The Specific Relief Act, 1963

Chapter V

Cancellation of Instruments

(Section 31-33)

Cancellation of instruments is provided under section 31 to 33 of the specific Relief Act 1963. The relief given by section 31 of the specific relief act is based upon protective justice and upon the idea of ‘quia time’ i.e. for fear. That is why where there is no apprehension of injury to the plaintiff, no suit can be instituted. Reasonable apprehension is to be determined with reference to the circumstances of each case which the court has to deal with

SECTION 31 –  Inadequacy of consideration cannot be a ground for providing relief under section 31. Similarly, no suit for the cancellation of a will can be instituted during a testator’s lifetime. In order to get the decree for cancellation of a written instrument, the plaintiff is required to prove the followings: 

  • that the written instrument is void or voidable;
  • that the plaintiff has reasonable apprehension that if the instrument left outstanding, it may cause serious injury to the plaintiff;

The term ‘void’ used in Section 31 includes the written instrument which was originally valid and become void due to some subsequent event. If the plaintiff fulfills the above mentioned conditions, he can seek cancellation of such instrument.

Section 32 – What instruments may be partially cancelled.

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 residue.

SECTION 33 –  Power to require benefit to be restored or compensation to be made when instrument is cancelled or is successfully resisted as being void or voidable.

SUHRID SINGH @ SARDOOL SINGH vs. RANDHIR SINGH & ORS. , 2010 SC Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance can be brought out by the following illustration relating to `A’ and `B’ — two brothers. `A’ executes a sale deed in favour of `C’. Subsequently `A’ wants to avoid the sale. `A’ has to sue for cancellation of the deed. On the other hand, if `B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A’ is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different.

PREM SINGH & ORS VS BIRBAL & ORS ON 2 MAY, 2006,SC-Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable document. It provides for a discretionary relief. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity. Once, however, a suit is filed by a plaintiff for cancellation of a transaction, it would be governed by Article 59.

JAI PRAKASH SINGH VS BACHCHU LAL & 17 ORS. 2019ALL,HC -The decree of a court in which a document is declared to be void and is avoided is obviously a decree in personam and the same undoubtedly binds a party but it will not be binding to each and every person.

Chapter VI

Declaratory Decree

(Sections 34 – 35)

The policy of declaratory decree is to provide certainty to the legal status and legal right of the parties. The declaration decree creates no new right but only declares the legal rights of the plaintiff already vested in him.

SECTION 34 – DISCRETION OF THE COURTS AS TO DECLARATION OF STATUS OR RIGHT

In a suit under section 34 the plaintiff has to prove his entitlement i.e., his existing legal right to any legal character and either the present denial by the defendant of such legal character or the right, or the defendant being in such a position that a he may deny the legal character or right in future.

Requirements of a Declaratory Suit The essential requisites for a declaratory relief may be summed up as follows:

  1. The plaintiff must, at the time of the suit, be entitled to some legal character or to any right as to any property. Where no such legal character or right is claimed, the section will not apply to give a right to sue for a declaration.
  2. There must be some danger or detriment to such interest, i.e., the defendant should have denied his character, or his right to any property or be interested in denying his character or right.
  3. The declaration asked for must be a declaration that the plaintiff is entitled to a legal character or to a right to any property.
  4. The plaintiff is not entitled to any further relief than a mere declaration of title and, if he is so entitled, he does not omit to seek such further relief.
  5. 23The Court, after a consideration of the circumstances, comes to the conclusion that it is a fit case in which it should exercise its discretion to grant the relief.

When can suit for Declaration be filed?

It is not only when a property is wrongfully occupied or there is an express denial of his title that a plaintiff can bring a suit for declaration rather as soon as his title is threatened or there is a cloud cast on his title, he becomes entitled to have the necessary declaration from the Court.

Applicability of Section 34

Before a suit can be filed under Section 34 it must relate to the plaintiff’s legal character or to his right to any property. Section 34 of the Specific Relief Act does not contemplate declarations about the pecuniary liability of persons as the same cannot be considered to be declarations about legal character or any right to property.

SECTION 35 – EFFECT OF DECLARATION

Under section 35 of the Specific Relief Act, 1963 the declaration made under section 34 by any court will only be binding on the parties to the suit or any persons claiming through them respectively as a declaration under section 34 is a right in personem and not a right in rem.

VERUAREDDI RAMARAGHAVA REDDY Vs. KONDURU SESHU REDDY,1966,SC Section 42 of the Specific Relief Act (now Section 34) is not exhaustive of the cases in which a declaratory decree may be made and courts have power to grant such a decree independently of the requirements of the section. The suit fell outside the purview of section 42 would be governed by the general provisions of the Civil Procedure Code and therefore maintainable even though the plaintiff was not suing as a person entitled to any legal character, or to any right as to any property as required by section 42 of the Specific Relief Act.

SUHRID SINGH @ SARDOOL SINGH vs. RANDHIR SINGH & ORS. , 2010 SC Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance can be brought out by the following illustration relating to `A’ and `B’ — two brothers. `A’ executes a sale deed in favour of `C’. Subsequently `A’ wants to avoid the sale. `A’ has to sue for cancellation of the deed. On the other hand, if `B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A’ is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different.

ANATHULA SUDHAKAR vs. BUCHI REDDY (DEAD) BY LRS, 2008,SC A prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration is the remedy to remove the cloud on the title to the property.

HUDA vs. ORCHID INFRASTRUCTURE DEVELOPERS (P) LTD.,2017, 4 SCC 243 A declaration that rejection of the bid is illegal, itself does not entitle the plaintiff (highest bidder) to consequential mandatory injunction for issuance of formal letter of allotment when bid had not yet been accepted i.e. in absence of concluded contract.

By Anushka Sharma, Content Board, All India Legal Forum

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