- Question-01: (a) what is cancellation of an instrument? Briefly describe about cancellation of documents?
- Cancellation of instrument:
- Who can seek such cancellation and on what grounds?
- Question 02: What is meant by relief of specific performance of Contact? In which situation will the court refuse to pass a decree of specific performance?
- When the specific performance of contract is enforced:
- When the specific performance of contract is not enforceable:
- Discretionary power of the court to enforce specific performance of contract:
- Question 03: When can a suit under section 9 of The Specific Relief Act be filed? What are the advantages of filling a suit under this section? Against whom such a suit can’t be filed?
- The advantages of filing a suit under section 9 of the Specific Relief Act:
- Against whom a suit under section 9 of the Specific Relief Act can’t be filed?
THE SPECIFIC RELIEF ACT- 1887
* Question-01: (a) what is cancellation of an instrument? Briefly describe about cancellation of documents?
(b) The plaintiff is a party to the disputed document. Can he maintain a suit for a simple declaration that the deed in question is forged and fraudulent one and as such the same is not binding upon hem? If not, under which law and what section he should seek hes redress? [9th December, 2006].
* Cancellation of instrument:
Cancellation of instrument means the cancellation of deed or documents. The deed is cancelled by passing a decree by the court. The court cancels the deed which is void or voidable.
ln section 39 of The Specific Relief Act- 1877, it has been stated about the cancellation of the instruments that “Any person against whom a written instruments is void or voidable, who has reasonable apprehension that such instruments, 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 he delivered up and cancelled”. If the instrument has been registered under the registration Act, the court shall also send a copy of its decree to the officer in whose 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.
* Who can seek such cancellation and on what grounds?
Cancellation of instrument means the instruments which are illegal and unenforceable by law. On that basis the instrument are declared by the court as void or voidable it does not have any legal effect. The person can seek such cancellation of the instrument for which this type of instrument is enforceable to achieve the rights on the property. He bears the apprehension in such instrument may cause him serious prejudice when it is properly used. Thet person can file a suit in the court for the cancellation of that instrument under section 39 of The Speciffc Relief Act 1877. lf that person thinks that the existing instrument may cause him prejudice, then he decides to file the suit tor the cancellation of instrument.
On the basis of the only two grounds any person can seek cancellation of instrument, namely-
(1) The instrument is void or voidable.
(2) There is a reasonable apprehension that such instrument if left outstanding may cause him serious injury.
Ans: Essential points:
The plaintiff of the suit will have to prove the essential ingredients for the cancellation of instrument.
The main 3(Three) points are given below:
(1) The instrument must be void or void able.
(2) There is a reasonable apprehension that such instrument if left outstanding may cause him serious injury.
(3) The court has the competent jurisdiction to cancel the instrument for the ends of justice.
From the above reasons stated in section 39 of The Specific Act-1877. plaintiff will have to prove those reasons in the suit of the cancellation of the instrument. Ans: (b): From the above problem it is found that the plaintiff is a party to the disputed document. This is the question whether he can maintain a suit for a simple declaration that the deed is forged and fraudulent one and as such the same is not binding upon him.
lf any of the parties of a registered deed want to cancel it, then a suit should be filed in the competent court onder section 39 of the specific Relief Act-187. Since the plaintiff is the party to the disputed deed. So, it will not be the right legal step if he files a suit of simple. declaration that the forged and fraudulent document under section 39 of the Specific Relief Act. Otherwise. the document will be a matter or prejudice in future for the plaintiff. Because, if the deed is void or voidable and kept compromised may be the cause of prejudice for the plaintiff. Thus the deed should be compulsorily cancelled by the decree of the court. Because, the forged and fraudulent deed is remained strong and active unless it is cancelled by the decree of the court.
* Question 02: What is meant by relief of specific performance of Contact? In which situation will the court refuse to pass a decree of specific performance?
Ans: Specific Performance of contract: Specific performance of contact means to perform the responsibilities as per the conditions of a valid contract. Once a contract is made between the both parties if the person does not perform his responsibilities by executing the contract as per the law of the contract, the compensation can be claimed against the person for breach of contract. Compensation is a kind of special relief. But this type relief always does not ensure proper justice. The prejudicial person of the contract may not be satisfied with the compensation provided by the court. That is why; the suit is filed in the competent court under section 12 of the Specific Relief Act for the specific performance of contract.
* When the specific performance of contract is enforced:
In section 12 of the Specific Relief Act 1877, it has been stated about the specific performance of contract that- Except as otherwise provided in this chapter, the specific performance of any contract may, in the discretion of the court be enforced-
- a) when the act agreed to be done is in the performance, wholly of partly, of a trust;
- b) when there exists no standard for ascertaining the actual damage caused by non- performance of the act agreed to be done.
Explanation: Unless and until contrary is proved. The court shall presume that the breach of a contract to transfer immovable property can’t be adequately relieved by transfer of movable property can be thus relieved.
* When the specific performance of contract is not enforceable:
As per the conditions of the Specific performance of contract provided in section 12 of the Specific Relief Act- 1877, the specific performance of contract can be enforced. But As per section 21 of the Specific Relief Act- 1877, in the following contacts the specific performance can’t be enforced.
- a) a contract for the non-performance of which compensation in money is an adequate relief;
- b) a contract which runs into such minute of numerous details, of which is so dependent on the personal qualifications or volition of the parties, or otherwise from natural is such. That the court can’t enforce specific performance of its material terms;
- c) a contract the terms of which the court can’t find with reasonable certainty;
- d) a contract which is in its nature revocable;
- e) a contract made by trustees either in excess of their powers or in breach of their trust;
- f) a contract made by or on behalf of a corporation or public company created for special purposes or by the promoters of such company, which is in excess of its powers;
- g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date
- h) a contract of which a material part of the subject matter, supposed by both parties to exist, has, before it has been made, ceased to exist.
* Discretionary power of the court to enforce specific performance of contract:
As per section 22 of the Specific Relief Act- 1877, it has been stated about the discretion as to decreeing specific performance that-
“The jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.”
* Question 03: When can a suit under section 9 of The Specific Relief Act be filed? What are the advantages of filling a suit under this section? Against whom such a suit can’t be filed?
Ans: In our society, it is seen that sometimes the real owner of the property is dispossessed by someone. In that way, being dispossessed he comes to the learned lawyer and expects the appropriate and effective legal help within the period of 6 (six) months from the date of dispossession from the property. In that circumstance, the learned lawyer wants to know some important information as the points from the client. Those are as follows:
- Whether that person is the real owner of the said land or not.
- Whether that person was in possession since before.
- Whether that person has been disposed by the government or not.
- Whether the defendant has forcibly dispossessed him or not.
- Whether the defendant has legally dispossessed him or not.
- Whether he has taken preparation to file the suit within six months from being dispossessed by the defendant of not.
- About the present market value of that property.
- Whether he has the documents as the ownership of the property of not.
All those information will be mentioned in the plaint by knowing from the client to file the suit for the recovery of possession. Every person after being dispossessed from his own possessed property will detail the above mentioned information to the learned lawyer for the initiative of the legal step.
* The advantages of filing a suit under section 9 of the Specific Relief Act:
According to section -9 of The Specific Relief Act- 1877 it has been stated about the suit by person disposed of immovable property that- “if any person is dispossessed without his consent of immovable property. Otherwise, in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other little that may be set up in such suit.”
Nothing in this section shall bar any person from suing to establish his little to such property and to recover possession. In this suit the dispossessor need not prove his title over the property. But he has to file the suit under section of the Specific Relief Act within 06 (six) months from the day of dispossession from the property. In that stage, 50% of the advalorem court fee is paid in the suit. The principle of section 9 of the Specific Relief Act is that ” The person who is in possession now will be in possession.”
Neither any appeal shall lie from any order or decree passed in any suit instituted under this section nor shall any review of any such order of decree be allowed. Under section 115 of the Code of Civil Procedure, only revision is applicable.
* Against whom a suit under section 9 of the Specific Relief Act can’t be filed?
A suit for recovery of possession under section 9 of the Specific Relief Act- 1877 can’t be filed against the Government.