Non est factum and void instruments: possession suit not barred by Article 91 of the Limitation Act.

Article 91 of the Limitation Act applies only where a plaintiff must first have an instrument set aside. Where a deed is signed under a misrepresentation as to its character, the plea is one of non est factum and the instrument is void ab initio, not merely voidable. In that situation, title does not pass, the plaintiff may ignore the document and sue for possession on her own title, and a prayer for cancellation is only ancillary. The court held that Article 91 did not bar the suit, and the possession claim was within time.

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Issues: Whether the suit was barred by limitation under Article 91 of the Limitation Act when the plaintiff alleged that she executed a deed of gift believing it to be a power of attorney and sought possession on the footing that the instrument was void.

Analysis: Article 91 applies only where the plaintiff is under a legal necessity to have an instrument set aside. A distinction is drawn between voidable instruments, which pass title until avoided, and void instruments, which do not transfer title at all. Where a person signs a document under a misrepresentation as to its character, the plea is one of non est factum and the instrument is treated as void ab initio. In such a case, the plaintiff may ignore the document and sue for possession on the strength of her own title, and a prayer for cancellation is merely ancillary. The suit is then governed by the limitation applicable to possession, not by Article 91.

Conclusion: Article 91 did not bar the suit. The deed was treated as void and inoperative, and the plaintiff's claim for possession was within time.

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