MODE OF RECTIFICATION/CANCELLATION OF INSTRUMENTS –

WHEN AND HOW?

by
Rajasekhar Pallagani,
Junior Civil Judge, Lakkireddipalli

The Specific Relief Act, 1963 which came into force on 1st March, 1964.
Chapter III of the Specific Relief Act, 1963 deals with rectification of
instruments. Chapter V of the Specific Relief Act, 1963 deals with
cancellation of instruments.
Legal instrument is a legal term of art that is used for any formerly
executed written document that can be formally attributed to its author,
records and formally expresses a legally enforceable act, process, or
contractual duty, obligation, or right, and therefore evidences that act,
process, or agreement.
"Instrument" includes every document by which any right or liability
is, or purports to be, created, transferred, limited, extended, extinguished or
recorded – As per Indian Stamp Act.
“Rectification” is a term which may be understood as the correction
of an error in an instrument with a view to give effect to the real intention of
the parties.
“Cancellation” is a term often used interchangeably with Rescission,
but whereas only a document can be canceled, any agreement—whether oral
or written—can be rescinded. Cancellation is distinguishable from
reformation, which is an action by a court to enforce a document after its
terms have been reframed in accordance with the intent of the parties, in
that cancellation abrogates the duties of the parties under the instrument.
RECTIFICATION OF INSTRUMENTS:-
Sec.26 of the present Act corresponds to Sec.31 of the old Act. Sec. 26
of Specific Relief Act, 1963 provides as to when an instrument may be
rectified and reads as under: -
Sec.26. When instrument may be rectified:-
(1) When, through fraud or a mutual mistake of the parties a contract or
other instrument in writing (not being the articles of association of a
company to which the Companies Act, 1956 (1 of 1956), applies) does
not express their real intention, when –
(a) either party or his representative in interest may institute a suit
to have the instrument rectified ; or
(b) the plaintiff may, in any suit in which any right arising under the
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instrument is in issue, claim in his pleading that the instrument be

rectified ; or
(c) a defendant in any such suit as is referred to in clause (b), may,
in addition to any other defence open to him, ask for rectification
of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be
rectified under sub-section (1), the Court finds that the instrument,
through fraud or mistake, does not express the real intention of the
parties, the Court may, in its discretion, direct rectification of the
instrument so as to express that intention, so far as this can be done
without prejudice to rights acquired by third persons in good faith and
for value.
(3) A contract in writing may first be rectified, and then if the party
claiming rectification has so prayed in his pleading and the Court
thinks fit, may be specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any
party under this section unless it has been specifically claimed:
Provided that where a party has not claimed any such relief in
his pleading, the Court shall, at any stage of the proceeding, allow him
to amend the pleading on such terms as may be just for including such
claim.
Section 26 is only an enabling provision:
Though Section 26 entitles a party to seek the relief of rectification,
rectification is not the only remedy whether a purchaser rectifies a clerical
error in a sale deed or not, it is immaterial since the rights conveyed to him
under the sale deed will not be affected in any way since Section 26 (Section
31 of the old Act) is only an enabling provision. A party can institute a suit
for declaration without seeking rectification and in such a case he can avail
the provisions of sections 95 to 97 of the Evidence Act.
Section 26 of the Specific Relief Act, 1963 and Section 92 of the
Indian Evidence Act, 1872:
Any party to a contract can prove fraud or mutual mistake in a written
contract, and Section 92 of the Evidence Act does not exclude it.
The combined effect of proviso (1) of Section 92 of the Evidence Act
and Section 31 of the Specific Relief Act (Old) is that a defendant can prove
any mistake in the expression of a contract notwithstanding that he had not
filed a suit for rectification. The defendant can establish by an evidence that
though a document was executed in the form of an agreement of sale, in fact
it was a security regarding the loan transaction.
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When, through fraud or a mutual mistake of the parties:

A contract or other instrument can be rectified when (1) it does not
express the real intention of the parties (2) through fraud or a mutual
mistake of the parties and it can be rectified at the instance of (1) either
party to the contract or instrument in writing (2) or his representative – in –
interest. A party can obtain rectification of a contract or other instrument
when he is able to show that there has been fraud or mutual mistake. Where
certain alterations in the area of land were made with the consent of the
parties, a suit for rectification is not maintainable. When through fraud or
mutual mistake of the parties a contract or other instrument in writing does
not truly express the real intention of either party, such parties or their
representatives in interest can institute a suit to have the instrument rectified
and if the Court feels that there has been fraud or mistake in framing the
instrument, the Court may in its discretion, rectify the instrument so as to
express the real intention of the parties but with out causing prejudice to the
rights acquired by third persons in good faith and for value.
Remedy under Section 26, para. (1):
As plaintiff a person entitled to relief under Section 31 can sue to
recover the right property. He can bring a suit for a declaration that he is in
possession of the suit property bearing a certain survey number though in his
document of title it is described by a different survey number. As defendant
he can protect himself against dispossession.
Absence of prayer for rectification:
When the mistake is alleged by way of a defence, evidence can be
given to prove mistake although no rectification is sought. (Rangaswamy v.
Souri, AIR 1916 Mad 519). Under the provisions of Sections 95 and 97 of the
Evidence Act oral evidence may be let in to prove a mistake even without
claiming rectification. (Karuppa Goundan v. Perlatambi, ILR 30 Mad 397).
Under the first proviso to Section 92 oral evidence may be let in to prove a
mistake when the mistake is such that relief can be claimed under Sec.26 of
Specific Relief Act. Even if the relief of rectification is not claimed by the
plaintiff, if what is claimed is something more than what the unreformed
deed gives him, then the claim should be scrutinized on the footing that the
relief of rectification is also sought. Section 26 is an enabling Section and so
the fact that plaintiff did not choose to avail himself of that Section in time
cannot deprive him the rights obtained under the document. Thus in a suit
for possession he can show that the property was referred to in this sale
deed by a wrong survey number. In a suit for redemption he can show that
certain clauses of the document are not binding upon him though the
document was not rectified by the suit previously. Where a plaint alleges a
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mutual mistake of fact extrinsic evidence of such mistake is admissible

although no rectification thereof is prayed for. In a suit for specific
performance it can be proved that owing to a mutual mistake an item was
omitted but was intended to be included in the agreement of sale.
When a property is wrongly described in the sale deed on account of
defendants fraud, the plaintiff can sue for a declaration of his title to the
property and for possession and such relief may be granted to him without
putting him to the necessity of filing a separate suit for rectification. The co-
parceners in a joint family may sue for possession ignoring an invalid gift
made by the Kartha.
Section 26, para (1) as a defence:-
When a suit is brought for breach of a contract or for other relief on
the basis of such breach, can the defendant plead that the contract does not
correctly expressed the bargain between the parties ? In Anarullah v. Koylash
Chunder (ILR 8 Cal.118), the defendant in a suit for rent sought to set up a
defence that the lease was fraudulently drawn up and did not correctly
express the agreement between the parties. He claimed that it was valid as
to a part and invalid as to the rest. It was held that his remedy was to file a
suit for rectification. This decision was not followed by the Calcutta High
Court in a later case. (W.C.Binns v. W.T.Avery Ltd., AR 1934 Cal.778). The
better view is that the Court can give effect to an equitable defence which in
a suit brought for the purpose would entile the defendant to rectification of
the document although no suit for such rectification had been filed. This is
now clear from Section 26, para (1), clause (c). In Shidappa v. Rudrappa,
AIR 1954 Bom 463, the defendant pleaded in a suit for possession that the
suit land had been purchased by him under an earlier sale deed wherein by a
mutual mistake it was not included in the schedule to that sale deed. At the
time when this defence was raise a suit for rectification of sale deed was in
time and so defendant was allowed to raise that defence.
Who can maintain an action for rectification?:-
Either parties to a contract or their legal representatives alone can
maintain an action for rectification under this Section and not a third person.
A stranger to the instrument has no locus standi to maintain a suit for its
rectification.
Proper parties:-
When a suit is brought for rectification of sale deeds other parties who
would be affected by such rectification are proper parties. They can apply to
be impleaded as defendants. (Ram Suchit v. I Additional Judge, Gorakhpur,
AIR 1986 All.149)
Effect of rectification:-
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A deed rectified by the Court so as to conform to the true intention of

the executing party at the moment of execution must be taken to be his deed
and to have been his deed in the rectified form as from the date of execution.
After the rectification the written agreement does not continue to exist with a
parol variation; it is to be read as if it had been originally drawn in its
rectified form. When the Court rectifies a deed of transfer it becomes a
conveyance and so no further conveyance is required. The decree should
declared that the deed ought to be rectified, point out the way in which it
should be rectified and direct and endorsement of the decree on the
conveyance.
Time for rectification:-
Section 26 does not fix any time limit for the discovery of mistake or
fraud. It is the discovery of the mistake or fraud that furnishes the starting
point of limitation.
Compromise Decrees:-
The principle laid down in this Section, for rectification applies to
compromise decrees also. A compromise decree is not the result of the
adjudication between the parties and it is an instrument of contract made by
the hand of the Court put by the will of the parties and a decree in which a
mistake has crept on account of mutual mistake of the parties in an earlier
transaction which extends into judicial proceedings automatically as it were
without mistaken the part of the Judge is on a similar footing with a
compromise decree in which there is a mistake due to mutual mistake of the
parties. A compromise decree stands on no higher footing than rectified if
owing to fraud and mistake it does not represent the real contract between
the parties.
Not being the articles of association of a company to which the
Companies Act, 1956 applies:-
This Section cannot be made applicable to articles of association of a
company as they can be altered by the company by special resolution and
the words “not being the articles of association of a company to which the
Companies Act, 1956 applies”, clearly go to show the exclusion of articles of
association of a company from the purview of this Section.
Requirements of Section 26, para (2):-
Existence of fraud or mutual mistake:- The essential condition to be
satisfied before an instrument can be rectified is that there should be proof
that the true intention of the parties has not been expressed in the
instrument owing to fraud or common mistake.
Fraud:-
“Fraud” means and includes any of the following acts committed by a
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party to a contract or with his connivance or by his agent, with intent to

deceive another party thereto or his agent or to induce him to enter into the
contract.
1. The suggestion as to a fact, of that which is not true by one who does
not believe it to be true.
2. The active concealment of a fact by one having knowledge or belief of
the fact.
3. A promise made without any intention of performing it.
4. Any other act fitted to deceive.
5. Any such act or omission as the law specifically declares to be
fraudulent.
Explanation:- Mere silence as to facts likely to affect the willingness of
a person to enter into a contract is not fraud unless, the circumstances of the
case are such that, regard being had to them it is the duty of the person
keeping silence to speak or unless his silence is in itself, equivalent to
speech. The term “Fraud” is not defined under this Act and by virtue of
Sec.2(e) of this Act, the same meaning as may be assigned to such a term
under the Indian Contract Act, has to be taken as the meaning of such a
term under this Act too.

Mutual mistake:-
The term “mutual mistake” means common mistake on the part
of both parties to contract. A party seeking rectification has to establish that
there was a prior complete agreement which was reduced to writing in
accordance with the common intention of the parties and by reason of a
mistake the writing did not express the real intention of the parties. There
cannot be rectification where the mistake was not a mutual mistake but only
a mistake committed by the Scribe. There cannot be rectification on the basis
of unilateral mistake not amounting to fraud. A mutual mistake can be
established by any one of the parties to a contract.
Real intention of the parties:-
In a suit for rectification of deed, it is not necessary to have
evidence of a binding contract antecedent to the instrument which is sought
to be rectified and it is enough if the plaintiff proves ;beyond reasonable
doubt the concurrent intention of the parties at the moment of executing the
instrument and the instrument fails to give effect to that concurrent
intention. The rectification of instrument always involves the real prior
agreement between the parties and the absence of such real agreement in
fact in the document as a result of fraud or mutual mistake and hence the
Court has to find out whether there has been fraud or mistake in framing the
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instrument and further the Court has to also ascertain the real intention of
the parties.
So far as rectification can be done without prejudice to rights
acquired by third persons in good faith and for value:-
The courts will not be inclined to rectify instruments where such
rectification may cause prejudice to the rights acquired by third persons in
good faith and for value. A purchaser who does not make enquiries as to the
title of the vendor and intends to take advantages of the mistake cannot be
termed as a bona fide purchaser without notice.
Burden of proof:-
The burden of proof lies heavily on the person seeking rectification.
Laches: -
Mere laches may not be a sufficient ground for refusing the relief of
rectification but unreasonable delay can be considered to refuse such a relief.

Failure to rectify the deed does not extinguishable title:-

The mere failure to rectify the deed will not extinguish the title to the
property which was in fact sold but not properly described by mistake.
Limitation:-
There is no specific Article relating to rectification under the present
Limitation Act and hence such suits are governed by Article 113 but under
1908 Act Articles 95 and 96 were provided for suits for rectification.

CANCELLATION OF INSTRUMENTS:-
Sec.31 of the present Act corresponds to Sec.39 of the old Act.
Sec.31 of Specific Relief Act, 1963 provides as to when cancellation may
be ordered and reads as under: -
Sec.31. When cancellation may be ordered:- (1) Any person against
whom a written instrument if 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 his
books the fact of its cancellation.
Requirements of the section:- For section 31 to apply the following
conditions should be fulfilled:-
(i) the written instrument in question must be either void or
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voidable as against the plaintiff;

(ii) the plaintiff must have reasonable apprehension of serious injury
from the instrument being left outstanding; and
(iii) in view of the circumstances of the case, the Court should
consider if reasonable and proper to administer the protective
and preventive justice asker for.
If these conditions are satisfied, the reliefs that can be given are (i)
adjudging the instrument to be void or voidable, (ii) ordering it to be
delivered up and cancelled.

Exercise of jurisdiction is discretionary:- The exercise of jurisdiction

under this section is discretionary. A suit for cancellation of sale deeds and
other ancillary reliefs of restoration of possession and permanent injunction
is triable by Civil Court and not revenue courts.
Any person:- Any person against whom a written instrument is void or
voidable and who has reasonable apprehension that such instrument of if left
outstanding may cause him serious injury, may sue to have it adjudged void
or voidable Under this section not only parties to the instrument but also
persons affected by such instrument can maintain an action. A person
against whom the instrument is void or voidable or where it may cause injury
such a person, alone can maintain an action under this section. A plaintiff
having some interest in land affected by a document which he contends to be
a forged one, can institute a suit under this section. Where a member of a
joint family executes a sale deed the other members though not parties to
such an instrument can bring a suit for cancellation of the sale deed. This
section applied to instruments executed by plaintiff as well as to other
instruments which he seeks to have adjudged void or voidable. The relief of
cancellation of sale deed cannot be sought for on the basis of possessory
title. A creditor even without obtaining a decree, can sue to set aside a deed
executed by his debtor with a view to defraud, defeat or delay the recovery
of his debt. A creditor cannot sue for cancellation of a document transferring
movable property by the debtor since such person will not come within the
purview of this section.
Written instrument:- The expression instrument my include leases, wills,
gifts, receipts, acknowledgment, awards, compromise decrees and decrees.
Void or voidable:- An agreement not enforceable by law is said to be void.
An agreement which is enforceable by law at the option of one or more of the
parties thereto but at the option of the other or others is a voidable contract.
Reasonable apprehension that such instrument:- May cause him
serious injury. Whether in a particular case “reasonable apprehension of
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serious injury” exists or not depends upon the facts and circumstances of
each case. Mere speculation or vague complication cannot be ground to
maintain an action under this section and even in the absence of reasonable
apprehension of serious injury a suit under this section is not maintainable.
Reasonable apprehension exists in a case where a document is registered
though the execution is denied or where a person in possession of the
property finds, that a document is registered with a view to affect his title.
Cancellation and declaration:- In Vellayya Konar and another vs.
Ramaswami Konar and another reported in AIR 1939 Madras 894, his
lordship Wordsworth.J. explained the difference between a cancellation of an
instrument and a declaration that the instrument is not bending on the
plaintiff. Void document does not confer any right on anybody and such
document need not be cancelled.
May sue:- The words “May sue” in sec.31 of the present Act clearly show
that it is not obligatory on the part of a person to sue for cancellation. A void
document need not be set aside or cancelled since such document can be
ignored. If a person is induced to execute a document which he never
undertook to execute such a document is void and need not be cancelled.
Nature of the relief:- Plaintiff can claim the relief to have the document
adjudged void or voidable and to get the document delivered up and
cancelled. The relief must be based on solid grounds and not on speculations.
Sec.32 of the present Act corresponds to Sec.40 of the old Act. Sec.32
of Specific Relief Act, 1963 provides as to what instruments may be
partially cancelled and reads as under: -
Sec.32. What instruments may be partially cancelled: -
Where an instrument is evidence of different rights of different
obligations the Court may, in a proper case, cancel it in part and allow it
stand for the residue.
Secs.31 and 32 of the present Act are based on the principle of
protective and preventive justice. Sec.31 deals with the cancellation of a
document whereas Sec.32 deals with the cancellation of a document in part
leaving the residue to stand. An instrument can be cancelled in part under
this section only in a case where that part sought to can be cancelled is
separable and distinct from other parts of the instrument.
Where an instrument is evidence of different rights or different
obligations:-
The plaintiff has a right to get the specific portion of a contract
cancelled only where the deed is evidenced by different obligations and such
rights or obligations are separable from one another.
The Court may in a proper case:- The words “the Court may, in a proper
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case” in Sec.32 clearly indicate that the existence of the power of

cancellation is discretionary and if the Court is satisfied that in the
circumstances of a given case an instrument can be cancelled in part, than
the court may do so under this section leaving the residue to stand as it is in
the instrument.

Case Law – Rectification of Instruments:-

1. Whether rectification of an instrument can be asked by stranger to
instrument?
In Joseph John Peter Sandy Vs. Veronica Thomas
Rajkumar & Anr., reported in AIR 2013 SC2028, wherein Hon’ble
Apex Court held as follows:-
Specific Relief Act, 1963, S. 26 - Provision under, as to
rectification of an instrument - Applicability of - Person who can seek
rectification – Held, S. 26 is attracted in limited cases - It is applicable
only where it is pleaded and proved that through fraud or mutual
mistake of the parties, the real intention of the parties is not
expressed in instrument - Such rectification is permission only by
parties to instrument and none else.
2. In MARAPPUREDDIGARI SAYAMMA AND ANOTHER Vs.
R.VENKATA REDDI AND OTHERS (LXI MLJ 437), it was held that
"one test which equity applies in a suit for rectification is "Is the proof
of error clear and conclusive?" One defence equity allows is laches.
Equity will not relieve him who tarries on the way. One bias equity
always shows in such matters, viz., a bias in favour of the evidence
given by the other party to the instrument; that is to say, the burden
of proof lies heavily on the person seeking rectification."
3. In SIDDIQUE & CO. Vs. UTOOMAL & ASSUDAMAL CO (A.I.R.(33)
1946 PRIVY COUNCIL 42), it was held that in order to obtain
rectification of an instrument under Section 31 it must be proved that
it was through a mutual mistake of the parties that the instrument in
question did not truly express the intention of the parties; and the
duty of the Court, before it can rectify, is to find it clearly proved that
there has been mistake in framing the instrument, and it must
ascertain the real intention of the parties in executing the instrument.
On being satisfied of those two elements, it is in the discretion of the
Court to grant rectification.
4. In RAJARAM Vs. MANIK (A.I.R.(39) 1952 NAGPUR 90), it was
held that the power which the Court possesses of reforming written
agreements where there has been an ommission or insertion of
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stipulations contrary to the intention of the parties and under a mutual

mistake, should be used with extreme care and caution. To substitute
a new agreement for one which the parties have deliberately
subscribed ought only to be permitted upon evidence of a different
intention of the clearest and most satisfactory description. A person
who seeks to rectify a deed upon the ground of mistake must be
required to establish, in the clearest and most satisfactory manner,
that the alleged intention to which he desires it to be made
conformable continued concurrently in the minds of all parties down to
the time of its execution, and also must be able to show exactly and
precisely the form to which the deed ought to be brought. For there is
a material difference between setting aside an instrument and
rectifying it on the ground of mistake. In the latter case you can only
act upon the mutual and concurrent intention of all parties for whom
the Court is virtually making a new written agreement.
5. In CHENCHULAKSHMI Vs. JANARDAN SINGH (2000 (I)
MLJ.349), it was held that it is simply not enough to employ the
general expression 'fraud and collusion', for, they are insufficient even
to amount to an averment of fraud of which the court can take notice
of. When a plaintiff seeks relief on the ground of fraud without giving
particulars of fraud, he cannot hope to succeed in the case.
6. In VERONICA THOMAS RAJKUMAR Vs. JOSEPH JOHN PETER
SANDY ((2004) 1 M.L.J.301), it was held that the principles
underlying the rectification of instruments are governed by Section 26
of the Specific Relief Act. Generally a party to a written instrument is
not allowed to contradict the instrument, but where it is contended
that the instrument does not reflect the real intention because of fraud
or mutual mistake, party may get the instrument rectified under
Section of the Specific Relief Act. This is the relief in equity.
7. In PARIKH ATMARAM Vs. BAI HIRA (A.I.R. (35) 1948 PRIVY
COUNCIL 111), it was held that when the ground for setting aside
the instrument is that the plaintiff did not appreciate its true nature
and legal consequences, the limitation begins to run from the date
when the plaintiff became aware of the true nature and legal
consequences of the instrument.
8. In NOORUDIN Vs. MAHOMED UMAR (A.I.R.1940 BOMBAY 321),
it was held that mere laches is not a bar to a suit for rectification of
deed on ground of mutual mistake if the rights of third parties have
not intervened. The date of the notice of the mistake is the date from
which time runs.
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Case Law – Cancellation of Instruments:-

1. In Vellayya Konar and another vs. Ramaswami Konar and another
reported in AIR 1939 Madras 894, his lordship Wordsworth.J.
explained the difference between a cancellation of an instrument and a
declaration that the instrument is not bending on the plaintiff as follows:-
“When the plaintiff seeks to establish a title in himself and cannot
establish that title without removing an insuperable obstruction such as a
decree to which he has, been a party or a deed to which he has been a
party, then quite clearly he must get that decree or deed cancelled or
declared void in toto and his suit is in substance a suit for the cancellation
of the decree or deed even though it be framed as a suit for a declaration.
But when he is seeking to establish a title and finds himself threatened by
a decree or a transaction between third parties, he is not in a position to
get that decree or that deed cancelled in toto. That is a thing which can
only be done by parties to the decree or deed or their representatives. His
proper remedy therefore, in order to clear the way with a view to
establish his title is to get a declaration that the decree or deed is invalid
so far as he himself is concerned and he must therefore sue for such a
declaration and not for the cancellation of the decree or deed. This
distinction was made clear in Unni v. Kunchi Amma (1890) I.L.R. 14 Mad.
26, which is followed in Chathu Kutty Nair v. Chathu Kutty Nair (1923) 19
L.W. 249, and the distinction is clearly observed in the cases quoted by
the Court below, except that there is some obscurity arising from a
decision of Ramesam, J., in Balakrishna Nair v. Vishnu Nambudiri (1930)
M.W.N. 509, where though the learned Judge quite clearly has this
distinction in mind, he frames his formula in rather more general terms
than were perhaps desirable and on those grounds has been criticised by
the Bench which decided the case of Venkatasiva Rao v.
Satyanarayanamurthi (1932) 62 M.L.J. 764 : I.L.R. 56 Mad. 212.”
2. In Jeka Dula v. Bai Jivi AIR 1938 Bom. 37, it was held that the relief
as to cancellation of an instrument is founded upon the administration of
the protective justice for fear that the instrument may be vexatiously or
injuriously used by the defendant against the plaintiff when the evidence
to impeach it may be lost or that it may throw a cloud or suspicion over
his title or interest. Section 39 is based upon the same principle. Mere
speculation as to unknown and vague complication arising in future is no
ground to take action under Section 39 of the Specific Relief Act, 1877.
3. While explaining requisite conditions be satisfied for cancellation of an
instrument under Section 31 of the Act, in Debi Prasad v. Maika
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reported in AIR 1972 All 376, it was held as under:

Section 31(1) of the Specific Relief Act is in these terms:
31(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. It is clear from a
reading of Section 31(1) that a suit for cancellation of a written document
can lie only at the instance of a person against whom the instrument is
void or voidable and secondly who has a reasonable apprehension that
such instrument, if left outstanding, will cause him serious injury. I am of
opinion that this is not a case in which it can be said that the sale deed
impugned by the respondents was void or voidable against them. The
question whether an instrument can be said to be void or voidable against
a person claiming relief under the aforesaid provision came to be
considered by a Full Bench of the Madras High Court in the case of the
Muppudathi Pillai v. Krishnaswami Pillai AIR 1960 Mad 1 (FB). At P.
4 it was observed:
...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 emphasizes that
principle. For there can be no apprehension if a mere third party,
asserting a hostile title creates a document. Thus relief under Section
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.
4. Cancellation of gift deed – Donor is only entitled to cancel a registered gift
deed by executing another registered document and it is for him to file a
suit for cancellation of gift deed as provided under Sec.31 of Specific
Relief Act. ( Sudhakar Reddy v. Lakshmamma reported in 2014 (4)
ALT 404 (D.B) = 2011 (4) ALD 325 (D.B).
5. Cancellation of registered document – A registered document can be
invalidated only by a competent Court of law under Sec.31 of Specific
Relief Act, 1963 and can be cancelled only by following the procedure
prescribed under Rule 26(k) (I) of Rules framed by State of A.P., under
Registration Act, 1908 – No person or authority has a right to unilaterally
invalidate such a document on any ground. (Hayagreeva Farms and
Developers, Visakhapatnam, rep.by its Managing Partner,
Ch.Jagadeeshwarudu v. Govt. of A.P., Revenue (Assignment-I)
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Dept., rep.by its Principal Secretary and others reported in 2014

(3) ALT 3 = 2014 (2) ALD 250)
6. Cancellation of sale deed – Cancellation of deed can be sought in a court,
only by a person who executed the document. (Yanala Malleswari and
others v. Ananthula Sayamma and others reported in 2006 (6) ALT
523 (F.B).

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