Define equity and its origin and effects in common law courts which become the reason for

its orign.

Introduction:
Equity is a particular body of law that was developed in England. It that time its general purpose is
to provide a remedy for situations where the law is not flexible enough for the usual court system to
deliver a fair resolution to a case. The concept of equity is deeply connected with its historical origins
in the common law system used in England. However, equity is in some ways a separate system
from common law. it has its own established rules and principles, and was historically administered
by separate courts, called "courts of equity" or "courts of chancery".

Definition of equity
Equity is a particular body of law that was developed in England. It that time its general purpose
was to provide a remedy of fairness and justice for situations where the law was not flexible is said
to be equity.

Derivation

It comes from the Latin root “aequtus,” meaning “even,” “fair” or “equal.” In English,
equity first appears in the 1300s and has a broad range of meanings.
Equity and equality

• The term “equity” refers to fairness and justice and is distinguished from equality.
• Whereas equality means providing the same to all while equity means recognizing that
we do not all start from the same place and must acknowledge and adjust imbalances.
• In an equality model, a coach gives all his players the exact same shoes. In an equity
model, the coach gives all his players shoes that are their size.
COMMON LAW COURTS

During the period of 13 and 14 century there were three types of common law courts working in
England which are,

I. court of common pleas

II. exchequer
III. king’s s/Queen’s bench

The system and the procedure of common law courts were defective and not satisfying the needs of the
people and not providing adequate justice to the people, so the following are the flaws or defects which
become the reason of origin of courts of equity.

Defects and flaws in common law courts

i. Absences of remedies

Sometimes the aggrieved party was not given remedy as common law court said that there are no
explicit provisions present in the law of that aggrieved party had to go back without any remedy.

ii. Inadequate remedies

The only remedy in common law is that time was damages in form of monetary compensation but most
of the time damages were not enough to compensate the loss of aggrieved party in some cases.

for example

Sometimes people were emotionally attached with any contract or with some land end in disputes etc

iii. Rigid process / formalities

Common law courts were based on complex inflexible and formal system so to the seek any remedy the
aggrieved party had to fulfill some formalities and had to face complex cities to seek any remedy from
common law courts if those were not fulfilled then remedy was not provided to the aggrieved party.

iv. jury system

The 4th flaw in common law court was that it was based on jury system and the member of the jury
were form localities who were easily intimidated to do corruption so by the aggrieved party was unable
to get remedy or justice from those courts.

v. do not recognize trust.

Another defect of common law court was that they did not recognize trust as matter of right through
which many people can't get remedy from those courts.

Origin of court of equity

Due to the defects and flaws in the common law courts where common law courts provided no proper
remedy to the people so the people started to make petitions to the king for seeking justice. When the
burden of petition increased upon the king the king referred and delegated his powers to deal with the
petitions to his chancellor. in later times petition was presented to the chancellor directly and he was
not bound of common law later, this court was named and termed as court of Chancery or court of
equity.

New remedies provided by the court of equity.

i. Specific performance

Is a form of injunction where a court orders an individual to complete a specific task which is
generally part of a contract. This remedy is discretionary and only used when an individual
cannot be compensated by money. If they do not complete the contract, they will be held in
contempt of court.

For example

If party (A) of the contract breached the contract and aggrieved party (party B) was not satisfied
with the damages of the common law court, then the court of equity grant the remedy of
specific performance by which the court of equity ordered the defaulter party to act same as he
promised in the contract.
 ii. Injunction

Injunction is the order of the court to do or not to do something. The court of equity also
introduce this remedy. It is awarded to protect legal rights rather than compensate for the
breach of one If a party breaches this court order it is a serious offence and can merit arrest or
possible jail sentence.

iii. Restoration of possession

It is the remedy of restoration of possession which was introduced by the courts of equity in which the
possession was restored to the person who is dispossessed by other person from his property forcefully
and restore the possession of such person’s property. But in common law there were only damages no
other remedies are available there.

iv. Rectification

If any mistake is done in the contract and the right of individual is violated then the court
of equity allowed to rectify or modify the contract by mutual agreement or according to the
order of the court, but common law had no remedy in these cases,

Recession

Recession means cancellation in common law once the contract is agreed then it must have
to perform but in court of equity or party can cancel the contract by mutual agreement or
on any other grounds which become the reason of the cancellation of the contract this is in
also the remedy introduced by the court of equity.

Conflict between the common law courts and courts of equity

The increasing popularity of the Court of Equity led to conflict with the common law courts.
When there was a conflict between the two, equity would use a remedy which had the effect of
preventing common law action from proceeding or preventing the common law judgement
from being enforced. So, these two systems of common law and equity operated quite
separately, so it was not surprising that this overlapping of the two systems led to conflict
between them.

Case law Earl of Oxford case

One such conflict occurred in the Earl of Oxford’s Case, where the court of common
law ordered the payment of a debt. The debt had already been paid, but the deed giving rise to
the obligation had not been cancelled. The court of equity was prepared to grant an order
preventing this and ratifying the deed. It was ruled that, where there is a conflict between the
common law and equity, equity will prevail. The conflict was finally put to rest by the setting up
Judicature Acts in 1873-75 where the Supreme Court could now administer both rules of
common law and equity.
Judicature Act 1873.
The conflict was finally resolved by the Judicature Acts 1873-75:

• The Lord Chancellor must be legally qualified.

• All courts are now courts of common law and equity. Judges shall apply common
law and if it is found to be insufficient, they may then apply equity.
• There is now a well-established appellate system applying both common law and
equity.
• The role of the judiciary is not only limited to interpreting statues and applying
them, but is also to find, extend, or create law.
• When there is a conflict between common law and equity, equity shall prevail.
• Remedies are still separate in nature.

Conclusion

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Maximums
Q:1 Equity will suffer a wrong to be without a remedy. Explain in detail in the light of Equity’s
jurisdiction.

Introduction

This maxim, in Latin, is “Ubi Jus Ibi Remedium” which means “where there is a right there is a remedy”.
The maxim states that in situations where the common law confers a right, it also provides a remedy for
infringement of that right. It must be kept in mind that this principle is applicable only where the right
and the remedy both are within the jurisdiction of the court. In the Law of Equity, injunction and specific
performance are also the types of remedies available. In Ashby v. white a qualified voter was not
allowed to vote and thus he sued the returning officer, this case deals with the principle laid down in
this maxim, i.e. if a person has been granted a right, he is also granted with a remedy.

Meaning

The maxim ubi jus ibi remedium is a Latin term which means that where there is a right there is a
remedy or there is no wrong without remedy.

Development of Ubi jus ibi remedium

The law of tort is said to be the development of the maxim remedium Ubi jus ibi remedium. The word
jus means legal authority to do something or to demand something the word remedium means that the
person has the right of action in the court of law while the literal meaning of this maximum is where
there is a right there is a remedy or where there is a wrong there is a remedy.

Example
If an individual is injured by a defective product, they have the right to seek a remedy through the court.
This could take the form of a lawsuit against the manufacturer of the product and can seek
compensation for their injuries.

Another example could be in the context of employment law if an employee is wrongfully terminated,
they have a right to seek remedy by going to the court and filing a lawsuit against their employer for a
wrongful termination.

Case law

Ashby v. White,

Ashby v. White, in which a qualified voter was not allowed to vote and who therefore sued the returning
officer, said that if the law gives a person the right, he should have a means of maintaining it, and if he is
injured in enjoying it, he should be provided a remedy.

Application of this maximum

1. This maxim ubi jus ibi remedium can be applied only where the right exists, and they tried
should be recognized by the court of law.
2. A wrongful act must have been done which violate the legal right of a person clearly.
3. The maximum is applicable if any legal injury has been caused to any person, if no legal injury
has been caused then in that cause the maximum damnum sin injuria will be used which means
damage without any legal injury.

Limitation

a) If there is a breach of a moral right only this maxim does not apply.

b) If the right and remedy both were in within the jurisdiction of the

Common Law Courts this maxim does not apply.

c) Where due to his own negligence a party either destroyed or

allowed to be destroyed, the evidence in his own favor or

waived his right to an equitable remedy.

Recognition in pakistan

i) The Trust Act

ii) Section 9 of CPC- entitles a civil court to entertain all kinds of suits

unless they are prohibited.

iii) The Specific Relief Act- provides for equitable remedies like specific

performance of contracts, injunction, declaratory suits

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Q:2 He who seeks equity must do equity. Explain in detail.

Introduction

The law of equity is the law of conscience; when any person comes to the court of equity to get relief, he
must be ready and willing to recognize the equitable right of the other party as against the plaintiff
himself. Therefore, if the court considers that the defendant is entitled to any equitable relief against
the plaintiff in relation to the subject matter of the case; it shall uphold the plaintiff's right only on the
condition that the plaintiff is willing to grant the defendant his right.

Meaning

The maxim that he who seeks equity must do equity means that a plaintiff who wants to obtain
equitable relief from the court he himself must be prepared to do equity with the other party.

Application and cases

1. illegal loans

This maxim was attracted in a leading case titled as lodge vs National Union investment Company; Ltd,
the facts of the case was that the plaintiff borrowed loan from the defendant, and give some security
against the loan and later it was found that the money lender was unregistered under the money lender
act 1900 it was provided under the act that the contracts by money lender who are not registered under
the act were void. So, the plaintiff Mr. LODGE demanded two remedies from the court.

1. The first remedy was demanded by the plaintiff that declared that they were not authorized for
the transaction, which is a legal remedy. Hence the contract must be called void contract.
2. The plaintiff also demanded for the equitable remedy from the court that the defendant should
return the securities which plaintiff give to them against the loan.

The defendant then took the defense that the plaintiff is seeking an equitable remedy so he should do
equity too. The defendant was willing to give back the plaintiff’s money if the plaintiff pays back the loan
taken by him. It is the best example of this maximum that one who seeks equity must do equity.

2. doctrine of election

According to this doctrine, a person who accepts a benefit under an instrument should adopt its full
share in accordance with all its provisions and give up every right in conflict with it.

Illustration

Where a person gives his own property to “E” and in the same instrument mentioned to give “Es”
property to B. E cannot claim his part of the gifted property if he is not willing to give his own property
to B as mentioned in the same instrument.

3. Doctrine of redemption

If a person asks for the return of the mortgage property, he is asking for equitable relief, and this is
known as redemption but for redemption he must first pay back the money in advance. So, if the
mortgage wants his money back, he should redeem the property to the mortgagor and do equity. if the
mortgagor fails to pay the money on the date before going to the court the mortgagee should give a
notice to mortgagor by application of this principle

4. specific performance of contract

equity will not decree specific performance of contract to one party unless the other party also do
specific performance of the contract on its part.

Illustration

Suppose Aslam had entered into an agreement with Bilal to build a house at the rate of Rs 60 lakh and
after the completion of the house, Aslam will give the keys of the house to Bilal, but Aslam did not give
the keys, due to which Bilal filed a suit of specific performance against Aslam. The Aslam then took the
defense that the plaintiff Bilal is seeking an equitable remedy so he should do equity too. The defendant
Aslam was willing to deliver the keys to plaintiff if the plaintiff pays the consideration fixed in a contract.
It is the best example of this maximum that one who seeks equity must do equity.

RECOGNITION:

i) Under sec 19-A of the Contract Act, 1872 if a contract becomes voidable and the party who entered
the contract voids the contract, he has returned the benefit of the contract.

ii) sec 35 of the Transfer of Property Act embodies the principle of election.

iii) Sec 51 and 54 of the Transfer of Property Act.

iv) In Order 8, Rule 6 of the CPC, the doctrine of Set-off is recognized.

EXCEPTIONS:

The following are exceptions to this doctrine.

I. State legislature:

It cannot apply against the state legislature.

II. Acts of parliament:

It cannot apply against the acts of parliament.

III. Contrary to law:

Where an act is contrary to the law. It has no application.

IV. Statutory prohibition:

Where there is statutory prohibition, it cannot apply.

V. Matter of government policies:

It cannot apply against the matters of government policies.

VI. Factor of fraud:

If there is a factor of fraud in a case, it will not apply.

CONCLUSION:

To conclude I can say that the court of equity being a court of conscience has to look not a only the
benefits of the plaintiff but also to the interest of the defendant and grant relief to the plaintiff only on
the condition that he is prepared to give to the defendant what the latter deserves. the basis of the
doctrine is the interposition of equity.

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Q3. Equity looks into intent rather than the form. Explain.

INTRODUCTION

The maxim “equity looks into intent rather than the form” means that in a dispute the court is
concerned with the real intention behind the action of the parties rather than technical form or
appearance. This maxim is also known as the “maxim of substance over form.” The purpose behind this
maxim is to provide justice or justice should be done in all cases, even if the strict application of the law
would result in an unjust outcome due to its technicality. For example, if a person made a contract with
another party and make a technical mistake in that deed so in that case the court will focus on the
intention of the party rather than the form.

Meaning

This maxim means that equity always investigates the intention behind the action of the parties rather
than its appearance.

EXAMPLE

Let's say two friends, A and B, agree to sell their respective cars to each other. They both signed a
written agreement stating that A will sell her car to B for $10,000, and B will sell his car to A for $10,000
as well.

However, when it comes time to complete the transaction, A realizes that he made an error in the
agreement, accidentally writing $1,000 instead of $10,000 as the price for her car. B insists on paying
only $1,000, arguing that the written agreement is clear and binding.

In this situation, equity would look beyond the form of the agreement and consider the intent of the
parties involved.

Case law

Re Hargreaves’ settlement trust case 1951

In the case of Re Hargreaves’ settlement trust case 1951. where a person writes a will leaving all his
property to a charity. However due to technical error in the drafting of the will, the will to the charity
was invalid and due to that technical error in the drafting of the will The property of the will was
inherited among the legal heirs but when the case is moved to the court. The court applied this
maximum of equity, “equity looks into intent rather than the form” and look to the intent of the
testator. So, the court ordered to transfer the property to the charity even though the bill was
technically invalid under the law.
Applications of maxim

The maxim “Equity looks to the intent rather than the form” has several applications in the different
areas of the law, some of these include.

1. contract law

In contract law, the maximum may be applied to determine the intention behind an agreement between
the parties. For example, if a contract is ambiguous, the court may look to the party’s intention at the
time of agreement was made to interpret its terms.

2. Trust law

The trust law, the maximum may be applied to determine the intention behind the creation of a trust.
For example, if a trust is created for an illegal purpose, the court may look to the underlying intent
behind the creation of trust to determine its validity.

3. Will

In will the maximum may be applied to determine the intent behind the creation of a will. For example,
if a will is ambiguous, the court may look to the testator’s intention at the time of the will was created to
interpret its terms.

Features or essentials of maxims

Following are the three features or essentials of this maxim “equity looks into intent rather than the
form.

1. Substance over form

The first feature of this maxim is that substance over form which means that the court we'll focus on the
intention behind an action, rather than its technical form or appearance.

2. fairness and justice

The purpose behind this maxim is to ensure fairness and justice in legal decision making by considering
the intention and circumstances of the party involved.

3. Flexibility

This maxim provides the flexibility to the court in its decision making and allows the code to look beyond
the strict application of the law.

4. Consider intention of the party

This is an important feature of this maxim that it considers the intention of the party rather than its
technical form to arrive at a just outcome.

5. Prevent strict application of law.

This maxim helps to prevent the strict application of the law in cases where it would result in an unjust
outcome.

CONCLUSION:

To conclude it is said that equity always tries to get the actual intention of the contract not the mere
appearance which conceals the real intention.

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Q 4: He who seeks equity must come with clean hands.

INTRODUCTION

He who seeks equity must come with a clean hand is an important maxim. In this maxim it is stated that
if a person who comes to court to get a relief he must come with a clean hand and he must not be guilty
of illegal or immoral conduct against defendant to take revenge by his own hands because plaintiffs such
conduct made him dis-title to receive any assistance from the court and the court will refuse to grant
him relief.

Meaning of maxim

The maxim “he who seeks equity must come with a clean hand” means and that if a person wants the
relief from the court, he must not be guilty of his own conduct.

Illustration

Suppose Aslam takes car insurance from the insurance company and after some time he himself
damaged his car fraudulently to take advantage of the insurance company. So, Aslam filed a case against
the insurance company in court, but the court refused to give him relief as he himself did not come with
clean hands.

Case law

Overturn vs Banister case

In the case of Overturn vs Banister -A minor girl fraudulently concealed her age and obtained money
from her trustee to which she was only entitled when she got her age of majority. Subsequently she
filed a lawsuit against the trustee to compel them to pay her again the money which had been
improperly paid to her by the trustee during her age minority. It was held by the court that the girl
cannot reimpose the payment paid to her by the trustee during her minority and apply the maximum
that a person who seeks equity must come with a clean hand.

Application

Fraud Cases:

This principle applies in cases of fraud. For example, if a person accuses another person of cheating and
wants equal relief, they must show that they themselves are not involved in cheating behavior.

Breach of Trust:
This principle applies to a breach of trust. For example, in situations where a person is accused of breach
of trust or breach of trust duties, they must ensure that they have acted honestly and honestly in their
responsibilities.

Corruption cases

This maxim is applicable in corruption cases. For example, if someone accuses another person of being
corrupt and wants justice, they should not be involved in corruption themselves. They must have clean
hands, meaning they should have acted honestly.

In contract disputes,

This maxim is applicable in fraud cases. For example, if one party claims that the other party broke the
contract, they themselves should have fulfilled their obligations honestly.

Limitation

The following are the limitations of this maxim.

1. Unequal Application:

The maxim may not be applied consistently or uniformly across all cases. There can be subjective
interpretations of what constitutes "clean hands," leading to inconsistencies in its application. Different
judges or legal authorities may have different standards or ideas about clean conduct.

2. Timing of Misconduct:

The maxim focuses on the behavior of the party seeking equity at the time of seeking relief. It may not
consider past misconduct or wrongful actions that are unrelated to the present matter.

Exceptions

The following are the exceptions to this maxim.

i. Waiver

If the opposing party has knowledge of misconduct and chooses to waive his right to use the clean
hands doctrine as a defense.

ii. Good faith

if the misconduct was committed in a good faith and without intent to deceive or harm the other it may
be excused

iii. Public policy

If the misconduct was committed by social control authority under the public policy to Establish social
control in society

Recognition in Pakistan:
i) Section 23 of the Pakistan Trust Act- An infant cannot setup a defense of the invalidity of the receipt
given by him.
ii) Section 17, 18 and 20 of the Specific Relief Act, 1877- Plaintiff’s unfair conduct will dis entitle him to
an equitable relief of specific performance of the contract.

Conclusion

In Pakistan, this principle is applied to ensure that those seeking justice or equal treatment act honestly
and fairly. It promotes justice and discourages individuals from seeking treatment while engaging in
wrong or unethical behavior.

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Q: 5 Equity acts in personam. Discuss

1. Introduction:

Equity acts personam comes from a Latin phrase aequitas in personam facit which means that equity
acts against the person not his property (in Rem) or in simple word equity always deals with person
other than material, thing, or property. It always deals with the person’s conscience. It is an order of the
court against any person. It focuses on the personal rights, obligations, and conduct of individuals
involved in a legal matter to achieve fairness and justice.

Meaning

Equity acts personam comes from a Latin phrase aequitas in personam facit which means that equity
acts against the person not his property.

Illustration

Suppose there is a dispute between two business partners, Aslam, and Bilal, regarding the distribution
of profits from their partnership. According to their partnership agreement, profits are supposed to be
split equally between them. However, Aslam believes that Bilal has been taking a larger share of the
profits, which violates the terms of their agreement.

In this case, equity acting in personam would involve examining the specific circumstances and conduct
of Islam and Bilal to determine a fair resolution. The court would focus on the personal rights and
obligations of the individuals rather than simply looking at the written agreement.

If it is found that Bilal has indeed taken an unfair share of the profits so, the court could order Bilal to
account for the profits he has received and require him to make the appropriate adjustments to ensure
an equal distribution in line with the partnership agreement.

Case law

Penn vs lord Baltimore

In case of Penn vs lord Baltimore in order of specific performance was made for the plaintiff who
brought a boundary dispute case to an English court, yet the land was situated in Maryland USA the
jurisdiction of the court was applicable to the parties as they both were English and live in England. From
this case we come to know that equity always acts persona.

Application
This maxim applies in the following matter.

i. This maxim applies in contract dispute matters.

ii. This maxim applies in transfer of property dispute matters.
iii. This maxim applies in Matters of specific relief.

Limitations

This maxim does not apply in the following circumstances.

i. This Maxim does not apply when the defendant is not within the jurisdiction of the court of
the country.
ii. This maxim will not be applied If the order of the court violates the legal rules of another
country.
iii. And the last limitation on this maxim is that the order given must be capable of being
executed without the intervention of a foreign court.

Position in Pakistan

This maxim is applicable in Pakistan under its modified form because as under section 16 of CPC (Civil
Procedure code) clearly stated that the suit related to immovable property can be filed where the
property is situated.

➢ Proviso of section 16

The case can also be filed where the defendant lived because he is directly linked with the property.

Conclusion

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Q: 6. Delay defeats equity.

Introduction

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 actively
to preserve their rights because delay defeats equity. The maxim means that a party who delays in
enforcing their rights will not be able to seek equitable relief.

Meaning

This maxim comes from Latin phrase “vigilantibus, non dormentibus, jura sbvenient” which means
equity aids the vigilant not the indolent. In simple words this maxim means equity assess those who are
active in respect of their rights.

Example
Suppose a Property Boundary Dispute: Let's say two neighbors have a disagreement regarding the exact
location of their shared property boundary. Neighbor A believes that the fence separating their
properties is incorrectly placed and encroaches onto their land. However, instead of resolving the issue
immediately, Neighbor A delays taking any action for several years. Meanwhile, Neighbor B continues to
use the disputed area without objection. In this case, if Neighbor A finally decides to take legal action
the dispute but the court does not provide him relief because delay defeats equity.

Case law

Lindsay Petroleum Co. v. Hurd (1874)

In this case, the House of Lords in the United Kingdom applied the maxim "delay defeats equity" to
dismiss a claim for breach of contract due to a significant delay in asserting the claim. The claimant had
entered into an agreement with the defendant, but they waited for more than 20 years before seeking
legal relief for the breach. The House of Lords held that the claim was barred by delay and that the
claimant had lost their right to seek relief.

Application
To cases which are governed by statutes of limitation either expressly or by analogy the maxim will not
apply. Such cases fall into three categories-
i) Those equitable claims to which the statute applies expressly.
ii) to which the statute applies by analogy.
iii) Equitable claims which are covered by ordinary rules of laches.

LIMITATION:
This maxim does not apply when-
i) where the law of limitation expressly applies
ii) where it applies by analogy, and
iii) where the law of limitation does not apply but the cases are governed by ordinary rules of laches.

DOCTRINE OF LACHES:
Delay which is sufficient to prevent a party from exercising its rights and obtaining relief from court of
law is called laches. Laches is more than mere delay, and instead implies neglect to do what ought to
have been done. Thus, the maxim means that a party who delays in enforcing rights will not be able to
seek equitable relief.

EXAMPLE:
The plaintiff allowed his land to be occupied by the defendant and this was acquiesced by him even
beyond the period of limitation. On a suit of the land, it was decided that as the period of limitation to
recover possession had expired, no relief could be granted.

DELAY WHEN FATAL:

In the following cases delay is fatal for a party desirous of enforcing his rights;
1-LOSS OF EVIDENCE:
As a result of delay when the available evidence is lost or destroyed.
2-WAIVER OF RIGHT:
When the other party is induced to assume or draw an inference from one’s conduct that one has
waived his rights.
3- LOSS OF WITNESS:
Loss of witnesses could be occurred in case of death.

RECOGNITION IN PAKISTAN:
It has very limited scope in the presence of limitation act 1939.

Conclusion

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Q: 7 Where equities are equal, the law shall prevail.

INTRODUCTION

The phrase “where equities are equal, the law shall prevail” means that in cases where two parties have
equal rights or claims to a property or any asset, the legal system will make a decision based upon the
law rather than equity. In a simple word we can say that, when the conflicting interests of two or more
parties are supported by an equitable plea of equal value then law provides relief to those who claim on
the bases of legal right.

Meaning

This maximum means that in cases where two or more parties have equal rights or claim in the eyes of
law the one with the legal right takes priority over equitable right.

Illustration

1. Let’s consider the case of two individuals. Aslam, and Bilal, who both claim ownership of land. In this
scenario, Aslam and Bilal both provide evidence and arguments to support their ownership claims.
They both present documents and witnesses that seem equally persuasive, in this scenario, the
equities, or claims, presented by Aslam and Bilal appear to be of equal value and strength. However,
the court, following the maxim "where equities are equal, the law shall prevail," will rely on legal
principles rather than principles of equity to make a decision.

2. Salma agrees to sell land to Fatima in a legally binding contract. Later, Salma receives a higher offer
from Ali. Despite the better offer, Fatima maintains her legal right as the buyer based on the signed
contract. The court upholds Fatima's legal right, following the principle that "where equities are
equal, the law shall prevail." This means that even though Salma may have an equitable right to
consider the higher offer, the court prioritizes Fatima's legal right established by the contract.

Case law

Cave vs cave case

A trustee purchased land with trust money and conveyed the same to his brother. The brother then
mortgaged the land to a by way of legal mortgage and then to be by equitable mortgage the court held
that is legal mortgage will prevail Because the beneficiaries equitable right prevails over the B's
equitable mortgage.
Application

in the following matters this maxim replies

i. Dispute in transfer of property matters

ii. It may be noted that the doctrine of election marshaling and set off are based on this
maxim.
iii. This maxim is applied in contradiction of legal and equitable right.
iv. Section 78 and section 53 of the transfer of property act is based upon this maxim.

Limitation.

This maxim “Where equities are equal law should prevail” has the following limitations.

Equal equality without legal right

This maxim shall not be applied where there are equal equities but the legal right lacks. This maxim has
a very limited scope because it applies in a very limited case.

Recognition in Pakistan

In Pakistan, the maxim "where equities are equal, the law shall prevail" is recognized and applied in the
legal system. Pakistani courts consider this principle when resolving disputes where parties have equal
equities or conflicting claims.

Conclusion

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Q: 8“Equality is equity” explain.

INTRODUCTION

Equity always believes in equality. Equity always tries to keep both litigating parties on the same level
and will not play the role of favorites as far as their rights and responsibilities are concerned. Equity
works in such a way that neither party has an edge over the other party. The benefits and burdens of
shared interests and responsibilities cannot be imposed on anyone, nor can anyone be pressurized. The
purpose of this maxim is to treat both the parties on the same level. The concept of this maxim is
applied in our constitution in the form of equal protection of law.

MEANING:

This maxim equality is equity comes from a lattin phrase “Aequitas Est Quasi Aequalitas” which means
that equity put the parties in equal place as far as possible to protect their rights and responsibility and
works in such a way that neither party has an advantage over the other party.

Illustration
In the case of the wrongful death of three adult children from different women, if their mother receives
money by the government for their loss, the money could be divided equally among the children's
estates or beneficiaries.

Case law

Jones versus Maynard

this case was based on the dispute of division of property among the former spouses so in this case the
court applies this maxim “equity is equality” and put both former spouses on the same level so no one
can take advantage from one another and court order to equally divide the property among them.

APPLICATION:

This maxim has application on the following matters.

I. Joint tenancy:

This maxim will apply in estate law; joint tenancy is a special form of ownership by two or more people
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.

II. 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 based on this maxim.

III. 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.

IV. 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 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.

RECOGNITION IN PAKISTAN:

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

Sec 42 contract act 1872.

Sec 69, 70 contract act 1872.

Sec 146, 145 contract act 1872.

Sec 56 Transfer of Property Act 1872.

Sec 82 Transfer of Property Act 1882.

CONCLUSION:

To conclude I can say that equity always tries to keep the parties in the same position. A party cannot
get any undue advantage over the other. The doctrine of equality, however, operated more effectually
in a court of equity than in a court of law. In the distribution of property, the highest equity is to make
equality between the parties standing in the same relation.

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Q: 9 Where there are equal equities first in time shall prevail, explain.

Introduction

When two or more litigating parties have equal equitable interest in the absence of legal interest. So, in
that case it will be determined by the court that whose equitable interest is attached to the property
first in time will be given priority. i.e., the first in time will succeed. For example, if A grants an equitable
mortgage to X and then subsequently grants the same mortgage to Y, X’s mortgage shall take priority.

Meaning

The maxim “where there are equal equities then first in time will prevail” comes from a Latin phrase
“Qui Prior Est Tempore Potior Est Jure” which means that one who is prior in time has a superior right
in law.

Literal meaning

This magazine literally means that where the equities are equal and neither claimant has the legal
estate, the first in time will prevail.

Illustration

A Man advertised a small boat for sale in the newspaper. The first person to saw the advertisement and
make an offer him $20 less than the asking price, but the man accepted and told him that he will pick up
the boat and pay for it on Saturday. Meanwhile another person approaches the seller and offers him
more money than the asking price of the boat and the seller takes the offer. In that case purchaser 1 and
the purchaser 2 both have equitable rights, but contract law and equity agree that the first buyer gets
the boat, and the second buyer gets his money back.

Case law

Wilson vs Queens club gardens 1920

This maxim has been applied in cases involving competing interests in property such as the case of
Wilson versus Queens club gardens 1920, where the court held that where two equitable interests in
land are in conflict the earliest interest privilege.

APPLICATION:

This maxim operates where there are two or more competing interests, provided both the interests are
equitable.
When two parties each have a right to possess something, then the one who acquired an interest first
should prevail in equity.

Limitations

The maxim “where there is equal equity the law shall prevail” subject to certain limitations these
limitations are.

1. This maxim will not be applied If the subsequent party had the prior knowledge of the prior
charge, then no priority will be given to subsequent party.
2. This maxim will not be applied if there is unequal equity between the two maxims.
3. This maxim does not have application in respect of illegal interest.

Recognition

This maxim where there is equal equity first in time shall prevail has also been recognized in Pakistan as
well as following are some Acts in which this maxim has been incorporated.

• specific relief Act (section 27(b))

• registration Act (section 50)
• the transfer of property Act 1882 (section 53, 76 and 79)

conclusion

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Q: 10 Equity will regard the act is done which ought to have been done.

Introduction
This maxim means that when individuals are required, by their agreements or by law, to have done
some act of legal significance, Equity will regard it as having been done as it ought to have, even before
it has happened. This makes possible the legal phenomenon of equitable conversion. Sometime this is
phrased as "equity regards as done what should have been done."

This maxim comes from Latin phrase means that when individuals are required to do something of legal
importance, by their contracts or law, equality will treat it as it should have been done before it
occurred. This enables the legal trend of fair change. Sometimes it means "equality is respected as it
should have been."

MEANING:

If someone undertakes an obligation with another person, equity courts look on it as done and as
considering the same results as if the obligation had been performed. Equity courts therefore look to the
acts of the person bound by his conscience and interpret them in such a way that what ought to be
done.

ILLUSTRATION:

If A makes T trustee leave 50,000 RUPEES to purchase land for the use of B. T does not purchase the
land and by the time, B dies leaving all immovable property to X and all movable property to Y. Now,
who should get the 50,000 rupees? Equity in such cases would regard the purchase of land which ought
to have been made as made. The money thus goes to X.

ESSENTIAL REQUIREMENTS TO INVOKE THE MAXIM:

The essentials requirements to put the maxim in action are enlisted below.

1-There should be a contract to transfer legal title.

2-There must be substantial evidence to prove the existence of that contract.

3-This contract should be capable of enforcement.

4-The suit must be brought by the parties within the specific time.

5-The title so sought to obtain must have legal support.

APPLICATION:

The working of this maxim can be seen-

i) the doctrine of conversion

ii) Executory contracts

iii) doctrine of part performance

i) Doctrine of conversion.

The doctrine of conversion can convert money into immovable property and immovable property into
money.

ii) Executory contracts-

(a) Assignment of future property:

When an assignment of property was made for consideration equity treated it as a contract to assign.
When the property came into existence in such a contract it was treated as a complete assignment.

(b) Agreement for a transfer:

An agreement for lease could be treated as a lease in equity.

iii) Doctrine of part performance:

Under the equitable doctrine of part performance contracts pertaining to land were allowed to be
formed by oral evidence where one of the parties did acts of pats performance.

RECOGNITION IN PAKISTAN:

i) The Transfer of Property Act- A Contracts to sell Sultanpur to B. While the contract is still in force, he
sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same
extent as against A.
ii) The Specific Relief Act- Section 12 relating to the specific performance of part of a contract also
illustrates the application of the maxim.

iii) The Trust Act- Where a person acquires property with notice that another person has entered into an
existing contract affecting that property, the former must hold the property for the benefit of the latter.

Conclusion

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Specific relief Act

Q: 1 What is specific relief? What do you understand by equitable remedies and how they are
granted?

Introduction

The law of specific relief act is a kind of procedural law however and it is a supplement to CPC (civil
procedure code). This Act explains that specific relief Act grants special relief for the enforcement of
individual rights and not for imposing penal laws The Specific Relief Act, 1877 is a Pakistani law that
provides remedies for breaches of contract, as well as other civil wrongs. This is a kind of relief, which is
based on a contract and compels 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. Section 6 of the specific relief act 1887 stated the modes of
equitable relief which are discussed in detail below. Such as specific performance, recovery of
possession and declaratory relief etc.

Historical background

Due to the defects and flaws in the common law courts where common law courts provided no proper
remedy to the people so the people started to make petitions to the king, to seek justice. When the
burden of petition increased upon the king the king referred and delegated his powers to deal with the
petitions to his chancellor. Later, this court was named and termed as court of Chancery or court of
equity. In the court of equity, a lord clarendon for the first time gives the concept of specific
performance. Then the equity court introduced some specific reliefs such as cancelation, injunction, and
declaratory rights etc.

Preliminary

Specific reliefs are the preventive relief which is declared in section 6 of the specific relief Act. These are
those preventive reliefs which are provided before the occurrence of any wrong to prevent wrong.

Equitable remedies

Following are the equitable remedies which are mentioned in section 6 of specific relief Act 1887.

1. Recovery of possession of property

recovery of possession of movable and immovable property is one of the equitable remedies provided
by specific relief act 1877 section 8 to 11.

Recovery of possession of immovable property

Section 8

A real title owner is entitled to the possession of specific immoveable property can recover the
immovable property as prescribed in the Code of Civil Procedure, 1908. It is a regular procedure.

Section 9

If any person is forcefully dispossessed of immovable property without his consent other than use of
law, he or any person claiming through him may, by suit, recover possession of immovable property.

Recovery of possession of move able property.

Section 10

A person entitled to the possession of specific moveable property may recover the same in the manner
prescribed by the Code of Civil Procedure.

Section 11

Any person having the possession or control of a particular moveable property, of which he is not the
owner, may be compelled to deliver the moveable property to the person entitled.

2. Specific Performance: section 12 to 30

Specific performance is an equitable remedy that orders the party in breach of a contract to fulfill the
terms of the contract. The Specific Relief Act, 1877 provides this remedy for specific performance of
contracts in certain circumstances where one party to the contract is not fulfilling his obligation. The
party seeking specific performance must show that the contract is valid, subsisting, and enforceable, and
that damages would not be an adequate remedy.

3. Rectification: 31 to 34

Rectification is the correction of an error in a contract. The Specific Relief Act, 1877 provides this remedy
for the rectification of contracts where a contract has certain technical mistakes. The party seeking
rectification must show that there was a mistake in the contract, and that the mistake was not
intentional. This relief is based on a maxim that equity looks into intent rather than form.

4. Rescission: 35 to 38

Rescission is the cancellation of a contract by mutual agreement of the parties. The Specific Relief Act,
1877 provides for the rescission of contracts in certain circumstances. The party seeking rescission must
show that the contract is voidable or illegal, and that the other party has committed a breach of the
contract.

5. Declaratory Relief: 42 to 43
 Declaratory relief is a court order that declares the legal rights of the parties to a dispute. The Specific
Relief Act, 1877 provides for declaratory relief in certain circumstances. The party seeking declaratory
relief must show that there is a dispute as to their legal rights, and that a declaration by the court would
be useful in resolving the dispute.

6. Injunction: 54 to 57

An injunction is a court order that prohibits a party from doing something or orders a party to do
something. The Specific Relief Act, 1877 provides for injunctions against breach of contract in certain
circumstances. The party seeking an injunction must show that there is a threatened breach of contract,
and that damages would not be an adequate remedy.

CONCLUSION

In conclusion, the Specific Relief Act, 1877 provides various remedies for breaches of contract and other
civil wrongs in Pakistan, including specific performance, rescission, rectification, injunction, and
declaratory relief. The availability of each remedy depends on the specific circumstances of each case.

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Q: 2 Discuss the procedure for the recovery of immovable property under the Specific Relief Act?

Introduction

Recovery of possession immovable property is one of an equitable relief provided by specific relief act
1887 under the sections 8 and 9. Which stated that no one can be deprived from his immovable
property without lawful reason. If a person is evicted from immovable property without lawful reason in
this case, he can file a suit for recovery of possession of such immoveable property. Section 8 deals with
regular procedure and section 9 deals with summary procedure.

Relevant provision

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

Recovery of possession of immovable property

There are two ways under specific relief act to recover the possession of immovable property from
unlawful possessor.

1. Regular procedure

Under Section 8 it is stated that if any person is entitled to the possession of property, he can recover his
property under a prescribed procedure given in the civil procedure code (CPC).

In simple words this section stated that any person who is lawful owner of immovable property from
where he is unlawfully dispossessed can recover the possession of such property by due course of law. It
means that when a person is entitled to the possession of specific immovable property, he can recover
the same by filing the suit as per provisions of CPC.

Essentials of regular procedure

The following are the essentials required under a regular procedure of CPC to recover the immovable
property from unlawful possessor.

I. Strength of possessory title (proof the ownership)

II. proof of prior possession
III. forcible disposition
IV. Suit must be filed within 12 years.
2. Summary procedure

Section 9 of specific relief in 1887 provides the summary procedure for recovery of the possession of
immovable property. In this section it is stated that if any person is forcefully dispossessed from
immovable property without his consent and without due course of law. The person can repossess the
property by filing a suit under section.

Essentials of summary procedure

The following are the essentials required for recovery of immovable property under section 9 of the
specific relief Act as follows.

i. Plaintiff must have the possession of the property.

ii. The plaintiff must have been enjoying the possession for the last six months, before being
forcibly dispossessed.
iii. he must have been forcefully dispossessed otherwise in due course of law.
iv. Disposition must be without the consent of the person.
v. The suit must be filed within six months after disposition.

Difference between Section 8 and section 9

As to nature

1. Section 8 is not a summary proceeding.

2. section 9 is a summary proceeding.

As to title

1. title of the property must be proved before recovery of possession of immovable property.
2. title of property under section 9 is not required to prove.

As to limitation

1. limitation for filing of suit under Section 8 is 12 years.

2. limitation for filing a suit under section 9 is six months within the time of disposition.

As to remedy

1. Section 8 provides general remedy.

2. section 9 provides quick remedy for possession of property.

Conclusion
To conclude I 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.

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Q: 3 What do you mean by specific performance of contract? Discuss the contracts which may be
enforced specifically?

Introduction

Specific performance is one of an equitable relief provided by specific relief Act 1887 under chapter II
section 12 to 30. Specific performance is an order of the court which requires a party to perform a
specific act as mentioned in the contract. It is a discretionary relief by the court. In simple terms 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.

Relevant Provisions

Sec. 12 of the specific relief act 1887 deals with specific performance of the contract.

Definition of specific performance

Specific performance is a contractual remedy in which the court gives order to a party to 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.

Meaning

When one party fails or refuses to perform his part of contract then the courts order to party to perform
his part of the contract is known as specific performance.

Cases in which specific performance enforceable (section 12”)

Following are the cases where specific performance is enforceable.

Contracts of trust

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

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.

II. When no standard exists 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.

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

III. When monetary compensation not sufficient relief:

In those case in which monetary compensation was not adequate relief then the court grant order of
specific performance. So, in following cases compensation of money would not provide adequate relief:

Where the subject matter of the contract is immovable property.

Where the subject matter of the contract is movable property, and Such property or goods are of such
atrial of ordinary nature that is not easily available in the market.

Example:

An agreement for sale of agricultural land was made & the 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.

IV. Where pecuniary compensation cannot be got:

It is the situation where monetary compensation cannot be got for the non-performance of the contract
as formed by the parties.

Contracts which cannot be specifically enforced section 21

According to Section 21 of Specific Relief Act 1887, there are certain contracts which cannot be
specifically enforced, and these are:

1. Where compensation in money is an adequate relief:

The court will not order specific performance of contract when the compensation is an adequate relief
expected that the plaintiff will bank upon the normal remedy for breach of contract. Where the subject
matter of the contract is movable property, and Such property or goods are of such atrial of ordinary
nature that is easily available in the market.

2. Where a contract runs into minutes or numerous detail:

These contracts include a contract which depends upon personal qualification or the violation of the
parties or is of such nature that the court cannot enforce specific performance of its material terms.

In Robinson Davison it was held by the court that the contract to perform in concert depends upon the
personal kill of defendant’s wife, and the contract cannot be specifically enforced due to her illness.

3. Contracts of determinable nature:

A determinable contract means a contract which can be determined or revoked or put to an end by a
party to the contract.

For example
In the case of a partnership any partner can retire by giving notice in writing to other partners and can
dissolve the firm.

4. Contracts which involve the performance of continuous duty which court cannot supervise:

Earlier under Specific Relief act, 1877 the continuous duty which court cannot supervise is considered
over a period of 3 years.

5. Contract of arbitration: According to Section

A contract to refer present or future differences to arbitration shall not be specifically enforceable.

Conclusion

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

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Q: 6 When may the instrument be rectified? Discuss principles of rectification.

INTRODUCTION

Rectification of an instrument is the process of making changes to an instrument. This prevents the
parties from fraud or mutual mistakes of either party to the contract. Section 31 of the Specific Relief
Act, 1887 states about rectification. However, it is at the discretion of the court to grant the relief of
rectification of instrument. The only two grounds on which rectification can be claimed are fraud and
mutual mistake of parties and only the parties or their representative can file a suit for the same.

Relevant section

Section 31 to 34 of Specific Relief Act 1887 deals with the topic of rectification of documents.

Meaning of instrument

‘Legal instrument’ means any legal written document/contract.

Meaning of rectification

Rectification of instruments means correction or changes in the contract.

Definition of rectification of instrument

Rectification of instrument means that 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.

Modes of rectification

The following are the modes of rectification of legal instruments under the specific relief Act.

Fraud
Whenever someone intentionally misrepresents the other regarding the contract, and the element of
fraud is involved in an illegal contract then there is a way of rectification of the instrument under specific
relief act.

I. Fraud means.
1. when a person suggests affect which is not true in nature
2. when a person hides a fact, which he already knows about.
3. When a person makes a promise without any intention of performing it.

II. Mutual mistake

The term mutual mistake means the common mistake on the part of both the parties to the contract. If
there is a mutual mistake of the parties in a written or in a legal instrument which does not express the
true intention of the parties, then the court can order the rectification of such instrument.

III. Intention of parties

The real intention of the parties is most important to decide rectification. The court decides the
authentic intention of the parties in framing the contract. The objective is to ensure that the defect do
not prevail over the intention of the parties.

Illustration

Essentials of rectification Aslam plans to sell his house to Bilal and one of the three adjacent shops runs
a vehicle manufactured by Bilal, including all three shops through Bilal's fraud. Of the 2 shops that were
fraudulently involved. Bilal rents one to Kamran and the other to Dawood, neither Kamran nor Dawood
has any knowledge of fraud. The vehicle may be against Bilal and Kamran. Bilal corrected it so that the
shops given to Kamran could be removed from it, but it could not be corrected so that Dawood's lease
would be affected.

Essentials of rectification

Followings are the essentials of rectification.

1. Suit must relate to contract or instrument in writing.

2. The plaintiff must prove fraud or mutual mistake in framing of mistake.
3. The plaintiff must prove to the court that the contract and instrument sought to be rectified is
not in accordance with the intent of the parties.
4. Plaintiff must file a suit within 3 years from discovery of fraud or mutual mistake in the contract
or instrument.
5. Plaintiff must be party to the contract.
6. Plaintiff must prove to the court that he is entitled to grant discretionary relief by way of
rectification.

Who can sue for rectification?

Under this section following persons can bring a suit

1) Any party to the contract or his

2) Representative in interest can sue for rectification of instrument.

Intention of parties’ section 32

For the purpose rectifying a contract in writing the court must be satisfied that all the parties
thereto intended to make an equitable agreement

Principles of rectification Section 33

In rectifying a written instrument, the court may inquire what the instrument was intended to
mean and what were intended to be its legal consequences and is not confined to inquiry what the
language of instrument was intended to be.

Specific enforcement of rectified contract Section 34

A contract in writing may be first rectified and then if plaintiff has not prayed in his plaint and the
court thinks fit specifically enforced.

Illustration

A contract in writing to pay his attorney, B a fixed sum in lieu of costs. The contract contains
mistakes as to the name and rights of client which if construed strictly would exclude B from all rights
under it. B is entitled if the court thinks fit to have it rectified and to an order of payment of the sum as
if at the time of its execution it had expressed the intention of the parties.

Documents which can be rectified

The following are the legal documents which can be rectified by the court.

1. contacts
2. deeds of transfer
3. decree of code
4. negotiable instruments.
5. Insurance policies
6. Acknowledgement.
7. Settlement
Conclusion
In the above discussion the relief of rectification of instrument is based on the maxim equity looks to
the intent rather than the form. The equity court tries to rectify the written contracts and instruments
so that they can find the true intent of the party based on the aforesaid maxim.
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Q 4. What are the principles and procedure for Rescission (Cancel) of Contract? Explain.

Introduction

Rescission (Cancel) of Contract is one of an equitable relief provided by specific relief Act 1887 under
chapter IV section 35. Rescission of Contract means If a party to a contract commits a breach of the
terms and condition of the contract then the aggrieved party has a remedy of Rescission. He can cancel
the contract with the help of the court. It means that the party can withdraw the contract. In this way
the party can free himself from all the obligations of the contract. The main aim of rescission of contract
is to put an end to the contract and bring back the parties to their original position.

Relevant Provisions

Section 35 to 38 of the specific relief Act 1887 deals with the rescission of the contract.

Meaning of Rescission

Rescission means to avoid withdrawal or cancellation.

Definition of rescission of contract

Rescission of Contract is defined as the cancellation of a contract through the help of the court by any
party interested in a written contract is called rescission of contract.

Cases when rescission can be declared.

The following are the cases when rescission is adjudged.

1. When the contract is voidable

Where the contract is voidable and terminable at the option of the plaintiff, the rescission can be
declared by the court of law on the request of the party.

Example

A sells a field to B. There is a right of way over the land, but A conceals the facts from B and has 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.

Example

A, an Attorney, induces his client B, a Hindu widow, to transfer property to him for the purpose of
defrauding B’s creditors. Here the parties are not equally at fault, and B is entitled to have the
instrument of transfer rescinded.

3. Default in the payment

When the purchaser does not pay the money to the vendor and defaults on the payment of purchase, in
this case the vendor can sue for the rescission of the contract.

4. Alternative prayer for rescission section 37

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,

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.
 1. When one party has fulfilled their obligation of the contract
2. When A third party has already received some benefits from the contract.
3. The requesting party has committed some mistakes relating to the contract.
4. The requesting party has unnecessarily delayed the request for rescission,
5. The requesting party has already asked for money damages. A contract rescission cannot be
obtained after requesting a monetary award.

Conclusion

To conclude I 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 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.

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Q 5. What do you mean by declaration of rights discuss the remedy as laid down by specific relief act.

Introduction

Declaration of rights an equitable relief provided by specific relief Act 1887 under chapter VI section 42.
Declaration is a legal order of the court which relates to a person’s right to property or his status.
Declaration under specific relief act is relief where there is no specific performance, no award of
compensation but merely a declaration of rights of the parties.

Relevant Provisions

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

Discretion of court as to declaration of rights

Any person who is entitled to any legal right, or any right to any property, may sue against any person
interested in denying or refusing, and the court may declare with its discretion that he is entitled to it,
and in such a case the plaintiff is not required to seek further relief.

Example

A lawfully has 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.

Object of declaration of right:

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

1. To protect the legal right and legal character of the owner from the illegal attack
2. To enjoy the legal character and legal right peacefully by peaceful owner,
3. To protect the law & peace where adverse possession is noticed.
4. 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 people who can file the case for declaration of rights.
Persons having any legal right.

A person having any right upon any property or equitable right.

7) Essentials for declaratory suit

The following are essentials for declaratory suit.

I. Legal character:

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

II. Right to property:

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

III. Denial by defendant:

Defendant should have denied or been interested in denying the legal character or right of property of
the plaintiff.

IV. No other extra relief:

If the plaintiff does not have no other extra relief.

10) When declaration is refused by the court

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

I. Vexatious (Distressing) litigation:

In vexatious litigation the declaration is refused by the court.

II. Evasion of court fee:

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

III. Multiplicity of suit

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

Conclusion

To conclude I can say that court grants declaration of rights 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 the right of his
own legal character or property is not involved the suit is not maintainable.

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Q: 7 When does a Court grant perpetual injunction, also explain the difference between perpetual and
temporary injunction.

INTRODUCTION
An injunction is an equitable remedy provided by court order to a person to do, or not to do something.
It is a preventive relief provided by specific relief Act 1887 under chapter IX sections 52 to 57. A party
that fails to obey the injunction of the court may face criminal or civil penalties and may have to pay
damages. In some cases, breaches of injunction are considered serious criminal offenses that can
become cause of arrest and possible prison sentences. Granting an injunction is a matter of judicial
discretion for the court.

Relevant Provision

Section 52 to 57 of Specific Relief Act deals with an injunction.

Definition of Injunction

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

Meaning of Injunction

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

modes of injunction

Cases when an injunction is refused Following are the cases where court cannot grant an injunction. i.
Continuing breach:  The court can refuse to grant injunction if the plaintiff by agreement has
disentitled himself to such relief.

I. Prohibitory injunction

A prohibitory injunction is a court order that prohibits a party from engaging in a particular action or
behavior. It is a type of preventive relief. prohibitory injunctions can be temporary or permanent
depending on the circumstances of the case.

I. Mandatory injunction section 55

A mandatory injunction is a court order that requires a person or entity to perform a specific act or duty.
It is a type of equitable relief that is often sought in a situation where the plaintiff seeks to compel the
defendant to take action to correct a wrong or prevent harm.

For example

a homeowner miss seeks amendatory injunction requiring their neighbor to remove a fence that
encroaches on their property.

Kinds of injunction section 53

1. Temporary injunction

A temporary injunction is a court order that prohibits someone from doing a particular act till the
decision of case for a specified time as judged by the court.

For example
If a person is constructing a building in violating multiple rules and regulations, the court may grant a
temporary injunction to stop deconstruction until the matter is resolved.

2. Perpetual or permanent injunction

A perpetual or permanent injunction is a court order that prohibits someone from doing a particular act
permanently. It is a part of final judgment. It is also called permanent injunction.

Once a perpetual injunction is granted, it is binding on the parties involved and must be obeyed
indefinitely. Violating a perpetual injection can result in severe legal consequences, including fines and
imprisonment.

For example

If a person is infringing on someone else's trademark, the court may grant a permanent injunction to
infringer from using the trademark in the future.

When perpetual injunction is granted section 54

A perpetual injunction may be granted to prevent the breach of an obligation existing in favor of the
applicant with their expressly or by implication. When such obligation arises from contract the court
shall be guided by the rules and provisions contained in chapter II of this act

or when the defendant invades or threatens to invade the plaintiff's rights or enjoyment of the property
the court may grant perpetual injunctions in the following cases.

1. Where the defendant is trustee of the property for the plaintiff.

If a trustee or co-trustee threatened to breach of trust the beneficial owner, then in that case the
beneficial owner may sue the trustee for the injunction to prevent the breach.

Example

Aslam, a trustee for Bilal’s property is about to make an imprudent sale of a small part of the trust
property. Bilal may sue for an injunction to restrain Aslam from imprudent sale.

2. When there is exist no standard for ascertaining the actual damage caused or likely to be
caused by the invasion

It is the situation in which the applicant is unable to determine the amount of loss suffered by him or
likely to be caused by invasion.

Example

During Aslam’s employment as a lawyer, certain papers belonging to his client Bilal come into his
possession. Aslam threatens Bilal to make these papers public or to communicate their contents to
strangers. So, Bilal may sue for an injunction to restrain Aslam from so doing.

3. When pecuniary compensation not sufficient relief by invasion:

The court may grant the perpetual injunction when the invasion is such in nature that the pecuniary
compensation Is not enough as an adequate relief.
Example

The directors offer fire and life insurance company are you about to engage in a Business with marine
insurances. Any of the shareholders may sue for in injunction to restrain them.

4. When pecuniary compensation cannot be got for the invasion.

The court may grant the perpetual injunction in those cases where it is probable dad the precautionary
compensation cannot be got for the invasion.

Example

Aslam rings bells or makes some other unnecessary noise so near a house as to interfere materially and
unreasonably with the physical comfort of Bilal the occupier, Bilal may sue for an injunction restraining
Aslam from making the noise.

5. In multiplicity of judicial proceeding

The court may grant perpetual injunction in those cases where the injunction is necessary to prevent a
multiplicity of judicial proceedings.

Example

The inhabitants of our village claim a right of way over asl Aslam land. In a suit against several of them,
Aslam obtains at declaratory degree from the court that his land is subject to no such right. Afterwards
each of the other villagers sues Aslam for obstructing his alleged right of way over the land. Aslam may
sue for an injunction to restrain them permanently.

Cases when an injunction is refused. Section 56.

The following are the cases under section 56 of the specific relief Act 1887 where the court cannot grant
an injunction.

i. Stay of pending judicial proceeding

Under the specific relief act no injunction can be granted by the court to stop judicial proceedings
pending in the same jurisdiction court unless such restraint is necessary to prevent a multiplicity of
proceedings.

ii. Stay of proceeding pending in court does not subordinate.

No injunction can be granted to stop proceedings of a superior court.

Case law 2003 MLD 201

It was held by the civil court that the subordinate court cannot issue an injunction to stay judicial
proceedings of a superior court.

iii. Stay in criminal matters.

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

 iv. Prevention of persons to file a case.

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

v. Prevention of breach of contract:

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

vi. Prevention of nuisance:

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

vii. 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.

viii. 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.

ix. 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.

Difference between temporary injunctions

temporary injunction permanent injunction

A temporary injunction is a court order that A perpetual or permanent injunction is a court
prohibits someone from doing a particular order that prohibits someone from doing a
1 act till the decision of case for a specified particular act permanently. It is a part of final
time as adjudged by the court. judgment.

2 Temporary injunction is granted for a A permanent injunction is granted by the court

specified time. permanently.
3 Temporary injunction maybe granted at any Permanent injunction is granted with the
point during the suit. finality of judgment.
4 A temporary injunction is basically a Apartment injunction is basically a permanent
temporary order rather than a permanent order of the court for a permanent solution.
solution.
5 Temporary injunction only focuses on the A permanent injunction focuses both the
plaintiff side of the case. plaintiff and defendant side of the guess.
6 Temporary injunction may be revoked by A permanent injunction cannot be revoked by
the court that passes the injunction order. the court that passes the injunction order it
can only be revoked by applet court.
Conclusion

To conclude I can say that an 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 1887. 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.

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Trust act
Q:1 Creation of trust & essentials of a valid trust?

INTRODUCTION:

The rules relating to trust are contained by the trusts act 1882. In law a trust is a form of relationship
created in 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
legal or real while it is obligatory in nature which is used for the benefit of others.

RELEVANT PROVISION:

Section: 3-10 of TRUST ACT, 1882

[Link]-REFERENCE:

Section:11 and 23 of Contract Act,1872.

Definition

A trust is an agreement that allows a person trusted to give legal responsibility of their estate to another
person (trustee) With obligation of benefit of third party (beneficiary).

Illustration

Aslam transfer certain property to Bilal for the education of Usman. Here Bilal becomes the trustee of
the property and got the legal responsibility to use that land for the education of Kamran.

Parties in trust section 3

There are three parties in trust which are discussed below.

i. Testator or settlor

A testator or settler is a person in a trust agreement whose assets are being handled by the trustee.

ii. Trustee

A trustee is a person or an organization who was appointed by the testator or settler to hold and
administer the trust assets.

iii. Beneficiaries
beneficiaries all the individuals for whom the trust or formed by the testator and administered by the
trust to provide the benefit to the beneficiaries.

CREATION OF A TRUST:

According to section 6 of the trust act 1882 deals with the creation of a trust. Trust is created when the
author of trust indicates with reasonable certainty by any words or acts:

1-An intention on his part to create a trust “Trust is void for its uncertainty”.

2-The purpose of trust

3-Beneficiary

4-Trust property

ESSENTIALS/PRE-REQUISITES OF A VALID TRUST:

1- INTENTION TO CREAT TRUST:

The first essential of a valid trust is the intention to create a trust, with certainty so that no doubt as to
the creator’s intention remains.

2- PURPOSE AND OBJECT:

The second essential for a valid trust is that the purpose must be lawful and clear. U/S:4 it is clearly
stated that a trust must be for a lawful purpose because a trust which is created with an unlawful object
or purpose is void.

3- BENEFICIARY:

Trust is created basically for the benefit of the beneficiaries. Hence, there should be no ambiguity as to
the names of the beneficiaries.

4- SUBJECT MATTER:

Subject matter of trust is known as Trust property (sec:3). Property of any kind either movable or
immovable. That is legally transferable can be a subject of trust. According to sec:8 the subject matter of
a trust must be property which is transferable to the beneficiary.

5- TRANSFER OF TRUST PROPERTY:

Transfer of trust property is essential to the trustee. Although, it is not necessary where the author of
trust is himself a trustee.

• MODE OF TRANSFER:
i. In case of immovable property:

Through non-testamentary or a testamentary instrument, it must be:

a- Written.
b- Signed by author of the trust.
c- Registered e.g., under sec:17 of Registration Act,1908.
 ii. In case of movable property:

Must comply with the conditions mentioned aforesaid or through the ownership of the property is
transferred to trustee.

6- COMPETENCY OF TRUST AUTHOR:

U/S:7 trust may be created by every person competent to contract.

In the case of or on behalf of a minor prior permission from a civil court is required.

7- COMPETENCY OF TRUSTEE:

SEC:10 states that every person who can hold property may be a trustee but where the trust involves
the exercise of discretion, he cannot execute it unless he is competent to contract e.g in consonance
with sec:11 of Contract Act,1872.

8- ACCEPTANCE OF TRUST:

Another very important essential which is necessary for the validity of trust, laid down in sec:10 is that
the trust should be accepted by the trustee. Such acceptance should be indicated with reasonable
certainty either by

CONCLUSION:

In conclusion we can say that A trust is an agreement that allows a person trusted to give legal
responsibility of their estate to another person (trustee) With obligation of benefit of third party
(beneficiary).

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Q: 2 What is trust? Discuss its different kinds and when object of trust is lawful?

Introduction

The rules relating to trust are contained by the trusts act 1882. In law a trust is a form of relationship
created in 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
legal or real while it is obligatory in nature which is used for the benefit of others.

Definition

A trust is an agreement that allows a person trusted to give legal responsibility of their estate to another
person (trustee) With obligation of benefit of third party (beneficiary).

Illustration

Aslam transfer certain property to Bilal for the education of Usman. Here Bilal becomes the trustee of
the property and got the legal responsibility to use that land for the education of Kamran.

Parties in trust section 3

There are three parties in trust which are discussed below.

iv. Testator or settlor

A testator or settler is a person in a trust agreement whose assets are being handled by the trustee.

v. Trustee

A trustee is a person or an organization who was appointed by the testator or settler to hold and
administer the trust assets.

vi. Beneficiaries

beneficiaries all the individuals for whom the trust or formed by the testator and administered by the
trust to provide the benefit to the beneficiaries.

Kinds of trust

The following are their different kinds of trust which are discussed in detail below.

1. private trust

A private trust is a trust which is created for the benefit of one or more individuals, the individuals may
be any family member, friends, or maybe any relative.

2. Public trust

A public trust is a trust which is created for public welfare. This trust is for the benefit of the public at
large. Such as.

i. Education
ii. medical relief
iii. NGOs
iv. charitable institutions
3. Express trust

the express trust is also known as the declared trust. Where the terms and conditions of the trust is
properly described by the trust author in trust deed, in will, or maybe orally. such as intention, object,
subject matter of trust, and duration of the trust.

Classifications of the express trust

Express trust is further classified into two types which are discussed below.

i. Executed trust.

Executed trust is a trust in which everything is completely described means that there is nothing left to
be done to create the trust or we can say that each and everything regarding to create the trust is
completely explained by the trust author and accepted by the trustee.

ii. Executory trust

Executory trust is an Incomplete trust. Where everything is not defined completely. Means to say that
there is something remaining to create trust. It may be the procedure to create trust, or the object of
the trust, subject matter of the trust or the duration when the trust was created by the trust author.

Implied trust

Implied trust is a trust which is created indirectly by the author upon the presumption as per
circumstance.

Example

Aslam transfers his three properties (x y and z) to Bilal that he must build a school on the property x and
y but the author (Aslam) doesn’t mention property z. In that case the trustee (Bilal) will presume the
circumstance and use the property z for school.

Kinds of implied trust

The following are two kinds of implied trust.

i. Resulting trust

A resulting trust is the kind of implied trust which comes into existence by the operation of law. Which
arises or results in favor of either the person who created the trust or is representative. In this trust the
beneficial interest is coming back to the trust author and his representative, but the duration of the
benefit is not clarified by the trust's author.

ii. Constructive trust

A constructive trust is the trust which is not created by the words or circumstances importing an
intention to create the trust. It is imposed by the court to prevent the unfair advantage by the trustee to
prevent the breach of the fiduciary Relation for the personal gain.

unlawful Objects of a trust

The following are the causes of unlawful trusts. Details are as under:

1. Criminal Activities:

A trust cannot be established to facilitate or support criminal activities, such as money laundering, drug
trafficking, or any other illegal endeavors.

2. Fraud:

A trust created with the intention to deceive or defraud creditors, authorities, or any other parties
would be considered unlawful.

3. Harming Others:

If the trust's purpose is to cause harm to others or promote violence or discrimination, it would be
deemed unlawful.

4. Promotion of Immoral Activities:

Trusts established to promote immoral activities or activities that are against public policy would be
considered unlawful.

5. Evasion of Legal Obligations:

A trust cannot be used to evade legal obligations, such as taxes or debts.

6. Non-Charitable Purpose Trusts:

In some jurisdictions, trusts with non-charitable purposes that are not for the benefit of specific
individuals (or a specified section of the public) may be considered unlawful.

Conclusion

To conclude I 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.

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Q: 2 Discuss the rights available to beneficiaries under the trust act.

Introduction

Under the trust act 1882 every person can hold property as a beneficiary. He is the person for whose
benefit the trustee accepts the property from author of the trust. Each Beneficiary is entitled to avail all
benefits specified by the Author of the trust.

Definition of Beneficiary

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

Definition 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.

Rights of beneficiary under trusts act

The following are the rights of beneficiaries under the trust act.

I. Right to rent and profit

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

II. Right to specific execution

Under the provision of trust act the beneficiary has a right for specific execution

For example
The Author of the trust announced some specific benefits for beneficiaries in this case beneficiaries are
entitled for specific execution to get those specific benefits.

III. 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

IV. Right to take legal action against the 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

V. 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:

I. Documents relating to trust property.

II. The vouchers
III. Details of cases if under proceedings of the courts
VI. 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 the beneficiary finds any discrepancy in this case, he can file the case in court.

VII. Right of proper trustee

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

Following are not proper trustee:

I. A person domiciled abroad or foreigner.

II. An alien enemy
III. A person who is conflicting with the beneficiary
IV. A bankrupt
V. A minor
VI. A married woman

VIII. Right to receive information.

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

IX. Right to remove the trustee.

Under the provision of the 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.

X. 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.

Conclusion

To conclude I 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 an important person
because trust is controlled not only by the instrument of trust and the court, but also by the
beneficiaries.

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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?

Introduction

The trusts act provides the qualification of appointment and reasons of discharge of trustee. A person
who is being appointed as a trustee may or may not accept the appointment. Because acceptance
depends entirely on his own will whether to accept the appointment or not because no one can be
forced to become a trustee but once the trusteeship 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.

Definition 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.

Definition of trustee

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

Vacation of office of trustee

The following are the grounds which cause the vacation of the office of trustee.

I. Death of trustee

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

II. 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

III. Bankruptcy

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

IV. Conviction by court

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

Modes of Discharge of trustee

The following are the ways by which a trustee can be discharged from his office. details are as below.

i. Consent

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

ii. Extinction of trust

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

a) when the purpose of the trust is completely fulfilled.

b) when the purpose of trust becomes unlawful.
c) when the fulfillment of its purpose becomes impossible by destruction of the trust-property etc
d) When the revocable trust expressly extinct.

iii. Completion of duties

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

iv. 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 the trustee will be discharged from his
office.

v. 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.

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.
 vi. Deed of trust

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

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.

Conclusion

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

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Q: 4 Explain in detail the extinction of trust.

INTRODUCTION:

Chapter VIII of the Trusts Act, 1882, is headed Extinction of Trust and deals with when a trust is
extinguished, when it can be revoked, 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. A trust
can be extinguished when the purpose of the trust is fulfilled, when its purpose or object is unlawful or
impossible to run trust.

RELEVANT PROVISIONS:

Chapter:8, sec:77-79 of Trust Act,1882

DEFINITION 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.

PARTIES OF A TRUST: SECTION 3

There are three parties in trust which are discussed below.

II. Testator or settlor

A testator or settler is a person in a trust agreement whose assets are being handled by the trustee.

III. Trustee
A trustee is a person or an organization who was appointed by the testator or settler to hold and
administer the trust assets.

IV. Beneficiaries

beneficiaries all the individuals for whom the trust or formed by the testator and administered by the
trust to provide the benefit to the beneficiaries.

MEANING OF EXTINCTION:

Extinction of trust means the termination of trust i.e., when a trust comes to an end or ceases to exist.

MODES OF EXTINCTION OF TRUST:

Under section 77 of trust Act, following grounds/situations in which trust will become extinct:

a) Compete fulfillment of purpose:

One of the essentials of the creation of trust is the purpose for its creation. When a trust is created, the
author of trust expressly lays down the purpose in the instrument. Thus, once the purpose is completely
fulfilled, in that case, trust is extinguished on the date when its purpose is completed.

b) Purpose becomes unlawful:

A trust must have a lawful object or purpose. However, a purpose lawful at an initial stage may become
unlawful afterwards due to some new legislation coming into force. Thus, the purpose cannot be
accomplished by being lawful. In such cases, trust is extinguished on the date when its purpose becomes
lawful.

c) Impossibility of fulfillment of purpose:

A trust also extinguishes when the fulfillment of purpose becomes impossible by destruction of trust
property or by new enactment of law then that case the trust property will be extinguished.

d) Revocation of trust by will u/s:78

A trust extinguishes where the trust by exist, when was revocable, is expressly revoked.

Sec:78, enumerate the instances when a trust other than that which is created by a will can be revoked.

i. Meaning of revocation:

Revoke means to annul something by

1-recaling 2-taking back.

Therefore, to revoke is to generally void a document by recalling it or taking it back.

ii. General rule regarding revocation of trust:

A trust created by will, can be revoked any time during the life of the testator, but it cannot be revoked
after the testator’s death.

iii. Modes of revocation of trust:

According to sec:78, a trust may be revoked.

1- By consent of beneficiaries
2- By expressly providing in the instrument of trust for a power of revocation by exercising such a
power a trust may be revoked.
3- Where the trust is for the payment of debts of the settler, has not been communicated to the
creditors.

EFFECT OF REVOCATION U/S:79

An author of trust cannot revoke the trust to defeat or prejudice what the trustee may have duly done
in execution of trust. Such revocation shall not have retrospective effect.

CONCLUSION:

As a general principal trust cannot be revoked on unqualified terms. However, it can be revoked if the
author either reserves the rights in instrument or u/s:78 of Trust Act,1882.

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Q:5 What are the disabilities of the trustee? Explain.

INTRODUCTION:

Trust is an essential office filled with duties, discretionary rights, powers, and disabilities. So, there are
some prohibitive acts for a trustee if he performs those acts, he will be disabled by his trusteeship.
Chapter;5, sec:46-54 of Trust Act,1882 deals with the restriction or disabilities of trustee.

RELEVANT PROVISIONS:

Chapter;5, sec:46-54 of Trustee Act,1882.

DEFINITION OF TRUSTEE

A trustee is a person or an organization who was appointed by the testator or settler to hold and
administer the trust assets.

MEANING OF DISABLITY:

Disability is a restriction or a deprivation of legal rights.

DISABILITIES OF TRUSTEE:

The Trust Act,1882 provides the following disabilities:

1- TRUSTEE CANNOT RENOUNCE AFTER ACCEPTANCE:

Sec:46, has been so designed that a trustee who after acceptance of the trust and after acting for some
time as trustee may not opt to renounce the trust because he is liable to the beneficiaries as well as his
co-trustees. This is the general rule given by the section but at the same time it has its exceptions as
well.

EXCEPTION TO GENERAL RULE:

 A- With the permission of civil court
B- With the consent of beneficiaries
C- By virtue of special powers in the instrument

2- TRUSTEE CANNOT DELEGATE:

A person who has been assigned a responsibility does not fulfill it if he puts it on someone else's
shoulders, he remains responsible for other people's default.

EXCEPTION U/S:47

A- If delegation is provided in the instrument.

B- If the delegation is in the regular course of business.
C- If the delegation is necessary.
D- Delegation with the consent of beneficiaries

3- CO-TRUSTEES CANNOT ACT SINGLY U/S 48:

The office of trustee is a joint one and duties of the office must be done by the co-trustees in joint
capacity. The act of one trustee done with the sanction of a co-trustee may be regarded as the act of
both but such sanction or approval must be strictly proved.

4- CONTROL OF DISCRETIONARY POWER:

Sec:49, if the trustee does not exercise their discretionary power reasonably and in good faith it can be
controlled and guided by the court on suitable occasions.

5- NO RIGHT OF REMUNERATION:

Sec:50, a trustee has no right to charge remuneration for his services i.e., trouble, skill, and loss of time
in executing the trust. Section 50 provides and explains the exceptions to this provision wherein a
trustee can get remuneration.

6- TRUSTEE CANNOT USE TRUST 50ERTY FOR HIS OWN PROFIT:

U/S: 51, All the acts of trustee must direct towards the benefit of the trust and beneficiary. If he makes a
profit out of it, he will be accountable for it.

7- NOT TO USE TRUST PROPERTY FOR PURPOSE TO GAIN BENEFIT FOR HIMSELF

A trustee should not use the property for any purpose connected to the trust. When he does so, he
must account for the benefit he obtains from trust property.

8. TRUSTEE CANNOT BE PURCHASER:

U/S:52, Trustee is absolutely and entirely disabled from purchasing the trust property. Especially whose
basic duty is to sell trust property. He cannot become a buyer of the same property at the same time.

9- TRUSTEE MAY NOT BUY BENEFICIARY’S INTEREST:

Sec:53, lays down a situation that the trustee may not buy or become lessee or mortgage unless the
court permits it for the benefit of beneficiary specifically.

CONCLUSION:

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