CHAPTER V

CANCELLATION OF INSTRUMENTS

The provisions relating to cancellation of instruments is given in Sections 31 to 33 of the said

Act. Any person who has a reasonable apprehension that an instrument may cause him injury
may sue to have it adjudged and the Court can order the cancellation on merit. The contract must
be in writing and it must be void or voidable according to Section 31.
Cancellation of instruments is about nullifying a document. If there is a document which is void
or voidable due to some reason and any person having reasonable apprehension that the said
document is against him and may cause serious injury to him may sue against such document.
He can sue to cancel the document. This is called cancellation and is dealt with in Sections 31 to
33 of the Specific Relief Act, 1963 of India.

So if a document is void ab initio there is no need to set aside the document. Cancellation is the
relief. He may sue to the court to have the document adjudged void.

Cancellation of Instruments can be done in two ways, as follows:

 Complete cancellation where the court decides to cancel the whole instrument.
 Partial cancellation where only a part of the instrument is cancelled out. These types
of cancellations are mentioned under Section 32 in the Specific Relief Act and have
been further explained later in this article.

What are the essential conditions for claiming cancellation?

The plaintiff in a suit for cancellation of a document must satisfy the following conditions:

 The instrument is void against the plaintiff- If the instrument against which the
cancellation suit is filed by the party is void.
 The instrument is voidable against him-If the instrument against which a cancellation suit
is filed by the party is voidable.
 The instrument can cause injury to him- If the instrument against which a cancellation
suit is filed has the potential to cause injury/harm to the party filing the suit.
  The plaintiff is under reasonable apprehension of injury- If the party who has filed a suit
for cancellation of an instrument is under reasonable apprehension of an injury being
caused to him/her due to the performance of the instrument.
 The injury is serious to the plaintiff- When the instrument whose cancellation is
requested by the party has already caused enough damage/injury to the requesting party.
 In the view of all the circumstances of the case, the Court must be satisfied that such
cancellation of an instrument is reasonable and would serve justice to the parties coming
to the courts for such claims.

This is a discretionary relief. As per Section 32 of the above Act the Court may allow
cancellation of a part of the document which injures the plaintiff. The good part may be allowed
to stand. Hence it is upon the plaintiff to prove that the document or any part of it injures his
rights and therefore it should be cancelled.

If the document has been registered under the Indian Registration Act, the Court shall send the
copy of decree to the office of registration.

Tulsi Nagar Vikas Samiti v. Bhuvensawer Kumar Agarwal & Ors (2012), the issue is
regarding the JDA’s jurisdiction to cancel a registered lease-deed contrary to the provisions of
the Specific Relief Act (Section 31) and without as much as complying with the principle of
natural justice. But the petition was dismissed.
Prem Singh vs. Birbal (2006 (5) SCC 353) , the Supreme Court pointed out in para 16 that
“when a document is valid, no question arises of its cancellation” and that “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”
SEC 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) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908),
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.

Requirements of the section:- For section 31 to apply the following conditions should be
fulfilled:-
(i) the written instrument in question must be either void orvoidable as against the plaintiff;
(ii) the plaintiff must have reasonable apprehension of serious injury from the instrument being
left outstanding; and
(iii) in view of the circumstances of the case, the Court should consider if reasonable and proper
to administer the protective and preventive justice asker for.
If these conditions are satisfied, the reliefs that can be given are (i) adjudging the instrument to
be void or voidable, (ii) ordering it to be delivered up and cancelled.

Exercise of jurisdiction is discretionary:- The exercise of jurisdiction under this section is

discretionary. A suit for cancellation of sale deeds and other ancillary reliefs of restoration of
possession and permanent injunction is triable by Civil Court and not revenue courts.

Any person:- Any person against whom a written instrument is void or voidable and who has
reasonable apprehension that such instrument of if left outstanding may cause him serious injury,
may sue to have it adjudged void or voidable Under this section not only parties to the
instrument but also persons affected by such instrument can maintain an action. A person against
whom the instrument is void or voidable or where it may cause injury such a person, alone can
maintain an action under this section. A plaintiff having some interest in land affected by a
document which he contends to be a forged one, can institute a suit under this section. Where a
member of a joint family executes a sale deed the other members though not parties to such an
instrument can bring a suit for cancellation of the sale deed. This section applied to instruments
executed by plaintiff as well as to other instruments which he seeks to have adjudged void or
voidable.
The relief of cancellation of sale deed cannot be sought for on the basis of possessory title. A
creditor even without obtaining a decree, can sue to set aside a deed executed by his debtor with
a view to defraud, defeat or delay the recovery of his debt. A creditor cannot sue for cancellation
of a document transferring movable property by the debtor since such person will not come
within the purview of this section.

Written instrument:- The expression instrument my include leases, wills, gifts, receipts,
acknowledgment, awards, compromise decrees and decrees.

Void or voidable:- An agreement not enforceable by law is said to be void. An agreement which
is enforceable by law at the option of one or more of the parties thereto but at the option of the
other or others is a voidable contract.

Reasonable apprehension that such instrument:- May cause him serious injury. Whether in a
particular case “reasonable apprehension of serious injury” exists or not depends upon the facts
and circumstances of each case. Mere speculation or vague complication cannot be ground to
maintain an action under this section and even in the absence of reasonable apprehension of
serious injury a suit under this section is not maintainable.
Reasonable apprehension exists in a case where a document is registered though the execution is
denied or where a person in possession of the property finds, that a document is registered with a
view to affect his title.

May sue:- The words “May sue” in sec.31 of the present Act clearly show that it is not
obligatory on the part of a person to sue for cancellation. A void document need not be set aside
or cancelled since such document can be ignored. If a person is induced to execute a document
which he never undertook to execute such a document is void and need not be cancelled.

Nature of the relief: - Plaintiff can claim the relief to have the document adjudged void or
voidable and to get the document delivered up and cancelled. The relief must be based on solid
grounds and not on speculations.
The Specific Relief Act, 1963 under Section 31 tells us about when the cancellation of an
instrument may be ordered by a court. To begin with, this Section under its first clause tells us
that any person who is aggrieved by the performance of a particular instrument and feels that
such an instrument has become void or voidable, or believes that the instrument has the potential
of causing injury/harm to him if such a transaction is continued may file a suit at a Civil Court to
have such an instrument declared to be void. Once such a suit is filed it is upon the Court to
decide whether such an instrument should be declared void or not. The Court has complete
discretion in such matters. Thus, the Court can order for the cancellation of such an instrument if
the above-mentioned requisites are fulfilled.

The second clause of Section 31 tells us that if an instrument which has been put up in front of
the Court for cancellation is a document which has been registered under the Indian Registrations
Act, 1908, then a copy of such a decree containing details about the cancellation of the
instrument is required to be sent to the officer under whom the instrument/document had been
registered. Such a decree is sent for the convenience of the officer and to keep his register
updated. Upon receiving the instructions/decree from the court, the officer is required to mark
the copy of the documents as “cancelled” in his register.

SEC 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 the residue.

Secs.31 and 32 of the present Act are based on the principle of protective and preventive justice.
Sec.31 deals with the cancellation of a document whereas Sec.32 deals with the cancellation of a
document in part leaving the residue to stand. An instrument can be cancelled in part under this
section only in a case where that part sought to can be cancelled is separable and distinct from
other parts of the instrument.

Where an instrument is evidence of different rights or different obligations:-

The plaintiff has a right to get the specific portion of a contract cancelled only where the deed is
evidenced by different obligations and such rights or obligations are separable from one another.
The Court may in a proper case:- The words “the Court may, in a proper case” in Sec.32
clearly indicate that the existence of the power of cancellation is discretionary and if the Court is
satisfied that in the circumstances of a given case an instrument can be cancelled in part, than the
court may do so under this section leaving the residue to stand as it is in the instrument.
The process of partial cancellation of instruments is mentioned under Section 32 in The Specific
Relief Act, 1963. 

This section says, that when a particular part of an instrument is up for a question of cancellation
in front of the court or when such an instrument has several rights and obligations required under
it, the court upon its discretion may cancel only a part of that instrument and let the rest of it stay
as it is. Partial cancellation basically means that a part of the instrument which is inconsistent,
void or voidable shall be cancelled by the court and such cancellation shall not have any effect
upon the performance of the other rights and obligations associated with the instrument.

SEC 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.

(1) On adjudging the cancellation of an instrument, the court may require the party to whom such
relief is granted, to restore, so far as may be any benefit which he may have received from the
other party and to make any compensation to him which justice may require.

(2) Where a defendant successfully resists any suit on the ground

(a) that the instrument sought to be enforced against him in the suit is voidable, the court may if
the defendant has received any benefit under the instrument from the other party, require him to
restore, so far as may be, such benefit to that party or to make compensation for it;

(b) that the agreement sought to be enforced against him in the suit is void by reason of his not
having been competent to contract under section 11 of the Indian Contract Act, 1872 (9 of 1872),
the court may, if the defendant has received any benefit under the agreement from the other
party, require him to restore, so far as may be, such benefit to that party, to the extent to which he
or his estate has benefited thereby.
The provisions with regards to the power of the Court, to require restoration of benefits received
and fair compensation which are supposed to be made when an instrument is cancelled are
provided under Section 33 in the Specific Relief Act, 1963. The primary aim of this section lies
in serving justice to the participants of a particular instrument/contract in case such is cancelled
by the court.

This Section firstly tells us that when the court decides to cancel an instrument either completely
or partially, then the party towards whom such relief is granted is required to either restore/claim
any benefits which he/she may have received from the other party or to make the required
amount of compensation for it. Such conditions are put forth by the act with an intention to
deliver justice to the parties, as a court is a place that is responsible for delivering justice to the
people who approach it.

This Section also provides/states/lays the conditions under which, a defendant to a suit for the
performance of an instrument/contract may claim for the cancellation of such an
instrument/contract. The conditions mentioned in Section 33 are as follows:

When a plaintiff files a suit to enforce a contract against a defendant and the defendant tries to
resist the contract by claiming such a contract to be voidable. In such a case if the court is also of
the opinion that the contract/instrument under consideration is voidable, then the court may order
for the cancellation of such an instrument/contract.

When a plaintiff files a suit to enforce a contract against a defendant and the defendant tries to
resist the contract by claiming such contract to be void because of the defendant not being
competent to participate in a contract under Indian Laws. Competence to enter into a contract is
defined under Section 11 in the Indian Contracts Act, 1872. Competence to enter into a contract
can be judged by conditions such as age, soundness of mind, etc. In such a case the
instrument/contract shall be cancelled by the court.

With regards to the above-mentioned conditions if an order of cancellation is passed by the court
with regards to an instrument, then the defendant shall have to restore the benefits he/she has
received from the other party while the performance of such contract/instrument and the
defendant shall also be asked to compensate the other party i.e. the plaintiff accordingly, to
satisfy the purpose of the court in serving justice.
Case Law – Cancellation of Instruments:-

1. In Vellayya Konar and another vs. Ramaswami Konar and another reported in AIR
1939 Madras 894, his lordship Wordsworth.J. explained the difference between a cancellation
of an instrument and a declaration that the instrument is not bending on the plaintiff as follows:-
“When the plaintiff seeks to establish a title in himself and cannot establish that title without
removing an insuperable obstruction such as a decree to which he has, been a party or a deed to
which he has been a party, then quite clearly he must get that decree or deed cancelled or
declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed
even though it be framed as a suit for a declaration. But when he is seeking to establish a title
and finds himself threatened by a decree or a transaction between third parties, he is not in a
position to get that decree or that deed cancelled in toto. That is a thing which can only be done
by parties to the decree or deed or their representatives. His proper remedy therefore, in order to
clear the way with a view to establish his title is to get a declaration that the decree or deed is
invalid so far as he himself is concerned and he must therefore sue for such a declaration and not
for the cancellation of the decree or deed. This distinction was made clear in Unni v. Kunchi
Amma (1890) I.L.R. 14 Mad. 26, which is followed in Chathu Kutty Nair v. Chathu Kutty Nair
(1923) 19 L.W. 249, and the distinction is clearly observed in the cases quoted by the Court
below, except that there is some obscurity arising from a decision of Ramesam, J., in Balakrishna
Nair v. Vishnu Nambudiri (1930) M.W.N. 509, where though the learned Judge quite clearly has
this distinction in mind, he frames his formula in rather more general terms than were perhaps
desirable and on those grounds has been criticised by the Bench which decided the case of
Venkatasiva Rao v. Satyanarayanamurthi (1932) 62 M.L.J. 764 : I.L.R. 56 Mad. 212.”

2. In Jeka Dula v. Bai Jivi AIR 1938 Bom. 37, it was held that the relief as to cancellation of an
instrument is founded upon the administration of the protective justice for fear that the
instrument may be vexatiously or injuriously used by the defendant against the plaintiff when the
evidence to impeach it may be lost or that it may throw a cloud or suspicion over his title or
interest. Section 39 is based upon the same principle. Mere speculation as to unknown and vague
complication arising in future is no ground to take action under Section 39 of the Specific Relief
Act, 1877.
3. While explaining requisite conditions be satisfied for cancellation of an instrument under
Section 31 of the Act, in Debi Prasad v. Maikareported in AIR 1972 All 376, it was held as
under: Section 31(1) of the Specific Relief Act is in these terms: 31(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. It is clear from a reading of Section 31(1) that a suit for cancellation of a written
document can lie only at the instance of a person against whom the instrument is void or
voidable and secondly who has a reasonable apprehension that such instrument, if left
outstanding, will cause him serious injury. I am of opinion that this is not a case in which it can
be said that the sale deed impugned by the respondents was void or voidable against them. The
question whether an instrument can be said to be void or voidable against a person claiming
relief under the aforesaid provision came to be considered by a Full Bench of the Madras High
Court in the case of the Muppudathi Pillai v. Krishnaswami Pillai AIR 1960 Mad 1 (FB). At
P. 4 it was observed: ...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
emphasizes that principle. For there can be no apprehension if a mere third party, asserting a
hostile title creates a document. Thus relief under Section 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.

4. Cancellation of gift deed – Donor is only entitled to cancel a registered gift deed by executing
another registered document and it is for him to file a suit for cancellation of gift deed as
provided under Sec.31 of Specific Relief Act. ( Sudhakar Reddy v. Lakshmamma reported in
2014 (4) ALT 404 (D.B) = 2011 (4) ALD 325 (D.B).
5. Cancellation of registered document – A registered document can be invalidated only by a
competent Court of law under Sec.31 of Specific Relief Act, 1963 and can be cancelled only by
following the procedure prescribed under Rule 26(k) (I) of Rules framed by State of A.P., under
Registration Act, 1908 – No person or authority has a right to unilaterally invalidate such a
document on any ground. (Hayagreeva Farms and Developers, Visakhapatnam, rep.by its
Managing Partner, Ch.Jagadeeshwarudu v. Govt. of A.P., Revenue (Assignment-I) Dept.,
rep.by its Principal Secretary and others reported in 2014 (3) ALT 3 = 2014 (2) ALD 250)

6. Cancellation of sale deed – Cancellation of deed can be sought in a court, only by a person
who executed the document. (Yanala Malleswari and others v. Ananthula Sayamma and
others reported in 2006 (6) ALT 523 (F.B).