Vol. 12 · pages 321–325

300 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES I. For whom contracts may be specifically enforced. Section 23 deals with the question Who may obtain Specific Performance ? Clause (a) any party thereto. Clause (b) (i) an assignee from a promisee. (ii) Legal representative of a promisee after his death. (iii) an undisclosed principal of a promisee. Each of these may obtain Specific Performance of a contract in which he is interested, but each is subject to the proviso that the contract must not be a personal one, nor must the contract prohibit the assignment of the interest of the Promisee. (c) Persons entitled to the benefit of a marriage contract or compromise of doubtful rights between members of the same family. (d) Remainder man on a contract made by a tenant for life. (e) Reversioner in possession. (f) Reversioner in remainder. (g) New company on amalgamation. (h) Company on a contract made by the promoters. Cases where contract cannot be specifically enforced except by varying it—Sec. 76. (1) By mistake or fraud the contract is in terms different from that which the Deft, supposed it to be. (2) Deft, entered into contract under a reasonable misapprehension as to its effect between Deft, and Plff. (3) Enters into a contract relying upon some misrepresentation by the Plff. (4) Where the object is to produce a certain result which the contract fails to produce. (5) Where Parties have agreed to vary it. Comment. Sections 91, 92. Evidence Act.— A plff. cannot give oral evidence to make out a variation. It does not debar a deft, from showing that by reason of fraud or misrepresentation, the writing does not contain the whole contract; he can under provision 1 to S. 92 give oral evidence to prove that there is variation.

301LAW OF SPECIFIC RELIEF Plff. in that case cannot have a decree unless he submits to the variation; the Plff. is put on his election either (1) to have his action for Specific Performance dismissed or (2) have it subject to variation. If he elects not to accept the variation, he does not lose his remedy of damages. II. Persons for whom contracts cannot be specifically enforced. This is dealt with in Sections 24 and 25. Section 24 (i) Who could not recover compensation for its breach. (ii) Who has become incapable of performing or voilates any essential term of the contract. (iii) Who has already chosen his remedy and obtain satisfaction for the alleged breach. (iv) Who, previously to the contract had notice that a settlement had been made and was in force. This Section is distinguishable from Section 23 in that the defence to Specific Performance is not founded on anything in the contract itself but is based solely upon the acts or conduct of the Plff. Section 24 is a general Section. While Section 25 is a Section which is a particular one and is limited in its application to two kinds of contracts only:— (i) Contract to sale and (ii) Contract to let property whether movable and immovable, Sec. 25 says that such a contract cannot be specifically enforced in favour a Vendor or Lessor, i. e. in the following cases:— (i) Knowing not to have any title to the property, has contracted to sell or let the same. (ii) Who cannot give a title free from reasonable doubt at the date fixed by parties or Court. (iii) Who, previous to entering into the Contract has made a settlement of the subject-matter of the contract. Settlement is defined in Section 3 and means any instrument—where by the destination or devolution. Successive interests in movable and immovable property is disposed of or is agreed to be disposed of.

302 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES III. Persons against whom contract may be enforced Section 27. (i) Either party. (ii) Any other person claiming under a party by a title arising subsequently to the Contract, [except a transferee for value without notice]. (iii) Any person claiming under a title which prior to the contract voidable and known to the plantiff, and might have been displaced by the defendant. (iv) New company after amalgamation. (v) Company in respect of the contract made by promoters. IV. Against whom contract cannot be enforced Section 28. (i) Where consideration is grossly inadequate as to be evidence of fraud. (ii) Where assent is obtained through misrepresentation; unfair practice or other promise not fulfilled. (iii) Where assent is given under the influence of mistake of fact, misapprehension or surprize. Specific Performance and Discretion of the Court In granting Specific Relief, the important point is—When is the Court bound to grant Specific Performance Relief ? Obviously the Court cannot grant Specific Performance Relief in cases where the law provides that no Specific Performance Relief shall be granted. Such cases fall under three classes: (i) Where the nature of the contract is such that law does not allow it to be specifically enforced. (ii) Where the Plff. is a person in whose favour a contract cannot be specifically enforced. (iii) Where the Deft. is a person against whom a contract cannot be specifically enforced. There remain the following three cases in which a contract can be specifically enforced:— (i) Where the contract is of such a (further pages not found—ed.)

303LAW OF SPECIFIC RELIEF Liabities of the parties of the seller of the buyer Before Conveyance After Conveyance Before Conveyance After Conveyance 1. Section 55 (1) (a) To disclose material defects. 1. Section 55 (1) (b) To give possession. 1. Section 55 (5) (a) To disclose facts materially increasing value. 1. Section 55 (5) (c) To bear loss or injury to property. 2. Section 55 (1)(b) To produce title deeds. 2. Section 55 (2) Implied convenant for title. 2. Section 55 (5) (b) To pay price. 2. Section 55(5) (d) To pay outgoings. 3. Section 55 (1) (c) To answer questions as to title. 3. Section 55 (3) To deliver title deed on receipt of price. 4. Section 55 (1) (d) To execute conveyance. 5. Section 55 (1) (e) To take care of property. 6. Section 55 (1) (g) To pay outgoings.

304 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Rights of the Parties of the Seller of the Buyer Before Conveyance After Conveyance Before Conveyance After Conveyance 1. Section 55 (4) (a) To take rents and Profits. 1. Section 55 (4) (b) To claim charge for price not paid. 1. Section 55 (6) (b) To claim charge for price prepaid. 1. Section 55 (6) (a) To claim benefit of increment to property.