1. The main question argued in this Second Appeal is whether Article 44 of the Limitation Act applies to it or not. The plaint property originally belonged to the 1st defendant. He executed a sale deed for it to his wife Irulayi and the property then became hers. The plaintiff is her only son by the 1st defendant. She died some time ago and the lower courts have held and it is not disputed before us that on her death the property passed to the plaintiff and he became solely entitled to it. In 1909 when the plaintiff was still a minor his father the 1st defendant and his father's brother one Palaniyandi now deceased executed a sale deed Ex. I to the 2nd defendant benami for the 4th defendant for the plaint property. In that deed, the plaintiff is named as one of the vendors, the 1st defendant executing it on his behalf as his father and guardian, this is so expressly recited in the deed. The plea of limitation has reference to this deed, it being contended that the plaintiff cannot recover the property until the transfer by it is set aside and that as more than 3 years have elapsed since he has become a major he is barred from doing so under Article 44. The lower appellate court has held differing from the District Munsif that this article does not apply and that Article 144 applies. That court seems however to have been somewhat misled by confusing the question with one of cancellation of a document which is dealt with under Article 91. There is no question of cancelling a document under Article 44 which speaks only of setting aside the transfer though the result of setting aside a transfer may generally be to invalidate the deed of transfer where one exists. The cases under Article 91 referred to by the Subordinate Judge are therefore not in point. When a guardian acting in his capacity of guardian sells or otherwise transfers the property of his ward there can be no question that Article 44 will: apply to the suit by the ward to recover that property subsequently for he must get the guardian's transfer set aside, which is prima facie binding on him. A transfer by a guardian however improper it may have been, is not a void transaction but only a voidable one and when property cannot be recovered without avoiding it, it is;now settled that Article 44 will apply to the suit. See Ranga Reddi v. Narayana Reddi I.L.R.(1905) Mad. 423, Madugula Latchiah v. Pally Mukkalinga I.L.R. (1907) Mad. 393, Kandaswami v. Irusappa I.L.R. (1917) Mad. 102, Sivavadivelu v. Ponnammal : (1912)22MLJ404 and Manugara Salyalakshmi Naraya v. Manugara Jagannadham (1917) 34 M.L.J. 220.
2. No doubt it has been held that, where a Hindu father sells the joint ancestral property of himself and his minor son, Article 44 will not apply even though he purported to act as his minor son's guardian in making the sale. See Kathaperunal Thevan v. Ramalinga Thevan (1914) 17 M.L.T. 138 and Ganesa Iyer v. Amirthaswamy Odayar (1917) 23 M.L.T. 245 expressly provides for setting aside such alienations of ancestral property and the court therefore held in those cases that the mere fact that the father executed the deed also as guardian of his minor son made no difference to the validity of the sale as he could have passed his son's share also by executing the deed himself and therefore Article 44 was not applicable. Those rulings however apply only to alienations of ancestral property and are clearly distinguishable from the present case, as here the property has been found to be the minor's separate property.
3. Reliance was also placed by the learned Vakil for the respondent on the case in Ammaniammal v. Ramaswami Naidu (1918) 37 M.L.J. 113 . In that case the mother though she was in fact the guardian of her minor son to whom the property belonged sold it not as the minor's property but as her own. Such a sale manifestly cannot affect the minor's title as it was not dealt with by the deed at ail and the minor was under no obligation therefore to set aside the transfer. As my learned brother who was one of the judges in that case observed the sale there was similar to a sale by a stranger of the minor's property. That case does not apply here as the 1st defendant sold the property of his minor son expressly as his guardian.
4. A good deal of argument was addressed to us in this case to show that there was no transfer of the minor's title under Ex. I and therefore it was no bar in his way to recover the property. The argument was based on the fact that the 1st defendant in his own personal capacity and his brother joined in executing Ex. I and on the contention that the recital of the vendor's title in it showed that the property was treated as the joint family property of all the executants. It was urged therefore that the sale was of the joint family right and did not affect the real title of the minor which was one of sole ownership. The appellant's vakil explains that all the three-executants were made to join in the deed by his client to avoid all possibility of future claims by any of them and not because it was, recognised that they had each of them any right. Even in this suit the plea was raised that the property was joint family property and that shows the necessity there was for caution. However that may be a sale deed does not become inaffective against any of the executants of it because others who are subsequently shown to have had no title join in executing it.
5. Now as regards the recital as to the vendor's title it is pointed out by the appellant's vakil that it is nowhere stated in Ex. I that the property was joint family property. Nevertheless the recital that 'the sale to the plaintiff's mother was for her maintenance and that as she is dead this sale is effected by us' viz. the three executants would seem to imply that the parties thought the property was their joint property. That however seems immaterial as in the words of conveyance in the deed, there is no restriction as to the rights of each of the vendors nor is there any reference to any separate shares of each. The whole property is conveyed by it and that would certainly pass any right or title of any of the executants. Section 8, of the Transfer of Property Act is clear on the point, there being no reservation in the deed as to the right of each vendor that is conveyed by it. An erroneous or false recital of the vendor's title in a sale deed cannot be relied on as not passing his real title to the property sold. The argument that Ex. I did not pass the plaintiff's real title must therefore be overruled. So long as Ex. I stands the plaintiff cannot recover the plaint property.
6. The case in Balwant Singh v. R. Clancy I.L.R. (1912) All. 2 96 is entirely distinguishable as in that case, the mortgagor Sheoraj Singh did not purport to act in any respect as representing his minor brother in executing the mortgage deed and their Lord-ships of the Privy Council held that the minor was therefore not affected by the mortgage deed at all. In principle that case is similar to the case in Ammani Ammal v. Ramaswami Naidu (1918) 37 M.L.J. 113 already referred to and distinguished.
7. The plaintiff's suit must therefore be dismissed as barred by limitation under Article 44 and no other question arises.
8. I would therefore allow the appeal and reversing the decree of the lower appellate court confirm the decree of the District Munsif with costs of the appellants here and in the court below.
9. I agree.