cancellation of the instrument
Q How and in what circumstances cancellation of instrument may be ordered?
Q discuss the circumstance when a suit for cancellation of instrument is necessary.
Q write note on cancellation of instrument
Q discuss with example what instruments are liable to be cancelled under specific relief act.
A person can sue for cancellation of instrument either to have the instrument adjudged void or voidable, or where necessary to have it delivered up and cancelled. This remedy is to protect a person from a potential danger if the document which is void or voidable seriously affects the valuable rights and interest of the person remain unchallenged it become a source of potential danger. Section 39 of the specific relief act lays down that, ‘any person against whom a written instrument is void or voidable, 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’. The section is applicable to both void and voidable contract. such a situation may arise when the apprehension Is that the instrument may be vexatiously or injuriously used by the defendant against the plaintiff, if allowed to stand, when the evidence to impeach it may be lost, or, that it may throw a cloud or suspicion over his title or interest.
Illustration: A conveys land to B, who bequeaths it to C and dies. Thereupon D gets possession of the land and produces a forged instrument stating that the conveyance was made to B in trust for him. C may obtain the cancellation of the forged instrument.
Conditions for the relief: the court has to consider three points in order to grant the relief under section 39:
Instrument be void or voidable: The written instrument must be either void or voidable as against the plaintiff. Here instrument means not only contract but awards, gifts,etc. Where the deed or instrument is ab initio null and void, it can be treated as a nullity without having to be cancelled or set aside. If, on the other hand, the instrument is only voidable, then it would be necessary to have it set aside or cancelled in order to remove the impediment (obstruction) in the way of the plaintiff.
Reasonable apprehension of injury: The plaintiff has to plead and prove reasonable apprehension (fear) of injury from the instrument if it is left outstanding. Whether there is reasonable apprehension or not is a question depending upon the illegality or unlawfulness of the instrument that appears on the face of it, as the court interferes when it is not apparent; but if it is, ordinarily it does not interfere.
Injury must be serious: The plaintiff must make out that the threatened injury is serious. That is to say mere speculation of a danger is no real apprehension. The test for granting a relief under section 39 is that there should be a potential danger which should be an apprehend mischief that if the instrument is left outstanding or kept alive it will cause material injury to the rights, interest and entitlement of the plaintiff.
Consideration of cancellation by court: The court considers it reasonable and proper to administer protection by cancelling the instrument in its discretion. The relief in question is granted before any violation of the plaintiff rights takes place and interferes because it is apprehended from the peculiar relation between the parties. A party is not entitled to this relief as a matter of right. Its exercise is a matter of sound judicial discretion ‘to be exercised by the council according to its own notion of what is reasonable and proper under all the circumstances of the particular case’.
Extra Condition in case of registered document: according to section 39, if the instrument has been registered under the registration act, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered: and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
Who can sue: according to this section any one can sue not even a party to an agreement, can sue for cancellation provided the instrument is voidable against him. A person cannot come under this section if he has no interest in the subject-matter of the instrument. It applies if an instrument is obtained by undue influence.
Partial cancellation: ordinarily the document is cancelled as a whole if it is void; but it is often that different rights are evidenced thereby; in such cases there should be cancellation only of a part that is void or voidable. Section 40 of specific relief act illustrate what instrument 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 the residue.
Compensation on cancellation of document by plaintiff: on adjudging the cancellation of an instrument, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require, section 41. This is a principle of equity namely that “one who seeks equity must also do equity”. Discretion is conferred on the court by asking the plaintiff to decompensate the defendant by paying money if the court finds that the plaintiff is entitled for cancellation has no right to retain the earnest sale consideration in equity.
