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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.

In the case of Mohd.Nazir and others Vs. Mst. Zulaikha5, in a suit for declaration and transactions embodied in a particular deed was from the very inception a sham transaction. It is to be distinguished from a suit for cancellation of the deed. The former kind of suit does not fall within the purview of Article 91 (old) wherein the deed is null and void. It is not necessary to come to the Court pre-emptly to get the Deed cancelled or set aside.

In the case of Rankanidhi Sahu Vs. Nanda Kishore Sahu6, Article 59 of Limitation Act applies when a suit is filed for cancellation or setting aside a document which is not void ab initio. If a document is void ab initio and is an illegal document from very inception it is not required either to cancel or to set aside by filing a suit because according to law such a document does not exist. Same view was reiterated in the case of Smt. Sanghiran Vs. D.D.C.Meerut and others7, it has been held that if the sale deed is void the question of relief for getting the sale deed cancelled would not be involved. Article 59 of Limitation Act, may therefore, applies where a document is prima facie valid. It would not apply to the instruments which are pre-emptly invalid. Thus, if the plaintiff is in possession over the property on which her name was mutated in revenue records and she along with her sister was in possession, she may file a suit for declaration that the deed is not binding upon her but if he/she is not in possession thereto, even under a void transaction right, right by way of adverse possession can be claimed.

In the case of Mohd.Nazir and others Vs. Mst. Zulaikha (Supra), it has been held that in a suit for declaration that a transaction embodied in a particular deed was from the very inception a sham transaction, is to be distinguished from a suit for cancellation of the deed. Such kind of suit does not fall within the purview of Article 59. When a deed is null and void, there is no necessity for the party to come to the Court pre-emptly and to get the deed cancelled or set aside.

Since in the present case, this Court has come to the conclusion that the Will in question at the most can be termed as a voidable document and it was not a document void ab initio, as such the judgment cited by learned counsel for the appellant is not of much help to him.

In the case of Rankanidhi Sahu Vs. Nanda Kishore Sahu (Supra), relied by learned counsel for the appellant, it has been held that Article 59 of the Limitation Act applies when a suit is filed for cancellation or setting aside a document which is void ab initio. If a document is void ab initio and is an illegal document from very inception it is not required to cancel or set aside by filing a suit because according to law such a document does not exist. Same view was reiterated in the case of Smt. Sanghiran Vs. D.D.C.Meerut and others (Supra), that if the sale deed is void, question of getting it cancelled does not arise and no question of relief for getting the sale deed cancelled would be involved. There is no quarrel to the aforesaid proposition that Article 59 of Limitation Act may apply where the document is prima facie valid or is voidable. It would not apply to the instruments which are pre-emptly invalid or void ab initio.