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Tuesday, 3 January 2017

Bar Council exam tips and tricks for The Specific Relief Act ( Act No. 1 of 1877)



THE SPECIFEC RELIEF ACT- 1887
Question-1: (a) what do you mean by cancellation of an instrument? Who can seek such cancellation and on what grounds?
(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, unden which law and what section he should seek his redress?     [9th December, 2006].
Ans: Meaning of 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 void able.
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 void able, 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. That person can file a suit in the court for the cancellation of that instrument under section 39 of The Specific Relief Act 1877. lf that person thinks that the existing instrument may cause him prejudice, then he decides to file the suit for the cancellation of instrument.
Grounds:
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 fided in the competent court under section 39 of the specific Relief Act-187. Simce 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. this document will be a matter or prejudice in future for the plaintiff.  Because, if the deed is void or voidable and kept uncompromised 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.