37 Court may require party rescinding to do equity cite [+]
On adjudging the rescission of a contract, the court may require the party to whom the relief is granted to make any compensation to the other which justice may require.
CANCELLATION OF INSTRUMENTS
38 When cancellation may be ordered cite [+]
(1) Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under any law in force for the time being relating to the registration of documents, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and that officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
ILLUSTRATIONS
(a) A, the owner of a ship, by fraudulently representing her to be seaworthy, induces B, an underwriter, to insure her. B may obtain the cancellation of the policy.
(b) A conveys land to B, who bequeaths it to C and dies. There upon D gets possession of the land and produces a forged instrument stating that the conveyance was made to B in trust for him. C may obtain the cancellation of the forged instrument.
(c) A agrees to sell and deliver a ship to B, to be paid for by B's acceptances of four bills of exchange, for sums amounting to RM30,000 to be drawn by A on B. The bills are drawn and accepted, but the ship is not delivered according to the agreement. A sues B on one of the bills. B may obtain the cancellation of all the bills.
39 What instruments may be partially cancelled cite [+]
Where an instrument is evidence of different rights or different obligations, the court may in a proper case cancel it in part and allow it to stand for the residue.
ILLUSTRATIONS
A draws a bill on B, who endorses it to C, by whom it appears to be endorsed to D, who endorses it to E. C's endorsement is forged. C is entitled to have the endorsement cancelled, leaving the bill to stand in other respects.
40 Power to require party for whom instrument is cancelled to make compensation cite [+]
On adjudging the cancellation of an instrument, the court may require the party to whom the relief is granted to make any compensation to the other which justice may require.
DECLARATORY DECREES
41 Discretion of court as to declaration of status or right cite [+]
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so.
Explanation-A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.
ILLUSTRATIONS
(a) A bequeaths his property to B, C and D, "to be equally divided amongst all and each of them, if living at the time of my death, then amongst their surviving children". No such children are in existence. In a suit against A's executor, the court may declare whether B, C and D took the property absolutely, or only for their lives, and it may also declare the interests of the children before their rights are vested.
(b) A covenants that, if he should at any time be entitled to property exceeding RM100,000, he will settle it upon certain trusts. Before any such property accrues, or any persons entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainty. The court may make the declaration.
(c) A is in possession of certain property. B, alleging that he is the owner of the property, requires A to deliver it to him. A may obtain a declaration of his right to hold the property.
(d) A bequeaths property to B for his life, with remainder to B's wife and her children, if any, by B, but, if B die without any wife or children to C, B has a putative wife, D, and children, but C denies that B and D were ever lawfully married; D and her children may, in B's lifetime, institute a suit against C and obtain therein a declaration that they are truly the wife and children of B.
42 Effect of declaration cite [+]
A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, those parties would be trustees.
APPOINTMENT OF RECEIVERS
43 Appointment of Receivers discretionary cite [+]
The appointment of a Receiver pending a suit is a matter resting in the discretion of the court. The mode and effect of his appointment, and his rights, powers, duties, and liabilities, are regulated by the law relating to civil procedure.
ENFORCEMENT OF PUBLIC DUTIES
44 Power to order public servants and others to do certain specific acts cite [+]
(1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court:
Provided that-
(a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act;
(b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in his or its public character, or on the corporation in its corporate character;
(c) in the opinion of the Judge the doing or forbearing is consonant to right and justice;
(d) the applicant has no other specific and adequate legal remedy; and
(e) the remedy given by the order applied for will be complete.
(2) Nothing in this section shall be deemed to authorize a Judge-
(a) to make any order binding on the Yang di-Pertuan Agong;
(b) to make any order on any servant of any Government in Malaysia, as such, merely to enforce the satisfaction of a claim upon that Government; or
(c) to make any order which is otherwise expressly excluded by any law for the time being in force.
45 Application how made and procedure cite [+]
Every application under section 44 must be founded on an affidavit of the person injured, stating his right in the matter in question, his demand of justice, and the denial thereof; and a Judge may, in his discretion, make the order applied for absolute in the first instance, or refuse it, or grant a rule to show cause why the order applied for should not be made. If, in the last case, the person, court, or corporation complained of shows no sufficient cause, the Judge may first make an order in the alternative, either to do or forbear the act mentioned in the order, or to signify some reason to the contrary and make an answer thereto by such day as the Judge fixes in this behalf.
46 Peremptory order cite [+]
If the person, court, or corporation to whom or to which such order is directed makes no answer, or makes an insufficient or a false answer, the Judge may then issue a peremptory order to do or forbear the act absolutely.
