SPECIFIC RELIEF ACT 1950

LAWS OF MALAYSIA REPRINT Act 137 SPECIFIC RELIEF ACT 1950 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 Laws of Malaysia ACT 137 SPECIFIC RELIEF ACT 1950 First enacted Revised ... ... … ... … … 1950 (Ordinance No. 29 of 1950) ... ... ... … ... … … 1974 (Act 137 w.e.f. 1 July 1974) PREVIOUS REPRINTS First Reprint Second Reprint … … … … … … … … … … 1997 2000 Specific Relief 3 LAWS OF MALAYSIA Act 137 SPECIFIC RELIEF ACT 1950 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title 2. Interpretation 3. Savings 4. Specific relief how given 5. Preventive relief 6. Relief not granted to enforce penal law PART II SPECIFIC RELIEF C HAPTER I RECOVERING POSSESSION OF PROPERTY Possession of Immovable Property 7. Recovery of specific immovable property 8. Suit by person dispossessed of immovable property Possession of Movable Property 9. Recovery of specific movable property 10. Liability of person in possession, not as owner, to deliver to person entitled to immediate possession 4 Laws of Malaysia ACT 137 CHAPTER II SPECIFIC PERFORMANCE OF CONTRACTS Contracts which may be Specifically Enforced Section 11. Cases in which specific performance enforceable 12. Contracts of which the subject has partially ceased to exist 13. Specific performance of part of contract where part unperformed is small 14. Specific performance of part of contract where part unperformed is large 15. Specific performance of independent part of contract 16. Bar in other cases of specific performance of part of contract 17. Purchaser’s rights against vendor with imperfect title 18. Power to award compensation in certain cases 19. Liquidation of damages not a bar to specific performance Contracts which cannot be Specifically Enforced 20. Contracts not specifically enforceable Discretion of the Court 21. Discretion as to decreeing specific performance For whom Contracts may be Specifically Enforced 22. Who may obtain specific performance For whom Contracts cannot be Specifically Enforced 23. Personal bars to the relief 24. Contracts to sell property by one who has no title, or who is a voluntary settlor For whom Contracts cannot be Specifically Enforced, except with a Variation 25. Non-enforcement except with variation Against whom Contracts may be Specifically Enforced 26. Relief against parties and persons claiming under them by subsequent title Specific Relief 5 Against whom Contracts cannot be Specifically Enforced Section 27. What parties cannot be compelled to perform The effect of Dismissing a suit for Specific Performance 28. Bar of suit for breach after dismissal Awards and Directions to Execute Settlements 29. Application of preceding sections to awards and testamentary directions to execute settlements CHAPTER III RECTIFICATION OF INSTRUMENTS 30. When instrument may be rectified 31. Presumption as to intent of parties 32. Principles of rectification 33. Specific enforcement of rectified contract CHAPTER IV RESCISSION OF CONTRACTS 34. When rescission may be adjudged 35. Rescission for mistake 36. Alternative prayer for rescission in suit for specific performance 37. Court may require party rescinding to do equity CHAPTER V CANCELLATION OF INSTRUMENTS 38. When cancellation may be ordered 39. What instruments may be partially cancelled 40. Power to require party for whom instrument is cancelled to make compensation CHAPTER VI DECLARATORY DECREES 41. Discretion of court as to declaration of status or right 42. Effect of declaration 6 Laws of Malaysia ACT 137 CHAPTER VII APPOINTMENT OF RECEIVERS Section 43. Appointment of Receivers discretionary C HAPTER VIII ENFORCEMENT OF PUBLIC DUTIES 44. Power to order public servants and others to do certain specific acts 45. Application how made and procedure 46. Peremptory order 47. Execution of, and appeal from, orders 48. Costs 49. Bar to issue of mandamus PART III PREVENTIVE RELIEF CHAPTER IX OF INJUNCTIONS GENERALLY 50. Preventive relief how granted 51. Temporary and perpetual injunctions CHAPTER X OF PERPETUAL INJUNCTIONS 52. Perpetual injunctions when granted 53. Mandatory injunctions 54. Injunction when refused 55. Injunction to perform negative agreement Specific Relief 7 LAWS OF MALAYSIA Act 137 SPECIFIC RELIEF ACT 1950 An Act relating to specific relief. [Kuala Lumpur, Johore, Kedah, Kelantan, Negeri Sembilan, Pahang, Perak, Perlis, Selangor and Terengganu—4 July 1950; Malacca, Penang, Sabah and Sarawak— 1 July 1974, Act A238] PART I PRELIMINARY Short title 1. This Act may be cited as the Specific Relief Act 1950. Interpretation 2. (1) In this Act— “obligation” includes every duty enforceable by law; “settlement” means any instrument (other than a will or codicil) whereby the destination or devolution of successive interests in movable or immovable property is disposed of or is agreed to be disposed of; “trust” includes every species of express, implied, or constructive fiduciary ownership; “trustee” includes every person holding, expressly, by implication or constructively, a fiduciary character. ILLUSTRATIONS (a) Z bequeaths land to A, “not doubting that he will pay thereout an annuity of RM1,000 to B for his life”. A accepts the bequest. A is a trustee, within the meaning of this Act, for B, to the extent of the annuity. 8 Laws of Malaysia ACT 137 (b) A is the legal, medical, or spiritual adviser of B. By availing himself of his situation as such adviser, A gains some pecuniary advantage which might otherwise have accrued to B. A is a trustee for B, within the meaning of this Act, of the advantage. (c) A, being B’s banker, discloses, for his own purpose, the state of B’s account. A is a trustee, within the meaning of this Act, for B, of the benefit gained by him by means of the disclosure. (d) A, one of several partners, is employed to purchase goods for the firm. A, unknown to his co-partners, supplies them, at the market-price, with goods previously bought by himself when the price was lower, and thus makes a considerable profit. A is a trustee, for his co-partners, within the meaning of this Act, of the profit so made. (e) A, the manager of B’s indigo-factory, becomes agent for C, a vendor of indigo-seed, and receives, without B’s assent, commission on the seed purchased from C for the factory. A is a trustee, within the meaning of this Act, for B, of the commission so received. (2) All words occurring in this Act, which are defined in the Contracts Act 1950 [Act 136], shall be deemed to have the meanings respectively assigned to them by that Act. Savings 3. Except where it is herein otherwise expressly provided, nothing in this Act shall be deemed— (a) to give any right to relief in respect of any agreement which is not a contract; (b) to deprive any person of any right to relief, other than specific performance, which he may have under any contract; or (c) to affect the operation of any law in force for the time being relating to the registration of documents. Specific relief how given 4. Specific relief is given— (a) by taking possession of certain property and delivering it to a claimant; (b) by ordering a party to do the very act which he is under an obligation to do; (c) by preventing a party from doing that which he is under an obligation not to do; Specific Relief 9 (d) by determining and declaring the rights of parties otherwise than by an award of compensation; or (e) by appointing a receiver. Preventive relief 5. Specific relief granted under paragraph 4 (c) is called preventive relief. Relief not granted to enforce penal law 6. Specific relief cannot be granted for the mere purpose of enforcing a penal law. PART II SPECIFIC RELIEF CHAPTER I RECOVERING POSSESSION OF PROPERTY Possession of Immovable Property Recovery of specific immovable property 7. (1) Subject to subsection (2), a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the law relating to civil procedure. (2) Where a specific immovable property has been let under a tenancy, and that tenancy is determined or has come to an end, but the occupier continues to remain in occupation of the property or part thereof, the person entitled to the possession of the property shall not enforce his right to recover it against the occupier otherwise than by proceedings in the court. (3) In subsection (2) “occupier” means any person lawfully in occupation of the property or part thereof at the termination of the tenancy. 10 Laws of Malaysia ACT 137 Suit by person dispossessed of immovable property 8. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in the suit. (2) Nothing in this section shall bar any person from suing to establish his title to any such property and to recover possession thereof. (3) No suit under this section shall be brought against any Government in Malaysia. (4) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. Possession of Movable Property Recovery of specific movable property 9. A person entitled to the possession of specific movable property may recover the same in the manner prescribed by the law relating to civil procedure. Explanation 1—A trustee may sue under this section for the possession of property to the beneficial interest in which the person for whom he is trustee is entitled. Explanation 2—A special or temporary right to the present possession of property is sufficient to support a suit under this section. ILLUSTRATIONS (a) A pledges certain jewels to B to secure a loan. B disposes of them before he is entitled to do so. A, without having paid or tendered the amount of the loan, sues B for possession of the jewels. The suit should be dismissed, as A is not entitled to their possession, whatever right he may have to secure their safe custody. (b) A receives a letter addressed to him by B. B gets back the letter without A’s consent. A has such a property therein as entitled him to recover it from B. Specific Relief 11 (c) A deposits books and papers for safe custody with B. B loses them and C finds them, but refuses to deliver them to B when demanded. B may recover them from C, subject to C’s right if any, under section 121 of the Contracts Act 1950. (d) A, a warehouse-keeper, is charged with the delivery of certain goods to Z, which B takes out of A’s possession. A may sue B for the goods. Liability of person in possession not as owner, to deliver to person entitled to immediate possession 10. Any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases: (a) when the thing claimed is held by the defendant as the agent or trustee of the claimant; ILLUSTRATION A, proceeding to Europe, leaves his furniture in charge of B as his agent during his absence. B, without A’s authority, pledges the furniture to C, and C, knowing that B had no right to pledge the furniture, advertises it for sale. C may be compelled to deliver the furniture to A, for he holds it as A’s trustee. (b) when compensation in money would not afford the claimant adequate relief for the loss of the thing claimed; ILLUSTRATION Z has got possession of an idol belonging to A’s family, and of which A is the proper custodian. Z may be compelled to deliver the idol to A. (c) when it would be extremely difficult to