1. This is quite a plain case. The plaintiff, a Hindu reversioner, sues the widow of his divided brother for a declaration that an alienation of her husband's property by her to her brother, the 2nd defendant, was void beyond her lifetime and for the appointment of a Receiver of husband's estate to prevent waste and preserve the property. That is the substance of the claim. The suit was dismissed by the Subordinate Judge of Vizagapatam without a trial of the merits as barred by limitation and the plaintiff appeals. If the suit was of the nature described above, it is obviously not barred as it was instituted within six years of the husband's death and the Articles of limitation applicable to suit to obtain the above reliefs are Articles 125 and 120 which give a period of six years from the date of the cause of action. But it appears that the widow, previous to the present suit, brought an action against the, plaintiff for a partition by metes and bounds of certain common properties and produced a Will purporting to have been executed by her husband giving his properties absolutely to her. The present plaintiff as defendant in that suit challenged the document as forgery but no final decision was obtained on this matter and the widow obtained a partition on her title as heiress of her husband. This production of the Will was more than three years before the institution of the present suit and in the present suit the plaintiff claims a formal declaration of forgery of the Will. The right to this relief, it is said, is barred under Article 93 of the Limitation Act and that the further consequence is, that the claim to the other reliefs is inadmissible. The argument was put in this way by the learned Pleader for the respondent. It is only in cases where the widow claims as heiress that the reversioners are entitled to institute an action of this sort and it must be a part of their case, whether expressly so stated in their plaint or not, that the last male owner died intestate and if the widow claimed under an alleged Will of her husband, the reversioner cannot have any relief unless he first obtained a judicial declaration of the forgery of the Will. It is no doubt true that in a suit, of this sort, by a reversioner it is a part of his case that the last male owner died intestate for he has to allege that the widow or other female heir succeeded to a limited estate under the Hindu Law, but there is no presumption in such a case that the deceased left a Will any more than in the case of a suit by an heir-at-law to recover possession of the property of the ancestor against a stranger in possession. If the defendant pleads a Will he has to prove it. In cases where the plaintiff cannot succeed, without setting aside a transaction---whether an act of parties or an order of Court---then if he does not set it aside within the period allowed by law, of course, the suit must be dismissed. This will be the consequence, whether he expressly prays for a relief setting aside the transaction or ignores it in the plaint.
2. This really is not a question of limitation but of substantive law, though no doubt particular Articles of the Limitation Act may throw light on the question. The question was discussed and the principle formulated by Basbyam Aiyangar, J., in Ratnamasari v. Akilandammal 13 M. L.J. 27. in his dissenting judgment and that has been accepted by the Privy Council in their subsequent decisions on the construction of the Articles dealing with adoption in the Act of 1877. The general principle was formulated by their Lordships in Malkarjun v. Narhari 27 I. A 216. where they held that if an order is a nullity there is no need to set it aside and the same principle was applied by them to a benami sale in Petherpermal Chetty v. Muniandy Serial 12 C. W. N 562 Here the Will is challenged as a forgery and it was, therefore, waste paper and there can be no obligation to set it aside. Nor is it possible to contend that it would be binding till set aside. In this view it is quite clear that the suit in so far as it prays for a substantial relief is not barred; the prayer for a declaration of forgery is wholly unnecessary land the appellant's Pleader said that the same may well be struck out without in the least affecting the real reliefs to which, if his case be true, he is entitled.
3. In this view it is unnecessary to decide the question whether the relief for a formal declaration of forgery of the Will is now barred or not, more especially as the records in the previous proceedings are not filed. The appeal is allowed and the decree of the lower Court reversed and the suit remanded for fresh trial. Costs here and in the lower Court will abide.