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LLB Notes Part 2

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LAW OF EQUITY/ SPECIFIC RELIEF ACT/ TRUST ACT/ WAQF ACT

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“I am very thankful to my almighty ALLAH for giving me such a courage, success and honor. I am also
very thankful to all the students who appreciated my work and received them warmly. In these
notes the law has been elaborated with the help of landmark judgments which is delivered by the
Hon’ble Courts and has been written for the examination point of view and i hope that these notes
will also be received warmly by the students and may led to the success in the examination as well
as in their profession.

The below-given notes prepared for the students of the LLB. The subject is very technical, and i have
taken every step to ensure that these notes may fulfill the need of the students, but there may be
some shortcomings or flaws in it, so every suggestion for the improvement of these notes will be
warmly welcome.”

I Am Very Thankful To You All

Your Well Wisher

Lecturer: Mobushar Iqbal

ADVOCATE HIGH COURT

LLB. LLM. Msc. Dipl communication skills

CELL NO: 0300-0096491

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Q. 1. Delay defeats equity

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

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

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

3. Basis of the maxim

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

4. Doctrine of Laches (Ghaflat)

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

1. Acquiescence (consent)
Acquiescence means awareness of the plaintiff on the violation of
his right. And is not ready to take legal action in this regard or he
has waived his right it also can become cause of laches.

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

5. When delay is fatal

Following are the cases where delay is fatal for a party who is desirous of enforcing his
rights.
1. Loss of evidence
When the available evidence is lost or destroyed as a result of delay

2. Waiver of rights
When party has waived his right then delay is fatal.

3. Death of Witness
Loss of witnesses could be occurred in case of death

6. Circumstances when delay can be ignored by the court

Following are the circumstance when court can ignore the delay

I. When plaintiff was not aware of his right

II. When plaintiff was not aware of his legal position

III. Plaintiff was minor

IV. Plaintiff was insane

V. Due to any fraud which is caused of delay

VI. Any natural act which is caused of delay

VII. Illness which is caused of delay

VIII. Undue influence which is cause of delay

IX. Preprocess of the case which is caused of delay

7. Application of the Maxim

Following are the cases where this maxim can be applied. Details are as under
I. This maxim can be applied only where a right exists and that right is
recognized by law

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

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

8. Limitation of Actions
Following are the limitations of action in this maxim.
If the cause of action is the contract and the defendant is not the government

then that cause of action must be brought before the court within 6 years if it’s

the government it must be brought within 3 years

If there is a tort the action must be taken within 3 years .If the defendant is

government in this case action must be taken within 1 year

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

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

Equitable interests or right within 6 years

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

PLD 2000
It was held that courts always keep the vigilant who approaches court in time but do
not help the person who is indolent in pursuing his matter.

10. Preclude Remarks

To Preclude, we can say that where a person has negligently slept over his right, court
will refuse to provide him remedy because equity aids the vigilant not the indolent.
However this maxim has no application when a legal remedy is available to the party
as well as time limitation has also been set for the enforcement of rights violated.
Q. 2: Equality is equity, discuss

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

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

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

3. Application of Maxim
This maxim has application on the following matters.

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

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

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

4. Abatement (refusal) of Legacies

This maxim will apply when a person who has been died and left a property
behind him in this case his heirs are entitled to receive the property of
deceased person equally in this case in order to avoid any discrimination
court distributes the property equally among the heir according to the will
of deceased person which was written by him in his life

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

4. Basis of Maxim
Equity can be defined as the quality of treating individuals fairly based on
their needs and requirements
Equality can be defined as treating each and every individual in the same
manner irrespective of needs and requirements.

5. Key Differences Between Equity and Equality

The differences between equity and equality can be drawn clearly on the following grounds
Fairness in the manner of treating individuals is called equity. Equality is an object
where everyone is at the same level.

Equity is a process while equality is the outcome

While equity represents impartiality, i.e. the distribution is made in such a way to
even opportunities for all the people. Equality indicates uniformity, where
everything is evenly distributed among people.

In equity, the differences are recognized and efforts are made to respond the
manner in which individual opportunities are not equal. On the contrary, equality
recognizes sameness and so it aims at treating everyone as equal.

In equity, all the people can have access to what they need. The equality, in
contrast, all the people get the same thing, i.e. rights, resources and opportunities.

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

Case Law 2003 MLD

It was held that in legal case equality of all persons before the courts of law
is the symbol of administration and provision of justice which cannot be
secrified at any cost.
7. Preclude Remarks
To Preclude, we can say that equity always tries to keep the parties at same
position. A party cannot get any undue advantage over the others. The
doctrine of equality is operated in the court of equity than in the court of
law. In the distribution of property the highest equity is to make equality
between the
Q. 3: Discuss “Who comes to equity must come with clean
hands.

1. Preface
The person who is seeking relief must not himself guilty of illegal or immoral
conduct against defendant in order to take revenge by his own hands because
plaintiff’s such conduct may dis-title him to receive any assistance from the court.
The court of equity will take this conduct into consideration, the personal conduct
of the plaintiff in dispute without the help of court; in this case court will refuse to
grant him relief.

2. Interpretation of clean hands

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

3. Basis of the maxim

Following are the basis of this Maxim.
 A person is not competent to sue as a plaintiff who himself is guilty of fraud in
 the subject matter of the suit.

 On an immoral consideration no action can be founded.

 Nobody will be allowed to found an action on his own hands.

 Nobody can take benefit of his own hands.

4. Essential element of maxim:

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

(i) Conduct of the plaintiff.

(ii) Depravity of the plaintiff

(iii) Stupidity of the plaintiff

Case Law 2003

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

6. Application of Maxim
This maxim has application on the following cases.
1) Specific performance
If the plaintiff is guilty of undue advantage in this situation the court of equity will
refuse to give order for the specific performance of a contract.

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

3) Fraud
In case of fraud, court of equity will not grant any relief to a party who has
committed fraud.

4) Benami Transaction:
The act defines a 'benami' transaction as any transaction in which property is
transferred to one person for a consideration paid by another person in this case
real owner is not allowed to recover the property.

5) Infant's misrepresentation:
Where a minor fraudulently concealing his age and obtained a sum from his agent
which he was not entitled before the age of majority. In this case the court will not
grant any relief to the infant.

7. Exception to maxim
Following are exceptions to the maxim.

1. Against public policy:

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

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

1. Limitations
Following are the limitations on the application of this maxim.

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

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

o Court can’t apply this maxim on the cases which are recognized and a
proper remedy is given in case of its breach under common law.
o It will not apply if there are acts of state, because the courts are not
authorized to question on the acts of state.

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

Position in Pakistan
The maxim who comes to equity must come with clean hands is applicable in the
courts of law in Pakistan.
Transfer of property act

Qanon-e-Shahadat 1984

Contract Act

Trust act

Specific Relief Act

8. Preclude Remarks:
To Preclude, we can say that, he who committed wrong will not avail equity. A court of
equity declines to grant relief to plaintiff where the conduct of plaintiff in regard to
the subject matter of the case is wrong. A person who wants the equity his hands
should not be spotted with injustice.
Q. 4: Discuss the maxim “Equity Act in Personam”.

1. Preface
There was a difference between the jurisdiction of the courts of law and the
chancery court. Courts of equity have power over persons who have bind
themselves in contracts which are enforceable by the law. This distinction helped to
separation of powers between the two courts
The court of equity always enforces its order in personam. The court gives orders to
defendant to obey the court but if defendant fails to obey the orders of court of
equity in this case he is arrested and imprisoned.

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

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

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

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

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

Case law
It was held that judicial officer has to decide matter before him in accordance with
the evidence produced regarding that matter. The rights of parties shall be
determined in accordance with the applicable rule of law.

7. Application
This maxim applies in the following matter.
For the recovery and foreclosure.

For specific performance of a contract to create a mortgage.

For the deed of sale

For account of rent and profit.

For the appointment of receiver.

8. Conditions:
Following are the conditions for application of the maxim.

The remedy sought must be equitable remedy.

There should no proceedings started in the appropriate foreign court.

The dispute must be of consciences.

Dispute must not involve a breach of foreign law.

9. Exceptions
Following are the exceptions.

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

It has no application where there is no contract and the dispute between the parties is

only a question of title of foreign land

10. Limitation
Following are the limitations on the application of this rule or maxim. Details are as udder.
This maxim is not applied if there is no contract there is no jurisdiction.

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

This maxim is not applied to a local tress pass.

This maxim is not applied if the court order is violating the legal rules of another

country.

This maxim is not applied if the order given by the court is not capable of being

executed without the interference of foreign court.

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

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

This maxim is not applied if a wrong has not been done

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

11. Position in Pakistan

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

12. Preclude Remarks

To Preclude, we can say that, the equity acts in personam was adopted by the early
chancellors, in order to avoid a direct clash with the court of law. The own judgment
of court of equity operates in personam against the defendant. The court of equity
has jurisdiction to entertain cases related to immovable property, however the
property may be situated in abroad.
Q.5: Equity will not suffer a wrong to be without remedy or
explain the maxim of the equity Ubi Jus ibi rame dium?

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

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

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

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

5. Importance of maxim Ubi Jus Ibi Remedium

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

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

6. Limitations
Following are the limitations on the application of this maxim.
o This maxim will not apply if a party has waived his right to an equitable
remedy by his own will,
o It will not apply if there is a breach of a moral right only.

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

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

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

7. Application of the Maxim

Following are the cases where this maxim can be applied. Details are as under
o This maxim can be applied only where a right exists and that right is
recognized by law

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

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

8. Non application of the Maxim

Maxim will not apply in the following case.
o (Where there is a breach of moral right because equity helps only where
there is breach of legal right.
o Where there is jurisdiction of common law courts.
o Where there is negligence of plaintiff.

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

10. Remedies in shape of damages

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

I. General damages
 General damages are those damages which cannot be calculated with the
 value of money, such as pain, enjoyment of life, general damages are
 compensation for past, present and future losses.
  In this case, the compensation in the form of money is paid by wrong doer
 to the injured person against violation of his rights which legally has been
 recognized

II. Special damages

o Special damages are those damages which can be calculated with the value
of money, such as medicine bills, or repair cost etc. and special damages are
compensation for past, present or future losses
o In this case, the compensation in the form of money is paid by wrong doer
to the injured person against violation of his rights which legally has been
recognized

III. Exemplary damages

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

IV. Real damages

 Real damages are those damages which actually have occurred as a result of
wrongful act and those damages can be easily measured with the value of
money are called real damages
 In this case, the compensation in the form of money is paid by wrong doer
to the injured person against violation of his rights which legally has been
recognized
 For example, loss of income because of injury in the shape of medical

expenses etc.

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

VI. Contemptuous damages

o Contemptuous damages are those damages which are very small in value
such as one cent or one rupee that occurred after the wrongful act of wrong
doer.
In this case when injured person sue in the court for compensation of
his loss and it is not possible to convert the damages in significant sum of
money is called contemptuous damages

o But in different countries a various rules have been set up for contemptuous
damages
11. Preclude Remarks
To Preclude, we can say that the basic idea ubi jus ibi remedium is that no wrong should be
without a remedy if it is capable of being remedied by the court. Where a common law
gives a right it also gives a remedy or right of action. but it has some limitations it does
not provide remedy for all wrongs.
Universal Maxim
‫اس میگزیم میں کم سے کم دو یا تین ھیڈنگ کے نام اس میگزیم میں ضرور لکھے جس پے اسے لکھ رھے ھیں۔‬

Q. 6: UNIVERSAL MAXIM
1. Preface:
Equity is not a part of law but a moral virtue which reforms the rigour, hardnessand and adge of the
law .It is a universal truth that[write have the maxim]

2. HISTORY OF MAXIM:
There are two factors leading to three defects of law and those two factors orignated this maxim .

a.More speedy development of social norms.

b.Less speedy developments of principles.

3. MAXIM…..CONNOTATION OF:
ACCORDING TO SALMOND 1862-1924

“Maxims are proverbs of law which include a plenty of applicable rules in it.”

4. TEXT OF MAXIM:
[Write have the maxim]

Any maxim which you need to attempt.

5. EXPALANATION OF MAXIM:
The maxim is orignaly the result of common sense .It is highly artificial and at the present day an
amendment and modification of the common law.

6. BINDIND NATURE OF MAXIM:

This maxim is a necessiry element supplemenetary to the imperfect generalization of legal rules.

7. MAXIM AS ASSISTANCE TO LAW:

Maxim therefore does not destroy the law,nor creat it but assists it.
8. MAXIM AND NATURAL JUSTICE:
This maxim is primarily a principle of natural justice and fairness.

9. MAXIM AND COMMON LAW:

This maxim supports and protect the common law from failings and errors in its application.

10. ESSENTAILS OF MAXIM FOR APPLICATION :

This maxim shall apply in following three conditions.

a. WRONG:

It means the breach of legal duty or violation of others legal rights.

[ACCORDING TO JHON SALMOND]

b. RIGHT:

Right is an intrest which is recognized as well as protected by the rule of law.

C. REMEDY:

A remedy is anything which a court can do for litigant who has been wronged or about to be wrong.

11. scope of maxim:

This maxim covers all the four corners of ideal justice and it is an aspiration towards the end of
justice.

This maxim presupposes the law to be sufficient.

12. MAXIM A DISCRETIONARY REMEDY:

Equity provides in its all principles,a discretionary equitable relief.

13. APPLICATION OF MAXIM:

The maxim applies in the following areas of law.

a.REMEDY FOR RIGHT:

This maxim provides the remedy for those rights which are not remedied by the rules of law.

b.APPLICATIONS IN CONTRACTS:

This maxim applies in the formation and performance of contracts.

c.APPLICATION IN TRUST:
Establishment of trust for the beneficial interest of someone , here law provides nothing but equity
provides remedy.

d.APPLICATION IN BREACH OF LEGAL RIGHT:

This maxim applies where there is any breach of legal right.

14. RECOGNITION IN PAKISTAN:

This maxim is recognition in Pakistan in the following laws.

a.CONTRACT ACT 1872:

Any parties to contract are under an obligation to follow the principles of this maxims.

b.SPECIFIC RELIEF ACT 1872:

Specific relief act provides remedies in the basic of principles of this maxim.

c.TRANSFER OF PROPERTY ACT 1882:

This maxim regulates and facilitates the transfer of moveable and immoveable property among
individuals.

15. LIMITATIONS ON MAXIM:

Following are the limitations on the maxim.

a.BREACH OF MORAL RIGHT:

Where only a moral values has been breached , this maxim shall not apply.

b.PUBLIC POLICY:

When the application of maxim against the public policy the maxim shall not apply.

c.PRIVATE REMEDIES:

Availability of a private remedy is a limitation on the application of this maxim.

16. Preclude:
To Preclude, it can say that equity is a necessary part of our law equity and equality are two basic
principle which are exist our society and both are more essentially our judicial and logical system .
…………………………………………………………………………………..,
Specific relief act

Q. 1: specific performance of contract? Discuss the

contracts which may be enforced specifically?

1. Preface
Specific performance is an order of the court which requires from a party to perform a
specific act, usually which was stated in a contract between the parties. It is an alternate
to award damages or a remedy which is used in the form of injunctive relief
Specific performance is an actual performance of a contract because the plaintiff is
entitled to avail the specific thing which he has contracted. There are some
circumstances when a contract cannot be specifically enforced.
Basically specific performance of contract is exact fulfillment of the obligation upon
either party which they have decided to do or not to do at the time of formation of
contract.

2. Relay Section
Sec. 12 of specific relief act deals with specific performance of the contract

3. Interpretation of specific performance

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

4. Doctrine of specific performance of contract

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

5. When specific performance is ordered?

Courts will enforce specific performance only if the contract is valid. When one party has
refused to perform his obligations as decided in the contract at the time of formation of
contract.
Failure to obey the court’s order for specific performance is a very serious matter. A
defendant who is not obeying court’s order for specific performance is found guilty of
contempt of court and can be fined or imprisoned

Case law 2005 YLR 1905

It was held that relief in suit for specific performance is discretionary and can also
be granted to a party who has filed the case on record to show his bona fide in
the performance of the contract
6. Essentials of enforceable contract
Following are the essentials of enforceable contract
 There should be a contract.
 The contract should be in written
 The contract should be lawful
 The contract must create a legal relationship between the parties
 The contract must have lawful object
 Parties of the contract must be competent to enter into the contract
 The contract should be clarified according to its terms and conditions
 The contract should be possible to perform
 When monetary compensation is not enough against nonperformance of the act agreed
 to be done.

7. Cases in which specific performance enforceable

Following are the cases where specific performance is enforceable.

1. Contracts of trust
Specific performance is applicable when the act agreed to be done but breached wholly
or partially by the each party.

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

2. When no standard exist for establishing damage

It is the situation in which the plaintiff is unable to determine the amount of loss
suffered by him. Where the damage caused by the breach of contract is not
found then the remedy of specific performance is not available to the plaintiff.

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

3. When monetary compensation not sufficient relief:

In following cases compensation of money would not provide adequate relief:
Where the subject matter of the contract is an immovable property.

Where the subject matter of the contract is movable property and Such property or

goods are not an ordinary article of commerce i.e. which could be sold or purchased

in the market.

The article is of such nature that is not easily available in the market.
Example:
An agreement for sale of agricultural land was made & buyer had paid full sale
consideration to the seller, but the seller refuses to execute sale deed as per the
agreement. The buyer brought an action court for the specific performance of
contract and it was held by the compensation of money would not afford
adequate relief and seller was directed to execute sale deed in favor of buyer.

4. Where pecuniary compensation cannot be got:

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

8. Contracts which cannot be specifically enforced

Following are the contracts which cannot be specifically enforced
Where compensation in money is an sufficient relief

Where a contract runs into minutes or numerous detail

Contracts of determinable nature

Contracts which involve the performance of continuous duty which court cannot

supervise

Contract of arbitration

9. Preclude Remarks
To Preclude, we can say that specific performance of the contract is reasonable remedy.
Specific performance of the contract may be enforcing by the court by exercising its
discretionary power. The doctrine of specific performance of the contract based upon
the principles of equity because the plaintiff is entitled to have the specific thing for
which he has formed the contract.
Q.2: principle and procedure of Rescission (Cancelation)
of Contract.

1. Preface
If a party to a contract commits a breach the aggrieved party has a remedy of
Rescission. He can cancel the contract. It means that party can withdraw the contract. In
this way party can free himself from all the obligations of the contract.
The main aim of rescission of contract is to put an end of the contract and bring back
the parties to their original position. If the Court has not allowed the specific
performance of the contract, it may allow the party to withdraw from the contract

2. Relay Section
Section 25 to 38 of specific relief act deals with the rescission of the contract.

3. Lexical Meaning of Rescission

Rescission means to avoid, withdrawal or cancellation.
4. Interpretation of rescission
There are a number of reasons when contract is cancelled by the court order and it is
done to bring back the parties to the position in which they were before formation of
the contract

5. Application of Rescission
Rescission is not applicable to the contracts which are not enforceable by the law but is
applicable to the contracts which are enforceable by the law.

6. Grounds for rescission

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

1. Mistake of Law
A mistake of law occurs when a party to the contract knows the facts but ignores the
mistake in this case the contract can be rescinded.

2. Unlawful contract
If contract is against the law it will be unlawful in this case the contract can be rescinded

3. Against Public interest

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

4. Fraud or undue influence

If a contract is formed by fraud or by undue influence in this case the innocent party can
rescind the contract with the help of court
5. Failure of consideration
A party to a contract can also rescind a contract on the failure of the other party to
provide “consideration" for their agreement. A refusal or failure of a party to perform
his obligation of the contract, or a clear intention to violate it, gives right to other party
to rescind.

7. Cases when rescission can be declared

Following are the cases when rescission is declared.

1. When the contracts is voidable by the party.

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

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

2. When the contract is unlawful

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

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

3. Default in the payment

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

4. Alternative prayer for rescission

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

8. Court may require party rescinding to do equity:

On adjudging the rescission of a contract, the court may require the party to whom such
relief is granted to make any compensation to the other which justice may require.

9. When Rescission is Not Available

There are situations where rescission is not available as a remedy, because the decision
is at the discretion of the court. A judge may deny rescission based on following certain
facts.
When one party has fulfilled their obligation of the contract

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

The requesting party has committed some wrong relating to the contract
The requesting party has unnecessarily delayed the request for rescission,

The requesting party has already asked for money damages. A contract rescission

cannot be obtained after requesting a monetary award.

10. Effect of rescission

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

11. Preclude Remarks

To Preclude, we can say that the remedy of rescission of the contract is available for all of
those who are entering into a contract between them. There are a lot of reasons which
gives arise to the rescission of the contract and one of the parties can contact to the
court in order to cancel the contract and such order of court brings the parties to back
on the position where they were before entering into the contract.
Q.3: declaration of rights & discuss the remedy as laid
down by specific relief act

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

2. Relay Section
Sec. 42, 43 specific relief act deals with declaration of rights or status.

3. Discretion of court as to declaration of rights

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

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

4. Object of declaration:
Following are the objective of the declaration of rights. Details are as under:
To protect the legal right and legal character of the owner from the illegal attack

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

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

To define a person's legal character and provision of remedy in case of any

violation

5. Who can sue for declaration of rights?

Following are the person who can file the case for declaration of rights.
Persons having any legal character

Person having any right upon any property.

6. Who can be sued for declaration of rights?

Following are the person who can be sued for declaration of rights.
Any person who is denying a right.

Any person who is Interested to deny his title of such character of right.

7. Case law 2004 MLD 227

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

7. Essentials for declaratory suit

Following are essentials for declaratory suit.

1. Legal character:
The plaintiff should be entitled to any legal character at the time of suit.

2. Right to property:
The plaintiff should be entitled to a right of property for declaratory suit.

3. Denial by defendant:
Defendant should have denied or interested to deny the legal character or right of
property of the plaintiff.

4. No other extra relief:

If the plaintiff not have no other extra relief.

8. Nature of declaratory relief

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

9. When extra relief is not requested:

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

10. When declaration is refused by the court

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

1) Vexatious (Distressing) litigation:

In vexatious litigation declaration is refused by the court.

2) Evasion of court fee:

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

3) Multiplicity of suit
In case of multiplicity of suit declaration is refused by the court.

11. Scope:
Any person entitled to any legal character or to any right of any property can file the
case against any person who is denying the legal right of the owner in this case court by
his own discretion makes a decision for further relief

12. Effect of declaration

A declaratory decree is one which resolves the legal uncertainty of the rights and status
of the parties. However, passing of a declaratory decree is a matter of discretion of
court and it cannot be claimed as a right.

13. Preclude Remarks

To Preclude, we can say that court grants declaration of rights in order to ensure and
protect the interests of people at large. The court cannot grant declaration on question
of law. A suit for declaration can be filed by any person who is entitled to any legal
character or any right of property but where right of his own legal character or property
is not involved the suit is not maintainable
Q.4: cases where court may refuse to grant of an
Injunction.

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

2. Relay Section
Section 56 Specific Relief Act deals with an injunction

3. Interpretation of Injunction
An injunction is a judicial process where a party is required to do, or not to do any
particular act.

4. Lexical Meaning of Injunction

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

5. Cases when injunction is refused

Following are the case where court cannot grant an injunction.

1. Continuing breach:
The court can refuse to grant injunction if the plaintiff by agreement has
disentitled himself to such relief

2. Stay of pending judicial proceeding

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

3. Stay of proceeding pending in court & subordinate

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

Case law 2003 MLD 201

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

4. Stay in criminal matters

A civil court cannot grant an injunction to stay proceeding in a criminal court.
5. Prevention of persons to file a case
No injunction can be granted in order to prevent the persons to file the case in
the court against violation of their rights.

6. Prevention of breach of contract:

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

7. Prevention of nuisance:
No injunction can be granted where there is no nuisance or interference with
rights or apprehension thereof.

8. Interference in Government
No injunction can be granted to interfere with the public duties of any
department of the central government, or a provincial government or with the
sovereign acts of a foreign government.

9. Any other relief:

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

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

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

11. No interest of the plaintiff:

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

6. Forms of injunction
Following are the two forms of injunctions. Details are as under.

1. Prohibitory
An injunction is an order of the court which is requiring from a party to stop
doing something (a prohibitory injunction) if a person fails to obey of an injunctio
n order, in this case he may will be sued for contempt of court

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

7. Kinds of injunctions
Following are the kinds of injunctions

1. Preliminary injunction
It is an initial injunction by the court in order to restrain a party for
doing something until the case has been decided
2. Temporary injunction
It is a temporary injunction by the court in order to restrain a party for
doing something for a short period

3. Permanent injunctions (perpetual)

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

7. Preclude Remarks
To Preclude, we can say that injunction is an order or decree by which a party to an
action is required to do or refrain from doing a particular thing. The right of an
injunction governed by provisions of the specific relief act 11887. When an
injunction order has been issued, it must be obeyed, and the only remedy for the
aggrieved party is to come up in appeal to the superior court to have an order
vacated. The court may refuse to grant injunction under Sec. 56 of the specific
relief act
Q.5: procedure for the recovery of immovable property
under the Specific Relief Act.

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

2) Relay Section
Section 8, 9 of Specific Relief Act 1877 provides the remedy of recovering possession of
immoveable property.

3) Interpretation of Immoveable property

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

4) Interpretation of possession
A person who is possessor of anything, he has complete control over the thing and has
the right of exclusion of others is called possession

5) Evidence of Possession
Following have been held prime facie evidence of possession
Entry in khewat

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

Grant of lease.

Apprehension of rent.

Handing over key of the promises.

Registration of ownership of property.

6) Procedure recovering of immovable property

1. Regular procedure
If any person is deprived off from his immovable property without his consent in this
case he can file the case on the basis of title under Sec. 8 of specific relief act.


'A person entitled to the possession of immovable property can recover it in the manner
prescribed by the code of civil procedure.

I. Essential of Sec. 8
Strength of possessory title.

Existence of proof of prior possession.

Dispossession should be forceful.

2. Summary procedure
Summary procedure for recovery of the possession of immoveable property is provided
under Sec. 9 of the specific relief act.

'If any person is deprived off from his immovable property without his consent and
without lawful reason, he can file case in the court of law in order to recover the
possession thereof.

I. Essential of summary procedure

The plaintiff must have possession of immovable property.

He must have been enjoying the possession from the last 6 months, before forcefully
dispossession.

He must have been forcefully dispossessed without any lawful reason.

Dispossession must be without the consent of person.)

II. Exceptions
Following are exceptions to Sec. 9
No legal action can be taken against central or provincial government.

No legal action can be taken against decree of the court.

No review or appeal shall lie against such an order of restoration of possession.

No one can be restrained from establishing his title of possession in the court of law.

III. Essentials of Sec. 9

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

IV. Nature
Summary procedure under Sec. 9 provides a speedy remedy under specific relief act.

Case law2004 YRL 105

It was held that summary procedure have been provided under no Sec. 9 to person
deprived off from immoveable property without his consent. Person coming under this
Sec. is required to show that he had actual physical possession of immoveable property
from which he was deprived off without his consent by defendant within six months
7) Difference between section 8 and section 9
Following are the difference between sec 8 and section 9 of the Specific Relief Act.

1. As to nature:
Sec 8 is not summary proceeding.

Sec. 9 is summary proceeding.

2. As to title
Title of property must be proved for recovery of possession of immovable property
under section 8.

Title of property under sec. 9 is not required to prove.

3. As to limitation
Time limitation for filing the case u/s 8 is 12 years.

Time limitation for filing the case u/s 9 is 6 months after the time of dispossession.

4. As to remedy
Sec 8 provides general remedy.

Sec. 9 provides quick remedy for possession of immovable property.

8) Preclude Remarks
To Preclude, we can say that Sec. 8 and Sec. 9 of specific relief act provided alternative
remedies and they are mutually exclusive. A plaintiff cannot combine suit. Under Sec. 8
claim is based on the title while claim is based on possession in Sec. 9.
Q.6: What is specific relief. Do you understand by
equitable remedies and how they are granted?

1) Preface
Specific relief is a form of judicial compensation. Compensation must be provided to
every person who has been injured in the social process. Basically, the objective of the
Specific relief is to assure that if there is a wrong there must be a remedy.
In this kind of relief it is compliance of a contract and compels the both parties to do or
not to do certain acts which have been mentioned in the contract. And violation of
these acts makes the other party able to receive compensation from the other party.

2) Relay Section
Sec 5 to 35 are for Specific relief

3) Interpretation of relief
Specific relief is a remedy by which each party of the contract is compelled to do or not
to do very acts as defined under the contract.

4) Lexical Meaning of Relief

The word relief means removal of anxiety or pain.

5) Objective of specific relief

Following are the objectives of specific relief.
Possession must be lawful as who comes for justice must come with clean hands
because it invites claim against unlawful ejection.

No unlawful means to be used for ejectment of possessor even possession is taken
unlawfully. Only courts are competent authority to grant specific relief to the affected
party.

Person who comes for specific relief must do equity and cease from the use of unlawful
force.

Specific relief aims that law should not be taken into hands of an individual and just
State should remain sole authority in granting the relief to the aggrieved party.

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

Case law PLD 1971 Lah.199

The jurisdiction vested in the court for the grant of decree for specific
performance is discretionary and the court is not bound to grant such relief even
it is lawful to do.

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

6) Features of specific relief

Following are the features of specific relief.
Specific relief is granted under the principles of equity.
Its basic purpose is to give a very thing to a person who is entitled for it.
The defaulting party is compelled to do or not to do the very act which has been
decided to do or not to do.
Specific relief is an adjective law.

7) Modes of specific performance

Following are the equitable remedies

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

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

3. Recession (Collapse)
Rescission happens when a previously existing contract was withdrawn because it was
breached. The contract can be re-written in a different way so that both parties are
satisfied with the terms.

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

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

6. Delivery of possession
Under the law according to this remedy, in this situation the certain property is taken in
possession by the claimant.
7. Declaration of rights
Under the law according to this remedy, in order to declaration of rights, compensation
is awarded to the aggrieved party against the breach of contract.

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

8) Basis of specific relief

Basis of specific relief are as under:
1. He who comes to equity must come with clean hands

2. He who seeks equity must do equity

3. Delay defeats equity.

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

Q.1: Discuss the rights available to beneficiaries under

trust act.

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

2. Interpretation of Beneficiary
A beneficiary is a person who receives different benefits from a trust under the will

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

4. Rights of beneficiary under trusts act

Following are the rights of beneficiaries under the trust act.

1. Right to rent and profit

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

2. Right to specific execution

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

3. Right to sue for execution of trust

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

4. Right to take legal action against trustee

Under the provision of trust act the beneficiary has a right to take legal action
against the trustee in the court of law if the trustee wrongfully obtaining profits
from the property of trust
5. Right to have conversion
Under the provision of trust act the beneficiary has a right to have the trust
property back when a trustee wrongfully sells the trust property to someone and
later becomes of the owner of the property.

6. Right of inspection
Under the provision of trust act the beneficiary has a right to inspect and take
copies of instruments of trust which is a document having terms and conditions of
the trust and having other details such as:
Documents relating to the trust property

The vouchers

Details of cases if under proceedings of the courts

7. Right to inspect accounts

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

8. Right of proper trustee

Under the provision of trust act the beneficiary has a right that the trust shall be
administered by a proper trustee or trustees who may protect and administer the
business of trust in healthy way for the benefits of beneficiaries
Following are not proper trustee:
A person domiciled abroad or foreigner

An alien enemy

A person who is conflicting with the beneficiary

A bankrupt

A minor

A married woman

9. Right to compel for particular act

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

10. Right to receive information

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

11. Right to remove the trustee

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

12. End the trust

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

5. Preclude Remarks
To Preclude, we can say that the beneficiary is the person for whose benefit the
grantor of the trust offers different benefits as well as the trust act also provides
multiple rights to beneficiaries for protection of their rights from trustee’s wrongful
actions or from others. The beneficiary is important person because a trust is
controlled not only by the instrument of trust and the court, but also by the
beneficiaries.
Q.2: What is trust? different kinds trust and object & lawful
trust?

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

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

3. Kinds of Trust
Following are the kinds of trusts. Details are as under.

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

2. Irrevocable trust
o Revocable trust is such trust where a grantor is not allowed to keep control
of all the assets in the trust, and grantors has no right to cancel or change
the terms of the trust at any time without the consent of the beneficiaries.

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

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

5. Express trust
o Express trust is such trust where a grantor transfers his property to trustee
for the benefit of others in express terms which can be in writing or may be
oral. And trustee in under an obligation to distribute such property for the
benefits of beneficiaries.
6. Implied trust
o Implied trust is such trust where a grantor has shown his intention to
provide certain property for the construction of mosque and people have
made a mosque there without any objection raised by the grantor of the
property is called implied trust while it has not been in written or even oral
statement but it was just an intention of the grantor.
Following are the kinds of implied trust.

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

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

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

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

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

10. Testamentary trust

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

11. Secret trust

o Secret Trust is such trust where grantor leaves his property after his
death under a will that they will hold the property as a trustee for
the benefit of beneficiaries who are not mentioned in the will
4. unlawful Objects of a trust
Following are the causes of unlawful trusts. Details are as under:

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

2. Against the public policy

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

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

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

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

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

5. Preclude Remarks
To Preclude, we can say that trust is an equitable obligation which is taken either
expressly or impliedly and is administered in the court of equity. But there are
different kinds of trusts and causes of their unlawfulness
Q.3: When the office of a trustee may be vacated or what
are the ways when a trustee may be discharged with or
without the intervention of the court?

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

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

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

4. Vacation of office of trustee

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

1) Death of trustee
In case of death of trustee, the office of trustee falls vacant.

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

3) Bankruptcy
If trustee becomes bankrupt, in this case office of trustee will be vacant.

4) Conviction by court
If the trustee is convicted by the court of law against any criminal violation, in this
case office of trustee will be vacant
5. Modes of Discharge of trustee
Following are the ways when a trustee can be discharged from his office. Details are as
under.

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

2. Extinction of trust
Following are the reasons of extinction of trust. In case of extinction of trust,
trustee will be discharged from his office
when purpose of the trust is completely fulfilled

when purpose of the trust becomes unlawful

when the fulfillment of its purpose becomes impossible by destruction of the

trust-property etc

When the revocable trust expressly extinct.

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

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

5. Appointment of new trustee

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

Powers of new trustee

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

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

6. Petition to be discharged from trust

Petition to be discharged from trust. Every trustee can apply by petition to a
principal Civil Court of original jurisdiction for his discharge from his office; and if the
Court finds that there is sufficient reason for such discharge, court may discharge
him accordingly but if there is no such reason, the Court shall not discharge him,
until a proper person can be found to take his place
7. Preclude Remarks
To Preclude, we can say that once trust ship is accepted by the trustee, he is bound to
carry out his duties because a trust is obligatory. As well as there are a lot of reasons
which can cause of discharge of trustee from his office or modes of discharge of
trustee? Each and every person can become a trustee who is capable to hold or own
property whether he is minor or not.
Waqf act

Q 1. Define and discuss waqf and mutawalli.

1. Preface
Waqf is an important institution of Islam. It is a permanent dedication of some
specific property by a Muslim for religious and pious purpose. Every muslim of
sound mind may dedicate his property by way of waqf. It may be made verbally or in
writing.
Mutawalli is superintendent or manager of the waqf property. He has no legal right
in waqf property. He looks the matters of waqf property. He has same rights of
management as an individual. The office trustee is not transferable.

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

3. Qualifications of waqif
The person who creates waqf is called waqif. He should have the following
qualifications.
Waqif should profess Islam

Waqif can be both a male or female

Waqif should be sound mind

Waqif should be the owner of the property

Waqif musta attain the age of majority

4. Modes of creation of waqf

Following are the modes of creation of waqf.
By way of dedication by the owner of the property

By means of will by the owner of the property

By owner of the property during his illness

Waqf by user
5. In whose favor waqf can be made
Following are the person in whose favor property of waqf can be made.
The waqif himself

The descendants of waqif

The family of waqif

Public

6. Interpretation of Mutawalli
Mutawalli is the person who manages the property of waqf and responsible for the
distribution of the property.

7. Qualification of mutawalli
Following are the qualifications of a mutawalli.
Mutawalli may be a Muslim

Mutawalli may be non-muslim

Mutawalli should be of sound mind

Mutawalli should be a major

8. Who can appoint mutawalli

Following are the persons who can appoint the mutawalli.
By the waqif

By the executor

By the mutawalli

By the order of court

9. Who can be appointed as mutawalli

Following are the persons who can be appointed as mutawalli.
The waqif himself

Female

Non-muslim

Sunni in a shia waqf and shia in a sunni waqf

10. Reasons for removal of mutawalli

Following are the reasons of removal of mutawalli.
1. Bankruptcy
o If the mutawalli becomes bankrupt, in this case he will be removed from
his title

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

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

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

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

11. Duties of mutawalli

Following are the duties of mutawalli.
It is duty of mutawalli to take care waqf property

Mutawalli is bound not to sell waqf property without the permission of the

court

Mutawalli is bound not to lease the waqf property not exceeding the three

years in case of agriculture property and one year in case of domestic property

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

Mutawalli is bound not to transfer the waqf property to another.

12. Rights of mutawalli

Following are the rights of mutawalli
Mutawalli can appoint his successor if waqif and his executor are both dead

Mutawalli can appoint his successor at the time of his death bed if successor has

already not been appointed

Mutawalli has a right to receive salary

He has right to do anything that is reasonable for the administration and

betterment of the waqf

He has right to manage the property of waqf.



13. Preclude Remarks

To Preclude, we can say that waqf is such property which is transferred from a muslim
for the recognized purpose of pious or religious and it is not transfer property to any
person instead of waqf.
Mutawalli is a person who manages the property of waqf and office of mutawalli is
not hereditary and nontransferable. He has rights and duties under law. He can be
removed by the court. On the grounds of breach of trust, misconduct, bankruptcy
etc.
 ‫آپ سب کی دعاؤں کا ہمہ وقت طلب گار‬

‫لیکچرار‪ :‬مــبشراقبال‬
‫ایڈووکیٹ ھائی کورٹ‬
‫‪LL.B, LL.M, MSC, Dipl Communication Skills‬‬

‫آفس‪ :‬فاطمہ اینڈ اقبال الء چیمبر الھور‬

‫ایڈریس‪ :‬ھجویری ٹاور بیسمنٹ ‪ 10-B‬چوبرجی چوک لوئرمال‬
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