1. 1. Thursday, June 25, 2015 SRA 255 | Presentation of Cancellation of Instruments 1 THE SPECIFIC RELIEF OF ACT, 1877 THE LAW OF LIMITATION ACT, 1908 TOPICS TO BE DISCUSSED: CANCELLATION OF INSTRUMENTS (SECTION 39, 40, AND 41) WHO CAN FILE A SUIT ESSENTIONAL ELEMENTS AND SCOPES OF CANCELLATION OF INSTRUMENTS Presented by
2. 2. SECTION 39: WHEN CANCELLATION MAY BE ORDERED. When a written instrument is made against any person, it is void or voidable and if the instrument left outstanding he become seriously injured. Then the plaintiff can file a suit for cancellation of instrument and the court may order it delivered up and cancelled upon his discretionary power. But subject to court satisfaction. Otherwise if the instrument is registered under the Registration Act. 1908, then the court shall also send a copy of its decree to the officer in whose office the instrument has been registered, and the officer shall note the copy of decree of cancellation of instrument in his note book.
3. 3. SECTION 40: WHAT INSTRUMENTS MAY BE PARTIALLY CANCELLED. Where an instrument in evidence of different rights and different obligations, then the court may cancel the part of instrument, which part is violates different rights and different obligations and other part of instrument will be remain unchanged. SECTION 41: POWER TO REQUIRE PARTY FOR WHOM INSTRUMENT IS CANCELLED TO MAKE COMPENSATION. Upon adjudging the cancellation of instruments, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require.
4. 4. WHO CAN FILE A SUIT FOR CANCELLATION OF INSTRUMENTS? Any person can file a suit for cancellation of instruments. When a written instrument is made against him, which is void or voidable and who become seriously injured by the instrument, if the instrument left outstanding. Then the person (plaintiff) can file a suit for cancellation of instrument and if the court satisfied under the suit he may order it delivered up and cancelled upon his discretionary power.
5. 5. ESSENTIAL ELEMENTS OF CANCELLATION OF INSTRUMENTS FOR FILING A SUIT Instrument must be in written; Instrument must be void or voidable; If the instrument is left outstanding the plaintiff or applicant may cause injury or harm; The injury or harm must be in serious nature; Discretionary power of the court; which declare it void or voidable and delivered up and cancellation.
6. 6. SCOPES OF CANCELLATION OF INSTRUMENTS FOR FILING A SUIT Gift Deed Mortgage Deed Deed by Minor Sale Deed Suit by person not partly to instrument Discretion Power of Court Prayer for Cancellation when unnecessary Limitation for filing a suit
7. 7. 1. GIFT DEED A gift under the Muslim Law, which is unaccompanied by position is void-ab-inito. Otherwise any gift can not be cancelled after the immediate delivery of possession. But under the Section 39 of Specific Relief Act. 1877 a gift can be cancelled by the following reasons: If the gift is void or voidable; If left outstanding may cause injury; Injury to the plaintiff or other by the gift; The injury in serious nature; If it is against public policy, etc.
8. 8. 2. MORTGAGE DEED When there is a complete Mortgage Deed, but no consideration has been paid for the property, a suit for cancellation will not lie. But proper remedy will be available upon filing a suit for unpaid consideration as there can be no injury to be apprehended. Otherwise where a Mortgage let into possession and the defeat in the Mortgages title is discovered later on, then the Mortgagors cannot file a suit for cancellation during the Mortgage on be the basis of mutual estoppel. ( )
9. 9. 3. DEED BY MINOR In case of Deed by Minor, the person (plaintiff) who are agreed for the deed with the Minor can file a suit for cancellation of instruments. If the Deed is made by the Legal Representative or Guardian in favor of Minor, the person cannot file a suit for cancellation of instruments. But the person (plaintiff) can file a suit for cancellation of instruments by the permission of Court, which depends upon the discretionary power of Court. If any other person demands himself as a Legal Representative or Guardian of Minor and he made a Deed in favor of Minor, in such case if the plaintiff is able to prove the person is not Legal Representative or Guardian of Minor, then he can file a suit for cancellation of instruments. And the Minor can take proper action against that person for fraud, who demands his Legal Representative or Guardian. After the limitation period, the plaintiff cannot file a suit. But if he is able to prove there was sufficient reasons for not filing the suit, the Court may grant him for filing a suit, but subject matter of discretionary power of the Court.
10. 10. 4. SALE DEED Where the vendor has signed agreement of sale, money receipt and power of attorney, knowing fully their contents for a valid consideration thus Sale Deed executed in favor of vendee was valid. The sale was valid and could not be cancelled. But where the consideration has not been paid on a Sale Deed, a suit for cancellation does not lie and the vendor has a right to file a suit to return his money with lies on property.
11. 11. 5. SUIT BY PERSON NOT PARTLY TO INSTRUMENT In case of cancellation of instruments, if the party is not in instruments or contract or he is not the real party or either he is third party, but he has interest over the contract or instruments or he is the legal representative, then he will be able to file a suit for cancellation of instruments. In such case, the party will also have to prove the instruments is void or voidable and if it is left outstanding may cause injury, which is in serious nature, then the Court can pass a decree in favor of him for cancellation of instruments.
12. 12. 6. PRAYER FOR CANCELLATION WHEN UNNECESSARY In the case of cancellation of instruments, upon filing a suit by the plaintiff or the defendant, the Court may declare the suit as unnecessary under the following grounds: if the Court found there was no reasonable cause; no person or body will be harmed or injured by the instruments; the instrument is not void or voidable; not to opposite of public policy, etc. Above the grounds the Court declare the suit as unnecessary and reject or rescind the suit due to unnecessary.
13. 13. 7. LIMITATION FOR FILING A SUIT There is no specific period for cancellation of instruments. But under the Article 91 of the Limitation Act. 1908, if it is found that the instrument is void or voidable or if it is left outstanding may cause injury and which is in serious nature, then a suit for cancellation of instruments will have to filed immediately.
14. 14. VERY MUCH FOR BEING WITH US ARNAB/PCIU/LLB00305037 arnab.pciu@outlook.com