R.K. Das, J.
1. This is a plaintiff's second appeal directed against an order dated 9-3-1959 ofSri S.K. Mahapatra, District Judge, Balasore, inM. A. No. 77 of 1957, setting aside an order dated3-8-1957 of Sri N. Sarangi, Addl. Munsif, Balasore, in O. S. No. 84/257 of 1957/54.
2. The plaintiff brought a suit for setting aside a sale deed dated 11-4-1946 executed by his father in favour of the father of defendants 1 to 1 (kha) and husband of 1 (ga) as well for recovery of possession together with mesne profits. The case of the plaintiff's is that the sale deed was without consideration and legal necessity and thesame was executed at a time when he was a minor and as such it is not binding and is inoperative against him. The plaintiffs further claimed thathe was in possession of the suit property in spite of the sale deed till 23-2-1951 when he was dispossessed. Defendants 1 to 1 (ga) are the onlycontesting defendants. There is no relief sought against defendants 2 to 8, but they have beenadded as parties as the plaintiff wanted the case to be heard in their presence. The said defendants were also ex parte from the beginning.
3. The case of the contesting defendants was that the father of the plaintiff in order to purchase some lands elsewhere for the family convenience sold the Ga schedule land (which is the disputed land) for a sum of Rs. 80/- which was paid in full and that they are in possession of thesuit land since the date of its purchase. They further pleaded that the suit was barred by limitation as the plaintiff did not file the suit within three years after he attained majority and the suit was filed on 24-11-1954.
4. Both the Courts below found that the sale deed was without legal necessity and consideration. With regard to the question of limitation, however, there was variance of opinion between the trial court and the lower appellate court. The trial court held that Article 44 of the Indian Limitation Act, which prescribes the period of limitation of three years for a ward to set aside a sale deed executed by his guardian, had no application to the present case but Article 142 applies to the facts of the case. Since the suit was instituted within 12 years from the date of the sale deed and in any case from the date of dispossession) (23-2-51) he held that the suit was within time, and decreed the plaintiff's suit andawarded damages of Rs. 25-8-0. The lower appellate Court, however, held, that since the provision of Article 44 applies to the present case,the suit is barred by limitation and dismissed theappeal.
5. In this second appeal in view of the concurrent finding of fact that the sale deed was without legal necessity and consideration, the only question for consideration is whether the suit is tarred by limitation. Article 44 provides limitation for three years for a ward who attains majority to set aside a transfer of property by his guardian--the period to run from the date of his attaining majority. Article 44 contemplates cases in which a transfer has been made by a guardian. If this article is applicable to the present case, then clearly the suit is barred by limitation as it was filed long beyond three years from the date of attainment of his majority.
6. Certain amount of dispute arose whether in view of the non-passing of consideration money, the transaction becomes void ab initio so that it need not be set aside at all under Article 44 and it was open to the party to take recourse to the other, provisions of law of limitation in so far as the relief claimed by him is concerned. It is not disputed that if the transaction as a void one then Article 44 has no application, since it is not necessary to challenge the transaction itself. The question, therefore, is whether a sale without any consideration is void ab initio so as to make the provisions of Article 44 inapplicable to it. The authority on this point cited at the bar is a case reported in Shamchandra v. Gadadhar, 13 Cal LJ 277 where a Division Bench of the Calcutta High Court, presided over by Mr. Justice Mookherji and Coxe, JJ. held :
'In order to determine whether a person is entitled to recover possession, of the property covered by a conveyance executed by his natural or de facto guardian during his minority, without cancellation of the instrument, it is essential to determine the true character of the transaction. If it is void and inoperative in its inception, it is not necessary for the plaintiff to seek the cancellation of the instrument. If on the other hand the transaction is merely voidable, the plaintiff cannot recover possession till he has avoided the instrument. If therefore a conveyance executed by the plaintiff's natural guardian is fully inoperative, because the consideration was fictitious, it is not necessary for him to have the sale set aside. That is, if the purchaser never acquired any title under the conveyance, the plaintiff is entitled to recover possession from him as trespasser. If on the other hand there was consideration for the sale although the conveyance was executed by the guardian of the plaintiff in excess of his authority, the plaintiff may be entitled to have the instrument cancelled and to recover possession.'
Their Lordships further held that Article 44 of the Limitation Act applied only to cases to which the plaintiff would seek to set aside a genuine transaction and only in such case that plaintiff should file a suit within 3 years from the date of attainment of his majority. Their Lordships also held that Article 44 was not limited in its application to cases of cancellation by guardian de facto as well as by a guardian de facto and de jure. The reported case therefore completely answers the question involved in the present case. On the authority of this decision, the learned counsel for the respondents, rightly conceded that Article 44 could not be made applicable to the present case. The suit is, therefore, not barred by law of limitation. It is not disputed, as I have stated above, that the plaintiff has filed the present suit within twelve years as is required under Article 142 of the Limitation Act. The Trial Court's assessment of damage is correct.
7. The result, therefore, is that the judgment and decree passed by the learned lower appellate Court are set aside and the plaintiffs suit is decreed in full in terms of order passed by the learned trial Court. The appeal is allowed,but in the circumstances, however, parties are tobear their own costs throughout.