Void Document is a Legal Nullity: It Needs No Cancellation
The Kerala High Court, in K.M. Cherian v. Ammini [2025:KER:49425] has reiterated the well-established legal principle that a document which is void ab initio (void from the beginning) is a legal nullity (non-est) and does not need to be formally set aside or declared void by a court.
The Issue of Recovery of Property Under a Void Document
The suit in this case was for the recovery of property that had been transferred through allegedly void legal instruments.
A key question before the court was whether the plaintiffs could sue directly for recovery of possession, without first asking the court to set aside the documents in question.
The High Court’s Observation
The High Court clarified that a suit for recovery of possession is maintainable without a prayer to set aside the document if the document is void.
A void instrument has no legal effect and can be disregarded. Consequently, the standard limitation period for recovering possession (under Article 65 of the Limitation Act) applies, provided the defendant has not perfected their title through adverse possession, by possessing the property for more than 12 years.
Distinction between the Concepts “Void” and “Voidable”
Relying on Supreme Court precedents, the High Court explained the critical difference between void and voidable acts, which determines the necessary legal remedy in this or any other case:
Instruments void ab initio: The instruments, which are void ab initio, are a complete nullity from the outset, typically because they are wholly without jurisdiction or legal authority. They have no legal standing and can be legally disregarded. No court declaration is needed to nullify them.
Voidable Instruments: Such instruments are valid and legally effective unless and until they are challenged and cancelled by a competent court. A party must take specific legal action to have them set aside. Examples include:
Fraudulent Instruments: An instrument obtained by fraud appears valid on its face. The person affected by it must sue and prove the fraud. Once the court declares it fraudulent, the document becomes void from its inception.
Voidable Instruments: An instrument in the name of a minor without a proper guardian is valid against the world but is voidable at the minor’s option when he attains majority. If the minor takes action to make it void within a prescribed period after he attains majority, the instrument becomes void from the beginning.
The High Court clarified that if the legal effect of an instrument cannot be nullified without setting it aside by a court, it is a voidable instrument, but not void.
