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Leading judgment on cancellation of deed and declaration tha

Leading Judgment on cancellation of deed and declaration that deed is void and voidable

 
  Section 31 of the Act (corresponding to Sec.39 of the Specific

Relief Act, 1877 - for short, "the old Act") states:



                      "31.    When cancellation may be ordered:-



               (1) Any person against whom a written instrument is

               void   or    voidable,        and       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)     ...................................."



It is clear from Sub-sec.(1) of Sec.31 of the Act that to enable the appellant get

Ext.B1 cancelled, it must be shown that the said instrument is void or voidable as

against her and the appellant has a reasonable apprehension that if Ext.B1 is

left outstanding, it may cause her serious injury.



        14.    It is said that most part of Sec.39 of the old Act (corresponding to

Sec.31 of the Act) was borrowed from Articles 1906 and 1908 of the Draft New

York Civil Code. The provision for cancellation of a written instrument is based

upon the administration of protective justice for fear that the instrument may be



vexatiously or injuriously used by one against another when the evidence to

challenge such written instrument may be lost or that it may throw a cloud or

suspicion over his title or interest.



      15.     Story, in Equity Jurisprudence (English Edition), 1920 in Article

694 states:



                    "In the first place, then, let us consider in which

             cases, court will direct the delivery up, cancellation or

             rescission of agreements, securities, deeds or other

             instruments. It is obvious that the jurisdiction

             exercised in cases of this sort, is founded upon the

             administration of a protective or preventive justice. If,

             therefore, the instrument was void for matter apparent

             upon the face of it, there was no call to exercise the

             jurisdiction, with the possible exception of instruments

             forming a cloud upon the title to land. The party is

             relieved upon the principle, as it is technically called

             quia timet: that is, for fear that such agreement,

             securities, deeds, or other instruments may be

             vexatiously or injuriously used against him when the

             evidence to impeach them may be lost; or that they

             may now through a cloud or suspicion over his title or

             interest."



      16.     Referring to Chapter V of the Old Act, Whitely Stoks states in

Anglo-Indian Code (Vol.I) at page 934:



                     "Chapter V declares that any person against

              whom a written instrument is void or voidable, who

              has reasonable apprehension that if left outstanding it

              may cause him serious injury, may obtain an

              adjudication that it is void or voidable and an order

              that it be delivered up and cancelled.       The relief

              extends    to a forged instrument, and also to one

              originally valid but which has subsequently forged.

              The Chapter applies to cases not unfrequent in India,

              where a party gets possession of document on which

              he might not indeed be able to found a claim in a

              court of justice but which might give him such prima

              facie right against the other as would expose him to

              vexatious demands and litigation."



      17.     The Bombay High Court, in Jeka Dula v. Bai Jivi and others

(AIR 1938 Bombay         37) laid down the      following three conditions for the

application of Sec.39 of the old Act (Sec.31 of the Act):



                     "i.     The written instrument is either void or

              voidable as against the plaintiff.



                     ii.      The plaintiff may reasonably apprehend

              serious    injury     from  the    instrument  being   left

              outstanding.



                     iii.     In view of all the circumstances of the

              case the court considers it reasonable and proper to

              administer the protective and preventive justice asked

              for."



      18.     A Full Bench of the Madras High Court considered the scope of

Sec.39 of the old Act (Sec.31 of the Act)                 in Muppudathi Pillai v.

Krishnaswami Pillai (AIR 1960 Madras 1) and held at page 4 as under:



                     "........... It stands to reason that the executant

              of the document should be either the plaintiff or a

              person who can in certain circumstances bind him. It

              is only then it could be said that the instrument is

              voidable by or void against him. The second aspect of

              the matter emphasises that principle. For there can

              be no apprehension if a mere third party, asserting a

              hostile title creates a document. Thus relief under

              Sec.39 would be granted only in respect of an

              instrument likely to affect the title of the plaintiff and

              not of an instrument executed by a stranger to that

              title."



The Full Bench       illustrated that when a trespasser purports to convey the

property in his own right and not in the right of the owners, the remedy of

cancellation of such an instrument cannot be granted because such a relief

would not remove the cloud upon his title by the instrument and the proper

remedy is to seek a declaration of the plaintiff's own title or a declaration that the

sale deed is not binding or valid against the plaintiff. Thus, when a document is

not executed by the plaintiff or by a person who can in any circumstance bind

him, that document cannot create a cloud upon the title of the true owner, nor

does it create apprehension that it may be a source of danger to him.



      19.     It is only in the case of instruments which are either executed by a

party or purports to have been executed by a party or by a person who can

under certain circumstances bind him that the relief under Sec.31 of the Act can

be claimed in law because in such cases only, could it be said that "there is a

cloud on his title and an apprehension that if the instrument is left outstanding, it

may be a source of danger."          To illustrate, a party who has executed the

document, or a principal in respect of a document executed by his agent or a

minor in respect of a document executed by his guardian, etc., could under

Sec.31 of the Act request the court to deliver up and cancel the document. A

person who neither has executed the document, nor is bound in any

circumstance by the person who executed the document could not seek relief

under Sec.31 of the Act as the document is neither void nor voidable against him

and as such document even if left outstanding is not capable of causing any


injury to him. The remedy of such person, if he thinks that the document may

create a cloud on his own title is to seek a declaration of his own title or that the

impugned document does not affect his title.
 In the present case appellant is not a party to Ext.B1. Nor is the

appellant bound under any circumstance by the person who has executed

Ext.B1. Exhibit B1 is executed by the 2nd respondent acting as power of attorney

holder of the 3rd respondent.    In the circumstances Ext.B1, assignment deed is

neither void nor is voidable against the appellant and hence she could not seek

relief under Sec.31 of the Act. If the appellant thinks that Ext.B1 might create a

cloud on the title she has claimed, her remedy was to sue for declaration of the

title she claims or that Ext.B1 does not affect the titled she claims.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                        PRESENT:

                           MR.JUSTICE THOMAS P.JOSEPH

                    WEDNESDAY, THE 6TH DAY OF JUNE 2012

                                         RSA.No. 1139 of 2010

   KAMALAKSHI AMMA, 
Vs
 Sangeetha    


https://www.lawweb.in/2016/10/leading-judgment-on-cancellation-of.html



Learning

 2 Replies

Kumar Doab (FIN)     14 October 2016

You have made unparalled contribution to the forum.

Thank You.

adv.bharat @ PUNE (Lawyer)     15 October 2016

Thanks for sharing it.


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