1. In this appeal there is only one question argued and that relates to Item No. 3 of the properties in the suit. Item No. 3 has been found by both the Courts to have been alienated by Venkamma, mother and guardian of Sriramulu, the minor proprietor, in favour of the 3rd defendant not for any necessity, or for purposes binding on the minor. This question is not argued before me. But what is argued is the award of Rs. 600 to the, third defendant, which is made a condition of the plaintiffs (who is a reversioner to the estate of the minor Sriramulu) recovery of item No. 3. Now this item of property was alienated to the 3rd defendant by the widow on the 16th, of May 1912 by Ex. VIII. On the same day the vendee, 3rd defendant, executed to Venkamma the exchange of 91 cents of property as against 96 cents, contained in Ex. VIII and he also paid her Rs. 180 to equalise matters. This land, received in exchange under Ex. VIII(a) was subsequently alienated by Venkamma in 1913 under Ex. III, and subsequently alienated by the alienee under Ex. III, by Ex. IX. Now the question is whether the 3rd defendant is to be paid Rs. 600 as a condition for his relinquishing the land in favour of the reversioner. The question depends partly on Section 64 of the Contract Act, but chiefly on equitable considerations. The lower Appellate Court has held that, although a part of the consideration consisting of cash payment of Rs. 180 has in no way benefited the minor's estate, there is no justification for depriving the 3rd defendant of his right of reimbursement merely because the property has been alienated subsequently by the guardian; and Mr. P. Somasundaram for the respondents has argued that, as a matter of fact, some benefit has been received by the minor's estate in that for a period of 17 or 18 months, the exchanged land received under Ex. VIII(a) was, in fact, in the hands of the guardian on behalf of the minor. Now the law seems to have been clearly laid down in Modhoo Dyal Singh v. Golbur Singh 9 W.R. 511 : B.L.R. Sup. Vol. 1018 by a Full Bench of the Calcutta High Court to this effect, 'If it is proved, to the satisfaction of the Court that the purchase money was carried to the assets of the joint estate and that the son had the benefit of his share of it, lie could not recover his share of the estate without refunding his share of the purchase money'.
2. That, of course, was a suit by a son to recover the ancestral property from a purchaser from his father to whom it had been improperly sold. But in my opinion the same considerations will apply to the case of a reversioner. It is obvious that no consideration of equities, if any, enjoyed by the 3rd defendant can arise unless and until the alienation to him has been set aside. The benefit mentioned in the cases must, therefore, in my opinion, be benefit arising not at the time of the transaction [in this case the time of Ex. VIII (a)] but at the time when the reversioner has a right to receive the property of the last mail-holder and with regard to this Item No. 3 his right to receive it accrues when a decree in his favour is passed. Reference has also been made to the case in Chinnaswami Reddi v. Krishnaswami Reddi 48 Ind. Cas. 856 : M.L.J. 652. In that case lands were sold by the guardian and other lands were purchased with the proceeds. The question was whether the produce of these lands could be said to be the benefit which the defendants received in respect of the sale by their mother. It was held that the benefit received should be part of the same transaction and should be direct, and that in the case before them the learned Judges held that it was not so. With regard to the case in Bachan Singh v. Kamta Pershad 5 Ind. Cas. 585 7 A.L.J. 337 there, to a certain extent it was held that the minor's estate had been benefited and he was given a decree on condition of re-paying a portion of the consideration. Here there is no question of partial re-payment. Mr. Somasundram has filed a memorandum of objections and the point raised is that the suit is ab initio not maintainable, i.e., that, although the minor might have sued to set aside the alienation of his mother as guardian, he having died under age, his right to sue is not heritable by the reversioner as his legal representative. There seems to be direct authority in Muhammad Husain v. Khushalo A.W.N (1886) 322 : 5 Ind. Dec.519 to the contrary; and this view finds further support in the Limitation Act. Section 6, Sub-section 3, and Trevelvan's Book on Minors, 202.
3. I am, therefore, of opinion that the memorandum of objection fails.
4. The appeal, for the reasons stated above, must be allowed and the decree of the lower Appellate Court in so far as it awards compensation to the 3rd defendant is reversed. Under my decision the plaintiff will be entitled to mesne profits from the date of suit, In other respects the decree is confirmed with costs.
5. The memorandum of objections is dismissed without costs.