1. Plaintiff (Respondent) sued for possession of a house which he purchased from a widow Balasundari Animal (deceased before suit) by a registered sale deed (Exhibit B). Appellants were the contesting defendants (Nos. 2 and 3). They impugned Balasundari Ammal's right to alienate the property and further contended that the sale by (Exhibit B) was a purely nominal transaction.
2. The District Munsif found that Balasundari Ammal had only a widow's estate in the property; and further (Ex. B.) did not evidence a real sale and plaintiff obtained no title to the property under it. He therefore dismissed the suit.
3. The Subordinate Judge on appeal set aside the dismissal and gave plaintiff a decree. He found (therein agreeing with the Munsif) that an adoption set up by appellant was invalid and that, they were not the reversioners to Balasundari's husband. He therefore held that it was not open to them to question the alienation (Ex. B.) and its consideration.
4. In so far as the transaction was attacked on the ground that it was in excess of a widow's powers of alienation, the Subordinate Judge is quite correct; but he appears to have overlooked the fact that this is not the only plea set up by the appellants and found in their favor by the District Munsif. The general principle is that a person in possession can resist a suit for ejectment against all but the true owner and whether appellants are reversioners or not it is open to them to show if they can that respondent's sale-deed is a purely nominal transaction, never intended to be given effect to and absolutely void in law.
5. Respondent's Vakil argues that a person in possession without title cannot question the real nature of a registered instrument relied on as title by a plaintiff in an ejectment suit and he relies on Trimbak Bhikaji v. Shankar Sham Rav I.L.R. (1911) B 37. We have carefully considered the judgment in that case. It contains one passage which certainly lends support to Respondent's contention but reading the judgment as a whole we doubt if the learned Judges intended their remarks to cover a case like the present. They were considering the view of the lower Appellate Court in that case, which had held that it was open to the 1st defendant therein (a mere trespasser as in the present case) to avail himself of all such grounds of attack, as might have been raised by the plaintiff's alienor if she had sued to set aside the sale. They pointed out the fallacy of this view and in this we respectfully agree. But we are not satisfied that they intended to lay do was that it was not open to the 1st defendant to show that the alienation to plaintiff was an absolute nullity; if they did, we must equally respectfully dissent. We may refer to an earlier case of the same Court Mulji Govindji v. Nathu Bhai Hirachand I.L.R. (1890) B. 1 in which Sargent C.J. and Bayley J. clearly laid that it was always open to a person sued in ejectment to show that the assignment to the plaintiff was only a sham transaction and to resist the suit on this ground. In this view we agree. We must therefore set aside the decree of the lower appellate Court and remand the appeal for rehearing and disposal in the light of the above remarks. Costs will abide the result.