G.K. Misra, J.
1. Defendant 1 is the appellant. The following geneological tree would show the relationship in the family of the plaintiffs :
X|_________________________ | |Eta Dambaru| | Suna Plff.4Cheramga W. Mst. Mangrai (D-2)|-------------------------------------------------- | | |Bhainra (Plff-1) Jhirga (Plff-2) Bhakchand (Plff-3) Plaintiffs 1 to 3 give their respective ages as 25, 22 and 20 in the cause title of the plaint on 17th May 1958 when the suit was filed. Plaintiffs' case is that the disputed land comprising an area of 7.85 acres with an annual rent of Rs. 2/14/- belonged to both the branches of Eta and Dambaru. The land was jointly possessed by them, and after their death about 14 years before the suit, plaintiffs 1 to 4 and defendant 2 continued to have joint possession of the same. Defendant 1 at the instance of the Gountia of the village, practised fraud on defendant 2 during the minority of plaintiffs 1 to 3 and made the land to be sold for Rs. 300/- under the representation that it was a mortgage. Only Rs. 120 out of Rs. 300/-were accepted. Defendant 1 possessed the said land on the understanding that it was a usufructuary mortgage. About 10 years before, the plaintiffs and defendant 2 left their village for Rampur Colliery for labour. In Falgun prior to the suit, plaintiffs offered Rs. 120/- to defendant 1 for redemption who refused the offer alleging that it was a sale. The sale was without consideration and legal necessity and not binding on the plaintiffs who were minors at the time of the alienation. The plaintiffs accordingly brought the suit for declaration of title and recovery of possession.
2. Defendant 1 alone contested the suit. The age of plaintiffs 1 to 3, as given in the plaint, was not challenged. The defence case is that Eta and Dambaru were separate and the disputed property fell to the snare ct Eta. Defendant 2 for self and for her minor sons Plaintiffs 1 to 3 usufructuarily mortgaged the disputed land on 9th April 1944 for Rs. 98/- (Ex. B). On 20th May 1947 defendant 2 for self and on behalf of her minor sons executed an unregistered sale-deed for Rs. 3007-. Both the mortgage and the sale were for legal necessities which were to meet household expenses, to pay up arrears or rent and to purchase some land in Rampur Colliery, where the plaintiff and defendant No, 2 had shifted. Defendant 1 was duly mutated and is continuing in possession. He caused improvement to the extent of Rs. 2000/-. Defendant 2, the mother of the plaintiffs, was the manager ot the joint family and was guardian at the time of alienation and the suit was barred under Articles 142 and 144 ot the Limitation Act.
3. Two important omissions in the written statement are worthy of note. Those are (i) non-denial of the ages of the plaintiffs, and (ii) non-assertion of the tact that the suit was barred by limitation under Article 44 of the Limitation Act.
4. The learned Munsif dismissed the suit on the following findings:--
(I) the disputed land exclusively belonged to Eta ana thereafter to defendant 2 and the plaintiffs.
(II) the sale by defendant 2 in favour of defendant No. 1 was for consideration and legal necessity; and
(III) the suit was barred by limitation under C. P. Tenancy Act.
5. The learned Addl. Subordinate Judge, who Heard the appeal, agreed with the learned Munsif that the disputed land exclusively belonged to the plaintiffs and defendant 2 and that the sale was for consideration. He differed from him in holding that the sale was not for legal necessity and that the suit was not barred by limitation, Article 144 and not Article 44 of the Limitation Act being applicable to the case. The applicability of Article 44 was raised on behalf of defendant 1 for the first time before the learned Addl. Subordinate Judge, and in that connection some argument was advanced with regard to the age of plaintiff 3 on the date of the suit. The learned Adomonal Subordinate Judge did not record any clear finding on that point. He accepted the defence claim of improvement to the extent of Rs. 2000/-.
In view of his findings he granted a decree to the plaintiffs on the following terms:
'Plaintiffs 1 to 3 are entitled to have 3/4 share of the suit lands by paying Rs. 1,500/- to the defendant 1 or else the latter will retain the suit lands for good on paying Rs. 300/- to the plaintiffs 1-3. In the former contingency, the plaintiffs shall recover the balance 1/4 share after the death of Nagri on paying Rs. 500/-without paying anything more, since in that respect the defendant 1 acted with his eyes open. . . .The plaintiffs are to have the joint possession of the suit lands.'
6. Plaintiffs are satisfied with the decree of the lower appellate Court and filed no appeal or cross-objection against the tower appellate Court's, decree refusing their claim. Defendant No. 1 attacks the appellate decree to we extent adversely affected and this is how the matter has come before this Court.
7. Mr. Das raises the following contentions.
(i) the finding of the lower appellate Court that the sale was not for legal necessity is contrary to law; and
(ii) Article 44 and not Article 144 of the Limitation Act applies to the facts of this case and the suit is barred by limitation.
8. The learned Addl. Subordinate Judge has clearly found that there was no bona fide inquiry by the transferee as to whether the alienation was for legal necessity or benefit of the estate. This finding is not challenged. With regard to actual application, the instances given oy the transferee (defendant 1) are as follows (a) Rs. 15/-for payment of arrears of rent; (b) Rs. 98/- towards Discharge of the mortgage debt under Ex. B; (c) maintenance of the family; and (d) purchase of property by defendant 2 near Rampur Colliery where they had shifted for labour: The learned Addl. Subordinate Judge found that the fact of payment of Rs. 15/- for arrears of rent had not been established by positive evidence and that the family had no need for their maintenance as they had alternative source of income. These are purely findings of fact unassailable in second appeal. Admittedly defendant 2 had incurred Rs. 98/- on the basis of mortgage (Ex. B). Whether that amount was for legal necessity or not is not necessary to consider.
Mr. Das very vehemently contended that the. purchase of new property by deft. 2 was for the benefit of the minors, and, as such, should have been upheld in support of the alienation. He cites Gopalkrishna S. v. C.V. Krishna Iyer, AIR 1961 Mad 348. The principle laid down in this decision is clearly acceptable and is good law. Their Lordships observed that if the minor has an unproductive property and the guardian sells it with a view to purchase a productive one, it cannot be said that the only course open to the guardian was to sell the property; but yet the alienation would be binding. The test in such cases is not that there should be no alternative, but that whether the act was for the benefit of the minor in the known circumstances. The standard of prudence is not a subjective one. The guardian occupies a fiduciary position. His decision to alienate should be objective. The standard of care required would be more akin to that of a trustee than that of an owner. On the application of this standard, defendant 1 is bound to fail. There is the finding that there is no proof that in fact the money was applied by defendant-2 for purchase of property in Rampur Colliery area. This finding of fact cannot be assailed in second appeal.
Moreover, there is neither any pleading nor proof that the suit land was unproductive and the land purchased was more productive. Defendant 1 failed to establish the necessary facts in support of the proof that the alienation was for the benefit of the minors. After full analysis the conclusion is irresistible that the alienation was not for legal necessity and benefit of the minors. The learned Addl. Subordinate Judge was correct in his view.
9. There is much controversy whether Article 44 or Article 144 of the Limitation Act would apply to this case. Article 44 is as follows:
'By a ward who has attained majority, to set aside a transferof property by his guardian.'
When theward attains majority.
The decision on this point is wholly unnecessary in this case in view of the fact that the suit is otherwise within limitation even if Article 44 applies. The necessary facts are that admittedly the alienation was made by the mother (defendant 2) on behalf of herself and the minors. The age of plaintiff 3 as being 20 on the date of filing of the suit was nob challenged in the written statement. Defendant 1 did not elect to join issue on that question. Thus the age so given was accepted as correct. In the absence of denial in the written statement and an issue on the point, it was incumbent for both the Courts to record a clear-cut finding that plaintiff 3 was 20 years old at the time or institution of the suit. The learned Munsif did not at all touch this question as before him the bar of limitation under Article 44 was not raised. The learned Addl. Subordinate Judge recorded a confused finding as in his view the plaintiffs were to suffer if defendant 1 preferred not to challenge the age and not to join issue on this point. There is, therefore, no legal finding binding on me in second appeal. On the bare assertion in the plaint not challenged in the written statement it is open to me, to record a finding that plaintiff 3 was 20 years old on the date of the suit.
Mr. Das contended on the authority of Jagdish Naram v. Bishnu Datt, AIR 1941 Oudh 165 and Jaddu Padhi v. Chokapa Boddu, AIR 1934 Mad 469 that when the elder brother had become major long before and did not choose to file a suit to set aside alienation within three years or the attainment of majority, the suit was also barred by limitation so far as plaintiff 3 was concerned. Sections 6(1) and 7 of the Limitation Act are as follows:
'Section 6(1) When a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first Schedule.
'7. Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but where no such discharge can be given, time will not run as against any of them untill one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.'
Mr. Das contends that plaintiff 1, the elder brother must be presumed in law to be the manager of the family on attainment of majority. I am unable to accept such a contention. There can be no presumption that the elder brother is the manager of the family on attainment ot majority. Whether a person is the Karta of the family or not is a pure question of fact. Cases are in abundance to indicate that even the eldest member of the family is not the manager of the family. It was incumbent upon defendant 1 to clearly plead and prove that on the attainment of majority plaintiff 1 became the manager of the joint family and could have given a valid discharge. The case reported in AIR 1941 Oudh 165 itself shows that in fact another member jointly interested was the manager of tha family. It is unnecessary to examine large many decisions on the matter as the question is concluded by a Division Bench decision of this Court reported in ILR (1959) Cut 122: (AIR 1959 Orissa 179) Netramani Debi v. Lakhminarayain Kar where this point was directly canvassed. At p. 134 (of ILR Cut): (at p. 183 of AIR) their Lordships referred to Subbarao v. Pattabhiramayya, AIR 1945 Mad 498 and accepted the position enunciated therein that Section 7 of the Limitation Act would not operate as a bar if the elder brother was not manager of the family during the relevant period. In view of this decision, there is no substance in the contention that the elder brother is to be presumed as the manager of the family on attainment of majority. At p. 140 (of ILR Cut): (at p. 185 of AIR) their Lordships closed the discussion with the following observation:
'A reading of Section 7 shows that the word 'discharge' cannot include a mere non-filing of a suit. The two sisters are entitled to institute a suit and one of them is under a disability and the clause 'discharge can be given without the concurrence of such person' cannot by any stretch of imagination be made to include the non-filing of a suit. ..... non-filing of a suit cannot come under the word 'discharge' as in that case the expression 'concurrence of such person' would be redundant. The entire expression can only refer to cases where the person attaining majority is capable of giving discharge of the right by any positive act even including a release of a right to sue. But a mere passive act of not filing a suit cannot with a reasonable interpretation of Section 7 made to be included under the word 'discharge'.'
This passage ordinarily enunciates the position of law and I am bound by this decision. The alienation was en 20th May 1947. The suit was filed on 17th May 1958. If Article 144 applies, the suit is within 12 years and not barred by limitation. If Article 44 applies, the suit is within limitation as it was filed within 3 years of the cessation of the minority of plaintiff 3 and plaintiffs 1 and 2 though jointly entitled to institute a suit cannot give a valid discharge without the concurrence of plaintiff 3, and so time will not run against them. In this view of the matter, it is unnecessary to examine whether in facts and circumstances of this case Article 44 or Article 144 applies.
10. The appeal fails and is dismissed with costs.