This document summarizes the law around cancellation of instruments in India. It discusses the key sections of the Specific Relief Act (Sections 39, 40, 41) regarding when instruments can be cancelled and who can file suits. It outlines the essential elements to file a suit, including that the instrument must be written, void/voidable, and if left outstanding may cause serious injury. It provides examples of the scope of cancellation for different types of instruments like gift deeds, mortgage deeds, and sale deeds.

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SRA 255 | Presentation of Cancellation of Instruments
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THE SPECIFIC RELIEF ACT, 1877 AND
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. 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.
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SRA 255 | Presentation of Cancellation of Instruments
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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.
Thursday, June
25, 2015
SRA 255 | Presentation of Cancellation of Instruments
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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.
Thursday, June
25, 2015
SRA 255 | Presentation of Cancellation of Instruments
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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 may cause injury;
The injury must be in serious nature;
Discretionary power of the court; which declare it void or voidable
and delivered up and cancellation.
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SRA 255 | Presentation of Cancellation of Instruments
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6. SCOPES OF CANCELLATION OF INSTRUMENTS
Gift Deed
Mortgage Deed
Deed by Minor
Suit for Possession
Sale Deed
Suit by person not partly to instrument
Discretion Power of Court
Prayer for Cancellation when unnecessary
Limitation for filing a suit Thursday, June
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SRA 255 | Presentation of Cancellation of Instruments
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7. 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.
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8. DEED BY MINOR
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9. 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
Mortgage’s title is discovered later on, then the Mortgagor’s cannot
file a suit for cancellation during the Mortgage on be the basis of
mutual estoppel. (আইনের চূ ড়ান্ত স্বীকৃ তি)
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SRA 255 | Presentation of Cancellation of Instruments
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10. SUIT FOR POSSESSION
In a suit where the plaintiff’s real object is to obtain a declaration
under Section 42 of Specific Relief Act. 1877 and not a mere
declaration that a document is void, Section 39 of the Specific Relief
Act. 1877 has no application.
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SRA 255 | Presentation of Cancellation of Instruments
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11. 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.
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SRA 255 | Presentation of Cancellation of Instruments
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12. 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.
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SRA 255 | Presentation of Cancellation of Instruments
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13. PRAYER FOR CANCELLATION WHEN
UNNECESSARY
In case of cancellation of instruments, upon filing a suit by the
plaintiff or the defendant, if the Court found that there was no
reasonable cause or no person will be harmed or injured by the
instruments or the instrument is void or voidable, then the Court
declare the suit unnecessary and reject or rescind the suit.
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SRA 255 | Presentation of Cancellation of Instruments
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14. 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.
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