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3. Whether the provisions of Article 59 of the Limitation Act would be applicable in a suit for cancellation of a will which is void abinitio which necessarily did not require its cancellation because the said suit amount to a suit for declaring the will to be void?"

Learned counsel for the appellant contended that the trial court has held that the disputed signature on the Will Deed dated 7.1.1987 do not tally with the admitted signature. Merely on the basis of the registration, it could not be held that the Will is genuine, rather in suspicious circumstance that the Will is surrounded an explanation has to be furnished. As such the burden lies on the person and he has to discharge that burden who is benefited by the Will. It was also held that an explanation was furnished by the defendant no. 1 Munna Lal that since his grand mother Smt. Nand Rani got him married and he was residing with her, hence the Will was executed in his favour, is not a satisfactory explanation; rather it is suspicious circumstance that if Nand Rani did not want to give anything to Smt. Sahodara (plaintiff), then why she had not given any share of her property to the sons of Smt. Sahodara.

The appellant's counsel submits that in the case of Sanat Kumar Mitra (Supra), applicability of Article 91(old) equal to Article 59 (new) of Limitation Act, 1963 came up for consideration and it was held that Article 91 does not apply if the instrument is void abinitio and applies only if it is voidable and requires to be set aside. Moreover, this article applies only when the plaintiff is a party to the instrument. Admittedly, the plaintiff was not a party to the alleged Will Deed dated 7.1.1987, as such the alleged Will Deed is a void document and Article 59 of Limitation Act would not be applicable.