JUDGMENT : R.C. Patnaik, J. - The substantial question of law that has arisen for an answer in this Second Appeal is: whether a deed of transfer executed under fraud and misrepresentation, is void or voidable? 2. Admittedly, the Plaintiff was the owner of the disputed property. The father of the Defendants, a resident of Bihar, came to village Laing-the village of the Plaintiff-a decade and a half before and after taking shelter in the house of some villagers approached the Plaintiff for accommodation. He, however, did not, though an assurance was given to the Plaintiff that he would shift from the cow-shed, which he was allowed to occupy, after the rainy season. On some pretext or other he deferred. In the year 1970, the Plaintiff was requested by one Dutia Gartia to act as an attesting witness in a deed of mortgage which was being executed by one Sukhram Sahu in his favour. He was taken to Rajgangpur and was made to sign on a document. The Plaintiff was an illiterate ignorant man. He put his left thumb impression at the place where he was required to. When preliminary parcha in respect of the lands was not granted to him at the, attestation camp of the settlement but to Defendants 1 and 2 instead he made enquiry and learnt that they bad obtained a gift deed from him playing fraud and deceit. It was recited therein that the Defendants were the sons and daughter of the Plaintiff. He thereupon executed a registered document on 5-8-1970 cancelling the deed of gift. When the Defendants forcibly trespassed upon some of his properties, a proceeding u/s 145 of the Code of Criminal Procedure was started and his possession was found. Though the Defendants moved this Court in revision they lost. However, the Defendants continued to occupy the house despite is protest. During the settlement proceedings, their names were recorded in respect of .8 decimals appertaining to plot No. 1767. He thereupon instituted a suit for declaration of title and for ejectment of the Defendants. The Defendants controverted the allegations. They averred that the Plaintiff had married the mother's sister of Defendant No. 3, their mother. As such, Defendants 1 and 2 are the grand-sons of the Plaintiff and the Plaintiff had brought up the father of Defendants 1 and 2 and all of them had been living in his house. The Defendants controverted the allegations. They averred that the Plaintiff had married the mother's sister of Defendant No. 3, their mother. As such, Defendants 1 and 2 are the grand-sons of the Plaintiff and the Plaintiff had brought up the father of Defendants 1 and 2 and all of them had been living in his house. In 1951, the Plaintiff executed a deed of adoption acknowledging Tena Sahu, the father of Defendants 1 and 2, as his adopted SOD. The deed of gift was executed by the Plaintiff out .of affection and voluntarily. The other averments are not relevant. The trial Court decreed the suit holding that the deed of gift (Ext. B) had been obtained from the Plaintiff by exercise of fraud and misrepresentation. The Plaintiff was entitled to revoke the same which he did by executing the deed of cancellation and hence there is no impediment on his way in obtaining the relief sought. In appeal, the lower appellate Court upon a consideration of the materials, confirmed the finding of the trial Court that the gift deed had been obtained from the Plaintiff by practising fraud and under misrepresentation. It, however, held that the document being a voidable one, the Plaintiff was obliged to avoid the same by seeking a specific declaration to that effect and in as much as the Plaintiff was aware of the deed of gift since 5-8-1970" the date of execution of the deed of cancellation, a suit for avoidance of the deed of gift was barred by limitation under Article 59 of the Limitation Act the suit having been filed in 1976. The Plaintiff was not therefore entitled to obtain the relief sought and the decree granted. It, therefore, reversed the judgment of the trial Court and dismissed the suit. 3. Shri H. Patel, the learned Counsel for the Appellant, urged that the lower appellate Court grievously erred in law in not keeping in mind the distinction between a void document and a voidable document. The lower appellate Court fell into an error .in treating the document as a voidable one requiring its evidence. 3. Shri H. Patel, the learned Counsel for the Appellant, urged that the lower appellate Court grievously erred in law in not keeping in mind the distinction between a void document and a voidable document. The lower appellate Court fell into an error .in treating the document as a voidable one requiring its evidence. Had the lower appellate Court treated the document as a void one, the question of seeking a declaration and instituting the suit within the period of limitation as prescribed under Article 59 would not have arisen and the Plaintiff would have been entitled to a confirmation of the decree passed by the trial Court. 4. Mrs. Padhi, the learned Counsel for the Respondents, on the other hand contended that the Plaintiff having alleged exercise of fraud and deceit and obtaining of the document through misrepresentation, the document was a voidable one and had to be avoided before the Plaintiff was entitled to any relief. She supported the decree passed by the lower appellate court. 5. A voidable transaction requires evidence. Until it is set aside by a decree of Court, it remains as an impediment. On the other hand, a void transfer or document is non est, ineffective and must be deemed never to have taken place. Then comes the question when is a document void or voidable where fraud and misrepresentation are alleged in the execution thereof. There is some nicety of distinction. Where the fraudulent misrepresentation is alleged as to the character of the document it is a void one. Where the fraudulent misrepresentation is a's to the contents, it is' a voidable document. (See Ningawwa Vs. Byrappa and Others, ) 6. To illustrate, where a particular category of document is taken (Lease, Sale-deed, deed of relinquishment, deed of gift, etc.) on the pretext of taking the power-at-attorney, deed of lease, deed of mortgage, etc., it is a fraud as to the character of the document. (See Ningawwa Vs. Byrappa and Others, ) 6. To illustrate, where a particular category of document is taken (Lease, Sale-deed, deed of relinquishment, deed of gift, etc.) on the pretext of taking the power-at-attorney, deed of lease, deed of mortgage, etc., it is a fraud as to the character of the document. Where a party enters into a transaction, which he never intended to, there is a fraud as to the character of the document because "the signature is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended......". He was deceived as to the legal effect, There being therefore no execution by him, the document is void. 7. On the other hand, where the schedule of the property is altered by,exercise of fraud, the fraud is as to the contents of the document and the document is voidable. It gives an option to the party to treat the contract as binding or disaffirm the same. Until it is avoided, the transaction is void, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. 8. Where a document is void, the party not being obliged to seek a voidance need not seek the relief for the annulment thereof by the Court. He may seek reliefs simply ignoring the document. He may by way of abundant caution seek a declaration that the document is void. That would not, however, attract Article 59 of the Limitation Act. Because he is not seeking the assistance of the Court to avoid a document, the document is non est. Where it is necessaryto set aside a document, i.e., where a document is voidable, Article 59 of the Limitation Act applies. In this connection, reference may be made to Sanni Bibi and Anr. v. Siddik Hossain and Ors. AIR 1919 Cal. 728 Sarat Chunder Gupta Vs. Kanai Lal Chuckerbutty and Another, and Brindaban Misra Adhikary Vs. Dhruba Charan Roy and Others which were referred to with approval in Ningawwa (supra). 9. In this connection, reference may be made to Sanni Bibi and Anr. v. Siddik Hossain and Ors. AIR 1919 Cal. 728 Sarat Chunder Gupta Vs. Kanai Lal Chuckerbutty and Another, and Brindaban Misra Adhikary Vs. Dhruba Charan Roy and Others which were referred to with approval in Ningawwa (supra). 9. Having regard to the concurrent findings that the gift deed was obtained from the Plaintiff by exercise of fraud and misrepresentation, the document was void. Therefore, Article 59 had no application. The dismissal of the suit by the lower appellate Court holding that the suit was barred by limitation under Article 59, is unsustainable. I, therefore, vacate the judgment and decree of the lower appellate Court and restore those of the trial Court. The Appellant's suit is decreed. 10. In the result, the Second Appeal is allowed. But, the parties shall bear their respective costs throughout. Final Result : Allowed