a case against sovereign or diplomat, he cannot be given relief because diplomats have privilege from such proceeding.

Position in Pakistan

·              The maxim who comes to equity must come with clean hands is applicable in the courts of law in Pakistan.

Ø  Transfer of property act

Ø  Qanon-e-Shahadat 1984

Ø  Contract Act

Ø  Trust act

Ø  Specific Relief Act

8. Preclude Remarks:

·              To Preclude, we can say that, he who committed wrong will not avail equity. A court of equity declines to grant relief to plaintiff where the conduct of plaintiff in regard to

the subject matter of the case is wrong. A person who wants the equity his hands should not be spotted with injustice.

Q. 4: Discuss the maxim “Equity Act in Personam”.

1.   Preface

·              There was a difference between the jurisdiction of the courts of law and the chancery court. Courts of equity have power over persons who have bind themselves in contracts which are enforceable by the law. This distinction helped to separation of powers between the two courts

The court of equity always enforces its order in personam. The court gives orders to defendant to obey the court but if defendant fails to obey the orders of court of equity in this case he is arrested and imprisoned.

2. Interpretation of In Personam

“In personam” is a Latin phrase which means "directed toward a specific person". In a lawsuit when case is filed against a specific person where such person is served with a summons and the judgment applies to a person and this judgment is called "in personam "

3. Lexical Meaning

·              Equity binds the conscience of a person do which is required by the court. the court of chancery always enforced its decree in personam. it entertain certain suits respecting immoveable property, though the property might be situated abroad if the relief sought could be obtained through the personal obedience can only be secured. if he comes under the jurisdiction of the court

4. Objectives

·  The term “equity act is personam” is in a general sense, associated with concepts of fairness, morality and justice. It is an ethical jurisdiction. However, “equity” is the branch of law that was administered in the Court of Chancery. It is come into existence to obtain justice and to overcome the deficiencies of the common-law.

The Court of Chancery to do what was fair in the settlement of a dispute.

5.  Importance

·              This maxim has a vital importance. It describes the procedure in equity the judgments of the court of equity operate in personem against defendant. Especially in cases of land falling outside the jurisdiction of the court.

6. Explanation

·              This maxim states that equity relates to a person rather than their property. It applies to property outside a jurisdiction provided that a defendant is within the jurisdiction.

Ø   Case law

·              It was held that judicial officer has to decide matter before him in accordance with the evidence produced regarding that matter. The rights of parties shall be

determined in accordance with the applicable rule of law.

7.  Application

This maxim applies in the following matter.

Ø  For the recovery and foreclosure.

Ø  For specific performance of a contract to create a mortgage.

Ø  For the deed of sale

Ø  For account of rent and profit.

Ø  For the appointment of receiver.

8. Conditions:

Following are the conditions for application of the maxim.

Ø  The remedy sought must be equitable remedy.

Ø  There should no proceedings started in the appropriate foreign court.

Ø  The dispute must be of consciences.

Ø  Dispute must not involve a breach of foreign law.

9. Exceptions

Following are the exceptions.

Ø  It will not apply to an action for local transfer of land in the abroad.

Ø  It has no application where there is no contract and the dispute between the parties is only a question of title of foreign land

10.  Limitation

Following are the limitations on the application of this rule or maxim. Details are as udder.

Ø  This maxim is not applied if there is no contract there is no jurisdiction.

Ø  This maxim is not applied if the defendant is not within the jurisdiction of the court.

Ø  This maxim is not applied to a local tress pass.

Ø  This maxim is not applied if the court order is violating the legal rules of another country.

Ø  This maxim is not applied if the order given by the court is not capable of being executed without the interference of foreign court.

Ø  This maxim is not applied if legal proceedings have been started in another court.

Ø  This maxim is not applied if a right is not exist and that right is not recognized by law

Ø  This maxim is not applied if a wrong has not been done

Ø  This maxim is not applied if law provides any relief regarding breach of contract.

11.    Position in Pakistan

·              High courts in Pakistan have all powers of a court of equity. High court can enforce its orders in personam. proviso to Sec. 16 of the code is an application in the modified form of the above maxim according to it, where a suit to obtain a relief in respect of immoveable property can be obtained through the personal obedience of the defendant, the can be filed within the local limits of the court where the property is situated, or in the court where the property is situated, or in the court

12.  Preclude Remarks

·              To Preclude, we can say that, the equity acts in personam was adopted by the early chancellors, in order to avoid a direct clash with the court of law. The own judgment of court of equity operates in personam against the defendant. The court of equity has jurisdiction to entertain cases related to immovable property, however the property may be situated in abroad.

Q. 5: Equity will not suffer a wrong to be without remedy or explain the maxim of the equity Ubi Jus ibi rame dium?

1.   Preface

Equity courts are the courts of natural justice. Whenever a right is infringed, a remedy is available. There is always a remedy for a wrong. Only rights recognized by law can be enforced by the court, Ubi Jus ibi Remedium is the crux of the whole jurisdiction of equity. It expresses that every right will be enforced by court of equity and wrong will be redressed by the court of equity.

2. Lexical Meaning

Where there is a right there is a remedy. This idea is expressed in the Latin Maxim ubi jus ibi remedium. It means that no wrong should be without remedy if it is capable of being remedied by courts. This maxim says that where the common law gives a right, it also gives a remedy or right of action for the wrong doer.

3. Explanation of maxim

Ubi Jus ibi Remedium covers entire equitable jurisdiction. It explains that where there is a right there is a remedy. Rights and remedies co-exist one can’t not exist without the other.

4. Interpretation of Equity

Ubi Jus Ibi Remedium is a Latin legal maxim which means "where there is a right there is a remedy". The basic principle planned in the maxim is that, when a person's right is violated the victim will have an equitable remedy under law against the wrong doer. The maxim also states that the person whose right is being infringed has a right to enforce the infringed right through any action before a court.

5.  Importance of maxim Ubi Jus Ibi Remedium

The maxim ubi Jus ibi remedium directes the judge to interfere in the administration of justice in order to give a relief to plaintiff by common law and to help the plaintiff by offering different remedies

Ø  Case law

o  When law clothes a man with a right, it also gives ways to a man to have his rights and remedies co-exist and only existence of legal rights without a remedy is Lexical Meaningless.

6. Limitations

Following are the limitations on the application of this maxim.

o  This maxim will not apply if a party has waived his right to an equitable remedy by his own will,

o  It will not apply if there is a breach of a moral right only.

o  Court can’t apply this maxim on the cases which are recognized and a proper remedy is given in case of its breach under common law.

o  It will not apply if there are acts of state, because the courts are not authorized to question on the acts of state.

Ø  Example:

o  If a person files a case against sovereign or diplomat, he cannot be given relief because diplomats have privilege from such proceeding.

7.  Application of the Maxim

Following are the cases where this maxim can be applied. Details are as under

o  This maxim can be applied only where a right exists and that right is recognized by law

o  This maxim can be applied where wrong has been done and right has been violated clearly.

o  This maxim can be applied where law does not provide any relief or for the breach of right.

8. Non application of the Maxim

Maxim will not apply in the following case.

o  (Where there is a breach of moral right because equity helps only where there is breach of legal right.

o  Where there is jurisdiction of common law courts.

o  Where there is negligence of plaintiff.

9. Position in Pakistan

·              The maxim ubi Jus ibi remedium is applicable in Pakistan. The specific performance of the contract, ratification of instrument, rescission of contract, cancellation of instrument are examples. The civil procedure code entitles a civil court to entertain all kinds of suits unless they are prohibited.

10.  Remedies in shape of damages

Following are the kinds of damages. Details of all kinds are being given below

I.    General damages

v  General damages are those damages which cannot be calculated with the

v  value of money, such as pain, enjoyment of life, general damages are

v  compensation for past, present and future losses.

v  In this case, the compensation in the form of money is paid by wrong doer

v  to the injured person against violation of his rights which legally has been

v  recognized

II.    Special damages

o  Special damages are those damages which can be calculated with the value of money, such as medicine bills, or repair cost etc. and special damages are compensation for past, present or future losses

o  In this case, the compensation in the form of money is paid by wrong doer to the injured person against violation of his rights which legally has been recognized

III.     Exemplary damages

o  Exemplary damages are those damages when injured person is not compensated for his loss because object of this damage is to punish the wrong doer for his wrongful act against injured person as well as keep him away from committing future wrongs. Sexual harassment or fraud schemes come under this category

IV.     Real damages

v  Real damages are those damages which actually have occurred as a result of wrongful act and those damages can be easily measured with the value of money are called real damages

v  In this case, the compensation in the form of money is paid by wrong doer to the injured person against violation of his rights which legally has been recognized

v  For example, loss of income because of injury in the shape of medical expenses etc.

V.     Nominal damages

Nominal damages are those damages when there is no actual injury or money loss. But court takes a legal action against violation of legal rights because the object of these damages is to provide protection to a person from repeated violation of his rights by wrong doer.

VI.     Contemptuous damages

o  Contemptuous damages are those damages which are very small in value such as one cent or one rupee that occurred after the wrongful act of wrong doer.

In this case when injured person sue in the court for compensation of his loss and it is not possible to convert the damages in significant sum of money is called contemptuous damages

o  But in different countries a various rules have been set up for contemptuous damages

11.    Preclude Remarks

·              To Preclude, we can say that the basic idea ubi jus ibi remedium is that no wrong should be without a remedy if it is capable of being remedied by the court. Where a common law

gives a right it also gives a remedy or right of action. but it has some limitations it does not provide remedy for all wrongs.

                                               Specific relief act

Q. 1: specific performance of contract? Discuss the contracts which may be enforced specifically?

1.   Preface

Specific performance is an order of the court which requires from a party to perform a specific act, usually which was stated in a contract between the parties. It is an alternate to award damages or a remedy which is used in the form of injunctive relief

Specific performance is an actual performance of a contract because the plaintiff is entitled to avail the specific thing which he has contracted. There are some circumstances when a contract cannot be specifically enforced.

Basically specific performance of contract is exact fulfillment of the obligation upon either party which they have decided to do or not to do at the time of formation of contract.

2. Relay Section

·              Sec. 12 of specific relief act deals with specific performance of the contract

3. Interpretation of specific performance

·              Specific performance is a contractual remedy in which the court gives order to a party to actually perform his promise as soon as possible as it was decided at the time of formation of contract, because monetary damages are insufficient to fix the harm.

4. Doctrine of specific performance of contract

·              The specific performance of a contract only requires execution of the contract according to its terms and conditions and it rejects to receive the compensation against no execution of the contract.

5.  When specific performance is ordered?

·              Courts will enforce specific performance only if the contract is valid. When one party has refused to perform his obligations as decided in the contract at the time of formation of contract.

·  Failure to obey the court’s order for specific performance is a very serious matter. A defendant who is not obeying court’s order for specific performance is found guilty of contempt of court and can be fined or imprisoned

Ø  Case law 2005 YLR 1905

·              It was held that relief in suit for specific performance is discretionary and can also be granted to a party who has filed the case on record to show his bona fide in

the performance of the contract

6. Essentials of enforceable contract

Following are the essentials of enforceable contract

v   There should be a contract.

v   The contract should be in written

v   The contract should be lawful

v   The contract must create a legal relationship between the parties

v   The contract must have lawful object

v   Parties of the contract must be competent to enter into the contract

v   The contract should be clarified according to its terms and conditions

v   The contract should be possible to perform

v   When monetary compensation is not enough against nonperformance of the act agreed

v  to be done.

7.  Cases in which specific performance enforceable

Following are the cases where specific performance is enforceable.

1.  Contracts of trust

·              Specific performance is applicable when the act agreed to be done but breached wholly or partially by the each party.

Ø  Example:

·              A holds certain stocks in trust for B. A wrongfully disposes of the stock. A is under an obligation to restore the same quantity of stock to B. B can enforce specific performance of the contract.

2. When no standard exist for establishing damage

·              It is the situation in which the plaintiff is unable to determine the amount of loss suffered by him. Where the damage caused by the breach of contract is not

found then the remedy of specific performance is not available to the plaintiff.

Ø  Example

·              For example, a person enters into a contract for the purchase of a painting of dead painter which is only one in the market and its value is not available in this case he is entitled receive the painting.

3. When monetary compensation not sufficient relief:

In following cases compensation of money would not provide adequate relief:

Ø  Where the subject matter of the contract is an immovable property.

Ø  Where the subject matter of the contract is movable property and Such property or goods are not an ordinary article of commerce i.e. which could be sold or purchased

in the market.

Ø  The article is of such nature that is not easily available in the market.

Ø  Example:

·              An agreement for sale of agricultural land was made & buyer had paid full sale consideration to the seller, but the seller refuses to execute sale deed as per the agreement. The buyer brought an action court for the specific performance of contract and it was held by the compensation of money would not afford adequate relief and seller was directed to execute sale deed in favor of buyer.

4. Where pecuniary compensation cannot be got:

·              It is the situation where monetary compensation cannot be got for the nonperformance of the contract as formed by the parties.

8.   Contracts which cannot be specifically enforced

Following are the contracts which cannot be specifically enforced

Ø  Where compensation in money is an sufficient relief

Ø  Where a contract runs into minutes or numerous detail

Ø  Contracts of determinable nature

Ø  Contracts which involve the performance of continuous duty which court cannot supervise

Ø  Contract of arbitration

9.   Preclude Remarks

To Preclude, we can say that specific performance of the contract is reasonable remedy. Specific performance of the contract may be enforcing by the court by exercising its discretionary power. The doctrine of specific performance of the contract based upon the principles of equity because the plaintiff is entitled to have the specific thing for which he has formed the contract.

Q. 2: principle and procedure of Rescission (Cancelation) of Contract.

1.   Preface

·              If a party to a contract commits a breach the aggrieved party has a remedy of Rescission. He can cancel the contract. It means that party can withdraw the contract. In this way party can free himself from all the obligations of the contract.

·              The main aim of rescission of contract is to put an end of the contract and bring back the parties to their original position. If the Court has not allowed the specific performance of the contract, it may allow the party to withdraw from the contract

2. Relay Section

·              Section 25 to 38 of specific relief act deals with the rescission of the contract.

3. Lexical Meaning of Rescission

·              Rescission means to avoid, withdrawal or cancellation.

4.  Interpretation of rescission

·              There are a number of reasons when contract is cancelled by the court order and it is done to bring back the parties to the position in which they were before formation of the contract

5.  Application of Rescission

·              Rescission is not applicable to the contracts which are not enforceable by the law but is applicable to the contracts which are enforceable by the law.

6. Grounds for rescission

Following are the grounds of rescission of the contract. Details are as under.

1.  Mistake of Law

·              A mistake of law occurs when a party to the contract knows the facts but ignores the mistake in this case the contract can be rescinded.

2. Unlawful contract

·              If contract is against the law it will be unlawful in this case the contract can be rescinded

3. Against Public interest

·              If contract is against public interest it will be unlawful in this case the contract can be rescinded

4. Fraud or undue influence

·              If a contract is formed by fraud or by undue influence in this case the innocent party can rescind the contract with the help of court

5. Failure of consideration

·  A party to a contract can also rescind a contract on the failure of the other party to provide “consideration" for their agreement. A refusal or failure of a party to perform his obligation of the contract, or a clear intention to violate it, gives right to other party to rescind.

7. Cases when rescission can be declared

Following are the cases when rescission is declared.

1.  When the contracts is voidable by the party.

·              Where the contract is voidable by the plaintiff, the rescission can be declared by the court of law on the request of party.

Ø  Example

·              A sells a field to B. There is a right of way over the field but A conceals the facts from B and have a knowledge of this fact, in this case B can rescind the contract

2. When the contract is unlawful

·              When any unlawfulness arises within the contract in this case the party can rescind the contract.

Ø  Example

·              A, an attorney convinces his client B that is a Hindu widow to transfer property to him for purpose of defrauding her.in this case B can rescind of the contract.

3. Default in the payment

·              When purchaser does not pay the money to the vendor and makes default in the payment of purchase in this case the vendor can sue for the rescission of the contract

4. Alternative prayer for rescission

·              A plaintiff suits for the specific performance of a contract but the contract is not specifically enforced, in this case contract may be rescinded, if it refuses to enforce the contract specifically,

8.   Court may require party rescinding to do equity:

·              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.

9.   When Rescission is Not Available

There are situations where rescission is not available as a remedy, because the decision is at the discretion of the court. A judge may deny rescission based on following certain facts.

Ø  When one party has fulfilled their obligation of the contract

Ø  When A third party has already received some benefits from the contract

Ø  The requesting party has committed some wrong relating to the contract

Ø  The requesting party has unnecessarily delayed the request for rescission,

Ø  The requesting party has already asked for money damages. A contract rescission cannot be obtained after requesting a monetary award.

10.    Effect of rescission

·              The effect of rescission is restoration of the plaintiff to his original position as the contract had not been made ever. In sec 35 the procedure for rescission of contract has been described for written contracts it applies on both vendor and vendee. Any one of such parties can go the court in order to avail the remedy of rescission of the contract.

11.      Preclude Remarks

·              To Preclude, we can say that the remedy of rescission of the contract is available for all of those who are entering into a contract between them. There are a lot of reasons which gives arise to the rescission of the contract and one of the parties can contact to the

court in order to cancel the contract and such order of court brings the parties to back on the position where they were before entering into the contract.

Q. 3: declaration of rights & discuss the remedy as laid down by specific relief act

1.   Preface

·              Declaration is a legal order of the court which relates to person's right to property or his status. Declaration under specific relief act is particular type of relief where there is no specific performance, no award of compensation but merely a declaration of rights of

the parties.

2. Relay Section

·              Sec. 42, 43 specific relief act deals with declaration of rights or status.

3. Discretion of court as to declaration of rights

·              Any person entitled to any legal article, or to any right of any property can file the case against any person denying or interested to deny, and the court with his own discretion can make a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.

Ø  Example

·              A lawfully has a possession of certain land. The people of a neighboring village claim a right of way across the land. A can file a case for declaration of right that they are not entitled to the right of way.

4. Object of declaration:

Following are the objective of the declaration of rights. Details are as under:

Ø  To protect the legal right and legal character of the owner from the illegal attack

Ø  To enjoy the legal character and legal right peacefully by peaceful owner,

Ø  To protect the law & peace where adverse possession is noticed.

Ø  To define a person's legal character and provision of remedy in case of any violation

5.  Who can sue for declaration of rights?

Following are the person who can file the case for declaration of rights.

·              Persons having any legal character

·              Person having any right upon any property.

6. Who can be sued for declaration of rights?

Following are the person who can be sued for declaration of rights.

·              Any person who is denying a right.

·              Any person who is Interested to deny his title of such character of right.

Ø  7. Case law 2004 MLD 227

·              It was held that any person entitled to any right of any property can file the case against any person who is denying or interested to deny his right.

7.  Essentials for declaratory suit

Following are essentials for declaratory suit.

1.  Legal character:

·              The plaintiff should be entitled to any legal character at the time of suit.

2. Right to property:

·              The plaintiff should be entitled to a right of property for declaratory suit.

3. Denial by defendant:

·              Defendant should have denied or interested to deny the legal character or right of property of the plaintiff.

4. No other extra relief:

·              If the plaintiff not have no other extra relief.

8.   Nature of declaratory relief

·  Declaratory relief is equitable remedy that’s why it cannot be claimed as matter of right. It is a relief where the legal position of the plaintiff is declared by the court.

9.   When extra relief is not requested:

·              Extra relief is not requested by the plaintiff when the court dismisses the suit

10.    When declaration is refused by the court

Following are the case when declaration is refused by the court.

1)  Vexatious (Distressing) litigation:

·              In vexatious litigation declaration is refused by the court.

2) Evasion of court fee:

·              In case of evasion of court fee declaration would be refused by the court.

3) Multiplicity of suit

·              In case of multiplicity of suit declaration is refused by the court.

11.      Scope:

·              Any person entitled to any legal character or to any right of any property can file the case against any person who is denying the legal right of the owner in this case court by

his own discretion makes a decision for further relief

12.     Effect of declaration

·              A declaratory decree is one which resolves the legal uncertainty of the rights and status of the parties. However, passing of a declaratory decree is a matter of discretion of

court and it cannot be claimed as a right.

13.     Preclude Remarks

·              To Preclude, we can say that court grants declaration of rights in order to ensure and protect the interests of people at large. The court cannot grant declaration on question of law. A suit for declaration can be filed by any person who is entitled to any legal character or any right of property but where right of his own legal character or property is not involved the suit is not maintainable

Q. 4: cases where court may refuse to grant of an Injunction.

1.   Preface

·              An injunction is an equitable remedy in the shape of a court order that requires a party to do, or to refrain from doing different acts. A party that fails to obey the injunction of the court it may faces criminal or civil penalties and may have to pay damages. In some cases, breaches of injunctions are considered serious criminal offenses that can become cause of arrest and possible prison sentences. Granting of an injunction is a matter of judicial discretion for the court.

2. Relay Section

·              Section 56 Specific Relief Act deals with an injunction

3. Interpretation of Injunction

·              An injunction is a judicial process where a party is required to do, or not to do any particular act.

4. Lexical Meaning of Injunction

·  The word injunction has been derived from a Latin word “ingoing” which means to “Command or Order”

5.  Cases when injunction is refused

Following are the case where court cannot grant an injunction.

1.  Continuing breach:

§  The court can refuse to grant injunction if the plaintiff by agreement has disentitled himself to such relief

2. Stay of pending judicial proceeding

·  Under the specific relief act no injunction can be granted by the court in order to stop judicial proceeding pending on the court’s end.

3. Stay of proceeding pending in court & subordinate

·              No injunction can be granted in order to stop proceedings in a court and not for another court.

Ø  Case law 2003 MLD 201

§  It was held that civil court cannot issue an injunction to stay judicial proceedings or proceedings in a superior court.

4. Stay in criminal matters

§  A civil court cannot grant an injunction to stay proceeding in a criminal court.

5. Prevention of persons to file a case

§  No injunction can be granted in order to prevent the persons to file the case in the court against violation of their rights.

6. Prevention of breach of contract:

§  An injunction cannot be issued to prevent a breach of contract which cannot be specifically enforced.

7.  Prevention of nuisance:

§  No injunction can be granted where there is no nuisance or interference with rights or apprehension thereof.

8. Interference in Government

§  No injunction can be granted to interfere with the public duties of any department of the central government, or a provincial government or with the sovereign acts of a foreign government.

9. Any other relief:

§  No injunction can be granted to a person who is seeking a special relief from a court against the plaintiff.

10.  X. Where plaintiff's conduct disentitles him:

§  When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court.

11.    No interest of the plaintiff:

§  No injunction can be granted in special favor of plaintiff because no one has any personal interest in the judicial proceedings.

6. Forms of injunction

Following are the two forms of injunctions. Details are as under.

1.  Prohibitory

·              An injunction is an order of the court which is requiring from a party to stop doing something (a prohibitory injunction) if a person fails to obey of an injunctio

·              n order, in this case he may will be sued for contempt of court

2. Mandatory

·              An injunction is an order of the court which is requiring from a party to do something (a mandatory injunction). If a person fails to obey the injunction order in this case he may be sued for contempt of court.

7. Kinds of injunctions

Following are the kinds of injunctions

1.  Preliminary injunction

·              It is an initial injunction by the court in order to restrain a party for doing something until the case has been decided

2. Temporary injunction

·              It is a temporary injunction by the court in order to restrain a party for doing something for a short period

3. Permanent injunctions (perpetual)

·              It is a final order by the court in order to restrain a party for doing something permanently

7. Preclude Remarks

§  To Preclude, we can say that injunction is an order or decree by which a party to an action is required to do or refrain from doing a particular thing. The right of an injunction governed by provisions of the specific relief act 11887. When an

injunction order has been issued, it must be obeyed, and the only remedy for the aggrieved party is to come up in appeal to the superior court to have an order vacated. The court may refuse to grant injunction under Sec. 56 of the specific relief act

Q.5: procedure for the recovery of immovable property under the Specific Relief Act.

1)  Preface

·              No one can be deprived from his immovable property without lawful reason. If a person who is deprived from his immovable property without lawful reason in this case, he can file a suit for recovery of possession such immoveable property. Because Sec 8 and 9 relates to the recovery of possession of immoveable property. Person who has been illegally deprived from his property, he has relief under Sec. 9 of Specific Relief Act.

2) Relay Section

·              Section 8, 9 of Specific Relief Act 1877 provides the remedy of recovering possession of immoveable property.

3) Interpretation of Immoveable property

·              Immovable property is an immovable thing or property which cannot be moved from one place to another place without destroying or shifting it such as property which is fixed to the earth, such as land or a house.

4) Interpretation of possession

·              A person who is possessor of anything, he has complete control over the thing and has the right of exclusion of others is called possession

5) Evidence of Possession

Following have been held prime facie evidence of possession

Ø  Entry in khewat

Ø  Existence of possession before displacement by act of God e.g earthquake.

Ø  Grant of lease.

Ø  Apprehension of rent.

Ø  Handing over key of the promises.

Ø  Registration of ownership of property.

6) Procedure recovering of immovable property

1.  Regular procedure

·              If any person is deprived off from his immovable property without his consent in this case he can file the case on the basis of title under Sec. 8 of specific relief act.

·              'A person entitled to the possession of immovable property can recover it in the manner prescribed by the code of civil procedure.

I. Essential of Sec. 8

Ø  Strength of possessory title.

Ø  Existence of proof of prior possession.

Ø  Dispossession should be forceful.

2. Summary procedure

·              Summary procedure for recovery of the possession of immoveable property is provided under Sec. 9 of the specific relief act.

·              'If any person is deprived off from his immovable property without his consent and without lawful reason, he can file case in the court of law in order to recover the possession thereof.

I.    Essential of summary procedure

·              The plaintiff must have possession of immovable property.

·              He must have been enjoying the possession from the last 6 months, before forcefully dispossession.

·              He must have been forcefully dispossessed without any lawful reason.

·              Dispossession must be without the consent of person.)

II.    Exceptions

Following are exceptions to Sec. 9

·              No legal action can be taken against central or provincial government.

·              No legal action can be taken against decree of the court.

·              No review or appeal shall lie against such an order of restoration of possession.

·              No one can be restrained from establishing his title of possession in the court of law.

III.    Essentials of Sec. 9

·              Its object is to discourage people from taking the law into their own hands, however good their title may be.

IV.    Nature

·              Summary procedure under Sec. 9 provides a speedy remedy under specific relief act.

Ø  Case law2004 YRL 105

·              It was held that summary procedure have been provided under no Sec. 9 to person deprived off from immoveable property without his consent. Person coming under this Sec. is required to show that he had actual physical possession of immoveable property from which he was deprived off without his consent by defendant within six months

7)  Difference between section 8 and section 9

Following are the difference between sec 8 and section 9 of the Specific Relief Act.

1.  As to nature:

Ø  Sec 8 is not summary proceeding.

Ø  Sec. 9 is summary proceeding.

2. As to title

Ø  Title of property must be proved for recovery of possession of immovable property under section 8.

Ø  Title of property under sec. 9 is not required to prove.

3. As to limitation

Ø  Time limitation for filing the case u/s 8 is 12 years.

Ø  Time limitation for filing the case u/s 9 is 6 months after the time of dispossession.

4. As to remedy

Ø  Sec 8 provides general remedy.

Ø  Sec. 9 provides quick remedy for possession of immovable property.

8) Preclude Remarks

·              To Preclude, we can say that Sec. 8 and Sec. 9 of specific relief act provided alternative remedies and they are mutually exclusive. A plaintiff cannot combine suit. Under Sec. 8 claim is based on the title while claim is based on possession in Sec. 9.

Q.6: What is specific relief. Do you understand by equitable remedies and how they are granted?

1)  Preface

·              Specific relief is a form of judicial compensation. Compensation must be provided to every person who has been injured in the social process. Basically, the objective of the Specific relief is to assure that if there is a wrong there must be a remedy.

·              In this kind of relief it is compliance of a contract and compels the both parties to do or not to do certain acts which have been mentioned in the contract. And violation of

these acts makes the other party able to receive compensation from the other party.

2) Relay Section

·              Sec 5 to 35 are for Specific relief

3) Interpretation of relief

·              Specific relief is a remedy by which each party of the contract is compelled to do or not to do very acts as defined under the contract.

4) Lexical Meaning of Relief

·              The word relief means removal of anxiety or pain.

5) Objective of specific relief

Following are the objectives of specific relief.

·              Possession must be lawful as who comes for justice must come with clean hands because it invites claim against unlawful ejection.

·              No unlawful means to be used for ejectment of possessor even possession is taken unlawfully. Only courts are competent authority to grant specific relief to the affected party.

·              Person who comes for specific relief must do equity and cease from the use of unlawful force.

·              Specific relief aims that law should not be taken into hands of an individual and just State should remain sole authority in granting the relief to the aggrieved party.

Ø  Explanation

·              Any person whose rights have been violated can go to the court of law for a relief in order to seek a remedy. In this case the court of law will compel the defendant to give compensation to the person against those items which have been wrongfully obtained by him

Ø  Case law PLD 1971 Lah.199

·              The jurisdiction vested in the court for the grant of decree for specific performance is discretionary and the court is not bound to grant such relief even

it is lawful to do.

Ø  Example

·              If a person agrees to sell a house to another person and the person pays some amount to the owner under the agreement made up but the owner of the house does not sale the house latter. In this case aggrieved person can sue for the damages and return of the amount paid or he also can ask the court to compel the owner to sale his house now. In this situation owner will have to sale the house as he agreed for giving specific relief to aggrieved person.

6) Features of specific relief

Following are the features of specific relief.

·              Specific relief is granted under the principles of equity.

·              Its basic purpose is to give a very thing to a person who is entitled for it.

·              The defaulting party is compelled to do or not to do the very act which has been decided to do or not to do.

·              Specific relief is an adjective law.

7)  Modes of specific performance

Following are the equitable remedies

1.  Specific performance

·              Under the law according to this remedy, the court of law gives an order to directing a party to do an act which was decided between the parties and under an obligation to do.

2. Injunctions

·              An injunction is the second type of equitable remedy available in contract. The court of law gives order to directing a party to stop doing that act which he should not to do.

3. Recession (Collapse)

·              Rescission happens when a previously existing contract was withdrawn because it was breached. The contract can be re-written in a different way so that both parties are satisfied with the terms.

4. Rectification (Amend)

·              Under the law according to this remedy, the court of law issues an order on the request of any party for rectification of the contract when a contract is written with fraud or a mutual mistake of the parties which does not truly express their intention.

5. Cancellation

Under the law according to this remedy, a person can cancel the contract by asking to the court of law if contract is void or voidable and apprehension of this contract is causing serious injury to him.

6. Delivery of possession

·              Under the law according to this remedy, in this situation the certain property is taken in possession by the claimant.

7.  Declaration of rights

·              Under the law according to this remedy, in order to declaration of rights, compensation is awarded to the aggrieved party against the breach of contract.

8. Appointments of receiver

·              It is also a kind of equitable remedy, over a dispute between the two parties the court appoints a receiver who looks after the affairs the dispute until the case is decided by the court.

8) Basis of specific relief

Basis of specific relief are as under:

1.  He who comes to equity must come with clean hands

2.  He who seeks equity must do equity

3.  Delay defeats equity.

9) Preclude Remarks

·              To Preclude, we can say that specific relief is a relief in its nature. It objective is exact fulfillment of an obligation and the thing obtained by unlawful means will have to return to claimant. A lot remedies for specific relief have been presented by the law in order to maintain justice and to run a proper business of the parties

                            Trust Act

Q. 1: Discuss the rights available to beneficiaries under trust act.

1.   Preface

·              Under trust act 1882 every person is capable of holding property as a beneficiary. He is the person for whose benefit the trustee accepts the property from grantor. Each and every Beneficiary is entitled to avail the all benefits specified by the grantor of the trust.

2. Interpretation of Beneficiary

·              A beneficiary is a person who receives different benefits from a trust under the will

3. Interpretation of trust

·              In law a trust is a relationship, where property is held by one person for the benefit of another person. A trust is created by the owner, also called a "grantor" who transfers his property to a trustee (receiver). The trustee holds that property for beneficiaries.

4. Rights of beneficiary under trusts act

Following are the rights of beneficiaries under the trust act.

1.  Right to rent and profit

·              Under the provisions of trust act the beneficiary has a right to rents and receives the profit from the trust property without any legal restriction.

2. Right to specific execution

·              Under the provision of trust act the beneficiary has a right for specific execution for example the grantor of the trust announced some specific benefits for beneficiaries in this case beneficiaries are entitled for specific execution

3. Right to sue for execution of trust

·              Under the provision of trust act when no trustee is appointed or one who is died or discharged from his office and due to this the execution of the trust becomes impracticable in this case a beneficiary can file a case for execution of the trust and court will execute the practice of the trust until new trustee is appointed

4. Right to take legal action against trustee

·              Under the provision of trust act the beneficiary has a right to take legal action against the trustee in the court of law if the trustee wrongfully obtaining profits from the property of trust

5. Right to have conversion

·              Under the provision of trust act the beneficiary has a right to have the trust property back when a trustee wrongfully sells the trust property to someone and later becomes of the owner of the property.

6. Right of inspection

·              Under the provision of trust act the beneficiary has a right to inspect and take copies of instruments of trust which is a document having terms and conditions of the trust and having other details such as:

Ø  Documents relating to the trust property

Ø  The vouchers

Ø  Details of cases if under proceedings of the courts

7.  Right to inspect accounts

·              Under the provision of the trust act the beneficiary has full right to inspect the accounts of the trust property and if beneficiary finds any discrepancy in this case he can file the case in the court

8. Right of proper trustee

·              Under the provision of trust act the beneficiary has a right that the trust shall be administered by a proper trustee or trustees who may protect and administer the business of trust in healthy way for the benefits of beneficiaries

Following are not proper trustee:

Ø  A person domiciled abroad or foreigner

Ø  An alien enemy

Ø  A person who is conflicting with the beneficiary

Ø  A bankrupt

Ø  A minor

Ø  A married woman

9. Right to compel for particular act

·              Under the provision of trust act the beneficiary has a right to compel his trustee to perform any particular act of his duty as he is under obligation to perform this act and has a right to restrain from committing any breach of instruments of trust.

10.  Right to receive information

·              Under the provision of trust act the beneficiary has a right to be provided enough information about the business of the trust and about its administration that their rights are being transferred or not.

11.    Right to remove the trustee

·              Under the provision of trust act Current and remainder beneficiaries have the right to petition the court for the removal of the trustee if they believe that the trustee is not acting in their best interest. Trustees have an obligation to balance the needs of

the current beneficiary

12.  End the trust

·              Under the provision of trust act in some circumstances, if all the current and remainder beneficiaries agree, they can petition the court to end the trust. State laws vary on when this is allowed. Usually, the purpose of the trust must have been fulfilled or be impossible.

5. Preclude Remarks

·  To Preclude, we can say that the beneficiary is the person for whose benefit the grantor of the trust offers different benefits as well as the trust act also provides multiple rights to beneficiaries for protection of their rights from trustee’s wrongful actions or from others. The beneficiary is important person because a trust is controlled not only by the instrument of trust and the court, but also by the beneficiaries.

Q. 2: What is trust? different kinds trust and object & lawful trust?

1.   Preface

·  The rules relating to trust are contained by the trusts act 1882. In law a trust is a form of relationship created on the direction of any individual, in which a person holds the individual’s property under some duties to use it for the benefit of others. In trust the title of ownership of the property of a trustee is not a legal or real while it is obligatory in nature which is used for the benefits of others.

2. Interpretation of trust

·              In law a trust is a relationship, where property is held by one person for the benefit of another person. A trust is created by the owner, also called a "grantor" who transfers his property to a trustee (receiver). The trustee holds that property for beneficiaries.

3. Kinds of Trust

Following are the kinds of trusts. Details are as under.

1.  Revocable trust

o  Revocable trust is such trust where a grantor is allowed to keep control of all the assets in the trust, and grantors has a right to cancel or change the terms of the trust at any time without the consent of the beneficiaries.

2. Irrevocable trust

o  Revocable trust is such trust where a grantor is not allowed to keep control of all the assets in the trust, and grantors has no right to cancel or change

the terms of the trust at any time without the consent of the beneficiaries.

3. Executed trust

o  Executed trusts are such trusts where interests of the trust are completely limited and defined by grantor. Executed trusts are complete trusts and no further acts are required to be done by the grantor or by the beneficiaries to give it its full effects

4. Executory trust

o  Executory trust is such trust where some further acts are required to be done by the grantor of the trust or by the beneficiaries, to give it its full effect.

5. Express trust

o  Express trust is such trust where a grantor transfers his property to trustee for the benefit of others in express terms which can be in writing or may be oral. And trustee in under an obligation to distribute such property for the benefits of beneficiaries.

6. Implied trust

o  Implied trust is such trust where a grantor has shown his intention to provide certain property for the construction of mosque and people have made a mosque there without any objection raised by the grantor of the property is called implied trust while it has not been in written or even oral statement but it was just an intention of the grantor.

Following are the kinds of implied trust.

A.  Resulting trust

·              A resulting trust is such trust which comes into existence by the operation of law, where property is transferred to someone who pays nothing for it and is under an obligation to use it for the benefit of others.

B.  Constructive trust

·              Constructive trust is such trust which is created by grantor himself due to old age for example where husband and wife make trust by their own will is called constructive trust. After death of one partner another partner succeeds. And in case of death of both, property of the trust shall go to specific person.

7.  Public trust

o  Public trust is such trust which is created for the beneficial use for the public at large and not for a specific group of persons such as public places, parks

etc.

8. Private trusts

o  Private trust is such trust which is created for the beneficial use for the specific group of person and not for the promotion or welfare of the public at large

9. Voluntary trust

o  Voluntary trust such trust which is created by the grantor during his lifetime, In a voluntary trust, the grantor holds legal title of the property transferred to the beneficiary, even the beneficiary has actual title and possession.

10.  Testamentary trust

o  Testamentary trust is such trust which takes effect after the death of the grantor according to the terms and conditions of the trust for the benefits of other.

11.    Secret trust

o  Secret Trust is such trust where grantor leaves his property after his death under a will that they will hold the property as a trustee for

the benefit of beneficiaries who are not mentioned in the will

4. unlawful Objects of a trust

Following are the causes of unlawful trusts. Details are as under:

1.  Fraudulent

o  Any trust based on fraudulent purpose is unlawful. For example, a trust created for the training of prostitution is void.

2. Against the public policy

o  Any trust, which is against the public policy, is unlawful. For example Trust property to employ in carrying smuggling business and utilization of its profit for the benefit of children is unlawful.

3. Forbidden:

o  Any trust, which is expressly forbidden by law on any ground, is unlawful.

4. Causing injury

o  Any trust which is causing any injury to the person or property of another is unlawful.

5. Immoral

o  Any trust which is involved in immoral activities or against public policy is unlawful.

6. Partially unlawful

o  Any trust which is partially lawful and partially unlawful, it will be considered as unlawful trust in its very nature.

5. Preclude Remarks

·              To Preclude, we can say that trust is an equitable obligation which is taken either expressly or impliedly and is administered in the court of equity. But there are different kinds of trusts and causes of their unlawfulness

Q. 3: When the office of a trustee may be vacated or what are the ways when a trustee may be discharged with or without the intervention of the court?

1.   Preface

·              The trusts act provides the qualification of appointment and reasons of discharge of trustee. A person who is being appointed as a trustee may accept the appointment or may not. Because acceptance totally depends upon his own will to accept the appointment or not because no one can be compelled to be a trustee but once trust ship is accepted by a person in this case he is bound to perform his duties accordingly. A trustee can also be discharged from his duties and his office may be vacated.

2. Interpretation of trust

·              In law a trust is a relationship, where property is held by one person for the benefit of another person. A trust is created by the owner, also called a "grantor" who transfers his property to a trustee (receiver). The trustee holds that property for beneficiaries.

3. Interpretation of trustee

·              A trustee is a person who holds and administers property received by grantor for the benefit of others. A trustee may be appointed in the case of bankruptcy, for a charity, for a trust fund etc.

4. Vacation of office of trustee

Following are the grounds which become cause the vacation of the office of trustee.

1)  Death of trustee

·              In case of death of trustee, the office of trustee falls vacant.

2) Mental disorder

·              If trustee is declared by a competent court to be incapable of managing his duties under mental disorder in this case office of trustee will be vacant

3) Bankruptcy

·              If trustee becomes bankrupt, in this case office of trustee will be vacant.

4) Conviction by court

·              If the trustee is convicted by the court of law against any criminal violation, in this case office of trustee will be vacant

5.  Modes of Discharge of trustee

Following are the ways when a trustee can be discharged from his office. Details are as under.

1.  Consent

·              If the trustee himself wants to leave or not interested to perform his duties as a trustee for a trust, in this case, trustee will be discharged from his office.

2. Extinction of trust

Following are the reasons of extinction of trust. In case of extinction of trust, trustee will be discharged from his office

Ø  when purpose of the trust is completely fulfilled

Ø  when purpose of the trust becomes unlawful

Ø  when the fulfillment of its purpose becomes impossible by destruction of the trust-property etc

Ø  When the revocable trust expressly extinct.

3. Completion of duties

·              If trustee has completed his duties in connection with the trust property, in this case trustee will be discharged from his office.

4. Incapability of trustee

·              If the trustee is not capable of fulfilling the role because of sickness or injury or he has committed serious misconduct in the administration of trust, in this case trustee will be discharged from his office

5. Appointment of new trustee

·              If a new trustee has been appointed by the court, in this case ex-trustee will be discharged from his office

Ø  Powers of new trustee

Every newly appointed trustee by the court shall have the same powers, authorities and discretions if he has been nominated a trustee by the grantor of trust.

6. Deed of trust

·              The trustee will be discharged from his office by means of as may be prescribed by the instrument of trust.

6.   Petition to be discharged from trust

·              Petition to be discharged from trust. Every trustee can apply by petition to a principal Civil Court of original jurisdiction for his discharge from his office; and if the Court finds that there is sufficient reason for such discharge, court may discharge him accordingly but if there is no such reason, the Court shall not discharge him, until a proper person can be found to take his place

7.   Preclude Remarks

·              To Preclude, we can say that once trust ship is accepted by the trustee, he is bound to carry out his duties because a trust is obligatory. As well as there are a lot of reasons which can cause of discharge of trustee from his office or modes of discharge of trustee? Each and every person can become a trustee who is capable to hold or own property whether he is minor or not.

                                Waqf Act

Q 1. Define and discuss waqf and mutawalli.

1.   Preface

·              Waqf is an important institution of Islam. It is a permanent dedication of some specific property by a Muslim for religious and pious purpose. Every muslim of sound mind may dedicate his property by way of waqf. It may be made verbally or in writing.

·              Mutawalli is superintendent or manager of the waqf property. He has no legal right in waqf property. He looks the matters of waqf property. He has same rights of management as an individual. The office trustee is not transferable.

2. Interpretation of waqf

·              Waqf is a permanent dedication by a person supporting Islam by giving any moveable or immoveable property for any purpose which is recognized by the Muslim law as pious, religious or charitable and the property itself cannot be sold or be replaced is called waqf.

3. Qualifications of waqif

The person who creates waqf is called waqif. He should have the following qualifications.

Ø  Waqif should profess Islam

Ø  Waqif can be both a male or female

Ø  Waqif should be sound mind

Ø  Waqif should be the owner of the property

Ø  Waqif musta attain the age of majority

4. Modes of creation of waqf

Following are the modes of creation of waqf.

Ø  By way of dedication by the owner of the property

Ø  By means of will by the owner of the property

Ø  By owner of the property during his illness

Ø  Waqf by user

5.  In whose favor waqf can be made

Following are the person in whose favor property of waqf can be made.

Ø  The waqif himself

Ø  The descendants of waqif

Ø  The family of waqif

Ø  Public

6. Interpretation of Mutawalli

·              Mutawalli is the person who manages the property of waqf and responsible for the distribution of the property.

7.  Qualification of mutawalli

Following are the qualifications of a mutawalli.

Ø  Mutawalli may be a Muslim

Ø  Mutawalli may be non-muslim

Ø  Mutawalli should be of sound mind

Ø  Mutawalli should be a major

8. Who can appoint mutawalli

Following are the persons who can appoint the mutawalli.

Ø  By the waqif

Ø  By the executor

Ø  By the mutawalli

Ø  By the order of court

9. Who can be appointed as mutawalli

Following are the persons who can be appointed as mutawalli.

Ø  The waqif himself

Ø  Female

Ø  Non-muslim

Ø  Sunni in a shia waqf and shia in a sunni waqf

10.  Reasons for removal of mutawalli

Following are the reasons of removal of mutawalli.

1.  Bankruptcy

o  If the mutawalli becomes bankrupt, in this case he will be removed from his title

2. Corruption

o  If the mutawalli makes corruption with the property of waqf, in this case he will be removed from his title

3. Mentel disorder

o  If the mutawalli becomes mentally unfit due to any reason, sickness or disease, in this case he will be removed from his title

4. Death of mutawalli

o  In case of death of mutawalli, he automatically will be removed and new mutawalli will be appointed for his replacement

5. Conviction by court

o  If the mutawalli is convicted by the court of law in charge of any violation or any offense committed by him, in this case he will be removed from his title

11.   Duties of mutawalli

Following are the duties of mutawalli.

Ø  It is duty of mutawalli to take care waqf property

Ø  Mutawalli is bound not to sell waqf property without the permission of the court

Ø  Mutawalli is bound not to lease the waqf property not exceeding the three years in case of agriculture property and one year in case of domestic property

Ø  Mutawalli is bound not to increase the allowances of officers and servants

Ø  Mutawalli is bound not to transfer the waqf property to another.

12. Rights of mutawalli

Following are the rights of mutawalli

Ø  Mutawalli can appoint his successor if waqif and his executor are both dead

Ø  Mutawalli can appoint his successor at the time of his death bed if successor has already not been appointed

Ø  Mutawalli has a right to receive salary

Ø  He has right to do anything that is reasonable for the administration and betterment of the waqf

Ø  He has right to manage the property of waqf.

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13. Preclude Remarks

·              To Preclude, we can say that waqf is such property which is transferred from a muslim for the recognized purpose of pious or religious and it is not transfer property to any person instead of waqf.

·              Mutawalli is a person who manages the property of waqf and office of mutawalli is not hereditary and nontransferable. He has rights and duties under law. He can be removed by the court. On the grounds of breach of trust, misconduct, bankruptcy etc.