Sections 31 to 33 of the Specific Relief Act, 1963 provide for the cancellation of instruments.
31. When cancellation may be ordered.-(1) Any person against whom a written instrument is 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.
If the instrument has been registered under the Indian Registration Act, 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 of its cancellation.
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.
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.
The relief provided under Section 31 of the Specific Relief Act is based upon protective justice and upon the idea of "quia time" (for fear) and, therefore, where there is no apprehension of injury to the plaintiff, no suit can be instituted.
Who can seek cancellation?
A sale deed was executed in respect of an ancestral property. The transferor's sons challenged it and sought a declaration that the sale was null and void. There was nothing to show their ages and whether they had birth-right in the property.
They were not allowed to challenge it on the ground of the competence of the transferor. The suit was also time-barred because it could be filed only within three years of the cause of action whereas 13 years had already passed.
In a case for cancellation of a sale deed on the ground that the deed was void, it was held that the suit could be filed in a civil court by the recorded tenure holder, executants of the deed or his successor. The suit filed by a third party was not maintainable.
(1) The relied under Section 31 of Specific Relief Act cannot be claimed as a matter of right; the court will act upon the principle of the exercise of sound discretion, having due regard to the conduct of the parties.
(2) Where the parties are in pari delicto and fraud is alleged as the ground for cancellation, the court may refuse the relief to the plaintiff, as he is equally to blame as is defendant.
(3) No relief can be granted under Section 31 of the Specific Relief Act where there is a question of mere inadequacy of consideration.
(4) No suit for the cancellation of a will can be instituted during a testator's lifetime.
The relief provided in Section 33 of the Specific Relief Act is based on the principle of protective or preventive justice. This section applies to instruments executed by the plaintiff as well as to other instruments which he seeks to have adjudged void or voidable. It is not necessary that the plaintiff must be a party to a contract; he can maintain the suit under this section if the instrument is against his interest.
The conditions precedent to the applicability of this section are-
(a) the instrument should be void or voidable against the plaintiff;
(b) there is a reasonable apprehension of a serious injury;
(c) that the case is fit for the exercise of the court's discretion to grant the prayer.
The plea of compensation must be taken in the first court.
Article 59 of the Indian Limitation Act, 1963 prescribes a period of the three years for a suit for cancellation of an instrument computable from the date when the fact entitling the plaintiff to have the instrument cancelled first becomes known to him.