Void or voidable instrument can be cancelled
When a person against whom a void or voidable written instrument exists and he has reasonable apprehension that such instrument is left outstanding it may cause him serious injury, he can sue to have it adjudged and cancelled, under Section 31 of the Specific Relief Act, 1963.
In order to claim the relief of cancellation, plaintiff has to allege that if the instrument remain unchallenged or left outstanding it will cause him serious injury. To be able to allege that, he must have an interest in the property which will be jeopardised if the instrument is not cancelled.
What is an instrument?
An instrument is a document by which any right or liability is, or purports to be created, transferred, limited, extended or extinguished, as per Indian Stamp Act. A decree, an award, a will, promissory note and various other types of documents will come within the definition of instrument.
Cancellation order to be sent to the Registrar
A copy of such order of cancellation shall be sent to the Registrar where the document is registered. The Registrar has to note on the copy of the instrument contained in his book the fact of its cancellation.
Essential conditions for cancellation
In all cases of void or voidable transactions, a suit for cancellation of a deed is not maintainable.
Three conditions are requisite for exercise of such a power.
- The instrument is void or voidable against the plaintiff
- Plaintiff may reasonably apprehend serious injury by the instrument being left outstanding
- The court may consider it proper to grant this relief of preventive justice.
If the requisite conditions are satisfied, the reliefs that can be given are either adjudging the instrument to be void or voidable, or ordering it to be delivered up and cancelled.
The cancellation of an instrument is a protective measure under the Specific Relief Act, for the protection of such parties who are at a fear of being harmed by the other party through the performance of an instrument of which they are a part of.
A stranger to the suit cannot seek cancellation
The purpose of such cancellation is to remove the cloud on the title. It is a protective justice to prevent the misuse of the instrument in question.
The Section 31 of the Specific Relief Act does not give a right to sue to all persons for cancellation but only to the person against whom a written instrument, if void or voidable, is made and if such person has reasonable apprehension that such instrument if left outstanding it may cause him serious injury.
Part cancellation is possible
If the instrument contains different rights and different obligations, the court has discretion to cancel it in part and allow the other part to remain legally valid.
Partial cancellation means a part of the instrument which remains void or voidable shall be cancelled by the court, and such cancellation shall have no effect on the rights and obligations associated with the remaining part of the instrument which would stand on its own legs.
Court can allow compensation when cancelling
When cancelling an instrument, the court has enough authority to allow relief to the concerned party to restore his benefit from the other party, and to grant him any just compensation the circumstances demand.
If the court orders cancellation of instrument, then the defendant shall have to restore the benefits he/she has received from the other party, and to compensate the other party.
Parties to the instrument alone can file a suit
A suit for cancellation of an instrument can only be filed by parties who are a part of such a transaction.
If an instrument is being used by a party to the transaction causing or intended to cause the other party any harm, then the other party can approach the court for cancellation of the instrument.
Third party can sue for only a declaratory decree
If a third party to an instrument has grievance relating to a void or voidable instrument, then he/she cannot file a suit for the cancellation of the instrument. The third party has to sue for a decree of declaration of his right concerning the instrument or property in question.
A plaintiff can seek a declaration that he is entitled to any legal character or to any right to any property if the defendant denies or is interested in denying his title to such character or right.
Any person, who wants to declare his status as to any property, can file a suit for declaration of his status or right as per Section 34 of the Specific Relief Act but such declaration shall not be issued if the court finds that the plaintiff is able to seek further relief than a mere declaration, and omits to seek consequential relief other than the declaration.
The purpose of this provision is to prevent the multiplicity of the suit by preventing a person from getting a mere declaration of right in one suit and then later seeking the remedy without which the declaration would be useless. Therefore, it is not permissible to claim the relief of declaration without seeking consequential relief in appropriate cases.
The court has enough discretion in ordering any declaration alone if further consequential relief does not exist and is not sought for.
Further reading
