JUDGMENT
1. This is a defendant's appeal and arises out of a suit brought by the plaintiff-respondent for possession of certain zemindari share by cancellation of a sale-deed, dated 12th May 1917, executed by the plaintiff's mother during the plaintiff's minority. The plaintiff's case was that there was no necessity for the sale and that the sale was not binding on him.
2. The defence to the suit was that the sale was for necessity and for the benefit of the minor and therefore, it was binding on him. It was further pleaded in defence that the plaintiff's age was 25 and not 21, as stated in the plaint, and that the suit was time barred.
3. The consideration for the sale was Rs. 640, and both the Courts below agreed in holding that, out of the sale consideration, a sum of Rs, 480 was for the benefit of the plaintiff and was binding on him and that the necessity for the remaining sum of Rs. 160 had not been proved by the vendee. On the question of limitation both the Courts below held that the suit was governed by 12 years rule of limitation and was not timebarred. In arriving at this conclusion the lower appellate Court placed reliance on decision of this Court reported as Bachchan Singh v. Kamta Prasad [1910] 32 All. 392. In view of the findings noted above, both the Courts below passed a decree in the plaintiff's favour for possession of the zamindari share in dispute conditional on the payment of Rs. 480 by the plaintiff to the defendants vendees. One of the defendants has preferred this second appeal, and it is argued on his behalf that the article applicable to a suit of the present description is Article 44 and not Article 144, Sch. 1, Lim. Act, and that the suit was time barred.
4. It is argued by the learned Counsel for the appellant that Article 44 applies to every case in which a transfer has been made by guardian of a minor and, if a suit to set aside an alienation made by such guardian is not brought by the ward within three years of his attaining majority, a decree for possession by avoidance of the transfer cannot be passed on his favour. It is further contended that Article 144, Lim. Act, can have no application to such a case, inasmuch as a decree for possession can be passed in favour of the plaintiff in such a suit, only if the plaintiff succeeds in getting the transfer made by his guardian cancelled.
5. On the other hand it is argued by the learned Counsel for the respondents that the present suit was a suit, in fact and substance, for recovery of possession of immovable property which, according to the plaintiff, had been alienated by his guardian during his minority without lawful authority, and that the prayer for a declaration that the sale is not binding on the plaintiff was only ancillary to the substantive claim for possession and, as such, the suit is governed by Article 144, Sch. 1, Lim. Act. In support of this contention reliance is placed on the Division Bench ruling of this Court to which reference has been made by the learned Judge of the lower appellate Court. He further argues that Article 44 has no reference to cases of alienations made by guardians other than guardians appointed by Court.
6. In our judgment the contention of the learned Counsel for the appellant is correct and ought to prevail.
7. Article 44 provides for a suit by a ward, who has attained majority, to set aside the transfer of property by his guardian, and the prescribed period of limitation is three years. The words of this article are very general and have application to every case in which a ward, on attaining majority, impugnes the transfer made by his or her guardian during his or her minority, and there is absolutely no warrant for restricting the application of that article to cases of transfers made by a certificated guardian.
8. The Limitation Act does not contain the definition of guardian" and ward," but by Section 4(2), Guardians and Wards Act, "guardian" is defined as meaning a person having the care of the person of a minor or of the property, or of both his person and property, and "ward" is defined by Clause (3) of the same section, as meaning a minor for whose person or property, or both, there is a guardian. It would thus appear that the word "guardian" is of general import and includes natural and testamentary guardians and guardians appointed by Court. We find no justification for interpreting the word "guardian" in Article 44 as having reference only to a guardian appointed by the Court and the word "ward" in that article as having reference only to a minor the guardian of whose property has been appointed by the Court.
9. The powers of a guardian to transfer the property of a minor are circumscribed by certain limitations vide Sections 27, 28 and 29, Guardians and Wards Act. A natural guardian is bound to deal with the property of a minor as carefully as a man of ordinary prudence would deal with his own and can alienate the minor's property, only if the alienation is for the minor's benefit. If a sale is made by a natural guardian of a minor, and the sale is not for the benefit of the minor, the transaction is undoubtedly voidable at the option of the minor, but this option must be exercised by the minor within three years of the date of his attaining majority, if he wants to have the transfer set aside. If he allows the period of three years to elapse, his title to the property will be extinguished, inasmuch as the transferee holds the property transferred by the natural guardian not under a void but a voidable transaction. After the expiry of three years from the date of attaining majority the transfer cannot be set aside, and then a suit for possession of immovable property cannot be maintained by the ward, inasmuch as, during the subsistence of a valid deed of transfer which has not been avoided by the ward the title to the property must be deemed to be with the transferee.
10. It is otherwise in those cases in which the property of a minor has been transferred by a wholly unauthorized person. In such cases the transaction is void ab initio and it is not necessary for the minor in order to recover possession of the property transferred to have the transfer set aside. In such cases Article 44 will have no application and the suit will be governed by Article 144, Sch. 1, Lim. Act.
11. For the reasons that we have given, we are unable to agree with the decision of this Court reported as Bachchan Singh v. Kamta Prasad[1910] 32 All. 392. It is further to be noted that the question whether Article 44 does or does not apply to cases of the description that we are considering was never considered by the learned Judges in that case, and indeed, the point was never argued by the learned Counsel who represented the transferee in that case.
12. The view that we take is in consonance with the decisions of the Calcutta, Madras, Bombay and Lahore High Courts: vide Brojendra Chandra Sarma v. Pro1929 A/111 & 112 sanna Kumar Dhar [1920] 24 C.W.N. 1016, M. Latchiah v. P. Mukkalinga [1907] 30 Mad. 393, Fakirappa Limannar v. Lumanna Mahadu [1920] 44 Bom. 742, Labha Mal v. Malak Ram A.I.R. 1925 Lah. 619 and Khushia v. Faiz Muhammad Khan A.I.R. 1928 Lah. 115.
13. For the reasons we have given, we hold that the plaintiff-respondent had a period of three years from the date of his attaining majority to avoid the transfer made by his mother, who was his natural guardian. There is no finding recorded by either of the Courts below as to the age of the plaintiff. If the plaintiff filed his suit before completing the age of 21, the suit would undoubtedly be within time; otherwise it would be time barred.
14. In order to decide this appeal we must have a finding from the lower appellate Court on the following point:
15. What was the age of the plaintiff on the date of the institution of the suit?
16. As no specific issue on the point was framed by the trial Court, we think it desirable that the parties should be allowed to adduce evidence on the point, and we allow the parties to do so.
17. The finding must be submitted to this Court within three months from today's date. On receipt of the findings the usual ten days will be allowed for filing objections.