AIR 1960 MADRAS 1 ::1972 MadLW 543 ::(1959) 2 MadLJ225 ::ILR (1959) Mad 929

Madras High Court

Hon'ble Judge(s): P. V. Rajamannar , C.J. AND Ramachandra Iyer, Ganapatia Pillai , JJ

(A) Specific Relief Act (1 of 1877) , S.41, S.39, S.35— Jurisdiction to award compensation u/S.41, arises when Court adjudges cancellation of instrument - Scope and principle of S.39. It is clear from the provisions of S. 41 that the jurisdiction to award compensation would arise when the Court adjudges the cancellation of an instrument. Section 39 which provides for the relief as to cancellation of an instrument applies not merely to the case of an instrument which is voidable but also one that is void. Section 35 provides for the case of rescission of voidable contracts. It is evident that S. 39 covers not only a case contemplated under S. 35, but also a wider field, that is a case of a void document, which under the law need not be set aside. The principle is that such document though not necessary to be set aside, may, if left outstanding, be a source of potential mischief. The jurisdiction under S. 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake, undue influence etc. and it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same a....