Vol. 12 · pages 316–320

295LAW OF SPECIFIC RELIEF This principle of mutuality applies both in the case of immoveables and moveable. Doctrine of mutuality — This means, that at the time of making of the contract, there must have been consideration on both sides or promises mutually enforceable by the parties. Hence specific of performace of a gratuitous promise under Seal will not be granted nor can an infant enforce a contract by this remedy. His promise is not enforceable against himself and it is a general principle of Courts of equity to interfere, only where the remedy is mutual. Section 13 Specific performace of contract and impossibility of performance. Section 56 of the Contract Act. Section 56 clause 2 enacts a general rule. It lays down when a contract becomes void. This rule covers every ground of impossibility and is based on the assumption, that there is, in all cases of contract, an implied condition that performance shall be possible. Impossibility in relation to contract. Impossibility (1) at the time or (2) subsequently Physically or or legally impossible or subject matter of contract not existent Subsequent Impossibility Whether a party can be relieved upon discovery, subsequent impossibility depends upon— (i) Whether the contract is conditional or unconditional. (I) If unconditional— must perform (II) If conditional—on three circumstances (i) Continuing legality.

296 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (ii) Conditional by express terms— (iii) Conditional by implication—continued existence of the subject-matter of the thing in Sec. 56 Contract Act.—subsequent in possibility—the Contract is void. might on two grounds.— (i) The thing agreed to is physically or legally impossible. (ii) The subject matter of the contract is non-existent. Such Impossibility might be either.— (i) Initial or subsequent. If impossible, the contract is void and no question of Specific Performace arises whether the impossibility is initial or subsequent. Section 13 of the Specific Relief Act establishes an exception to Section 56 of the Contract Act in respect of one species of impossibility i.e. impossibility by reason of non-existence of the subject-matter. Section 13 says that Specific Performance of a contract may be enforced even though the subject-matter is partly destroyed. Sale of a house—Destruction by cyclone—purchaser may be compelled to perform. Section 13 enacts an exception It deals with the case where a portion of the subject matter ceases to exist. The rule shortly expressed.— Because A, owing to special inevitable circumstances, is unable to perform his promise, it is no reason why B should not perform his, especially as he might have protected himself by making the performance of his promise conditional upon performance by A. Having made an unqualified promise he must stand by it. Specific Performance of a Part of a Contract Can the Court decree the peformance of a part of the contract? This question is dealt with in Section 14-17. Section 17 enacts a general rule. It lays that the Court will not, as a general rule, compel specific performance of a Contract, unless it can execute the whole contract. Specific performance must be of the whole or nothing.

297LAW OF SPECIFIC RELIEF Sections 14, 15, 16 form exceptions to the rule. Exceptions : The promises undertaken—may be divisible or indivisible. I. Divisible promises i.e. promises—one part stands on a separate and independent footing from another part. If the former can and might be specifically performed it will be so enforced, although the latter cannot or ought not to be specifically enforced—Section 16. II. Indivisible promisers. —The part which cannot be performed may— (i) Admit of compensation by money or, (ii) It may not. (A) Admits of compensation—Two cases It may bear— (i) A small proportion to the whole undertaking, (ii) A large proportion to the whole undertaking. If—(i) it bears a small proportion, then a party sue for specific performance of either part and for damages for nonperformance of the balance—Section 14. If—(ii) it bears a large proportion, then the promise may sue for Specific Performance of the remaining part, if he relinquishes all claim to further performance and all right to damages. (B) Part which cannot be performed, does not admit of compensation Then the promisee may sue for Specific Performance of the remaining part, if he relinquishes all claim to further performance and all right to damages— Section 15. Illustration A contracts to sell to B an estate with a house and garden for 1 lakh. The garden is important for the enjoyment of the house. It turns out that A is unable to convey the garden. Can B obtain specific performance to the contract ?—Yes, if B is willing to pay the price agreed upon and to take the estate and house without garden, waiving all rights to compensation either for the deficiency or for loss sustained by him through A’s neglect or default.

298 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES There are thus four exceptions to the rule. 1. Where parts are divisible—Specific Performance can be decreed of one part though not of all parts—Section 16. 2. Where parts being in divisible part which cannot be performed admits of compensation and bears a small proportion to the whole, the party may sue for Specific Performance— Section 14. 3. Where parts being indivisible, part which cannot be performed admits of compensation and bears a large proportion to the whole undertaking, the promisee may sue for Specific Performance of the remaining i.e. of the part which can be performed provided he relinquishes all claim to further performance and all right to damages—Section 15. 4. Where parts being indivisible, the part which cannot be performed does not admit of compensation and bears a large Specific Performance of the part which can be performed may be decreed within the terms mentioned in Section 15. Specific Performance of a Contract Where the Vendor or Lessor has an Imperfect Title 1. The rule as to this is contained in Section 18. This Section deals with four clauses:— (i) Where Vendor/Lessor has acquired good title after the contract. (ii) Where procuring of the consent of other persons is necessary. (iii) Where encumbered property is sold as though it was unencumbered. (iv) Where deposit has been paid and the suit for Specific Performance has been dismissed. Clause (a). —Is based on the undeniable proposition that when a person enters into a contract without the power of performing that contract, and subsequently acquires the power of performing that contract, he is bound to do so. Illus. An heir apparent, who contracts to sell the property to which he is heir, will be compelled to specifically perform such contract if and when he succeeds to the property.

299LAW OF SPECIFIC RELIEF Whatever interest the seller acquires in the property subsequently to the contract, he will be compelled to convey to the purchaser. Clause (b).—Is based upon the proposition that where the validity of a contract is dependent upon the concurrence of a stranger to the contract, and the stranger to the contract is bound to convey at the request of the Vendor or lessor, the Vendee and the lessee can compel him to obtain such concurrence. Clause (c). —Is based upon the proposition that where the property sold or leased is represented as being free from encumbrance but is encumbered, the Vendor shall be compelled to free it from encumbrance sale of property which is mortgaged—Provided the price is not above the mortgage money. Clause (d).—Clauses (a), (b) and (c) cover cases where the purchaser or lessee is the plaintiff suing for perfection of title. Clause (d) covers a case where the suit is brought by the Vendor or lessor for Specific Performance and it fails because of his not being able to perfect the title. In such a case the Court cannot only dismiss the suit with costs, but proceeds to award to the defendant purchaser a special relief viz—the return of his deposit with interest and his cost and a lien for all these on the property agreed to be sold or let. General Rule regarding deposit. —Deposit is paid as a guarantee for the performance of the contract and where the contract fails by reason of the default of the purchaser, the vendor is entitled to retain the deposit. Rights of Parties to a Contract to sue for Specific Performance Four cases to be considered:— I. For whom contracts may be specifically enforced. II. For whom contracts cannot be specifically enforced. III. Against whom contracts may be specifically enforced. IV. Against whom contracts cannot be specifically enforced.