Section 34 Declaration versus Section 31 Cancellation

Where a written instrument threatens a person's title, he may frame his suit in one of two ways, and the choice turns on whether he is bound by the instrument. A person who executed the deed, or is bound by it, must sue for cancellation under Section 31. A stranger to the deed, not bound by it, need only a declaration under Section 34 that it does not affect him. This note explains each in its own right, compares them, and works through an example, drawing on Suhrid Singh v Randhir Singh.

Figure: Section 34 declaration and Section 31 cancellation compared, and the test of whether the plaintiff is bound

1. Section 34 Declaration in Its Own Right

A declaration under Section 34 states positively that the plaintiff is entitled to a legal character, or to a right as to property, against a person who denies or is interested to deny it. It is the frame for a non-executant, a stranger not bound by the impugned instrument: because the deed does not bind him, a declaration that it does not affect him suffices, and he need not have it cancelled. It grants nothing to be enforced, so it is not executable; it is hedged by the proviso to Section 34, which bars a bare declaration where further relief is available; and its court fee is a fixed one.

2. Section 31 Cancellation in Its Own Right

Cancellation under Section 31 has the court adjudge a written instrument void and order it delivered up and cancelled. It is the frame for an executant, a party bound by the instrument: because the deed operates against him, a mere declaration will not help; the deed must be set aside. The decree annuls the instrument, and where it is registered the court sends the decree to the registering officer under Section 31(2). Its court fee is ad valorem, on the value of the instrument.

3. The Two Compared

4. The Test: Is the Plaintiff Bound?

5. A Worked Example

Suppose a father executes a sale deed of the joint family property. If the father later says the sale is void, he is the executant; the deed binds him until set aside, so he must sue for cancellation under Section 31 and pay ad valorem court fee on the sale price. But if his son, who was no party to the deed and whose share the father had no right to sell, challenges it, the son is a stranger; the deed does not bind his share, so he need only sue for a declaration under Section 34 that the sale does not affect his share, on a fixed fee. Same deed, two plaintiffs, two frames, two court fees, exactly as Suhrid Singh explains. The dividing question is always whether the plaintiff is bound by the instrument.

6. Frequently Asked Questions

Q. When must a plaintiff seek cancellation under Section 31 rather than a declaration?
A. When he executed the instrument, or is otherwise bound by it. Being bound, the deed operates against him until set aside, so he must sue for cancellation and pay ad valorem court fee.

Q. When does a declaration under Section 34 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, on a fixed court fee.

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, as Suhrid Singh v Randhir Singh holds.

Q. What is the single test?
A. Whether the plaintiff is bound by the instrument: if bound, he sues to cancel it; if a stranger, he need only a declaration that it does not affect him.