1. The appellant is the purchaser from one Bhavan Girdhar, whose father and guardian had transferred the property to the defendants' predecessor-in-title in February 1912. BhavanGirdhar attained majority on August 11, 1923, and sold the property to the appellant in 1925. The present suit was brought by the appellant and BhavanGirdhar. It appears that Bhavan Girdhar who was plaintiff No. 2 made an application to withdraw from the suit in August 1926, and without any objection on the part of the appellant he was allowed to withdraw from the suit, After withdrawal by plaintiff No. 2 from the suit a preliminary question was raised for argument as to whether the suit by the assignee, the appellant, was within time. The learned Subordinate Judge held that the plaintiff's suit was barred by limitation. On appeal, the learned District Judge agreed with the view of the lower Court.
2. It is contended on behalf of the appellant that the suit which was originally filed was within time, and that if plaintiff No. 2 had not withdrawn from the suit, both the plaintiffs would have succeeded in getting a decree after the sale in favour of the defendants had been set aside, and reliance is placed on the decision in Hanmant Gurunath v. Ramappa Lagmappa I.L.R. (1924) Bom. 309 : 27 Bom. L.B. 211. It is further contended that Article 44 of the Indian Limitation Act applies not only to the miner ward but also to the transferee from such ward, and reliance is placed on the decision in the case of RajaRamaswami v. Govindammal (1928) 58 M.L.J. 332 that in any case the suit having been filed by both the plaintiffs within three years of the ward attaining majority the suit was within time, and that the fact that plaintiff No. 2 withdrew from the suit subsequently would not make any difference.
3. According to the decision of the full bench in Fakirappa Limanna v. Lumanna bin Mahadu I.L.R. (1919) Bom. 742 : 22 Bom. L.R. 680 a Hindu minor on his attaining majority cannot sue to recover possession of property transferred by his mother acting as his natural guardian during his minority without suing to set aside the transfer within the period of limitation provided by Article 44 of the Indian Limitation Act, and that Article 44 is not limited to sales byguardians who are appointed under testaments or by the Court but is wide enough to include sales by natural guardians, who may have some authority, however limited, to alienate the property of the minor, When the property is sold by the guardian it ceases to belong to the ward and the interest passes to the purchaser subject to the right of the ward to bring a suit to setaside the sale. After the sale is set aside in a suit by the minor on his attaining majority the property would revert to him, and the subsequent purchaser from the minor would be entitled to enforce his right against the minor under Section 43 of the Transfer of Property Act or by virtue of the doctrine of feeding a grant by estoppel referred to in Tilakdhari Lai v. Khedan Lal. Under the Indian Limitation Act, Article 41, a period of three years is prescribed for a ward to set aside the transfer by a guardian. In the case of a mortgage the equity of redemption would vest in the minor and he would be competent to sell it notwithstanding the mortgage created by his guardian. But in the case of a sale by the guardian the property would pass to the purchaser, and unless the sale is set aside, the (subsequent purchaser from the minor after attaining majority would not be able to enforce his rights under the second sale-deed.
4. In Hanmant Gurunath v. Ramappa Lagamappa I.L.R. (1924) Bom. 309 : 27 Bom. L.R. 211 the guardian of the minor sold the property, and the minor after having attained majority conveyed his interest to a, subsequent purchaser. Both the minor who had attained majority and the subsequent purchaser sued to set aside the alienation made by the mother of the minor during his minority. It was held that the claim was not barred by limitation on the ground that though the cause of action for setting aside the alienation by the mother arose from the date of the alienation, the remedy contemplated by Article 44 was open to the minor for three years from the date of his attaining majority, and that remedy was not lost by the mere fact that the minor purported to transfer his interest, such as it was at the date of the transfer, and that until the sale was set aside it was good so far as the minor was concerned and his interest in the property was subject to the result of a suit, and in order to make the second sale effective both of them, the minor who had attained majority and the subsequent purchaser, had to join in bringing the suit. It was not disputed in that case in the argument that if the suit had been filed by the purchaser alone Article 44 would not apply. An opinion was expressed to the effect that it would be difficult to apply Article 44 to the case of a transferee from the ward, but the question was notdecided. It was, however, held that the cause of action for setting aside an improper alienation under Article 44 arose from the date of the alienation, but the remedy contemplated by Article 44 was open to a ward for three years from the date of his attaining majority, and that remedy was not lost because he purported to transfer his interest to a third party. It was further held that if the right of the minor on his attaining majority at the date of transfer be held to be a mere right to sue it could not be transferred under Section 6(e) of the Transfer of Property Act and his right to sue would continue in spite of the transfer. In that case, however, a decree was passed in favour of the subsequent purchaser, and the dismissal of the suit by the minor who attained majority was held not to be strictly correct, but as the sale was set aside in substance, the decree in favour of the second purchaser was not disturbed because it was virtually a suit by the ward.
5. Apart from authority, it appears that when a transfer is made by the guardian of the minor, the property ceases to belong to the minor. If the sale is voidable it has to be set aside by the minor within three years from his attaining majority. It is contended on behalf of the respondent that the right of the minor who has attained majority in such cases is not capable of being transferred under Section 6 (e) of the Transfer of Property Act, as it would appear to be merely a right to sue toset aside the transfer made by the guardian. If Section 6 (e) of the Transfer of Property Act applies, the transferee acquires no title and the right to sue to set aside the sale by the guardian resides solely in the minor who has attained majority, and he must bring a suit within three years for that purpose under Article 44 of the Indian Limitation Act. According to EanmantGurunath's case the ward retains the right to sue in spite of the subsequent transfer, and a suit by the minor who has attained majority and also by the subsequent transferee would be good because it is virtually a suit by the minor who has attained majority to set aside the sale. In the present case the minor has withdrawn from the suit without any objection by the appellant,i.e, the subsequent purchaser. It is doubtful whether plaintiff No. 2 who had attained majority could have been allowed to withdraw from the suit without the consent of the subsequent purchaser the appellant before us under Order XXIII, Rule 1, sub-rule 4, of the Civil Procedure Code. But it appears that the appellant raised no objection to the withdrawal of the suit by plaintiff No. 2, and no ground was taken in the lower Court against the withdrawal of the suit by plaintiff No. 2, The suit, therefore, at present is a suit by the appellant who is a subsequent purchaser from the minor, who attained majority and has withdrawn his suit for setting aside the sale. He has virtually elected not to dispute the alienation made by the guardian by virtue of his withdrawal from the suit. It is only the minor who can bring a suit under Article 44 of the Indian Limitation Act to set aside the sale after his attaining majority.
6. The question, in my opinion, is not whether the suit of the appellant is barred by limitation, but the question is whether the plaintiff has a right to continue the suit. After the minor had withdrawn from the suit he has virtually elected to acquiesce in the sale by his guardian, and the interest of the minor in the property has been extinguished under Article 44 read with Section 28 of the Indian Limitation Act. The plaintiff, therefore, in my opinion, has no right to continue the suit.
7. In the case of Laxmava v. Rachappa I.L.R. (1918) Bom. 626 : 20 Bom. L.R. 403 which has been relied upon on behalf of the appellant in support of the contention that Article 44 applies to a suit by a transferee from the minor, it was no doubt a suit brought by the purchaser from the minor and it was held that the suit was barred under Article 44 of the Indian Limitation Act. However, in that case, the guardian sold the property on May 81,1909, and the minor attained majority on September 29, 1909, and sold the property to the plaintiff on September 25, 1912. The suit was filed on August 12, 1913. It is clear from the facts that the remedy of the minor to set aside the sale under Article 44 of the Indian Limitation Act was barred at the date of the institution of the suit and his interest was extinguished under Article 41 combined with a 28 of the Indian Limitation Act, and that as the minor's interest was extinguished the purchaser could have no right, It does not appear that the case is an authority for holding that Article 44 of the Indian Limitation Act applies to the suit by a transferee of the ward.
8. In the full bench case of Fakirappa Limanna v. Lumanna bin Mahadu I.L.R. (1919) Bom. 742 : 22 Bom. L.R. 680 where the equity of redemption was sold by the guardian of the minor in 1891, and the minor attained majority in 1894 and died in 1901, and the reversioner of the minor sued in 1916, it washeld at page 762 that as the minor could not redeem without setting aside the transfer by the mother and as in fact he did not sue within three years of his attaining majority, the reveraioner's suit was barred. A contrary view was taken in BhagvantGovind v. Kondi valad Mahadu I.L.R. (1889) Bom. 279 on the ground that the relief to set aside the sale was subservient to the suit for possession The doctrine of subservience was not accepted by their Lordships of the Privy Council in Malkarjun v. Narhari I.L.R. (1903) Bora, 337 : 3 Bom. L.R. 927 where it was observed as follows (p. 352):
But if the sale is a reality at all, it is a reality defeasible only in the way pointed out by law ;...
9. It was contended on behalf of the appellant that according to the definition of the 'plaintiff' in Section 2, Clause 8, of the Indian Limitation Act a ward would include his transferee. But the word ' plaintiff ' does not occur in Article 44 and it is difficult to apply the wording of Article 44 in the first column and in the third column, viz., 'who has attained majority' and 'attains majority' to a transferee from a minor. In RajaRamaswami v. Govindammal (1928) 50 M.L.J. 333 on which the appellant relies, it was held that the suit by a transferee was governed by Article 44 of the Indian Limitation Act, but in that case the ward was a party to the suit and though he was impleaded as defendant he was held to besubstantially a co-plaintiff.
10. Both the lower Courts erred in dismissing the plaintiff's suit on the ground of limitation. After the minor was allowed to withdraw from the suit without any objection by the appellant, the latter had no right to continue the suit. It can no longer be treated as a suit by a ward who has attained majority for setting aside the transfer by his guardian. The minor had a remedy and chose to exercise it in the initial stage of the suit, but by virtue of his withdrawal from thesuit he has elected not to set aside the sale by the guardian. The sale, therefore, made by the guardian is binding on the minor and cannot be set aside. The appellant, in my opinion, has no right to continue the suit after the withdrawal of the suit by plaintiff No. 2. The remedy of the subsequent purchaser, if any, lies against his transferor.
11. On these grounds I would confirm the decree of the lower appellate Court and dismiss the appeal with costs.
1. The facts on which this suit and appeal are based were the following Certain property belonging to a minor Bhavan Girdhar was sold by his father as his guardian in 1907 and 1912 to different persons. Some time after attaining his majority in 1923, Bhavan Girdhar, the former minor, in 1925. assigned his existing interest in the property sold by his guitrdian during his minority to the present appellant. The appellant and Bhavan then filed a suit for declaration that the sale effected by the guardian was not for necessity, with the object of recovering the property. The suit was in time, as being within three years of Bhavan's attaining his majority, and he being a party together with the appellant, to whom whatever Bhavan's interests were had passed, was on the rulings properly framed, But before the decision of the suit Bhavan withdrew from it with the permission of the Court, and apparently without any objection being made by the appellant.
2. The Courts below have found that the suit is time-barred as not being within twelve years o? the alienation sought to be set aside, and in this connection, they held that appellant, the assignee, could not avail himself of the provisions of Article 44 of the Indian Limitation Act, which had originally served to bring the suit by Bhavan within time.
3. Mr. Divatia has argued on behalf of the appellant that we should read into Article 44 the words 'or his assignee' or 'his representative in interest' or some similar expression, and hold that the assignee of the former minor's rights is in the same position as he was. The Articles peaks of a 'ward' and of a 'guardian' and of no other person, and we may only interpret and cannot redraft it; and the argument itself raises the further question of-what were the former minor's rights which passed by assignment to the appellant A sale by a guardian of his ward's property is not void, but voidable, provided that the former ward can show that it was not made for necessity, thati.e., he is allowed to have it set aside, on making such an allegation and proving it within the time set out in the Article. It follows that what he assigned to the appellant was not the property in question, but his right tosue for it, and if he could establish his allegation, to have the sale avoided. This, I think, was no more than a right of suit, and if I am correct, such a transfer is forbidden bySection 6, clause (e), of the Transfer of Property Act.
4. By the second plaintiff's withdrawal from the suit, therefore, the appellant is left with no remaining rights. He got nothing by his assignment, and is not the ward, whose property had been sold by his guardian-he has no derivative rights, and clearly cannot maintain the suit. There is no precedent exactly in point. The case law relating to such transactions has been discussed by my learned brother, and I will not repeat his review. My view, however, derives some support from the cases, for from these .it seems that on similar facts this is probably the view the Court would have taken, especially in connection with the remarks inHanmant Gurunath v. Ramappa Lagamappa I.L.R. (1924) Bom. 309 : 27 Bom. L.R. 211. I agree that both appeals must be dismissed with costs.