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11. Mr. T.S. Subrarnaniam, learned Counsel for the Plaintiff, submits that in the absence of particulars of fraud and misrepresentation in the written statement, and when Sankaralinga himself could not decide relating to the validity of Exhibit B-1, and there being lack of cogency between the stand taken in Exhibit B-27 and Exhibit B-26, and when two of the four attestors had spoken as to how and in what manner, Exhibit B-1 came to be executed by Sankaralinga fully knowing of its contents, and when both husband and wife executed Exhibit B-1 but cancellation having been attempted only by Sankaralinga in spite of a recital in Exhibit B-1 that they have no power of alienation, and When the three of his dauthters have fraudulently brought into existence in Exhibits B-27 and B-28, and when the averments relate to contents of Exhibit B-1; it could at best be construed as a voidable document and not a void document; and when Sankaralinga had never gone to Court to set aside Exhibit B-1 within the period of limitation, nor any of his successor-in interest; the validity of Exhibit B-1 cannot be impeached at this distance of time.

16 Division Bench of mis Court in Appanna v. Venkatappadu (1953) 1 M.LJ. 476 : 1952 M.W.N. 128 : A.I.R. 1953 Mad. 611 held that when a deed of one character is executed on a representation that it was of a different character, then it is void and inoperative. Such a document need not be set aside under Article 91 of the Limitation Act. In the light of these authoritative pronouncements, when the facts and circumstances of this case clearly show that there was a misrepresentation relating to the character of the document (Exhibit B-1), none of the decisions referred to by Mr. T.S. Subramaniam, learned Counsel for plaintiff as to what are voidable documents, and if Exhibit B-1 is voidable, what steps and within what time, the affected party should seek for remedies need be referred to. In the initial part of his submissions, considerable time was consumed in referring to decisions as to what remedies will be available, if it is a voidable document.

25. As already pointed out. Exhibit B-27 has been taken into account only as a. relevant piece; of evidence so the plea of fraud. Therefore, if the transaction is a voidable transaction, there would be need to set it aside, but if it is a void transaction, there is no need to institute a proceeding to declare it as void, but he can simply avoid it.

26. He would then rely upon Section 31 of Special Relief Act and claim that even in respect of a void transaction, it is obligatory on the part of the party, who wants to avoid the document, to institute proceedings. The Section itself stales that if anyone who is faced with a void or voidable instrument, apprehends that it may cause him serious injury, he may sue to have it adjudged as void or voidable Article 91 of the Limitation Act of 1908, prescribed a period of three years for cancellation of a document which is voidable and it did not apply where the document was ab initio void, because such documents do not require to be set aside in law. Article 59 of the Limitation Act, 1963 prescribes a period of three years from the time when the facts entitling the plaintiff to have the instrument cancelled first become known to him. Therefore, this section cannot be relied upon to claim that, unless a suit is filed to declare a document as void, the executant cannot avoid it, when it is, ab-initio void as had happened to Exhibit B--1.