“No Mandatory Cancellation”: The Supreme Court Re-affirms that a Non-Executant Owner Need Not Sue to Cancel a Stranger’s Void Deed – Comment on Hussain Ahmed Choudhury v. Habibur Rahman (2025)

1. Introduction

The Civil Appeal in Hussain Ahmed Choudhury & Ors. v. Habibur Rahman (Dead) through LRs & Ors., 2025 INSC 553, presented a typical yet vexed question in property litigation: Must an owner, who bases his title on an earlier registered gift deed, also pray for cancellation of a later sale deed executed by strangers who had no title? In reversing the Gauhati High Court, the Supreme Court has delivered an authoritative ruling that crystallises the distinction between:

a suit for cancellation under Section 31 of the Specific Relief Act, 1963 (“SRA”); and
a suit for a mere declaration of title under Section 34 SRA where the impugned instrument is executed by strangers and is void ab initio.

The protagonists and procedural trajectory are summarised below:

Plaintiffs (Appellants): Legal heirs of Siraj Uddin Choudhury, donee under a 1958 registered gift deed executed by his grandfather.
Defendants (Respondents): (i) Siblings of Siraj’s deceased father who allegedly sold part of the gifted lands in 1997; (ii) the transferee–purchaser, Habibur Rahman (now deceased, through LRs).
Key Issue: Whether omission to plead cancellation or declaration of invalidity of the 1997 sale deed bars a decree for declaration of the plaintiffs’ right, title and possession.

2. Summary of the Judgment

Authored by Pardiwala J., the Supreme Court:

Allowed the appeal, set aside the common High Court judgment dated 09-10-2015, and restored the concurrent decree of the Trial and First Appellate Courts.
Framed the core question: “Was the High Court justified in denying declaration of title merely because plaintiffs did not seek cancellation of a sale deed executed by strangers?”
Held emphatically in the negative, grounding its answer on settled principles that:

a plaintiff who is not a party to a written instrument and does not claim through its executants is not obliged to sue for its cancellation;
a decree declaring such plaintiff’s pre-existing title suffices; the later void instrument can be ignored as non est.

Clarified the differing ambits of Sections 31 and 34 SRA, harmonising earlier authorities.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Muppudathi Pillai v. Krishnaswami Pillai (Mad FB 1959).
– Laid down three conditions for cancellation under Section 31.
– Emphasised that Section 39 (now 31) applies only where the impugned instrument is “likely to affect the title of the plaintiff” and is executed by him or someone who can bind him.
– The Supreme Court drew extensively on this to demarcate in personam cancellation suits.
Deccan Paper Mills Co. v. Regency Mahavir Properties (2021 SCC).
– Affirmed the in personam nature of Section 31 proceedings; endorsed Muppudathi.
– Provided the immediate modern anchor for the present ratio.
Suhrid Singh v. Randhir Singh (2010 SCC).
– Differentiated reliefs by executant versus non-executant; quoted to illustrate why a non-executant sues only for declaration.
Classical authorities: Unni v. Kunchi Amma (1890 Mad), Bijoy Gopal Mukerji v. Krishna Mahishi Debi (PC 1907), Vellayya Konar v. Ramaswami Konar (1939 Mad).
– Furnished doctrinal lineage for treating void deeds by strangers as “mere waste paper” vis-à-vis the true owner.
Relied-on by Respondents but distinguished:
– Mohd. Noorul Hoda v. Bibi Raifunnisa (1996 SCC).
– Abdul Rahim v. Sheikh Abdul Zabbar (2009 SCC).
The Court explained that both concerned persons claiming through parties to the impugned instrument; thus Article 59 limitation and Section 31 cancellation became relevant – circumstances absent in the present case.

3.2 Court’s Legal Reasoning

(a) Statutory Framework

Section 31 SRA (cancellation) – discretionary relief, available only to a person against whom the instrument is “void or voidable” and who reasonably apprehends injury if it is left outstanding.
Section 34 SRA (declaration) – allows any person “entitled to any legal character or to any right as to any property” to sue anyone denying such title. Proviso bars a bare declaration when “further relief” is necessary and possible.

(b) Distinction Drawn

“Where the executant of a deed wants it annulled, he must sue for cancellation; when a non-executant/stranger claims an independent prior title, he may simply seek declaration that the deed is not binding on him.”

(c) Application to Facts

Plaintiffs’ title flows from a 1958 gift deed indisputably valid; defendants’ 1997 deed is executed by persons with no title.
Plaintiffs are strangers to the 1997 deed; it is void ab initio vis-à-vis them. Thus, Section 31 is inapplicable.
Proviso to Section 34 does not compel addition of a cancellation prayer, because (i) declaration of pre-existing title renders the void deed otiose; (ii) no executable further relief is required.
High Court erred by mechanically applying Noorul Hoda and ignoring the line of authorities distinguishing non-executant cases.

3.3 Impact Assessment

Clarifies pleading strategy – Property owners confronting subsequent void instruments executed by strangers may now confidently frame a declaration-cum-possession suit without adding needless cancellation prayers.
Litigation economy – Reduces multiplicity; avoids limitation pitfalls under Article 59 for non-executants.
Land-records sensibility – Reinforces the primacy of older registered deeds and boundaries over clerical mis-description of survey numbers, provided identity of property is certain.
Guidance to Subordinate Courts – Warns against upsetting concurrent findings on mere technicalities, thereby strengthening the rule that substantial justice prevails over procedural form.
Arbitration relevance – By restating that Section 31 actions are in personam, the judgment indirectly assists parties to decide when claims can be referred to arbitration.

4. Complex Concepts Simplified

4.1 Cancellation vs Declaration

Cancellation (S 31): Like shredding an instrument; typically sought by the person who signed it (or by one who derives title through such person). Decree operates in personam; the deed ceases to exist for all purposes between the parties.
Declaration (S 34): A judicial pronouncement that clarifies legal status or ownership. It does not physically erase documents but renders them unenforceable against the declaratory plaintiff.

4.2 Executant & Non-Executant

Executant: The person who signs/executes a deed.
Non-Executant/Stranger: Anyone else – even if affected by the deed – who neither executed it nor claims through its executant.

4.3 Void vs Voidable vs Non Est

Void: Having no legal effect from inception (e.g., sale by someone with no title).
Voidable: Valid until avoided (e.g., contract entered under coercion).
Non Est: Latin for “does not exist”; courts treat it as mere waste paper vis-à-vis the person denying it.

4.4 “Further Relief” under Section 34 Proviso

If obtaining only a declaration without an additional remedy would leave the plaintiff’s grievance unresolved (e.g., declaration of tenancy without possession), the plaintiff must add an appropriate consequential relief. In the present case, possession was already sought; cancellation was not “further relief” flowing from declaration.

5. Conclusion

The Supreme Court’s decision in Hussain Ahmed Choudhury cements a pragmatic doctrine: a prior title-holder, who faces a void conveyance by strangers, need not embark on the procedural detour of seeking cancellation. A declaration of his superior title, coupled if necessary with recovery of possession, suffices. The ruling reconciles earlier jurisprudence, dispelling confusion bred by over-extension of Noorul Hoda and Abdul Rahim. It will likely shrink unnecessary prayers, avoid limitation traps, and promote substantive justice in property disputes across India.