Alfred Henry Lionel Leach, C.J.
1. The seventh respondent is the mother of the eighth, ninth and tenth respondents in this appeal and of the sixth defendant in the suit out of which the appeal arises. The sixth defendant died pending the litigation and is now represented by the eleventh, twelfth and thirteenth respondents. The father, one Shumsudeen, died before 1922. In that year, the seventh respondent was appointed the guardian of the properties of her sons and daughters all of whom were minors. On the 24th of September, 1924, the seventh respondent, acting on her own behalf and as guardian of the ninth and tenth respondents and the sixth defendant, sold to the appellant a house which had been left by Shumsudeen. The eighth respondent was at this time a major and she joined in the conveyance. The seventh respondent did not obtain the sanction of the Court to the sale, as she was bound to do by reason of Section 29 of the Guardians and Wards Act, 1890. Her failure to obtain the necessary consent of the Court did not, however, avoid the transaction so far as the minors were concerned. The transaction was not void, but merely voidable. Section 30 says that the disposal of the immovable property by a guardian in contravention of Section 28 or Section 29 is voidable at the instance of any person affected thereby, and goes no further. Article 44 of the Limitation Act gives a ward three years from the date when he attains majority to sue to set aside a transfer of property made by his guardian. Therefore the minors were placed by statute in a position to sue to set aside the transaction within three years of attaining majority, but failure to exercise this right would make the appellant's title unassailable.
2. On the 31st of January, 1932, the ninth and tenth respondents and the sixth defendant sold their shares in the property to one Mohamed Ghulam Hussain Sahib, who, on the 24th of January, 1933, filed, the suit out of which this appeal arises to recover from the appellant the shares of his vendors in the property. Mohamed Ghulam Hussain Sahib died during the pendency of the suit and his legal representatives, who are respondents 1 to 6 were made plaintiffs in his place. The suit was defended by the appellant, who contended that the sale was valid and that the suit was barred by limitation in that it had been filed three years after the ninth and tenth respondents and the sixth defendant had attained majority. The District Munsif of Trichinopoly who tried the suit held that (1) the vendors of Mohamed Ghulam Hussain Sahib were not bound by the sale to the appellant of the 24th of September, because the Court's sanction had not been obtained for the transfer; (2) the ninth respondent alone had attained majority more than three years before the suit; and (3) the ninth and tenth respondents were majors at the time of the sale to Mohamed Ghulam Hussain Sahib, but that the sixth defendant was a minor. Relying on a decision of this Court (Ramesam and Cornish, JJ.), in the unreported case of Rahima Bi v. Abdul Vakil Sahib and Ors. A.S. No. 526 of 1931, the District Munsif held that the plaintiffs were entitled to a decree for the shares of the ninth and tenth respondents and the sixth defendant. The appellant . appealed to the Subordinate Judge of Trichinopoly, who concurred in the judgment of the District Munsif and accordingly dismissed the appeal. Before the Subordinate Judge, the appellant applied to amend his grounds of appeal by setting out the contention that in any event the trial Court erred in giving the plaintiffs a decree for the share of the sixth defendant as she was a minor at the time of the sale and consequently could not transfer her interest to the vendee, Mohamed Ghulam Hussain Sahib. The Subordinate Judge refused to allow this additional ground to be raised. The appellant then appealed to this Court. The appeal was heard by Horwill, J., who also was bound by the decision of this Court in Rahima Bi v. Abdul Vakil Sahib A.S. No. 526 of 1931. The learned Judge indicated that he was not in agreement with that judgment but being bound by it he was compelled to follow it. The learned Judge held that the Subordinate Judge was justified in not allowing the appellant to raise the contention with regard to the sixth defendant's inability to confer any title on the vendee, and in giving the certificate under Clause 15 of the Letters Patent, which has permitted of the present appeal he limited it to the question whether the case was governed by Rahima Bi v. Abdul Vakil Sahib A.S. No. 526 of 1931. The appellant, white conceding that that case did bind the Courts below, says that it is bad law. He also challenges the validity of the certificate granted by Horwill J., in that it limited his grounds of appeal. He says that as a certificate was granted he is at liberty to say that the Subordinate Judge and Horwill, J., erred in refusing to allow him to raise the question of the effect of the sixth defendant's minority at the time of the sale to Mohamed Ghulam Hussain Sahib.
3. It will be convenient to deal first of all with the contention that the learned Judge was wrong in attempting to limit his certificate. I consider that the appellant's objection is well founded. Clause 15 of the Letters Patent permits of an appeal from a single Judge of this Court sitting on the appellate side, where the Judge declares that 'the case is a fit one for appeal'. It is no function of the learned Judge to say what points are fit for appeal. It is for him to say whether 'the case' is a fit one for appeal. If he considers that it is, he can give the certificate, but he must leave the matter there. It is for the higher appellate Court to say what are the questions it will allow to be raised. It follows that in my opinion it is open to the Court to hear and decide the appellant's objection with regard to. the course taken below in respect of the contention which the appellant raised regarding the sixth defendant's capacity to contract.
4. In my judgment, the appellant's objection that Rahima Bi v. Abdul Vakil Sahib and Ors. A.S. No. 526 of 1931 was wrongly decided is also well founded. In that case, as in the one now before us, a person had been appointed under the Guardians and Wards Act to be the guardian of the property of Mohamedan minors. The guardian applied for permission to Court to sell certain properties and permission was given subject to a condition which was not fulfilled. The question was whether in those circumstances the sale was a valid one. Ramesam, J., who delivered the judgment of the Bench after observing,
Whereas in the case of a sale by a de jure guardian or a sale by a Court guardian who has obtained the permission of the Court and who has complied with the conditions precedent to the sale, if any, the sale is presumed to be prima facie valid and the quondam minor has to sue to set aside the sale and therefore Article 44 will become applicable,
went on to say:
. . . . but if the case is of a sale by a de facto guardian or by a Court guardian without obtaining sanction or without complying with the conditions precedent imposed by the Court granting sanction, then the minor is not bound to set aside the sale.
5. These two statements are in conflict and the second statement ignores altogether the provisions of Section 30 of the Guardians and Wards Act. While the statement that an unlawful sale by a de facto guardian does not bind the minors can be taken to be correct so far as a guardian of a Mohamedan minor is concerned, it is certainly not the case where a guardian, appointed by the Court under the Guardians and Wards Act, has conveyed property without the sanction of the Court. As I have already observed, the transaction is voidable and not void and operates as a valid transfer unless set aside at the instance of the minor or minors concerned within the period allowed by the law of limitation. The decision of Ramesam and Cornish,. JJ., not only runs directly contrary to unambiguous words of the statute, it ignores three decisions of this Court which were binding upon the learned Judges, namely, Sinnayya Pillai v. 'Munisami Iyan (1899) 9 M.L.J. 64 : I.L.R. 1899 Mad. 289 Periakaruppan Chetty v. Kandasami Chetty 1933 M.W.N. 791 and Sivanmalai Goundan v. Arunachalam Goundan : AIR1938Mad822 . I fail to understand the reference made to a sale which is 'prima facie valid', because the statute leaves no doubt that a transfer made by a lawful guardian without sanction of the Court is valid until it is set aside. The decision in Rahima Bi v. Abdul Vakil Sahib A.S. No. 526 of 1931 cannot be allowed to stand in so far as it relates to transfers made by guardians appointed by the Court. Where the transfer is made by a de facto guardian the position may be very different. Therefore, I would allow this objection and hold that the suit is barred by limitation so far as the interest of the ninth respondent is concerned. It is not barred so far as the interest of the tenth respondent is concerned because the suit was filed within three years of the date on which he attained majority and Mohamed Ghulam Hussain Sahib obtained a valid transfer of his interest in the property.
6. It remains to' decide the appellant's contention that he should have been allowed to have raised his objection with regard to the passing of the sixth defendant's interest. I consider that inasmuch as the evidence on which the plaintiffs relied showed conclusively that the sixth defendant was a minor when she purported to sell her interest to Mohamed Ghulam Hussain Sahib on the 31st of January, 1932, the appellant should have been allowed to amend his memorandum of appeal and the Court should have dealt with this additional objection. It is true that the appellant did not raise this contention in his written statement and the evidence on which he was relying was adduced in order to establish the contention that the sixth defendant was a major, but the plaintiffs succeeded in negativing this evidence and establishing that the sixth defendant was a minor. In these circumstances, the appellant was entitled to say to the Court that even on the plaintiffs' own evidence, they are not entitled to a decree for the sixth defendant's interest. But instead of allowing the contention to be raised, the Subordinate Judge gave a decree to the plaintiffs in respect of property to which they themselves had shown that they had no title. It would be manifestly wrong to give the plaintiffs a decree for property in respect of which they clearly have no title, and consequently, I would allow this further objection.
7. The result is that the appeal succeeds so far as it concerns the interest of the ninth respondent and the sixth defendant. Therefore the decree will be amended by limiting it to the interest of the tenth respondent. The appellant is entitled to his costs before the Subordinate Judge, Horwill, J., and in this Court; he will also get his costs in the trial Court proportionate to the value of the interests of the ninth respondent and the sixth defendant. The plaintiffs-respondents will get costs in the trial Court based on the value of the tenth respondent's interest in the property. They will have no costs beyond this. The case will be remanded to the trial Court to pass a final decree for partition based on this judgment.
8. I entirely agree. As we are overruling a judgment of a Bench 'of this Court, I desire to note a certain aspect of the judgment of the Bench which I find it difficult to follow. Section 29 of the Guardians and Wards Act provides for the alienation of minor's property by his guardian and sets out the circumstances under which it may or may not be alienated. It may not, without the previous permission of the Court, be mortgaged, charged or transferred and there is a restriction on leases. Section 31 gives the Court power to attach to the acts mentioned in Section 29 a number of conditions, if the Court thinks fit. It is obvious from a reading of Section 30 that a disposal of immovable property in contravention of Section 29 read if necessary with Section 31, which the Act enables 'any other person affected' to attack is valid unless held to be otherwise. Ramesam, J., has stated thus:
Whereas in the case of a sale by a de jure guardian or a sale by a Court : guardian who has obtained the permission of the Court and who has complied with the conditions precedent to the sale, if any, the sale is presumed to be prima facie valid and the quondam minor has to sue to set aside the sale and therefore Article 44 will become applicable.
9. In other words, the learned Judge envisages a suit e.g., by a minor attacking the transfer by a lawful guardian who has in every way complied with all the conditions which the Court has set out. Exactly what sort of suit that is, I find it difficult to understand unless it relates to a transfer obtained by fraud under a cloak of lawful authority. The suit which the Act does envisage, e.g., in the case of a sale by a Court guardian without obtaining sanction or without complying with conditions precedent which has to be set aside under Section 30 and to which Article 44 applies the learned Judge expressly says need not be instituted for a period of twelve years and then not for an order setting aside the sale but under Article 144, Limitation Act, for possession. I have merely set out this distinction in the judgment to lend emphasis to my respectful dissent from it.
Krishnaswami Aiyangar, J.
10. I agree with the judgment of my Lord, the Chief Justice and have nothing further to add.