Leading Judgment on cancellation of deed and declaration that deed is void and voidable
Relief Act, 1877 - for short, "the old Act") states:
"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) ...................................."
It is clear from Sub-sec.(1) of Sec.31 of the Act that to enable the appellant get
Ext.B1 cancelled, it must be shown that the said instrument is void or voidable as
against her and the appellant has a reasonable apprehension that if Ext.B1 is
left outstanding, it may cause her serious injury.
14. It is said that most part of Sec.39 of the old Act (corresponding to
Sec.31 of the Act) was borrowed from Articles 1906 and 1908 of the Draft New
York Civil Code. The provision for cancellation of a written instrument is based
upon the administration of protective justice for fear that the instrument may be
vexatiously or injuriously used by one against another when the evidence to
challenge such written instrument may be lost or that it may throw a cloud or
suspicion over his title or interest.
15. Story, in Equity Jurisprudence (English Edition), 1920 in Article
694 states:
"In the first place, then, let us consider in which
cases, court will direct the delivery up, cancellation or
rescission of agreements, securities, deeds or other
instruments. It is obvious that the jurisdiction
exercised in cases of this sort, is founded upon the
administration of a protective or preventive justice. If,
therefore, the instrument was void for matter apparent
upon the face of it, there was no call to exercise the
jurisdiction, with the possible exception of instruments
forming a cloud upon the title to land. The party is
relieved upon the principle, as it is technically called
quia timet: that is, for fear that such agreement,
securities, deeds, or other instruments may be
vexatiously or injuriously used against him when the
evidence to impeach them may be lost; or that they
may now through a cloud or suspicion over his title or
interest."
16. Referring to Chapter V of the Old Act, Whitely Stoks states in
Anglo-Indian Code (Vol.I) at page 934:
"Chapter V declares that any person against
whom a written instrument is void or voidable, who
has reasonable apprehension that if left outstanding it
may cause him serious injury, may obtain an
adjudication that it is void or voidable and an order
that it be delivered up and cancelled. The relief
extends to a forged instrument, and also to one
originally valid but which has subsequently forged.
The Chapter applies to cases not unfrequent in India,
where a party gets possession of document on which
he might not indeed be able to found a claim in a
court of justice but which might give him such prima
facie right against the other as would expose him to
vexatious demands and litigation."
17. The Bombay High Court, in Jeka Dula v. Bai Jivi and others
(AIR 1938 Bombay 37) laid down the following three conditions for the
application of Sec.39 of the old Act (Sec.31 of the Act):
"i. The written instrument is either void or
voidable as against the plaintiff.
ii. The plaintiff may reasonably apprehend
serious injury from the instrument being left
outstanding.
iii. In view of all the circumstances of the
case the court considers it reasonable and proper to
administer the protective and preventive justice asked
for."
18. A Full Bench of the Madras High Court considered the scope of
Sec.39 of the old Act (Sec.31 of the Act) in Muppudathi Pillai v.
Krishnaswami Pillai (AIR 1960 Madras 1) and held at page 4 as under:
"........... 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 emphasises that principle. For there can
be no apprehension if a mere third party, asserting a
hostile title creates a document. Thus relief under
Sec.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."
The Full Bench illustrated that when a trespasser purports to convey the
property in his own right and not in the right of the owners, the remedy of
cancellation of such an instrument cannot be granted because such a relief
would not remove the cloud upon his title by the instrument and the proper
remedy is to seek a declaration of the plaintiff's own title or a declaration that the
sale deed is not binding or valid against the plaintiff. Thus, when a document is
not executed by the plaintiff or by a person who can in any circumstance bind
him, that document cannot create a cloud upon the title of the true owner, nor
does it create apprehension that it may be a source of danger to him.
19. It is only in the case of instruments which are either executed by a
party or purports to have been executed by a party or by a person who can
under certain circumstances bind him that the relief under Sec.31 of the Act can
be claimed in law because in such cases only, could it be said that "there is a
cloud on his title and an apprehension that if the instrument is left outstanding, it
may be a source of danger." To illustrate, a party who has executed the
document, or a principal in respect of a document executed by his agent or a
minor in respect of a document executed by his guardian, etc., could under
Sec.31 of the Act request the court to deliver up and cancel the document. A
person who neither has executed the document, nor is bound in any
circumstance by the person who executed the document could not seek relief
under Sec.31 of the Act as the document is neither void nor voidable against him
and as such document even if left outstanding is not capable of causing any
injury to him. The remedy of such person, if he thinks that the document may
create a cloud on his own title is to seek a declaration of his own title or that the
impugned document does not affect his title.
In the present case appellant is not a party to Ext.B1. Nor is the
appellant bound under any circumstance by the person who has executed
Ext.B1. Exhibit B1 is executed by the 2nd respondent acting as power of attorney
holder of the 3rd respondent. In the circumstances Ext.B1, assignment deed is
neither void nor is voidable against the appellant and hence she could not seek
relief under Sec.31 of the Act. If the appellant thinks that Ext.B1 might create a
cloud on the title she has claimed, her remedy was to sue for declaration of the
title she claims or that Ext.B1 does not affect the titled she claims.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 6TH DAY OF JUNE 2012
RSA.No. 1139 of 2010
KAMALAKSHI AMMA,
Vs
Sangeetha
