Cancellation versus Declaration

When a written instrument stands against a person, he has two possible routes, and choosing the right one is a matter both of principle and of court fee. If he is bound by the instrument, he must have it cancelled; if he is a stranger not bound by it, he need only a declaration that it does not affect him. This note explains each remedy in its own right, compares them, works through an example, and states the guiding principle the Supreme Court laid down in Suhrid Singh v Randhir Singh.

Figure: Cancellation and declaration compared, from nature to court fee, and the guiding principle of who is bound

1. Cancellation in Its Own Right

Cancellation, under Section 31, is an active remedy. A person against whom a written instrument is void or voidable, and who reasonably apprehends serious injury if it is left outstanding, may have it adjudged void and delivered up and cancelled. It is the remedy of a person who is bound by the instrument, or was a party to it: because the deed operates against him, he must have it set aside to escape it. The court fee is ad valorem, on the value of the instrument, and where it is registered the decree is sent to the registering officer under Section 31(2).

2. Declaration in Its Own Right

A declaration, under Section 34, is a passive remedy. The court simply states that the plaintiff is entitled to a legal character or a right to property, against a person who denies or is interested to deny it. It grants nothing to be enforced. It is the remedy of a stranger to the instrument: because the deed does not bind him, he need not have it formally cancelled; a declaration that it does not affect him is enough. The court fee is a fixed one, unless he must also seek consequential relief such as possession. It binds only the parties and those claiming through them under Section 35.

3. The Two Compared

4. The Guiding Principle

5. A Worked Example

Suppose A executes a sale deed in B's favour under undue influence, and later wants to be free of it. Because A is the executant, the deed operates against him until set aside, so he must sue for cancellation under Section 31 and pay ad valorem court fee on the deed's value. Now suppose instead that C, a co-owner who never signed anything, finds that A has sold the whole property, including C's share, to B by a deed C was no party to. C is a stranger to that deed; it does not bind his share. C need only sue for a declaration under Section 34 that the deed does not affect his share, on a fixed court fee, and need not have the deed formally cancelled. Suhrid Singh draws exactly this line.

6. Frequently Asked Questions

Q. When must a person sue for cancellation rather than a declaration?
A. When he is a party to, or otherwise bound by, the instrument. Being bound, he must have the deed set aside, so cancellation is the proper relief.

Q. When does a declaration suffice?
A. When the plaintiff is a stranger to the instrument and it does not bind him; a declaration that it does not affect him is enough, and he need not have it cancelled.

Q. How does the court fee differ?
A. Cancellation attracts ad valorem court fee on the value of the instrument; a bare declaration attracts a fixed fee, unless consequential relief such as possession is also claimed.

Q. What did Suhrid Singh v Randhir Singh decide?
A. That the executant of a deed must sue to cancel it and pay ad valorem fee, while a non-party seeking a declaration that it does not bind him pays only a fixed fee.