INTRODUCTION
Cancellation means to cancel any instrument. The relief granted by the Court is discretionary and just in nature in the cases of cancellation of the instrument. The documents create the right upon certain movable and immovable property. The instruments and deeds which are void or voidable may be cancelled by the Court upon filling the suit by the plaintiff.
RELEVANT PROVISIONS
Sections 39 to 41 of the Specific Relief Act, of 1877 deal with the cancellation of the contracts.
INSTRUMENT
The Specific Relief Act, of 1887 does not define an instrument. The instrument has been defined in section 2 (14) of the Stamp Act, of 1899.
An instrument includes a document by which any right or liability is created, transferred, limited, extended, extinguished or recorded.
Note: The receipts, acknowledgements, awards, and wills have been held to be instruments for this purpose.
MEANING OF CANCELLATION
The Cancellation means to cancel any instrument under the provisions of the Specific Rele Act, of 1877. The term cancellation means the removal of written character or other forms of record. It also means to cross out.
The equitable relief of cancellation of an instrument is based on the maxim,
“He who seeks equity must be prepared to do equity.”
OBJECT OF CANCELLATION
The basic object of the cancellation of the instrument is founded on the administration of justice. If the Court thinks that the instrument is vexatious and frivolous and it will create a title other than provided by law, the Court may cancel the same for the best justice, equity and fair play.
WHEN CANCELLATION MAY BE ORDERED?
Any person against whom a written instrument is void or voidable who has a 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.
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.
Example: 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.
Scope of Cancellation:
Section 39 of the Specific Relief Act, of 1877 is intended to protect a person from imminent and forthcoming danger. In all cases, it is not necessary to get the instrument cancelled by the Court. But one must get the void instrument cancelled by the Court so that the parties to the contract might be secure from the potential risk or danger.
Voidable Contract:
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 On the other hand, when the instrument is only voidable, then it would be necessary to have it set aside or cancelled in order to remove the impediments or hurdles on the way of the plaintiff
Reasonable Apprehension:
Mere speculation of danger is no reasonable apprehension. There is no reasonable apprehension in the void or voidable contract or another instrument which can not be legally used, the contract may not be cancelled by the Court.
Who can Sue for Cancellation?
Section 39 of the Specific Relief Act, of 1877 provides that any person who thinks that any void or voidable contract has been made on his behalf or for him then he has the right to get that instrument cancelled. The section also provides that the person who has any reasonable apprehension of injury from that instrument may also sue for its cancellation in Court. If any person feels that he may be suffered serious injury from a void or voidable contract, he may ask for the cancellation of that instrument from the Court
Conditions for Suit for Cancellation of Contract
There are some necessary conditions which are requisite to file a suit for the cancellation of the instrument. The plaintiff must fulfil the following conditions for the suit for cancellation of the instrument.
- The plaintiff has to prove that the contract or instrument is void or voidable against the plaintiff
- The plaintiff has to prove that he has the reasonable apprehension of injury from the instrument if it remains in existence
- The plaintiff also has to prove the threatened injury from the contract is serious
- The Court by using its discretionary powers may cancel the instrument according to the circumstances of the case.
The Object of the Suit for Cancellation
The express wording of section 39 of the Specific Relief Act, 1877 indicates that suits under this section is not to be interfered with on appeal except on strong grounds that the plaintiff has failed to show grounds for any reasonable apprehension of serious injury.
Registration:
Section 39 of the Specific Relief Act, of 1877 provides the remedy to the plaintiffs if the defendant has registered the instrument before the District Registrar. If the instrument has been registered by the defendant frivolously and with mala fide intention before the District Registrar, the plaintiff may get that instrument cancelled by filing the suit for cancellation of that instrument in the Court.
The Court will also send a copy of the order for the cancellation of the instrument to the Registrar concerned. And the Registrar, upon receiving the copy of the order of the Court, note in his book about the facts of the cancellation of that instrument.
Limitation Period:
The plaintiff must file the suit for the cancellation of the instrument within three years after having the knowledge that the instrument is void or voidable. But since no limitation runs against the void contract, it is also a plea that the plaintiff may use in filing the suit for the cancellation of the instrument.
PARTIAL CANCELLATION OF INSTRUMENTS
Where an instrument is evidence of different rights or different obligations, the court may in proper care cancel it in part and allow it to stand for the residue.
Example: A draws a bill on B who endorses it to C by whom it appears to be endorsed to D who endorses it to E. C’s endorsement is forged C is entitled to have such endorsement cancelled leaving the bill to stand in other respects.
COMPENSATION IN CASE OF CANCELLATION
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.
Principle:
“He who seeks equity must do equity” is under the lying principle of this section This section lays down that the court will order the plaintiff to pay such compensation to the defendant as justice demands while passing a decree for rescission, it shall depend on the circumstances of the case whether compensation would be awarded at all or if awarded what would be the quantum
CONCLUSION
It is concluded that if the person has an apprehension that the instrument or contract which is void or voidable, can cause him serious injury can file a suit for adjudging it void or voidable and the court may in its discretion cancel it.
FAQs
When cancellation of an instrument may be ordered. Explain with reference to relevant law.
(2017-A)
Define and explain the cancellation of instruments. What instruments may be cancelled? Give one illustration.
(2010-S BZU)
How and under what circumstances a court may cancel a document?
(2010-A BZU)
