Varadaraja Iyengar, J.
1. This second appeal is by the plaintiff in a suit on a chitty hypothecation bond which has been concurrently dismissed by the courts below.
2. There were two divided brothers Achuthan and Aiyappan. The 1st defendant is the widow and the 3rd defendant is the son of Achuthan. The 2nd defendant is the wife of Aiyappan. In or about 1104 while Achuthan was still alive, Aiyappan had joined in a chitty scheme started by the 1st plaintiff. Subsequent to Achuthan's death Aiyappan bid the ticket and received the prize money by getting the 1st defendant on her own behalf and as guardian of her minor son the 3rd defendant, to execute along with his wife the 2nd defendant, a chitty hypothecation bond in favour of the foreman as if the chitty ticket had been taken for the benefit of defendants 1 and 2 from the very inception. This chitty hypothecation bond is dated 24-8-1106 and is filed as Ext. A. The plaint schedule property which belonged to Achuthan and after his death had devolved on the 3rd defendant, was included as item 1 of the hypotheca under Ext. A. The 2nd defendant also charged her property as item 2 of Ext. A but it was released bythe foreman before suit and we are no more concerned with it. This suit was filed by the 1st plaintiff foreman and his assignee the 2nd plaintiff for recovery of the 1st defendant's share of the chitty subscriptions, as against her and the schedule property. Defendants 4 to 6 were impleaded as subsequent encumbrancers in the plaint schedule property.
3. The suit was resisted by defendants 3 and 4 and 5, on the same footing though by separate written statements. They contended, that the 1st defendant was made party to Ext. A on account of the fraud and undue influence exercised on her by Aiyappan and that neither the, 1st defendant nor her son the 3rd defendant, owner of part of the hypotheca had anything to do with the transaction of taking the ticket or receiving the prize thereunder. The 5th defendant was the purchaser under Ext. II dated 26-10-1115 of 50 cents of schedule property from the 3rd defendant after he attained majority and with specific recital that the property was unaffected by any prior encumbrance and further a provision for indemnity in other event. The 4th defendant was the purchaser of all the balance of, the property from the 3rd defendant under Ext. I dated 11-11-1117. The plaintiff could not, it was urged, have no relief against the plaint schedule property and the suit had to go.
4. During the course of the suit, however) the 3rd defendant withdrew his contentions and also gave evidence in support of the validity of Ext. A. But the trial court disregarded the 3rd defendant's volte face and dismissed the suit on the basis of its finding that Ext. A was unsupported by consideration so far as the defendants 1 and 3 were concerned and had been brought about by the fraud of Aiyappan under whose protection the 1st defendant had passed on after the death of her husband Achuthan, with the consequence that the 3rd defendant's sale-deeds Ext. II and I in favour of defendants 4 and 5, passed full and good title unaffected by Ext. A encumbrance. The lower appellate court in appeal by the plaintiff, found to the same effect and confirmed the decree of the trial court. Hence the second appeal by the plaintiff as above said.
5. Mr. T.S. Venkiteswara Iyer, learned counsel appearing for the 1st plaintiff-appellant, did not question before me the concurrent findings of the courts below that Ext. A hypothecation' bond was unsupported by consideration so far as the 1st defendant or 3rd defendant was concerned and that the 3rd defendant could, if he wished, repudiate Ext. A and convey absolute title in the plaint property. But he urged that the 3rd defendant had not in fact chosen to do so and it was not open to his transferee the defendants 4 and 5, on their own, to ignore Ext. A and claim full title. The argument was that Exts. I and II did not in terms repudiate Ext. A and such repudiation as was constituted by the 3rd defendant's written statement, was withdrawn by him during the suit. That is to say, learned counsel was willing to concede for the purpose of this case that the 3rd defendant, quandom-ward having continued in possession notwithstanding Ext. A transfer by way of simple mortgage could, by way of defence, question the enforceability of Ext. A although the period of 3 years under Article 44 for setting aside Ext. A had long since expired. See Jagnath Prasad v. Chunni Lal, AIR 1940 All 416 (A) and Chinnaswami Reddi v. Krishnaswami Reddi, AIR 1919 Mad 650 (B).
But the 3rd defendant, by the withdrawal of his written statement had made it impossible for the defendants 4 and 5 by themselves to so stand on the defensive. There has been some difference of opinion no doubt in the books in the matter of the right to sue to set aside the transfer. One view is that the ward's right is only in the nature of a mere right to sue and therefore is not transferable under Section 6 Clause (c) of the Transfer of Property Act thus preventing the assignee from exercising it. The other view is that the ward's interest in the property transferred by his guardian is not a mere right to sue and that the assignee can therefore sue to set aside the transfer. But the question here is not the seeking of any relief by suit but rather resisting a suit filed by the transferee. In such circumstance, whether it is the ward that resists or the alienee that resists, does not matter. The defendants 4 and 5 are entitled to put the plaintiff to proof that the mortgage in his favour is valid and binding upon the property in their hands.
Learned counsel referred to Jhaverbhai Hathibhai v. Kabhai Becher, AIR 1933 Bom 42 (C), where in a suit jointly instituted by a minor and his transferees for recovery of property from the hands of a prior transferee from the guardian, the minor withdrew from the suit and the question arose in to whether his co-plaintiffs could by themselves continue the suit, the Court held they were not so entitled and dismissed the suit. But that case has no bearing here. For, the minor and his transferees were on the offensive in that suit and as we saw there is difference of opinion among the High Courts as to the right of the minor's transferees to maintain a suit, the Bombay High-Court holding the view that they cannot. For the opposite view, see Kamaraju v. Gunnayya, AIR 1924 Mad 322 (D). It follows therefore that there is no substance in the contention raised on behalf of the first plaintiff-appellant that defendants 4 and 5 were not for themselves entitled to raise, the plea in defence that Ext. A was invalid and unenforceable so far as the property in their hands was. concerned.
6. There is no substance in the second appeal and it is dismissed with costs.