Specific Performance of Awards and Testamentary Directions

Do not write that section 25 governs the enforcement of arbitral awards generally. It governs those the 1996 Act does not reach.

Limb two: directions in a will or codicil to execute a settlement

A settlement is defined in section 2(b) as an instrument, other than a will or codicil as defined by the Indian Succession Act 1925, whereby the destination or devolution of successive interests in movable or immovable property is disposed of or agreed to be disposed of.

So the limb covers a testator who directs, in his will, that a settlement of that kind be executed. The Chapter then applies to that direction as it would to a contract, and the person entitled may seek its specific performance.

Note the interaction with the definition. A will or codicil is not itself a settlement under section 2(b). Section 25 works on a direction in a will to execute a settlement, not on the will itself.

What "the provisions of this Chapter as to contracts shall apply" brings with it

The extension is not a free standing remedy. It imports the whole Chapter, so all of the following apply to an award or a testamentary direction within the section:

• section 10, so performance shall be enforced, subject to the three limits;
• section 11(2) on trustees, section 14 on contracts that cannot be specifically enforced, and section 16 on personal bars;
• section 9, so the defendant may plead any ground available under any law relating to contracts;
• sections 21 and 22, on compensation and additional reliefs; and
• section 24, so a dismissal bars a later suit for compensation.

A worked example

• An arbitral award under an arbitration agreement governed by the Arbitration and Conciliation Act 1996 directs a party to convey land. Section 25 does not apply. The award is enforced under section 36 of the 1996 Act, as if it were a decree.
• An award falls outside the 1996 Act and directs a conveyance. Section 25 applies, and the Chapter is applied to the award as though it were a contract, so the person entitled may sue for specific performance, subject to sections 11(2), 14 and 16.
• A will directs the executor to execute a settlement of the testator's shop in favour of his daughter for life and then to her children. That is a direction to execute a settlement within section 2(b), because it disposes of successive interests. Section 25 applies, and the daughter may seek specific performance of the direction.
• A will simply leaves the shop to the daughter absolutely. No settlement is directed and no successive interests are created, so section 25 does not apply. Her remedy lies in the law of succession and the administration of the estate.
• The executor defends by saying the daughter has not been ready and willing to do what the will required of her. Section 9 lets him plead any ground available under any law relating to contracts, and section 16(c) applies through section 25 as it would to a contract.

What it does NOT mean

"Section 25 governs the enforcement of arbitral awards." It governs awards to which the Arbitration and Conciliation Act 1996 does not apply.

"The section still refers to the Arbitration Act 1940." The reference was updated in 2018 to the 1996 Act.

"A will can be specifically enforced under section 25." The section reaches a direction in a will or codicil to execute a particular settlement, not the will at large.

"Section 25 creates a new remedy." It applies the existing Chapter, with all its conditions and bars, to two non contractual obligations.

Quick revision

• s.25: the provisions of Chapter II as to contracts apply to (i) awards to which the Arbitration and Conciliation Act 1996 does NOT apply, and (ii) directions in a will or codicil to execute a particular settlement.
• "the Arbitration and Conciliation Act, 1996" was substituted for "the Arbitration Act, 1940" by s.12 of the 2018 Act, in force 1 October 2018.
• Where the 1996 Act applies, its s.36 enforces the award as if it were a decree, and s.25 is not needed.
• "Settlement" is defined in s.2(b): an instrument, not a will or codicil, disposing of successive interests in property.
• The extension brings the whole Chapter: ss.9, 10, 11(2), 14, 16, 21, 22 and 24 all apply.

Test yourself

1. State section 25. The provisions of Chapter II as to contracts shall apply to awards to which the Arbitration and Conciliation Act 1996 does not apply, and to directions in a will or codicil to execute a particular settlement.

2. Which awards does it reach? Only those to which the Arbitration and Conciliation Act 1996 does not apply. Where that Act governs, section 36 of it enforces a final award in the same manner as if it were a decree of the court, so the Specific Relief Act is not needed, and section 25 operates on the residue of awards outside the 1996 Act.

3. What change did the 2018 amendment make to this section? Section 12 of the Specific Relief (Amendment) Act 2018 substituted the reference to the Arbitration and Conciliation Act 1996 for the earlier reference to the Arbitration Act 1940, with effect from 1 October 2018. Books printed before then still name the repealed 1940 Act.

4. What is a "settlement" for this purpose? By section 2(b) it is an instrument, other than a will or codicil as defined by the Indian Succession Act 1925, whereby the destination or devolution of successive interests in movable or immovable property is disposed of or agreed to be disposed of. Section 25 therefore applies to a direction in a will that such an instrument be executed, and not to the will itself.

5. What does the extension bring with it? The whole of Chapter II. So section 10 applies, and performance shall be enforced subject to sections 11(2), 14 and 16; section 9 lets the defendant plead any ground available under any law relating to contracts; sections 21 and 22 govern compensation and additional reliefs; and section 24 bars a later suit for compensation after a dismissal.