Lawxpertsmv India – Premium Notes for Judicial Service
Topic - Specific Relief Act, 1963
Why Specific Relief Act ? It provides remedies for persons whose civil or contractual rights have been violated
This legislation has been necessary because Indian Contract Act, 1872 provides only the relief of compensation in the case of breach of contract. It was found that there might be situations wherein grant of compensation would not afford adequate relief and only specific performance of the contract would render justice and provide adequate relief.
Application | This Act applies to whole of India. Originally this Act, applied to whole of India except the State of Jammu and Kashmir.
Recent amendment | The words, ‘except the State of Jammu and Kashmir’ have been omitted by Section 95(1) read with entry 8, Table 1 of the 5th Schedule of the Jammu and Kashmir Re-organization Act, 2019 with effect from 31.10.2019.
Obligation- includes every duty enforceable by law;
Settlement - It is an instrument [other than a will or codicil as defined by the Indian Succession Act, 1925] whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of.
Trust – It has the same meaning as in section 3 of the Indian Trusts Act, 1882 and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act.
Trustee – It includes every person holding property in trust.
Application | This Act does not deprive right to relief to any person other than the specific performance which he may have under any contract. It does not affect the operation of Indian Registration Act, 1908 on documents # section 3
Specific relief granted for what purpose: Section 4 | The purpose for which specific relief is granted is for enforcing individual civil rights and not merely for the purpose of enforcing penal law. This Act deals with civil matters.
Recovery of Specific immovable property: Section 5
A person entitled to the possession of specific immovable property may recover it in the manner provided by the Civil Procedure Code, 1908.
What section 5 implies ? Section 5 provides a normal remedy for dispossessed person in case of immovable property. This remedy is available according to the procedure provided under CPC, 1908, i.e. by filing a suit.
Need for section 5 | When immovable property is dispossessed, there is always a chance of resistance and violence because people try to take law in to their hands. Therefore, solution to process of dispossession has to be found.
Essence of section 5 | This section deals with action for recovery of possession of specific immovable property based on title.
Thumb rule of section 5 | Whoever proves a ‘better title’ is a person “entitled to possession”. The title may be on the basis of ownership or possession.
Illustration | Suppose A enters into peaceful possession of land claiming it as his own although he might have no title to it, still he can sue another who has forcibly ousted him from possession and who has no better title to it, because A, although he has no legal title, has at least a possessor title.
Immovable property | The term ‘immovable property’ is not defined under this Act, so, its definition can be derived from Section 3(26) of the General Clauses Act, 1897.
Section 3(26) of General Clauses Act, 1897- immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
Limitation | Section 5 of SRA must be read with Articles 64, 65 of the Limitation Act, 1963. According to Burden of proof is on the defendant to prove that the suit is barred by Article 65 of the Limitation Act. Period of limitation to file suit under Section 5 is 12 years as provided under Article 64 and 65 of Limitation law.
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