Rescission of Contracts

Cancellation of Instruments
&
Declaratory Decrees
Specific Relief Act
Section 27, 31 and Section 34, 35
 RESCISSION OF CONTRACTS
• 27. When rescission may be adjudged or refused.—(1) Any person interested in a contract may sue to have
it rescinded, and such rescission may be adjudged by the court in any of the following cases, namely:—
(a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face and the defendant is more to blame
than the plaintiff.
(2) Notwithstanding anything contained in sub-section (1), the court may refuse to rescind the contract—
(a) where the plaintiff has expressly or impliedly ratified the contract; or
(b) where, owing to the change of circumstances which has taken place since the making of the contract (not
being due to any act of the defendant himself), the parties cannot be substantially restored to the position in
which they stood when the contract was made; or
(c) where third parties have, during the subsistence of the contract, acquired rights in good faith without
notice and for value; or
(d) where only a part of the contract is sought to be rescinded and such part is not severable from the rest of
the contract.
Explanation.—In this section “contract” in relation to the territories to which the Transfer of Property Act, 1882
(4 of 1882), does not extend, means a contract in writing
 Cancellation of Instruments
31. When cancellation may be ordered.—
(1) Any person against whom a written instrument is void or voidable,
and who has reasonable apprehension that such instrument, 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 be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration
Act, 1908 (16 of 1908), the court shall also send a copy of its decree to
the officer in whose office 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.
 Declaratory Decree
• Section 34
Discretion of court as to declaration of status or right.—Any person
entitled to any legal character, or to any right as to any property, may
institute a suit against any person denying, or interested to deny, his
title to such character or right, and the court may in its discretion make
therein a declaration that he is so entitled, and the plaintiff need not in
such suit ask for any further relief: Provided that no court shall make
any such declaration where the plaintiff, being able to seek further
relief than a mere declaration of title, omits to do so. Explanation.—A
trustee of property is a “person interested to deny” a title adverse to
the title of some one who is not in existence, and whom, if in existence,
he would be a trustee.
 Declaratory Decree
35. Effect of declaration.—A declaration made under this Chapter is
binding only on the parties to the suit, persons claiming through them
respectively, and, where any of the parties are trustees, on the
persons for whom, if in existence at the date of the declaration, such
parties would be trustees.
 Declaratory Decree
Legal requisites in a suit under Section 34:
• i) the plaintiff must be a person entitled to any legal character or to any right as to any
property;
• ii) the defendant must be a person denying or interested to deny, the plaintiff’s title to
such character or right;
• iii) the declaration sued for must be declaration that the plaintiff is entitled to a legal
character or to a right to property; and
• iv) where the plaintiff is able to seek further relief than a mere declaration of title, he
must seek such relief.
If any of the first three conditions is not fulfilled, the suit should be dismissed. If those
conditions are fulfilled but the fourth is not, the court shall not make the declaration sued
for.
• Since declaration is an equitable remedy the court still has a discretion to grant or
refuse the relief depending on the circumstances of each case.
 Purpose of the Relief
The section enables a person to have his right or legal character
declared by a Court of law and thus get rid of the cloud from the legal
character or right. It has been held that it was merely to perpetuate
and strengthen testimony regarding the title of the plaintiff so that
adverse attacks might not weaken it. [Naganna v Sivanappa 38 Mad.
1162] But this does not mean that the section sanctions every form of
declaration, but only a declaration that the plaintiff is entitled to any
legal character or to any right as to any property
 Declaratory Decree
Thus a person claiming declaratory relief must show that he is entitled:
1. to a legal character, or
2. to a right as to property, and that
3. the defendant has denied or is interested to deny his title to such
character or right and
4. he has sought all reliefs in the suit.
 Legal Character
• According to Holland, Holland's Jurispurdence, (London, Stevens, 8th
edn p.309), Legal Character includes official position, profession, sex,
minority, coverture, nationality, legitimacy, mental defect, rank, caste,
foreign nationality etc. A legal right can be classified to be a personal
right and would amount to one's status, and is distinct from a
proprietary right, when it involves a peculiarity of the personality
arising from anything unconnected with the nature of the act itself
which the Person of inherence can enforce against the person of
incidence. The personality recognised in the law of persons should be
such as modifies Indefinitely the legal relations into which the
individual clothed with the personality may enter.
 Legal Character
A man’s ‘legal character’ is the same thing as his status which is
constituted by the attributes the law ascribes to him in his individual
and personal capacity. (Lalji Haridas v. Mulji Manilal Kamdar, AIR
1966 Guj 169) Legal status is a right when it involves a peculiarity of
the personality arising from anything unconnected with the nature of
the act itself, which the person of inheritance can enforce against the
person of incidence.
Questions relating to minority, rank, caste, official position, civil
death, illegitimacy or legitimacy, nationality are about legal character
of a person. It refers to a position recognised by law. Declaration can
be sought for a person’s name and for relief seeking incorporation of
full name of the plaintiff in a record.
 Legal Character
Legal character is not restricted to family relationships. A priest of a temple
files a suit for legal character. A hereditary right to make appointments to a
particular office also confers a legal character.

Particular Declarations:

Family Relationships:
A bequeaths property to B for his life with remainder to B’s wife and her
children, if any by B, but if B dies without any wife or children, to C. B has a
putative wife, D and children but C denies that B and D were ever lawfully
married. D and her children may, in B’s lifetime institute a suit against C and
obtain therein a declaration that they are truly the wife and children of B.
 Legal Character
• Caste:
It has also been held that caste is a legal character and a suit has been
allowed for a declaration that the plaintiff is a member of an
agricultural tribe or is not a member of a scheduled caste.
• Rights of Religious Nature:
A priest may maintain a suit for declaration that he is entitled to
officiate as a priest even though no emoluments are attached to the
office.
 Legal Character
• Employment:
When there has been purported termination of a contract of service a declaration
that the contract of service still subsisted would rarely be made and would not be
made in absence of special circumstances because of the principle that the Courts
do not grant specific performance of contracts of service the remedy of the
employee is a suit for damages.
Termination of relationship of master and servant will not entitle the servant to a
declaration to the effect that the service has not been validly terminated. However
this would not apply to an office where the body employing the servant has done so
under some statutory or other restriction.
Thus a declaration to enforce a contract of personal service can be granted in the
appropriate cases of public servants who have been dismissed from service in
contravention of Article 311. Where the service is under the statute it cannot be
determined arbitrarily.
 Person entitled to a right to any property
The second requirement is that the person who seeks the remedy must
have a right to any property.
Illustration:
A is in possession of certain properties. B alleging that he is the owner
of the property requires A to deliver it to him. A may obtain a
declaration of his right to whole of the property.