(Sections 31-33)
(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 her books the fact of its cancellation.
Illustrations
(a) A, the owner of a ship, by fraudulently representing her to be seaworthy induces B an underwriter, to insure her. B may obtain the cancellation of the policy.
(b) 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.
(c) A, representing that the tenants of his land were all at Will, sells it to B and conveys it to him by an instrument, dated the 1st January, 1877 soon, after that day. A fraudulently grants to C a lease of part of the lands, dated the 1st October, 1876 and procures the land to be registered under the Indian Registration Act. B may obtain the cancellation of this lease.
(d) A agrees to sell and deliver a ship to B, to be paid for by D's acceptance of four bills of exchange, for sums accounting to Rs. 30,000 to be drawn by A or B. The bill are drawn and accepted, but the ship is not delivered according to the agreement. A sues B on one of the Bills. B may obtain the cancellation of all the bills.
Dayawati v. Madanlal Verma, MANU/UP/0221/2003 : AIR 2003 All 276: 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 3 years of the cause of action whereas 13 years had already passed.
Prem Singh v. Birbal, MANU/SC/8139/2006 : (2006) 5 SCC 353: When a document is valid, no question arises of its cancellation. When a document is void ab initio a decree for setting aside the same would not be necessary as the same is non established in the eye of the law, as it is a nullity. Section 31 of the Specific Relief Act, 1963 refers to both void and voidable documents.
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.
Illustration
A draws a bill on B, who endorses it to C, by whom it appears to be endorsed to D who endorses it to B. C's endorsement is forged. C is entitled to have such endorsement cancelled, leaving the bill to stand in other respects.
It is necessary that the written instrument is evidence of different obligation which can be separated from each other. For example 'A' executes mortgage deed in favour of 'B'. A is able to procure the deed from B by fraud and makes therein an endorsement of receipt of Rs. 1200 appearing to have been signed by B. Thus signature of B is forged B is entitled to get the endorsement cancelled and may leave the deed to stand in other respect.
(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 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.
According to section 33(1), when cancellation of instrument is granted, the court may require the plaintiff i.e., the party to whom the relief is granted,-
(i) to restore, so far as may be any benefit which he may have received from the other party, and
(ii) to make any compensation to him which justice may require.
Section 33(2) requires the defendant to restore benefit received by him and to pay compensation, when he resists the suit of enforcing an instrument against him. The provision deals with the situation whether the instrument sought to be enforced is voidable or void by reason of same having been executed by a person who is not competent to contract under section 11 of the Indian Contract Act, 1872.
Leslie v. Sheill, (1914) 3 KB 607: The doctrine of equitable restitution was propounded by Lord Summer. According to this doctrine, if a minor acquires some property by fraudulently misrepresenting himself to be a major, then the minor can be compelled to restore the property to the person from whom he has obtained it provided that the property is specific. But restitution can be made upto a certain limit. The minor cannot be asked to make the repayment because that can be done on the basis of a contract and a minor's contract is void because a minor is not competent to contract. In the words of Lord Summer: "Restitution stopped where repayment began".
Khan Gul v. Lakha Singh, ILR (1928) 9 Lah 70 (FB): The equitable jurisdiction is founded upon the desire of the court to do justice to both the parties by restoring them to the "status quo ante" and there is no real difference between restoring the property and refunded the money, except that the property can be identified but cash can't be treated.
As noted above section 33 applies to both void as well as voidable instruments of which cancellation is sought. According to section 65 of Indian Contract Act, 1872.
"When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.
Illustration
A pays, B 1000 rupees in consideration of B's promising to marry C, A's daughter. C is dead at the time of promise. The agreement is void but B must repay A the 1000 rupees.
Ajudhia Prasad v. Chandan Lal, MANU/UP/0066/1937 : AIR 1937 All 610: The Allahabad High Court considered at length the decision of the Lahore High Court and expressed entirely the opposite view. As regards the two points discussed which reflect that where the contract of property is void and such property can be traced, the property belongs to the promisee and can be followed. There is every equity in his favour for restoring the property to him. But where the property is not traceable and the only way to grant compensation would be by granting a money decree against the minor, decreeing the claim would be almost tantamount to enforcing the minor's pecuniary liability under the contract which is void.
Article 59 of the Indian Limitation Act, 1963 prescribes a period of 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.
(Sections 34, 35)
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee.
Illustrations
1. A is lawfully in possession of certain land. The inhabitants of a neighbouring village claim a right of way across the land. A may sue for declaration that they are not entitled to the right so claimed.
2. A bequeaths his property to B, C and D "to be equally divided amongst all and each of them, if living at the time of my death, then amongst their surviving children". No such children are in existence. In a suit against A's executor, the court may declare whether B, C, and D took the property absolutely, or only for their lives, and it may also declare the interest of the children before their right are vested.
3. A covenants that if he should at any time be entitled to property exceeding one lakh of rupees, he will settle it upon certain trusts. Before any such property accrues, or any persons entitled under the trusts are ascertained, he institutes a suit to obtain a declaration that the covenant is void for uncertainly. The court may make the declaration.
4. A alienates to B property in which A had merely a life interest. The alienation is invalid as against C, who is entitled as revisioner. The court may in a suit by C against A and B declares that C is so entitled.
5. The widow or a sonless Hindu alienates part of the property of which he is in possession as such. The person presumptively entitled to pass the property if he survives her, may, in a suit against the alienee obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow's life-time.
S. Madaswamy v. A.M. Arjuna Raja, MANU/TN/0443/2000 : AIR 2000 Mad 465: It has been held that in a suit for declaration of title and consequential injunction, the burden is on the plaintiff to prove his right and possession over property. If the plaintiff fails to prove his clear title to property he is not entitled to such declaration and the consequential injunction.
Smt. Suman Mahajan v. Kusum Sandhu, AIR 1999 Del 314: One Gobind Kaur executed a duly registered Will dated 14-2-1984 whereby she bequeathed certain property in favour of the plaintiff, Smt. Kusum Sandhu, who was her daughter-in-law. Smt. Govind Kaur died on 29-9-1986, and thereby the plaintiff became the absolute owner of the said property.
The plaintiff went abroad in June 1988 for sometime. In her absence one of the defendants, who happened to be the tenant of a part of that property, took unauthorised possession of the portion which was the plaintiff and started raising construction thereon. In a suit for possession by the plaintiff the defendant contended that the deceased had entered into an agreement to sell that property to the defendant and the defendant had paid due consideration for the same. The defendant failed to prove the fact of agreement and also the payment of alleged consideration.
It was held that the plaintiff was entitled to the said property and also to regain the possession thereof.
When suit for declaration does not lie.-A suit for declaration will not lie in the following cases,-
(i) for a declaration that the plaintiff did not infringe the defendant's trade mark. Negative declaration will not be allowed.
(ii) for a declaration that a disposition made by the father of the plaintiff in a Will is invalid and that the property is ancestral and that the plaintiff is entitled to a share in it.
(iii) for a declaration, during the life-time of the testator, that the Will is invalid. The reason is that the Will is revocable and no property is transferred during the life-time of the testator.
(iv) for the declaration that the plaintiff is a purchaser under an unregistered deed of sale.
(v) no declaratory suit lies to set aside a succession certificate granted under Act XXVII of 1860. (The new Act is Indian Succession
Act, 1925).
M.P Mathur v. D.T.C., MANU/SC/8606/2006 : AIR 2007 SC 414: The discretion under this section which the court has to exercise in a judicial discretion. That discretion has to be exercised on well-settled principles. Therefore, court has to consider-the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the court granting the decrees.
Rashmeet Kaur Kohli v. C.B.S.E., AIR 2007 Del 46: Discretionary relief can be declined if person seeks to change name very frequently or wants change of name to circumvent rules and bye-laws.
Indian Navigation Co. v. Haryana State Industrial Development Corporation, AIR 2006 P&H 29: The use of expression "any right as to any property" is very wide because it shows that it is not necessary for the plaintiff to claim any right in the property and it would be enough if the right he claimed is related to the property in question. It includes any right relating to any property which may also be contingent right.
A declaration made under this chapter is binding only on the parties to the suit, persons claiming through them respectively, and where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustee.
Example.-A, a Hindu, in a suit to which B, his alleged wife, and her mother, are defendants, seeks a declaration that his marriage was duly solemnised and an order for the restitution of conjugal rights. The court makes the declaration and order. C claiming that B is his wife, then sues A for the recovery of B. The declaration made in the former suit is not binding upon C.
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