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21. It was argued that it is settled law that when an instrument of sale of an immovable property is not executed by the owner, then such a sale deed is void ab initio and is considered a nullity qua the owner. In such a case, the owner is not required to seek cancellation of such an instrument or seek a declaration that such an instrument is void. This is the reason why the plaintiff had not sought the cancellation of the sale deed dated 14.06.1973 in the present case and therefore, there arises no question of application of Article 59 of the Schedule to the Limitation Act, 1963. The counsel has placed reliance on several decisions to emphasize that when the instrument is void/void ab initio and not voidable, it would be Article 65 which would apply to a suit for possession based on title filed by the plaintiffs.

65. For possession of Twelve When the possession immovable property years of the defendant or any interest becomes adverse to therein based on title the plaintiff.

26. The counsel for the plaintiff would submit that it is Article 65 which must be applied to the present suit for possession since the sale deed dated 14.06.1973 was found to be fraudulent and therefore, void. Insofar as the question whether the aforesaid sale deed was void, the First Appellate Court observed as thus:

19. Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time, of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half-share of the appellant in the suit properties. In  fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction.

Thus, the sale deeds of 10-4-1981 will not confer any right, title and interest on Sudarshan Kumar's wife and children as the sale deeds will have to be ignored being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.