Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of my learned brother Mr. Justice Buckland, whereby he dismissed the suit, on the ground that it had been brought out of time. There was no investigation of facts. The case was decided upon the facts which were stated in the plaint. Having regard to those facts stated in the plaint the learned Judge came to the conclusion that the suit was barred under Article 95 of the Indian limitation Act, holding that the suit was a suit for relief on the ground of fraud. It is, therefore, necessary to refer to the plaint to ascertain the facts which were therein relied upon. It was alleged that one Nanda Kissore Gangooly died on the 2nd of June 1892; that by his Will he devised to his widow Ranganmoni Debi certain premises Nos. 27-1 and 27-2, Soorti Bagan Lane, and a life-interest in certain other premises, No. 3, Soorti Bagan Lane, and that by the Will lie left the latter property, No. 3, Soorti Bagan Lane, to his nephew Kanai Lal Chuckerbutty after the termination of the widow's life-interest. The original plaintiffs in this case were Ranganmoni Debi (the widow) and Sarat Chandra Gupta, and the original defendant was Kanai Lal Chuckerbutty to whom I have just referred. But in August 1920 Ranganmoni, the widow, was struck out as a plaintiff and was added as a defendant. It appears that Ranganmoni took possession of the property of her husband after his death, and was in possession of the property in question Nos. 27-1 and 27-2, Soorti Bagan Lane, until the time the property as acquired by the Calcutta Improvement Trust. It was then alleged in the plaint that in June or July 1906 the defendant Kanai Lal Chuckerbutty induced the widow Ranganmoni Debi to sign a document, and certain allegations with regard to the necessity for the document for the purpose of the management of the estate were relied upon. But the most important allegation was an allegation that, relying upon the representation of the defendant Kanai Lal Chuckerbutty, Ranganmoni put her mark upon a paper which she was told by the defendant Kanailal was a power of-attorney and would enable the said Kanailal to institute suits for rent on behalf of Ranganmoni and that she signed it under the belief which was brought about by Kanai Lal that the document which she signed was nothing more than a power-of-attorney. It was further alleged that in June 1913 the premises were acquired by the Calcutta Improvement Trust, and a sum of Rs. 10,000 was awarded as compensation and that such sum is now lying invested in Government promissory-potes in the Bank of Bengal to the credit of the Calcutta Improvement Tribunal; that thereupon claims were made in respect of the said premises before the Improvement Tribunal by Ranganmoni and also by Kanai Lal Chuckerbutty and others. It was then alleged that an award was made by the President who directed that the compensation money should be invested in Government Securities, and that interest should be paid to Ranganmoni during her life, and that after her Aath the amount would be dealt with according to law. It was then alleged that during these proceedings Ranganmoni ascertained for the first time that the document which she had signed in 1906 under the belief that she was signing a power-of-attorney was, as a matter of fact, a deed of gift and exchange whereby she purported to convey to the defendant Kanai L, al Chuckerbutty the premisses Nos. 27-1 and 27-2, Soorti Bagan Lane, subject to a right in herself to hold, and occupy the premises during her life in exchange for, the vested reversion of Kanai Lal Chuckerbutty in the other premises, namely, No. 3, Soorti Bagan Lane. Then the other material fact is that, after this, namely, on the 23rd of November 1918, Ranganmoni assigned to the plaintiff all her right, title and interest in respect of the Rs. 10,000 and the Government Promissory-Notes representing that sum of Rs. 10,000 together with all interest for valuable consideration, covenanting with the assignee that she would give him all assistance which would be necessary for the purpose of instituting suits for a declaration of Ranganmoni's absolute right in and over the premises and to the Rs. 10,000. The plaint then set out the alleged deed of July 1906, after stating that enquires had been made in the Registration Office. The suit was instituted on the 22nd of December 1920. In the suit it was submitted that the deed of exchange and gift was wholly void and inoperative and that the defendant Kanai Lal Chuckerbutty never acquired any right, title or interest in the said premises or in the Rs. 10,000 and it was stated that Ranganmoni was prevented by the fraud of the defendant from acquiring any knowledge of the real nature of this deed and her right to institute the suit until the 23rd January 1915, and that consequently the cause of action arose on the 23rd of January 1915. These are all the facts to which I need refer.
2. The first prayer of the plaint was for a declaration that the said deed of gift and exchange of 1906 was void and inoperative secondly, for a declaration that the plaintiff Sarat Chandra Gupta was absolutely entitled to the said sum of Rs. 10,000 in Government Promissory-Notes now lying in deposit at the Bank of Bengal and for other reliefs to which I need not refer.
3. First of all, it is necessary to say that, of course, the plaintiff, the assignee Sarat Grander Gupta, is in no better position than his assignor Ranganmoni Debi. The question is whether the learned Judge was right in holding that Article 95 applies to this case on the ground that this is a suit asking for relief on the ground of fraud. The learned Counsel for the appellant has argued that the relief asked for in this case is a declaration that the plaintiff is absolutely entitled to the sum of Rs. 10,000 in the Government Promissory-Notes, and that the first paragraph of the prayer might have been struck out of this plaint altogether, that it would no doubt have been necessary for the plaintiff to prove the facts stated in the plaint, but that no relief need be granted by the Court except the relief which is asked for in the second paragraph, namely, a declaration that the plaintiff is entitled to the money represented by the Government Promissory-Notes. That argument is based upon the ground that the deed of July 1906 was void and in Operative ab initio that it was merely a contract which was voidable at the instance of Ranganmoni but that it was no deed at all on the ground that Ranganmoni, when she executed it, thought that she was executing a power-of attorney, whereas by the fraud of the defendant she was induced to execute a deed whereby the property was conveyed to the defendant.
4. We must approach this case upon the assumption that the allegations in the plaint are correct, because, so far, there is no proof in this case. We must, therefore, assume for the purpose of this judgment that Ranganmoni signed this document under the belief that she was signing a power-of-attorney, whereas she was induced by the fraud of the defendant. to execute a deed of exchange and gift, thereby alienating the property from herself to the defendant, subject to a life-interest. I, of course, express no opinion as to what are the real facts in this case. I am giving this judgment upon the assumption that the facts alleged in the plaint are correct. Upon that assumption, the deed was no deed because Ranganmoni thought that she was signing one thing whereas, as a matter of fact, she was signing another and the principle which is applicable to this case, if that assumption is made, is the one which is laid down by Mr. Justice Byles in Foster v. Mackinnon (1869) 4 C.P. 704 at p. 711 : 38 L.J. C.P. 310 : 20 L.T. 887 : 17 W.R. 1105. The allegation here is that the deed, of July 1906 was void on the ground that the mind of Ranganmoni did hot accompany her signature or mark; in other' words that she never intended to sign and thetefore, in contemplation of law, never did sign the deed to which her name and mark were attached. If then, the allegation amounts to an assertion that the transaction which took place in July 1906 resulted in no deed being signed by Ranganmoni, then the only declaration which the plaintiff would require in this case would be the declaration which is asked for in paragraph 2 of the prayer. It would be necessary, as I have said before, for the Court to come to a decision on the facts as regards this transaction, and if it came to a decision that in law the deed of exchange and gift was not executed by Ranganmoni then all that would be necessary would be for the Court to declare that the plaintiff is entitled to the money. It is not a case where the contract is voidable in which case the Court would have to make a declaration that the deed should be set aside. On the facts assumed, there would be no, necessity for such a declaration for the Court would, have to come to the conclusion that in law Ranganmoni had not executed the deed of exchange and gift. Consequently, in my judgment, the contention of the appellant in this case would be correct, viz., that the relief which is sought for is the declaration which is asked for in paragraph 2 of the prayer of the plaint. That being so, Article 120 of the Schedule to the limitation Act would apply to this case and, inasmuch as it is alleged that Ranganmoni's rights were concealed from her by the fraud of the defendant until the 23rd of January 1915, Section 18 of the limitation Act, would have effect, and the period of limitation would not begin to run until the 23rd of January 1915, the period of limitation prescribed by Article is six years, this period would not expire until January 1921 and inasmuch as the suit was brought on the 22nd of December 1919 in my judgment the suit would be brought in time.
5. Consequently, this appeal is allowed with costs, the order of the learned Judge dismissing the suit is set aside, and in view of this judgment the case is remitted to the Court of first instance to be tried on the merits. The costs of the first hearing in the Court below will abide the result of the further hearing, and-in the event of the suit not being further tried, such costs will be in the discretion of the Judge on the Original Side.
6. I agree It seems to me that modern decisions founded in principle on the cases of Janki Kunwar v. Ajit Singh 14 I.A. 148 : 15 C. 58 : 12 Ind. Jur. 9 : 5 Sar. P.C.J. 92 : Rafique and Jackson's P.C. No. 99 : 7 Ind. Dec. (N.S.) 624 (P.C.) and Malkarjun v. Narhari 27 I.A. 216 : 25 B. 337 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.) lead to the following result. If a plaintiff comes into Court to have a particular written instrument set aside or cancelled, then, prima facie the Article of the Schedule of the limitation Act applicable is Article 91, whether the ground on which the claim is made is fraud or some other ground.
7. The Courts, however, draw a distinction between void and voidable instruments and hold that Article 91 does not apply to instruments which are void ab initio so as not to require setting aside. When the instrument is voidable it is presumably valid, and binding on the plaintiff, until it is set aside, and any further relief which may be sought depends on the removal of the instrument from the plaintiff's path. In such a case Article 91 applies. But if the facts alleged by the plaintiff raise a case that the instrument, whether executed by the plaintiff himself or by some third party through whom he claims, is null and, void ab initio, then, as I understand the matter, Article 91 ceases to be applicable and the circumstances may entitle the plaintiff to the benefit of the longer period of limitation allowed by some other Article such as Article 120 or Article 144.
8. In the present case, as I read the plaint, the plaintiff raises the plea known to English lawyers as non est factum. If she should succeed in establishing that plea, then the instrument in question would be altogether void. It would not require setting aside and the prayer to set it aside would be merely superfluous, so that Article 91 would be inapplicable
9. Now, the Court below has come to no conclusion upon this plea. I do not know whether the point was taken before the learned Judge but it does seem to arise on the pleadings and it was taken before us without objection by the other side. I express no opinion, of course, on the merits of the plaintiff's plea. The question is, in the first instance, a question of fact depending on Evidence and it is impossible to anticipate the conclusion at which the Court of Trial may arrive after evidence has been taken.
10. I agree that the appeal should be allowed and the case remitted to the Court below to be further dealt with.