Norman Macleod, Kt., C.J.
1. The plaintiffs father died leaving a widow and three minor sons, The plaintiff was the second son. His elder brother at the age of nineteen took charge of the family estate of the Hindu coparcenary On July 7, 1908, he passed a certain sale deed which the plaintiff seeks to avoid in the present suit, Subsequently the elder brother died and also the younger brother leaving the plaintiff and his mother the sole representatives of the family. The plaintiff sued to recover possession of the property specified in the plaint and for a declaration that the transaction entered into by the deceased Ganesh Parashram was void And without consideration and illegal and that if it was held binding to the extent of the one-fourth share of Ganesh a declaration to that effect might be given to him. The suit was dismissed, on the plea of limitation, the lower Court holding that the suit had not been instituted within the time prescribed under Art, 44 of the Indian Limitation Act.
2. In appeal the judge said :-
In my opinion although Ganesh styled himself in the sale deeds as guardian of Ins minor brothers, he did not enter into this transaction as a guardian but as the manager of the Hindoo coparcenary. The distinguishing feature of the coparcenary under the Mitakshara law is unity of ownership. The whole body of the coparceners are the owners of the property, and no euparcener can say that he owns any definite share. As regards property of this kind, there can be no guardianship. Article 44 applies in specific terms to guardians and wards. As it restricts the ordinary period of limitation it should be construed strictly.
3. Accordingly he reversed the decree of the trial Court and ordered the plaintiff to recover the possession of the property in suit and gave the defendants a declaration that they were entitled to sue for partition of a one-fourth share.
4. The trial Judge in finding that Article 44 applied to the plaintiff's suit appears to have relied on a Full Bench decision of this Court in Fakirappa v. Lumanna : (1920)22BOMLR680 , where it was held ' that the minor, not having sued to set aside his mother's alienation within three years of his attaining majority, was not competent to dispute the alienation ever afterwards; and that much less could the plaintiff do so.' On reading the judgment in that case, it is difficult to find any foundation for the Judge's conclusion that it applied to the facts in the pre sent case, where several brothers constituted a joint Hindu family, and though undoubtedly the elder brother was the manager of the family he was not the guardian either de facto or de jure of his minor brothers. But even assuming for the purpose of the argument that he might be styled the de facto guardian that would not make him a guardian within the meaning of the words in Article 44 of the Indian Limitation Act. For that the authority is Mata Din v. Ahmad Ali I.L.R.(1912) All. 213, P.C. Consequently Article 44 was not applicable to the transactions in this case, and the plaintiff was entitled to succeed The appeal, therefore, must be dismissed with costs.