1. This is a plaintiff's appeal arising out of a suit for possession of two plots. Harihar Prasad, the uncle of the plaintiff, executed a perpetual lease on 18th May 1918 in respect of the two plots in suit in favour of the defendant-respondent, the latter being given the right to build a house, to construct a well, to plant trees and to lay out a garden on the aforesaid plots. The plaintiff was at that time a minor. After attaining majority the plaintiff instituted the suit for possession out of which this appeal arises, alleging inter alia that the lease had been executed without any legal necessity by his uncle and that it was void, ineffectual and inoperative as against him. The defence was that the suit was time-barred, that the defendant was a tenant of the plaintiff and therefore the suit was not cognizable by the Civil Court, that the lease was executed for legal necessity, that the property had been improved and constructions had been erected at a cost of Rs. 10,000 or Rs. 15,000 and that it was not open to the plaintiff to claim possession.
2. The trial Court found in favour of the plaintiff on the issue regarding limitation. As regards the question of tenancy, the trial Court referred the matter to the Revenue Court purporting to act under Section 273, Tenancy Act; and the Revenue Court found that the defendant was, in fact, a tenant of the plaintiff. As regards legal necessity, the trial Court was of opinion that this issue did not arise. In the result, it dismissed the suit. The learned Judge of the lower Appellate Court finds that since there was no agricultural lease, the trial Court acted irregularly in referring an issue under Section 273, Tenancy Act. He then proceeded to find that the suit was incompetent without a prayer for cancellation or avoidance of the lease; and in the absence of such prayer the learned Judge dismissed the appeal.
3. The only question which has been argued before me in this second appeal is whether the plaintiff was or was not entitled to sue for possession without also praying for cancellation or avoidance of the lease. The learned Judge of the lower Appellate Court has relied on the decision in Aziz-un-nissa v. Siraj Husain (1931) 21 AIR All 507 and also on the observations of the Court in Basdeo Narain v. Mohammad Yusuf : AIR1928All617 . But both those cases are distinguishable. In the last-named case there was a lease of agricultural land, whereas in the case which is now before me there is a finding that the lease was not agricultural; and therefore the analogy of Section 45, Tenancy Act of 1926, which was there invoked, is inapplicable. In Aziz-un-nissa v. Siraj Husain (1931) 21 AIR All 507, the plaintiff was claiming through the alienor. In the case now under appeal the plaintiff and the alienor, who is his uncle, were members of a joint Hindu family. The plaintiff does not derive his title through the alienor, but has an independent title of his own. It is true that the alienation by his uncle was capable of ratification unless of course it is a valid alienation by reason of legal necessity-and was therefore not void ab initio; but this fact per se will not necessitate a prayer for cancellation. In Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1907) 34 Cal 329, the plaintiffs sued as reversioners for possession of property which had been transferred on lease for 60 years by the late owner's deceased widow. Their Lordships of the Privy Council held that the plaintiffs were entitled to sue for possession, treating the alienation as a nullity. At p. 333 they say:
A Hindu widow is not a tenant for life but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not therefore absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plaint a declaration that the ijara was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances which they relied on for showing that the ijara or any derivative dealings with the property were not in fact voidable but were binding on the reversionary heirs.
4. Upon these findings the Judicial Committee held that Article 141 and not Article 91, Limitation Act, was applicable. In Radhu Ram v. Mohan Singh (1915) 2 AIR Lah 200, the plaintiff's brothers had sold the joint family land during his minority to the defendant. After the expiry of three years from the date of plaintiff's attaining majority he sued for his share of the land. The suit was dismissed as barred by limitation under Article 44, Limitation Act. On second appeal it was contended on behalf of the defendant that the suit had been rightly dismissed and that in any case it was barred under Article 91. But it was held by a Bench of the Punjab Chief Court (Shadi Lal and Rossignol JJ.) that the suit was not barred, that neither Article 44 nor Article 91 was applicable to the case and that the plaintiff had 12 years to sue for possession of the land. At p. 200, second column, the learned Judges say:
An instrument of alienation, executed by a person who, not being the full owner of the property, has a conditional authority to dispose of it, need not be set aside if the condition under which the authority might be exercised had not been fulfilled. Such are the cases of a sonless Hindu widow, the karta or manager of a joint family and the karnavan of a Malabar tarwad. In these cases it is not only not necessary, but it is not possible, to have the instrument of alienation cancelled and delivered up, because, as between the parties to it, it may be a perfectly valid instrument. All that is needed is a declaration that the plaintiff's interest is not affected by the instrument, and that declaration is merely ancillary to the relief which may be granted by delivery of possession. The plaintiff may treat the instrument as non-existent, and sue for his rights as if it did not exist. Even an express prayer in the plaint for the cancellation of such an instrument may be treated as not an essential part of the plaintiff's relief.
5. Further on they observe:
If the person who executes the document had no authority in law to execute it, the plaintiff need not sue to set it aside, but may treat it as of no effect.
6. Finally the learned Judges say:
Mr. Govind Das has not been able to cite a single judgment in which Article 91 has been applied to the suit of a member of Mitakshara family for possession of his share of the property alienated by the manager thereof, and on the authorities cited above we are of opinion that the period of limitation for a suit of this kind is twelve years.
7. In Thirupathi Raju v. Venkataraju (1918) 5 AIR Mad 1038, it was held by a Bench of the Madras High Court that a suit by a member of a joint Hindu family for possession of property alienated by the manager during the plaintiff's minority, describing himself as the guardian of the minor, is not a suit to set aside a sale by a guardian to which Article 44, Limitation Act, applies, but is one for possession of immovable property within the meaning of Article 144. The decision in Radhu Ram v. Mohan Singh (1915) 2 AIR Lah 200, already referred to, was here approved and followed. In my opinion, although the transaction in the present case was capable of ratification by the minor as regards his interest in the property, and was not void ab initio since his uncle had the power of alienation, subject to restrictions, the plaintiff, who is not claiming through the alienor, was entitled to sue for possession without adding a prayer for cancellation. In other words, he was entitled to treat the alienation as a nullity, leaving it to the transferee to establish legal necessity. On the above findings, I allow this appeal and set aside the decree of the Court below, and I remand the appeal to the lower Appellate Court with directions to determine the question of legal necessity and any other issues which may still be outstanding. Costs will abide the result.