1. This, appeal arises out of a suit brought by the plaintiffs-respondents for partition of a house and for a declaration that a sale deed, dated 24th November 1911, is void and ineffectual as against the plaintiffs. They claim to be entitled to half of the house the other half being the property of one Sheikh Fazal Ahmad, who is now represented by defendants other than defendants 1 to 3. The half share which is claimed by the plaintiffs, Mohammad Raza Ahmad and Mt. Taslimunnissa, originally belonged to their grandmother, Mt. Tazimunnissa, on whose death it was inherited by them in the proportion of two-thirds and one-third, respectively, their father having predeceased Mt. Tazimunnisa. Mt. Irshad Khatun, defendant 3, the mother of the plaintiffs, was appointed guardian of their person and property by the District Judge.
2. By a deed, dated 24th November 1929, Mt. Irshad Khatun purported to sell half of the house to Mt. Kadirunnissa, defendant 2, wife of Hafizzahur Ahmad, defendant 1. The latter is said to be the real vendee. The permission of the District Judge was not obtained by Mt. Irshad Khatun, the guardian defendant 3, for sale of the property of her minor wards.
3. The defence of the first two defendants, so far as it is material for the purposes of this appeal, is that the aforesaid sale effectively conveyed the rights of the plaintiffs and that the same not having been Bet aside within three years from the time the plaintiffs attained majority, is conclusive by lapse of limitation. Both the lower Courts have held that the sale, not being made with the permission of the District Judge, was voidable, that the claim of plaintiff 1 was barred by limitation but that of plaintiff 2 was within time. Accordingly a decree for partition of one-third of one-half of the house was passed. The plaintiffs and defendants 1 and 2 have appealed to this Court. Second Appeal No. 1380 of 1928 is the plaintiffs' appeal and Second Appeal No. 1565 is that of the codefendants.
4. It has been found by the lower appellate Court that the sale has not been proved to be for the benefit of the minors. It is not therefore necessary to consider whether a certificated guardian can transfer the property of the minor ward for his or her benefit in the absence of the permission of the District Judge.
5. It cannot be disputed that Mt. Irshad Khatun had no authority to transfer the half of the house belonging to the plaintiffs. If she had not been appointed guardian under the Guardian and Wards Act, her action in making the alienation would have been that of a Fazuli and the sale would have been void, a mother not being a guardian of the property of her minor son under the Mahomedan Law. The character of the alienation made by the mother where she is a certificated guardian is somewhat different. In that case an alienation made by her is on the same footing as one made by any other guardian appointed under the Guardians and Wards Act, Section 29 of which declares transfers made by the certificated guardian without previously obtaining the permission of the District Judge, to be voidable at the option of the minor, exercisable after he or she attains majority. The Courts below have therefore rightly held the sale deed executed by the plaintiffs' mother to be voidable. The result is that it cannot effectively bible to the transferee.
6. The learned District Judge has found that Mt. Taslimunnisa, plaintiff 2, attained majority on 1st July 1923. The present suit was brought on 24th November 1923. It follows that no question of limitation can arise in respect of her claim.
7. It has been found by both the lower Courts that the plaintiffs have been in possession of the house in spite of the sale in favour of defendants 1 and 2. There is nothing to suggest that their possession has been in any way of a derivative character, with the leave and license of the defendants. It must be taken to be in their own right, continued and peaceful. The learned District Judge thinks that plaintiff is possession does not affect the question of limitation in a case like this, as he was bound to have had the voidable sale set aside within three years, as provided by Art 44, Lim. Act, and that his inaction in that respect is fatal to his title. This view is based on an erroneous reading of the article referred to and takes no account of certain weighty considerations arising from other provisions of the Act. Cases contemplated by Article 44 are those in which transfer of property' has been made by a guardian. It implies that the property has changed hands and does not apply to cases where the erstwhile minor is in possession of his property in spite of deeds of transfer executed by the guardian under which either possession does not pass from transferor or transferee e.g., deed of simple mortgage, or possession has not been parted with, though It ought to have been delivered. If the view of the lower Courts be correct, it should follow as a corollary that the vendees could have successfully sued the plaintiffs in ejectment. It is founded on the erroneous assumption that the failure of the rightful claimant to have a voidable deed set aside within the time limited by law has the effect of extinguishing his title, though he might have continued in possession. Ordinarily, unless a deed is fictitious, the transferee is in possession; and if he is not, he will have to sue for it. If the view taken by the lower appellate Court be correct many anomalous consequences would follow. For example if the vendee sues before the expiry of three years, he has to face the contest regarding the validity of the transfer, an issue which, in many cases, may create difficulty; but if he waits for three years and sues for possession within 12 years, he can recover possession from his adversary, who ex hypothesi cannot call in question the validity of the transfer, though he has been in possession all the time that has elapsed since the date of the transfer. In other words, limitation can be successfully pleaded against a defendant whose title is to be taken as extinguished by lapse of time. This view is, however, opposed to a number of decided cases, including the decision of the Privy Council in Sri Kishen v. Kashmiro A.I.R. 1916 P.C. 172. The only cases in which lapse of time not only bars the remedy but extinguishes the title of a claimant are those provided for by Section 28, Lim. Act, which is confined to persons, plaintiffs or defendants, whose suit for possession, if brought, would be barred by limitation. It has been held in numerous cases that Section 28, Lim. Act, does not apply to persons who, being in actual possession which has never been disturbed, have had no occasion to sue for recovery of it, as a party in possession cannot be prejudicially affected by the law of limitation: see cases noted in support of this proposition in Rustomji's Law of Limitation, notes under Section 28.
8. In this case the plaintiffs who are in possession sue for partition and for Voidance of the deed. So far as the first relief is concerned, the real parties to the case are those to whom the share other than that of the plaintiffs belongs. As against them the plaintiffs' title cannot be questioned. Except the true owner no one else can dispute the title of the person in possession whose possessory title will prevail against everybody else. Therefore, if the case were one for partition only, no objection by those in possession of the other half could be made to the plaintiffs' share being separated. They have however also sued for setting aside the sale deed, a relief which is directed against defendants 1 and 2 only. No question of misjoinder of defendants and causes of action was raised in the Courts below or in this Court, and we need not pause to consider it.
9. The position is somewhat curious. Plaintiff 1 could have sued his cosharers for partition without impleading defendants 1 and 2, and if they had done so, their claim, in view of their possession, could not have been defeated. The result of the view taken by the Courts below is that his suit for partition against his cosharers has to be dismissed, because their claim to have the sale set aside as against defendants 1 and 2, a claim in which the cosharers are not interested, is barred by limitation, with the consequence that the plaintiff must remain in joint possession till possibly the other cosharers sue for partition or defendants 1 and 2 successfully sue the plaintiff for possession on the basis of the sale deed in their favour.
10. This anomaly is however only seeming, but not real, being due to the erroneous assumption made by the lower Courts that failure to institute a suit to have a voidable instrument set aside has the effect of extinguishing the title of the person at whose option it is voidable. Section 28, Lim. Act, not being applicable to case, plaintiff 1's title subsists; and the only extent to which his inaction imposes any disability on him is that he cannot sue, after the lapse of the period limited by Article 44, Lim. Act, for having the sale sat aside. The rule is now well settled that lapse of limitation, apart from Section 28, Lim. Act, bars only the remedy and does not extinguish the title of the claimant. This being so, the subsisting right of plaintiff 1 must prevail and entitle him to separate possession of what is now in joint possession of himself and other cosharers.
11. For these reasons we hold that Article 44 Lim. Act, does not apply to the case; and that, if it does, the plaintiff 1's remedy of partition as against his cosharers now in joint possession with him is not affected by Article 44, which at the most merely bars as against defendants 1 and 2 the relief of having the sale deed cancelled, a relief which is not necessary for the main purpose of the suit, viz., partition. The result is that we allow Second Appeal No. 1380 and dismiss Second Appeal No. 1565, and decree the plaintiffs' suit with costs in all Courts.