1. This second appeal relates only to Item ho- I out of the properties which are the subject of the original suit and it is necessary only to state the facts so far as this item is concerned. The item originally belonged to the first defendant's father who mortgaged it in 1907. After his death the mother of the first defendant during his minority as his guardian for the property by a sale-deed dated 4th May 1913. After the first defendant attained majority, ignoring the sale-deed by his mother and on the footing that no valid title was conveyed by it to the vendee, he sold it to the plaintiff by a sale-deed dated 8th November 1919, and the plaintiff now sues to recover the property. The District Munsif dismissed tit suit en the ground that the right of the first defendant to avoid the sale by the mother within three years after attaining majority was not assignable. Incidentally he also states in Paragraph 9 of his judgment that the suit is not maintainable en the ground that the mention to avoid the sale to it was expressed by the first defendant was not enough. What he perhaps meant was that the suit is not maintainable for want of a prayer to set aside the sale. His language is not very clear. On appeal by the plaintiff the Subordinate Judge, while holding in favcur of the appellant that the first defendant's right Was assignable, held that the suit was bad for want of a prayer to set aside the sale and on this ground affirmed the decree of the District Munsif. The plaintiff filed this appeal.
2. I am unable to agree with the ground taken by the Subordinate Judge. This ground was not taken in the written statement nor was it the subject of an issue, and, unless one can hold that it was what the District Munsif meant, it was not even before the District Munsif. The Subordinate Judge relies for his conclusion on the language of their lordships of the, Privy Council in Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 27 I.A. 216 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739. That was a case of a Court sale. A judicial sale has to be set aside so far as the persons who are parties to the sale pre concerned and, if not set aside, it will be binding on them for ever. Here we have not got to do with a judicial sale but with a private sale. The first defendant has got the right of avoiding it. By selling the property - to the plaintiff on the footing that the sale by the mother was not binding on him lie has chosen to avoid it, and the result of it is that from this point of view he has got a complete title. The title no doubt will only be effective if the Court ultimately finds that the sale by the mother is not binding on him. But contingent on that event he has got a complete title and this title is not a bare right to sue and is, therefore, assignable. Muthukumara Chetty v. Anthony Udayan 24 Ind. Cas. 120 : 38 M. 867 : 15 M.L.T. 361 : 29 M.L.J. 617, is a case where during the minority another guardian purported to exercise his right of avoiding it and, therefore, has no bearing on the present case. Fitzroy v. Cave (1905) 2 K.B. 364 : 74 L.J.K.B. 829 : 93 L.T. 499 : 54 W.R. 17 : 21 T.L.R. 612, and Prosser v. Edmonds (1835) 1 Y. & C. 481 : 41 R.R. 322 : 160 E.R. 196, were cases of mere rights in personam. No question of title to immoveable property was involved in them.
3. Krishna Dhone v. Bhagaban Chandra 34 Ind. Cas. 188.; Ganpat Lal v. Bindasini Prashad Narayan Singh 50 Ind. Cas. 274 : 47 I.A. 91 : 18 A.L.J. 555 : (1920) M.W.N. 382 : 12 L.W. 59 : 39 M.L.J. 108 : 2 U.P.L.R. 103 : 24 C.W.N. 954 : 28 M.L.T. 330 : 47 C. 924, do not help the respondent. If it is necessary, I would even allow the plaint to be amended by adding the necessary prayer. But. I do not think it necessary.
4. The result is that the decrees of the Court below have to be reversed and the suit bas to be remanded to the District Munsif for trial. The suit has already been remanded in respect of Item No. 2. The result of this order will be that the whole suit will have to be tried. Costs to abide the result. The appellant will be entitled to a refund of the Court-fee paid on second appeal.
5. I concur.