1. ' Arab HUSSAIN, C. J.-This Act deals with the subject of recovery of possession of property, of specific performance of contract, of rectification of instruments, of rescission of contract, of the cancellation of its instruments, of declaratory decree, of the appointment of receiver, of the enforcement of public duty performed inter alia by public servant, of preventive relief- and of perpetual Injunctions. After going through the Act thoroughly we found that illustrations of section 13, illustration (e) of section 22 and clause (d) of section 18 required a more thorough probe.
2. Illustration to section 13 : The doctrine of frustration is embodied in section 56 of the Contraction Act. It provides that an agreement to do an act impossible in itself is void, whether the impossibility of performance may be antecedent or subsequent, The antecedent impossibility is that which exists at the time of contract. Subsequent impossiblity may be due to some subsequent event which might render the contract impossible of performance. Section 56 deals with both kinds of impossibility but section 13 of the Specific Relief Act is an exception to section 56 of the Contract Act in so far as it deals with a particular type of subsequent impossibility. The two sections are as follows : "56. An agreement to do an act impossible in itself is void.-A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
3. ' Where one person has promised to do something which he knew, or, which reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promise for any loss which such promisee sustains through the non-performance of the promise. Illustrations
(a) A agrees with to discover treasure by magic. The agreement is void.
(b) A and B contract to marry each other. Before the time fixed for the marriage goes mad. The contract becomes void.
(c) A contracts to marry B, being already married to C, and being forbidden by the law to which he is subject to practice polygamy. A must make compensation to B for the loss caused to her by the nonperformance of his promise.
(d) A contracts to take in cargo for B at a foreign port A's Government afterwards declares war against the country in which the port is situated. The contract becomes void when war is declared.
(e) A contracts to act at a theatre for six months in consideration of a sum, paid in advance by B.
4. On several occasions A is too ill to act. The contract to act on those occasions becomes void."
5. "13. Notwithstanding anything contained in section 56 of the Contract Act, a contract is not wholly impossible of performance because a portion of its subject-matter, existing at its date, has ceased to exist at the time of the performance,Illustrations
(a) A contracts to sell a house to for a lakh of rupees. The day after the contract is made the house is destroyed by a cyclone may be compelled to perform his part of the contract by paying the purchase-money.
(b) In consideration of a sum of money payable by B, A contracts to grant an annuity to B for B's life. The day after the contract has been made, is thrown from his horse and killed. B's representative may be compelled to pay the purchase-money."
6. ' The principle laid down in section 13 is not open to any objection since the guidance as to how the Court, should act in the circumstances laid down in the section is provided in sections 14, 15 and 16.
7. Section 14 deals with a situation in which specific performance is sought of a contract where the part which must be left unperformed bears only a small portion to the whole in value, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency. Section 15 deals with a situation where the part which cannot be performed is quite large in which case the Court may direct the party in default to perform specifically so much part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of defendant. Section 16 provides for a case when a part of a contract taken by itself, if it can be performed, stands on a separate and independent footing from another part which inter alia becomes impossible of performance. The Court may then direct specific performance of that separate portion which can be specifically performed.
8. ' This guidance is most equitable and for this reason the principle on which section 13 was made part of the statute is not open to any objection.
9. ' The two illustrations, however, appear to stand on a different footing. Both the illustrations relate to cases in which the entire subject-matter had ceased to exist at the time of performance, although what is relevant under the section is non-existence of a portion of the subject-matter only.
10. ' The first illustration is that where in a contract to sell a house the contract became impossible of performance because of the destruction of the house by a cyclone the purchaser may be compelled to pay the purchase price. The other illustration is also of a similar character. In consideration of a sum of money payable by a contract was entered into between A and B for grant of an annuity to B for his life. The next day B was killed in an accident by falling from his horse.
11. It is said that in such a case the legal representative of B shall be compelled to pay the purchase money.
12. ' Both are illustrations of cases in which the contract was not final since in each case it was merely an agreement to contract as neither the consideration had been paid, nor in the first case the possession of the property was given nor in the second case actual contract to pay annuity to completed.
13. ' The first illustration is based upon Pain v. Meller , In Pain v. Meller the facts were that the plaintiff sold certain houses to the defendant by auction, but, Showing to defects in title, the sale could not be completed at Michaela's as agreed. The treaty, however, proceeded on a proposal to waive objections on certain terms, and the defendant's agent subsequently declared himself satisfied with the title. The houses were destroyed by fire before the conveyance. The plaintiff had allowed the insurance to lapse at Michaelmas without notifying the defendant and it was held that the defendant, having accepted the title, was bound by the sale, and the plaintiff was not bound to keep the policy on foot or to inform the defendant of its lapse.
14. ' The second illustration is based upon Mortimer v. Capper (1). In that case the estate was sold by A to the plaintiff for 200 and an annuity for A's life. A died before the annuity became payable. In an auction for specific performance against A's heir-at-law it was held that the agreement being fair, the Court would order specific performance even though, through A's death, the annuity which was a contingent payment never became payable.
15. ' In both the cases the contract was not complete and required specific performance for completion. No part of the contract had at that stage been performed by either party. In such a case where the contract had become impossible of performance before its completion it does not seem even reasonable to direct the other party to pay the consideration.
16. ' This principle is evident from Almughni, Vol. IV, p.
121. Where the property is movable and is subject to sale by weighment, measurement or count the buyer cannot be made responsible for payment of consideration prior to the delivery of the goods and in case the property is destroyed before delivery its loss will accrue to the seller. {{URDU TEXT}} ' It is clear from this that this principle can apply only to a completed sale which according to fiqh is completed in the case of movable property by delivery of possession.
17. ' There is, however, a difference of opinions in respect of destruction of immovable property prior to its delivery to the purchaser thereof. The opinion of Imam Abu Haneefa is that in such a case the buyer shall be responsible to pay the consideration despite destruction of the substitute of the thing sold. {{URDU TEXT}} ' It appears from other books that this principle was evolved by Imam Abu Haneefa in view of incident of destruction of immovable property being rare. The view of Imam Shafi`e, Imam Ahmad and Ibn-e-Abbas is that the principle of movable and immovable property is the same and in case of destruction of the latter too while in the possession of the seller, the liability of the purchaser to pay the consideration ceases.
18. 'These opinions are in respect of completed contracts. It is important to note that Sharia does not distinguish between an executor and an executed contract as such. The general rule in Fiqh is the sale of existent property only. The present law in Pakistan achieves the same object by giving to the contract to sell what may exist in future the status of an executory contract only.
19. Illustrations (a) and (b) to section 13 are definitely examples of executor contracts. There is no justification in Sharia requiring the promise to pay B consideration despite the impossibility of performance of the corresponding part of the contract. These illustrations require to be eliminated.
(1) (1872) I 13ro. C 156=28 E R 1051=(1775-1802) All E R 359 ' In section 18 (d) it is provided that if the vendor sues for specific performance but specific performance is refused on the ground that he could not give a title free from reasonable doubt, the1 purchaser is entitled to a return of his deposit with interest thereon. Whether a purchaser has 'properly' declined to accept delivery of the property depends on the terms of the contract and the circumstances of the case. Where a purchaser refuses to complete, alleging that the title is defective, he is entitled to a refund of the deposit if he was justified in refusing the title. Thus where a vendor agrees to sell land and the buildings thereon, but it turns out that the only interest he has in the land is a revocable licence to occupy the land, and the purchaser refuses to complete, he is entitled to a return of the deposit.
20. ' In the subsection the word interest can be safely substituted by the word compensation or damages, if any.
21. Section 22 (II) is illustrated inter alia by illustration (e). The illustration pertains to will made by a father in favour of his son, which is not permissible D in Islam. This is an established law that will in favour of heir is not competent unless other heirs consent to it after the death of the person making th will. Since some confusion may arise on account of this illustration, it would be better if it is omitted. The omission of this illustration will not affect the provisions of the section. Part II of section 22 is amply illustrated by other illustrations.
22. ' We, therefore, direct that the Specific Relief Act be amended and illustra tions (a) and (b) of section 13 and illustration (e) of section 22 shall be omitted by the 28th February, 1983.
23. ' We are aware that 'interest' is a fiscal matter. This Court has no jurisdiction to make any order in regard to a provision dealing with that subject. However, we recommend that the advisability of substituting the word `interest' in clause (d) of section 18 by the words 'compensation or damages' be considered, since it will not affect the substance of the section. (1801) 6 Yes. 349=31 E R 1088 L C=(1775 to 1802) All E R 155