JUDGMENT V. Jagannathan, J.—This second appeal is by the L.Rs. of the first defendant before the tried court and they are aggrieved by the lower appellate court reversing the judgment of the trial court and decreeing the suit of the plaintiffs for declaration and separate possession of their l/3rd share in the suit schedule property. The trial court had dismissed the suit of the plaintiffs as having been barred by limitation. 2. The facts, which are not in dispute, are, as to the parties' relationship with one another, inasmuch as the original propositus of the family was one Nanjegowda and his sons were one Patel Mallegowda, Mogannagowda @ Puttaswamygowda. One Chikkegowda is the brother of Nanjegowda and one M.C. Rudrappa is the son of said Chikkegowda. The plaintiffs viz., Shivakumar, Mallesha, Vinoda and Chidananda are the sons of M.C. Rudrappa and so also the fourth defendant Rajashekar. The other defendants were Shanthappa and Puttappa, who are the sons of Patel Mallegowda, and M.P. Basavaraj, son of Mogannagowda, and Rajashekar, son of Rudrappa. Thus, the parties have no grouse regarding their relationship. 3. The parties do not further dispute the fact of a partition having taken place in the family in the year 1961 and, as per the said partition, the joint family properties were partitioned and this partition did not include one item, which is the subject matter of the present suit It is also an admitted fact that the suit property was mortgaged to one Sooranna Shetty and that is why the said item did not find a place in the partition effected in 1961. 4. 4. The plaintiffs filed the suit in question praying for declaration that the deed of relinquishment of the year 1969 by which the suit property was relinquished in favour of the father of defendants-1 and 2 viz., Patel Mallegowda, was void and, therefore, it had no binding effect on the plaintiffs and, as such, the plaintiffs are entitled for their share in the said suit property, It was the plaintiffs' case that the suit property was not included in the partition deed dated 15.4.1961 and the very deed itself also made it clear that if any property belonging to the joint family has been left, out, all the parties were entitled to have equal share in it and, therefore, referring to this averment in the partition deed, the plaintiffs went before the trial court seeking the relief of declaration that the deed of relinquishment is void and for share in the suit item. 5. The defendants, on the other hand, took up the stand that, at the time of partition in the year 1961, there was a mortgage loan subsisting in respect of the suit schedule property and the responsibility had been entrusted to Patel Mallegowda to discharge the said loan and hence, by the deed of relinquishment, the suit property was given to Patel Mallegowda with the understanding that he will discharge the loan and thereafter, the suit property will become his property. 6. Another stand taken in the written statement by the defendants is that, in the year 1982, there was a partition among the plaintiffs and the fourth defendant and, at that point of time, there was no whisper with regard to the suit property is concerned and, following the death of Patel Mallegowda, the defendants went in possession and enjoyment of the suit property, which fact was mho known to the plaintiffs. It was also contended in the written statement that the plaintiffs had become majors at the time of family partition in the year 1982 itself and, therefore, the suit of the plaintiffs also had become barred by the law of limitation. The very fact that the release deed of 1969 was challenged by the plaintiffs in the year 1994 itself is sufficient to hold that the suit of the plaintiffs is barred by limitation. 7. The very fact that the release deed of 1969 was challenged by the plaintiffs in the year 1994 itself is sufficient to hold that the suit of the plaintiffs is barred by limitation. 7. It is with the above pleadings, this parties went before the trial court and the learned trial judge framed relevant issues that arose out of the pleadings of the parties and, after appreciating the evidence on record, the learned trial judge recorded negative findings on material issues-1 to 3 and issue-7 concerning the suit being barred by limitation was also answered against the plaintiffs and, in the end, the suit of the plaintiffs was dismissed, 8. On appeal by the aggrieved plaintiffs, the lower appellate court reversed the decision of the trial court and held that the deed of relinquishment dated 13,3.1969 executed by defendants-3 and 4 in favour of the father of the first defendant is null and void and not binding on the interests of the plaintiffs and consequent to the said finding, the suit of the plaintiffs was decreed by holding that the plaintiff are entitled to 1/3rd share in the plaint schedule property and also for possession and mesne profits. Aggrieved by the suit being decreed, the defendants have come up in this second appeal. 9. I have heard the arguments addressed by the learned senior counsel Shri T. Tarakaram for the appellant-defendants and the learned Counsel Shri K.V. Narasimhan for the respondents-plaintiffs and also perused the entire material on record. 10. The learned senior counsel for the appellants, at the outset, submitted that the lower appellate court was totally in error in not noticing the fact of the suit of the plaintiffs being hopelessly barred by time inasmuch as, though the partition took place in the year 1961 and when there was a deed of relinquishment executed in the year 1969 as per Ex.D-12, the suit filed by the plaintiffs in the year 1994 is, therefore, barred by time and the trial court has rightly held that view. But, the lower appellate court committed serious error in not upholding the said view of the trial court. But, the lower appellate court committed serious error in not upholding the said view of the trial court. It was submitted that the plaintiffs, before seeking the relief of partition of their share in the suit item, will have to overcome the obstacle of the release deed executed in the year 1969 and when the release deed itself was not questioned by the plaintiffs, almost for 25 year, it is impermissible for the plaintiffs to seek the relief of partition of the suit item without getting the release deed declared as not binding on them. Therefore, in the guise of seeking partition and separate share being allotted to them in respect of the suit item, the plaintiffs are virtually questioning the release deed dated 13.3.1969 and unless the release deed is set aside, the question of the plaintiffs claiming any share in the suit property will not arise. 11. In other words, the release deed Ex.D-12 is a stumbling block which the plaintiffs will have to cross before staking any claim for a share in the suit property and, as the suit itself is filed almost 21/2 decades after execution of the release deed, the trial court has rightly dismissed the suit of the plaintiffs as having been barred by time. In this connection, the learned Counsel also referred to the year in which the plaintiffs became majors and even reckoned from the date of attainment of the majority, the suit is barred by time. 12. It was also submitted by the learned senior counsel that even from the date of subsequent partition among the plaintiffs and the fourth defendant in the year 1982, the suit that is filed in the year 1994 is clearly barred by time and, as such, it was contended that the lower appellate court lost sight of this important aspect of the matter and did not take into consideration the provisions of the Limitation Act. 13. As far as the validity of the release deed or relinquishment deed Ex.D-12 is concerned, the submission made is that, as there was a mortgage loan that was to be cleared in respect of the suit property, the said task was entrusted to Patel Mallegowda. 13. As far as the validity of the release deed or relinquishment deed Ex.D-12 is concerned, the submission made is that, as there was a mortgage loan that was to be cleared in respect of the suit property, the said task was entrusted to Patel Mallegowda. It is in this context that the suit item was relinquished in favour of the said Patel Mallegowda and, as such, in the interest of the joint family, the deed of relinquishment was executed and hence, the question of the said deed becoming invalid or void in law does not arise. 14. The further submission that is made by the learned senior counsel is that Ex.D-12, which is the relinquishment deed, cannot be considered as a void document but, at the most, it may be classified as a voidable transaction wen assuming that the consent of the plaintiffs was not taken by Rajashekar before relinquishing the suit item in favour of Patel Mallegowda. Referring to Article 91 of the Limitation Act (Article 54 of the 1963 Act], the learned senior counsel argued that the said Article applies to the present case and it is only in respect of the void transactions that the Article will have no application. In the instant case, the relinquishment deed Ex.D-12 cannot be construed as a void transaction and, as such, the plaintiffs having failed to institute the suit within three years from the date of relinquishment deed and further, the plaintiffs having aha failed to institute the suit within three years from the date of subsequent partition within their family in the year 1962, the lower appellate court could not have disagreed with the trial court on the question of limitation. 15. The learned Senior Counsel, in this connection, drew distinction between void transaction and voidable transaction and contended that the settled position in law is that, in respect of voidable transaction, the suit ought to have been filed by the plaintiffs within the period of limitation as prescribed under law and having not done so, the trial court rightly dismissed the suit But, the lower appellate court, on the other hand, did not take into consideration these factors but erred in decreeing the suit of the plaintiffs. In the absence of a plea of fraud or misrepresentation forming the basis for the plaintiffs' suit, the question of the deed of relinquishment Ex.D-12 becoming void does not arise but, at the most, the transaction may come under voidable category. 16. As far as the consent of the plaintiffs being not token before the deed of relinquishment was executed in favour of Patel Mallegowda by Rajashekar, the submission made is that, as there was a mortgage loan subsisting in respect of the suit property, it was in the interest of the family that the suit item was relinquished in favour of Patel Mallegowda on the condition that said Patel Mallegowda will take the responsibility of clearing the mortgage loan and, as such, the plaintiffs also having been benefitted under the said circumstances, it is not permissible for them to turn around late in the day to impeach the deed of relinquishment and, as such, the submission made is that a party who gets the benefit under the transaction is not entitled to turn around and say that the transaction was invalid. 17. In support of all the above submissions, the learned senior counsel placed reliance on the decisions reported in Ram Charan Das Vs. Girjanandini Devi and Others, AIR 1966 SC 323 ; Ramiah Vs. N. Narayana Reddy (Dead) by LRs., AIR 2004 SC 4261 , Appanna Vs. Jami Venkatappadu and Others, AIR 1953 Mad 611 ; K.S. Mariyappa Vs. K.T. Siddalinga Setty, ILR (1989) KAR 425 , Kona Adinarayana Vs. Dronavalli Venkata Subbayya and Anr., AIR 1937 Mad 869 and the unreported judgment of this Court in R.S.A. No. 745/1975, disposed of on 20.4.1983. 18. In the light of the aforesaid arguments and the decisions cited, the learned senior counsel submitted that the judgment of the lower appellate court needs to be interfered with and that of the trial court will have to be restored. 19. 18. In the light of the aforesaid arguments and the decisions cited, the learned senior counsel submitted that the judgment of the lower appellate court needs to be interfered with and that of the trial court will have to be restored. 19. On the other hand, the learned Counsel for the respondents-plaintiffs Sri K.V. Narasimhan, submitted, that while he does not dispute the partial' relationship or the fact of the partition having taken place in the year 1961, the main grievance put forward is that the fourth defendant Rajashekar could not have relinquished the interest of the plaintiff in the suit property also in favour of Fatal Mallegowda and, at best, the said Rajashekar could have relinquished only his interest in the suit property and, therefore, in the absence of consent being given by the plaintiffs for his interest in the suit property being relinquished in favour of Patel Mallegowda and in the absence of the mother of the plaintiffs also being taken into confidence before executing the relinquishment deed and also having regard to the fact that the said Rajashekar not being the kartha of the family, the deed of relinquishment as per Ex.D-12 could not have binding effect on the plaintiffs and, therefore, it is void ab initio. 20. Continuing the said argument, It was contended that when a document is void ab initio, it does not exist in the eye of law and, therefore, the plaintiffs are not debarred from filing the suit even in the year 1994 claiming their share in the suit property de hors the relinquishment deed Ex.D-12. In other words, it is his argument that as far as the plaintiffs are concerned, Ex.D-12, the deed of relinquishment, has no relevance at all and hence, the question of the suit of the plaintiffs being barred by limitation does not arise and, moreover, the plaintiffs have also stated in their plaint as to when the cause of action arose which, according to the plaintiffs, was about few months prior to filing of the suit. 21. 21. The next limb of argument of the learned Counsel for the respondents-plaintiffs is that, under the Hindu Law, the concept of relinquishing is unknown and the position in law is that the kartha of the family can alienate the family property for legal necessity and this alienation could be in the form of sale or mortgage and it does not include relinquishment. Therefore, when the legal position does not contemplate the kartha of the family having the power to relinquish the joint family property in favour of anybody, the transaction as per Ex.D-12 i.e., the deed of relinquishment, cannot be held to be binding on the plaintiffs. 22. In the alternative, it was also contended that if at all Rajashekar had relinquished only his interest in the suit item in favour of Patel Mallegowda, to that extent, the transaction could be held to be valid. But, when the relinquishment concerns the interest of the plaintiffs as well in the suit item, such a deed of relinquishment will have to be termed as void ab initio. Therefore, even if Rajashekar had relinquished his interest in the suit item in favour of Patel Mallegowda, that will also enure to the benefit of the plaintiffs. 23. Yet another submission made is that, in the very partition deed of 1961 itself, it has been made clear that if any property is left out of the partition and if it is traced later on, the same should be shared equally by all the persons entitled to it and, therefore, in the lace of such a clause appearing in the partition deed, fourth defendant Rajashekar could not have relinquished even the interest of the plaintiffs in the suit item in favour of Patel Mallegowda. 24. As far as the mortgage loan that was subsisting in respect of the suit property is concerned, the submission made is that the stand taken by the defendants themselves goes to indicate that the said ban was discharged both by Patel Mallegowda and Rudrappa and, as such, even for this reason, the deed of relinquishment could not have any binding effect on the plaintiffs, Under the said circumstances, it was argued that the question of limitation becomes irrelevant and as such, the view taken by the lower appellate court is just and proper and is based on the facts and circumstances of the case. 25. 25. The learned Counsel for referred to another aspect viz., there being no mention made in the deed of relinquishment to the effect that fourth defendant Rajashekar is acting as the Manager on behalf of the plaintiffs and, therefore, having regard to the power of the Manager and the observations of the learned author Mulla on Hindu Law, the fourth defendant, therefore, had no power to relinquish the interest of the plaintiffs as well in favour of Patel Mallegowda under Ex.D-12. 26. As regards the plea of adverse possession taken by the defendants, the submission made is that the defendants cannot take inconsistent stand viz., the plea of adverse possession on one hand and also rely on the deed of relinquishment and hence, Article 65 of the Limitation Act cannot be pressed into service by the defendants. The learned Counsel also argued that even Article 39 of the Limitation Act has no application since the plaintiffs are not seeking any cancellation or setting aside of the deed of relinquishment but, on the other hand, the plaintiffs only seek their share in the suit property by way of partition and, as such, the relief of declaration is only ancillary to the main relief of partition and separate possession. 27. As for as the limitation aspect is concerned, the learned Counsel for the respondents-plaintiffs, placing reliance on the decision referred to by the learned senior counsel for the appellants viz. A.I.R. 1963 Mad 611, submitted that when the deed of relinquishment is a void document, no obligation arises on the part of the plaintiffs to get it set aside and, therefore, the view taken by the lower appellate court requires no interference even as regards the question of limitation is concerned. 28. In support of the above submissions, the learned Counsel for the respondents-plaintiffs placed reliance on the decision reported in Thamma Venkata Subbamma (Dead) by Lr Vs. Thamma Rattamma and Others, AIR 1987 SC 1775 29. 28. In support of the above submissions, the learned Counsel for the respondents-plaintiffs placed reliance on the decision reported in Thamma Venkata Subbamma (Dead) by Lr Vs. Thamma Rattamma and Others, AIR 1987 SC 1775 29. In the light of the contentions put forward and the ruling*} cited by the respective counsel for the parties, I proceed to answer the substantial questions of law raised for consideration and the said questions of law framed are as under: i) Whether the tower appellate court was justified in holding that the suit is not barred by law of limitation when admittedly the suit is filed by the plaintiff three years after attaining majority challenging the alienation made by the kartha of their branch of the family? ii) In the facts and circumstances, whether the suit schedule property is a joint family properly or self-acquisition of Patel Mallegowda? 30. The trial court had dismissed the suit as barred by limitation. But, the lower appellate court held it otherwise. The main argument of the learned senior counsel for the appellants is that the lower appellate court was totally in error in taking a contrary view as regards the limitation point is concerned. Since the facts are not in dispute, it is clear that the partition took place in the family in the year 1961 and thereafter, in respect of one of the items of the joint family i.e., the suit item, in the year 1969, there was: a deed of relinquishment executed by the fourth defendant and the first defendant in favour of Patel Mallegowda and, by that deed, the suit property was relinquished in favour of Patel Mallegowda in view of Patel Mallegowda being shouldered with the responsibility of clearing the mortgage loan standing against the suit property. 31. Subsequent to the said event of 1961, there was also a partition within the family of the plaintiffs in the year 1982. At that point of time, the plaintiffs, being the younger brothers of fourth defendant Rajashekhar, did not raise any questions regarding the relinquishment of the suit property in favour of Patel Mallegowda by the plaintiffs' eldest brother Rajashekar and first defendant Shanthappa. At that point of time, the plaintiffs, being the younger brothers of fourth defendant Rajashekhar, did not raise any questions regarding the relinquishment of the suit property in favour of Patel Mallegowda by the plaintiffs' eldest brother Rajashekar and first defendant Shanthappa. The plaintiff have contended before the trial court in their pleadings that the cause of action for the suit arose only about two months prior to the filing of the suit when the defendants tried to interfere with the plaintiffs' possession. The suit itself was filed on 18.11.1994. Therefore, from the date of relinquishment deed i.e., 13.3.1969, the suit was filed almost after 25 years and if the time is reckoned from the partition effected within the family of the plaintiffs i.e., in the year 1982, still the suit came to be filed almost alter 12 years. 32. The first relief sought in the plaint is to declare the relinquishment deed dated 13.3.1969 as invalid (the word used in Kannada is [Vernacular Matter Ommitted (Kannada Matter)]. The second relief sought is consequent to the first prayer being granted, the plaintiffs are entitled to their separate share and possession from out of the suit property, which is put at 1 acre and 33 guntas to each one of them, and also for mesne profits. Therefore, it is clear that the plaintiffs getting their share depends upon declaring the relinquishment deed as invalid. 33. The period of limitation prescribed under Article 58 of the Limitation Act, 1963 to obtain any other declaration other than what is mentioned in Articles 56 and 57 is three years and the time starts to run when the right to sue first accrues. Therefore, it has to be found out as to when the right to sue first accrued to the plaintiffs. 34. Therefore, it has to be found out as to when the right to sue first accrued to the plaintiffs. 34. Though in the plaint, at paragraph-12, it is stated that the plaintiffs came to know of the deed of relinquishment only two months prior to the filing of the suit and that, for two years prior to filing of the suit, the defendants have been trying to interfere with the plaintiffs' possession of the suit property, the documents produced by the defendants viz., Exs.D-1 to D-10 and Ex.D-12, which is the relinquishment deed, indicated that the khatha stood in the name of the first defendant pursuant to the deed of relinquishment and the plaintiffs had not questioned the said khatha in the name of the first defendant before any forum. 35. Secondly, it has also come in the evidence of P.W.1 Vinoda that, at the time of the relinquishment deed i.e., in the year 1969, except the fourth plaintiff, all other plaintiffs were aged more than 18 year and the learned judge of the trial court has also referred to the year in which each one of the plaintiffs attained majority and has observed in paragraph-18 of his judgment that all the plaintiffs had attained majority and the plaintiffs woke up to question the validity of the relinquishment deed after a lapse of more than three years from the date of their attaining majority. The learned judge of the lower appellate court has not referred to this part of the reasoning of the trial court in her judgment. 36. Further, the wry same witness P.W.I has also admitted in the course of his evidence that on 13.3.1969, defendants-3 and 4 executed the relinquishment deed in favour of Patel Mallegowda and has also stated farther that in the very year in which the relinquishment deed was executed, the khatha also stood transferred. The witness has also further stalled in this course of his crow-examination that he and his brothers had a partition effected in the year 1962. 37. In the light of the aforesaid evidence on record, the learned judge of the trial court, therefore, held that the suit of the plaintiffs was hopelessly barred by time. The witness has also further stalled in this course of his crow-examination that he and his brothers had a partition effected in the year 1962. 37. In the light of the aforesaid evidence on record, the learned judge of the trial court, therefore, held that the suit of the plaintiffs was hopelessly barred by time. The lower appellate court did not take the trouble of examining the evidence property and did not even refer to the reasons given by the trial court as regards the suit being barred by limitation is concerned. 38. The learned Counsel for the respondents-plaintiffs strongly contended that there is no concept of kartha of the joint family relinquishing the joint family property in favour of anyone and the alienation that is permitted is only either by safe or by mortgage and, as such, fourth defendant Rajashekhar could not have relinquished the suit property in favour of Patel Mallegowda and it is also argued in the same voice that, at the most, the fourth defendant could have relinquished his interest in the suit property but not the interest of the plaintiffs as the said Rajashekar was not the guardian of the plaintiffs nor the kartha of the family. The decision that is referred to in this regard is the one reported in Kamani Metals and Alloys Ltd. Vs. Their Workmen, AIR 1967 SC 1175 . I have carefully gone through the said decision rendered by the Apex Court in the case of Thamma Venkata Subbamma v. T. Rattamma AIR 1967 SC. 1175 It has been held in the said case by the Apex Court that if a coparcener relinquishes his interest in favour of another, it ensures for the benefit of the remaining coparceners also, Relying on the aforesaid observation, the learned Counsel for the respondents-plaintiffs contended that even if Rajashekar had relinquished his share in favour of Patel Mallegowda under the deed of relinquishment, the same would enure to the benefit of the other coparceners including the plaintiffs. But, at the same time, the interests of the other coparceners could not have been relinquished by Rajashekar. 39. The very same decision also gives an indication that the concept of relinquishing or renunciation a also not alien to Hindu Law. In fact, a passage from Mulla's Hindu Law (15th Edition} has also been excerpted and Article 264 at page 357 is as under: Article 264. 39. The very same decision also gives an indication that the concept of relinquishing or renunciation a also not alien to Hindu Law. In fact, a passage from Mulla's Hindu Law (15th Edition} has also been excerpted and Article 264 at page 357 is as under: Article 264. (1) Renunciation or relinquishment of his share. - A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other coparceners and not for coparceners in whose favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance. The renunciation or relinquishment must, of course, be genuine. If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed. 40. Therefore, it is clear from the aforesaid observation that the argument of the learned Counsel for the respondents-plaintiffs that except sale and mortgage, there can be no other form of alienation, does not carry much conviction and the Apex Court in the very case under discussion has observed that though the transaction is ostensibly gift, but really the donor meant to relinquish his interest in the coparcenary in favour of the brother and his sons and such renunciation enures for the benefit of all other coparceners and, as such, the gift may be construed as renunciation or relinquishment. Hence, the aforesaid decision, in my view, instead of coming to the assistance of the learned Counsel for the respondents-plaintiffs, supports the case of the appellants. 41. The next contention that is put forward by the learned Counsel for the respondents-plaintiffs with much persuation is that the relinquishment deed Ex.D-12 is a void document and, therefore, the plaintiffs can ignore the same and, as such, the question of the suit of the plaintiffs being barred by time from the date of the deed of relinquishment does not arise. Before answering the said contention of the learned Counsel for the respondents-plaintiffs, it is proper to refer to the law laid down by the Apex Court as well as by other High Courts in the decisions referred to by the learned senior counsel for the appellant, as a reference to the same would provide the answer to the aforesaid contention of the learned Counsel for the respondents-plaintiffs. 42. In the case of K.S. Mariyappa Vs. K.T. Siddalinga Setty, ILR (1989) KAR 425, a Division Bench of this Court has held that where a suit was filed as one for declaration that the preliminary and final decrees passed were nullity because they were tainted with fraud and coercion, if such a relief is granted, in effect, it would result in setting aside the preliminary and final decrees and the court went on to observe that, in fact, without getting the preliminary and final decrees set aside or cancelled, the plaintiffs are not entitled to reopening of the partition because, their father was a party to the preliminary and final decrees passed in the previous suit. In the instant case also, the plaintiffs, by seeking the relief of partition and separate possession of their share in the suit property are, in effect, cooling in question the deed of relinquishment of the year 1969, which is a registered document. Therefore, unless and until the said deed of relinquishment is set aside, the question of the plaintiffs staking a claim for share in the suit property will not arise. 43. In the case of Ramachandra Jivaji Kanago Vs. Laxman Shrinivas Naik, AIR (32) 1945 SC 54 it has been held that the fact that the transaction of gift was brought about by undue influence does not necessarily mean that it was not made voluntarily within the meaning of Section 122 of the T.P. Act and is, therefore, void. 43. In the case of Ramachandra Jivaji Kanago Vs. Laxman Shrinivas Naik, AIR (32) 1945 SC 54 it has been held that the fact that the transaction of gift was brought about by undue influence does not necessarily mean that it was not made voluntarily within the meaning of Section 122 of the T.P. Act and is, therefore, void. Where the donor wished to make a gift and acted voluntarily in making it, but the transaction was induced by undue influence, the gift is only voidable and requires to be set aside before the property conveyed by it can be claimed by the donee or anyone claiming through him and Article 91 applies to such a case and when the donee was aware of the character of the transaction when he executed the deed, limitation for setting aside the deed of gift would run from the date of the gift because under Article 91 time run from the date of the knowledge. 44. The next decision is the one in the case of Kona Adinarayana v. Dronawalli Venkata Subbayya reported in A.I.R. 1937 Mad 869, and it was held in the said case that, where the eldest brother of a joint Hindu family as kartha entered into a contract of sale of an item of joint family property, wherein he signed it for himself and as representing the minor brother, the contention that the contract could not be said to have been entered into on behalf of the family and all the members of the family were not parties as the minor was separately represented by the kartha was negatived by the court by holding that the kartha alone could represent the minor member and, in fact, he alone could represent by himself the entire family and, therefore, the kartha must be deemed to have represented the entire family and the other brother signing it is only by way of concurrence. 45. In the case of Appanna v. Jami Venkatappadu reported in A.I.R. 1953 Mad 611, it was held by a Division Bench of the Madras High Court that Article 91 presupposes that a suit is necessary under the law to set aside the instrument. 45. In the case of Appanna v. Jami Venkatappadu reported in A.I.R. 1953 Mad 611, it was held by a Division Bench of the Madras High Court that Article 91 presupposes that a suit is necessary under the law to set aside the instrument. But, where under the law, there is no duty cast on the person to get an instrument set aside, the Article does not impose any obligation on him and the fact that there is a prayer for declaration that a dead is void or that it should be set aside, does not affect the position and such prayers being ancillary to the substantive prayer for possession may be regarded as mere surplusage. 46. In the case on hand, the plaintiffs' main prayer is to declare the relinquishment deed is invalid and the subsequent prayer is to grant their share in the suit item. Therefore, it cannot be said that the prayer seeking the relinquishment deed to be declared as invalid is an ancillary prayer but, in my view, the said prayer is the substantive prayer in the present suit. 47. As far as the decision in the case of Ram Charan Das Vs. Girjanandini Devi and Others, AIR 1966 SC 323 , is concerned, it has bean held in the said case that the courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding properly amongst members of a family and in this context, the word "family" is not to be understood in a narrow sense of being a group of persons of which law recognises as having a right of succession by having a claim to a share in the disputed properly. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations. That consideration having passed by each of the disputants the settlement consisting of recognition of the right by each other cannot be permitted to be impeached thereafter. It was further observed in the said case that a party who had taken benefit under the transaction was not now entitled to turn round and say that the transaction was of a kind which the other lady party could not enter into and was therefore invalid. 48. It was further observed in the said case that a party who had taken benefit under the transaction was not now entitled to turn round and say that the transaction was of a kind which the other lady party could not enter into and was therefore invalid. 48. This decision also applies to the case on hand inasmuch as it in an admitted fact that there was a mortgage loan hanging over the suit property and in order to clear the said loan which would ultimately benefit the whole family that the deed of relinquishment came into picture and Patel Mallegowda was entrusted with the responsibility of clearing the said loan. 49. In the case of Ramiah Vs. N. Narayana Reddy (Dead) by LRs., AIR 2004 SC 4261 , it has been held by the Apex Court that applicability of the relevant Article of the Limitation Act, 1963 will have to be decided on the basis of the pleadings. But, by suppression of material facts and skilful pleading, the plaintiff cannot seek to avoid inconvenient Article and, after observing thus, the Apex Court found in the case before it that the suit was filed by the appellant in 1984 without disclosing that admittedly he was ousted from the property in 1971 and, therefore, applying Article 64, the Apex Court found that the suit had been filed 13 years after dispossession and accordingly, it was held barred by limitation. 50. In the instant case also, from the evidence of P.W.1, it has come out in clear terms that barring one plaintiff, the other had attained majority on the date of execution of the relinquishment deed in the year 1969 and one of the plaintiffs, who was a minor, also attained majority and the present suit is filed in the year 1964 long after the completion of three years period from the date of attaining of majority of each one of the plaintiffs. therefore, by skillfully mentioning in the pleadings that the plaintiffs came to know about the relinquishment deed only about two months prior to the filing of the suit, they cannot avoid the limitation period that is applicable to the case on hand having regard to the nature of the suit that is filed viz., suit for declaration of the relinquishment deed of the year 1969 as invalid. 51. 51. Another decision referred to by the learned senior counsel for the appellants is the judgment of this Court in an unreported case in R.S.A. No. 745/1975, disposed of on 20.4.1983, and it was held in the said case on facts that where the father of the plaintiff had relinquished his share in favour of the defendant by executing the documents Exs.D-7 and D-8 and later, the defendants were in possession of the share of the plaintiff in the joint family properties, and when the evidence revealed that following the death of the plaintiffs father in the year 1935, the plaintiff never raised his little finger to claim his share in the joint family properties till he filed the suit in the year 1965. That itself probablises that the plaintiff did not take any action because he knew early that his father had given up his share in the suit properties in favour of the father of the defendants as otherwise, as a man of ordinary prudence, the plaintiff will have instituted the suit for partition and possession, much earlier especially when there was a partition in the year 1948. 52. The facts, more or less, can be comparable to the facts of the case before us in the sense, even in the present case, defendants-3 and 4 relinquished the interest in the suit property in favour of Ratal Mallegowda in 1969 and even according to P.W.I, on the wry day itself, khatha was also changed in the name of Patel Mallegowda and thereafter, the plaintiffs did not raise their little finger when there was partition in the plaintiffs' family in the year 1982 and furthermore, even after attaining the age of majority and long alter that, the plaintiffs slept over their right, if they had any, and did not file the suit to question the validity of the relinquishment deed within three years of attaining the age of their majority. 53. 53. In the next decision in the case of Smt. Bismillah v. Janeshwar Prasad reported in (1990) 1 S.C.C. 207 , the Apex Court was dealing with a case where the issue revolved on a plea of nullity of certain sale deeds and the High Court had held that the plaint averment which amounted to plea of nullity of the transactions was only a prayer which was simply illusory but the main relief was that of the relief of possession. The Apex Court, reversing the above finding of the High Court, held that in order to determine the precise nature of the action, the pleadings should be taken as a whole and the real substance of the case has to be gathered by construing the pleadings as a whole and then refer to the law laid down by it in earlier decisions which are to be found at paragraph-10 and 15 as mentioned hereunder: 10. Indeed in Gorakh Nath Dube Vs. Hari Narain Singh and Others, AIR 1973 SC 2451 , this Court, dealing with the provisions of the U.P. Consolidation of the Holdings Act, 1954 where the provision excluding the civil court's jurisdiction is even wider, has had occasion to observe: (SCR p. 342: SCC p. 538, para 5) ...but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it.... XXX XXX XXX 15. This decision was referred to with approval by this Court in Ningawwa Vs. Byrappa and 3 Ors., AIR 1968 SC 956 . It was observed: (SCR pp.800-01) It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, 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. This would be a voidable transaction. But the position was held to be different if the fraud or misrepresentation related to the character of the document. This would be a voidable transaction. But the position was held to be different if the fraud or misrepresentation related to the character of the document. This Court held; (SCR p.801) The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable. However the House of Lords in Sounders v. Anglia Building Society 1971 AC 1004 reviewed the law and held that the essential features of the doctrine, as expressed by Byles, J. in Foster v. Mackinnon, had been correctly stated. Lord Reid, however, observed: (AC headnote at p. 1005) The plea of non est factum could not be available to anyone who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document There must be a radical or fundamental difference between what he signed and what he thought he was signing. 54. The last of the decisions is in the case of Pillanna @ Thimmiah v. Syed Nasurudeen Sab reported in 1921 (27) MCCR 11. The court was dealing with the expression "set aside" used in Article 91 of the Limitation Act, 1911 and posed to itself the question viz., can the plaintiff recover possession without cancelling the sale which is, in the eye of law, a reality, and answered it as under: It is a fundamental principle of law that if a sale is a reality at all, it is a reality defeasible only in the way pointed out by law', and 'anybody who desires relief inconsistent with it may and should pray to set it aside'. [See Malkarjun v. Narhari, (1900) 25 B.337 (350, 352) (P.C.)]. What then is the procedure prescribed by law to get rid of the effect of a voidable instrument? [See Malkarjun v. Narhari, (1900) 25 B.337 (350, 352) (P.C.)]. What then is the procedure prescribed by law to get rid of the effect of a voidable instrument? In India, it is not expressly laid down in any statute that a person who comes in as plaintiff claiming relief against the effect of a deed voidable at his instance should have it judicially rescinded before or at the time of his getting the relief. Common law of England has been followed in this country and will be a safe guide in determining this point. According to it, it is necessary 'to maintain an action or analogous proceedings for the purpose of having the contract or transaction declared void and rescinded by the court, in which event it is deemed to have been void ab initio' (See Halsbury's Laws of England, Volume 20, para 1745). According to the Indian Contract Act, Section 17(a), it is clear that the rescission of the contract unless accepted by the other party, must be by a judicial pronouncement. A mere unilateral repudiation in para (e.g., effected toy act out of court) cannot constitute an effectual rescission of a contract (See Bigelow on Fraud, pages 74 to 69). This view is confirmed by the provisions of Indian Contract Act and Section 35 of the Specific Relief Act. Articles 11, 13, 13, 14, 15 and 44 provides as shown above for suite to set aside the obstacles affecting adversely the interest of the plaintiff. Article 114 provides for the rescission of a contract Thus by implication Indian law requires judicial rescission. Sir H.H. Shephard says that Section 35 of the Specific Relief Act indicates that 'rescission imports a judicial decision, and that rescission by a person entitling to rescind means that he, having resolved not to persist in demanding performance is in a position to sue for rescission or to defend an action brought on the contract'. [See 24, Madras Law Journal 55 at page 59]. It follows therefore that the plaintiff has to sue for rescission in a court of law, and if he omits to take such a step within the time fixed under Article 91, the instrument will operate an a bar for the relief claimed by her against the tenor of the instrument. [See 24, Madras Law Journal 55 at page 59]. It follows therefore that the plaintiff has to sue for rescission in a court of law, and if he omits to take such a step within the time fixed under Article 91, the instrument will operate an a bar for the relief claimed by her against the tenor of the instrument. There is no principle on which suits involving the issue of validity of an instrument should, if of a declaratory nature, be brought within one period of time, but if involving relief based on that declaration, may be brought within another period of time. The combination of several claims in a suit would not deprive each claim of its specific character and description. 55. As far as the contention put forward by the learned counsel for the respondents-plaintiffs that the relinquishment deed is void ab initio is concerned, it has no merit in view of the very argument of the learned Counsel that to the extent of Rajashekar relinquishing his interest in the suit item in favour of Patel Malkgowda is concerned, the said act would enure to the benefit of the other coparceners also and the only grievance is that the interest of the plaintiffs could not have been relinquished by defendants-3 and 4 in favour of Patel Mallegowda. We have also seen from the very first relief that the claim in the suit that all that the plaintiffs seek in the form of declaration is to declare the relinquishment deed as invalid. Therefore, the question of the relinquishment deed being labelled as "void" does not arise and, in the instant case, it could be classified as a document which is voidable at the instance of the aggrieved persona. 56. Therefore, the distinction between void and voidable needs to be kept in view and, in this regard, it is appropriate to refer to the commentary of U.N. Mitra on Law of Limitation & Prescription (12th Edition -Volume 1] wherein, at page 1176, the learned author has drawn the distinction between Hand' and 'voidable' very succinctly as under: 3A. Distinction between void and voidable - The expression "void" has several facets. Distinction between void and voidable - The expression "void" has several facets. One type of 'void acts, transactions decrees are those which ore wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary and law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of "void" act e.g. may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceedings the transaction becomes void from the very beginning. Another type of void act may be one which is not a nullity, but for avoiding the same a declaration has to be made. Voidable act is that which is good act unless avoided e.g. if a suit is filed for declaration that a document is fraudulent and/ or forged and fabricated it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it If it is proved that the document is forged and fabricated and a declaration to that effect is given, the transaction becomes void from the very beginning. There may be voidable transactions which is required to be set aside and the same is avoided from the lay it is no set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void, but would be obviously voidable. The word 'void' has a relative rather than absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of invalidity depending upon the gravity of infirmity, as to whether it is, fundamental or otherwise. The word "void" need not automatically indicate that any disposition should be an initio void. The legal implication of the word "void" need not necessarily be a stage of nullity in all contingencies. It can be avoided. There are degrees of invalidity depending upon the gravity of infirmity, as to whether it is, fundamental or otherwise. The word "void" need not automatically indicate that any disposition should be an initio void. The legal implication of the word "void" need not necessarily be a stage of nullity in all contingencies. Therefore, the word 'void' has a relative rather than absolute meaning and it only conveys the idea that the order is invalid or illegal and the word 'void' need not automatically indicate that any disposition should be ab initio void but the legal implication of the word 'void' need not necessarily be a stage of nullity in all contingencies. 57. The learned Counsel for the respondents-plaintiffs, in the course of his arguments, also had submitted that the plaintiffs were not seeking cancellation of the relinquishment deed, but their only prayer is to declare the said deed as invalid. The appropriate Article applicable for seeking cancellation or setting aside an instrument or decree or for rescission of a contract is Article 59. But, where the prayer is to declare the deed of relinquishment as an invalid one, the Article that is attracted will be Article 58 and, therefore, if the said argument of the learned Counsel for the respondents-plaintiffs is to be taken note of viz., that the plaintiffs are not seeking for cancellation of the relinquishment deed, but only a declaration, then, Article 58 would come into play and the limitation period is three years from the time when the right to sue first accrues. 58. Therefore, looked from any angle, the suit filed by the plaintiffs has been rightly held to be barred by time by the learned trial judge. But, the lower appellate court did not, as mentioned earlier,, go into all the aspects of the matter and also did not consider the evidence in proper perspective and, as such, the finding of the lower appellate court as regards the limitation issue cannot be sustained both on facts as well as in law. Accordingly, the first substantial questions of law stands answered. 59. Accordingly, the first substantial questions of law stands answered. 59. As far as the second question of law is concerned, once the suit item was relinquished in favour of Patel Mallegowda by defendants-3 and 4 under Ex.D-12, which is a registered document, the acquisition of the suit item by the aforesaid Patel Mallegowda, therefore, can be traced to the right which Patel Mallegowda got under the registered deed and, as such, the suit property continued to remain as joint family properly does not arise. The second question of law, therefore, stands answered accordingly. 60. In the light of the foregoing reasons, the judgment of the lower appellate court cannot be sustained in law and that of the trial court needs to be restored and hence,, I pass the following order: 61. The appeal is allowed. The judgment of the lower appellate court is set aside and that of the trial court stands restored. No costs.