1. This appeal is preferred by the defendant. He bought a share in a holding, which belonged to two brothers, Soshi Bhusan Bag and Guiram Bag, by a conveyance executed on Sraban 17, 1316. Soshi was an adult at the time, and he does not deny execution. For Guiram the conveyance was executed by his mother, his natural guardian. Guiram is the plaintiff and his case is that in Sraban of 1316 he was an adult, and his first prayer was for a declaration that the conveyance did not affect his interest, and for an injunction restraining the defendant from disturbing his possession. In the alternative he asked for the cancellation of the document on the grounds that there was no necessity for the sale and that the sale was not for his benefit.
2. The first Court found that the plaintiff was an adult in Sraban 1316 and decreed the suit in the terms of the first prayer. On appeal the learned Judge came to a different conclusion as to the plaintiff's age and then proceeded to deal with the question of necessity. He held that the sale was not necessary and that the plaintiff was benefited to the extent of Rs. 46-0-6 only, and he accordingly do-creed the suit on condition that plaintiff should pay that sum to the defendant within one month.
3. The decision as to the plaintiff's ago must be accepted as final, and the question therefore is whether the plaintiff is entitled to have the document set aside. The lower Courts hold that the sale was not necessary, and that the circumstances under which it was made are suspicious. It appears however that there was a decree for 92 rupees against plaintiff and his brother and that the property had been put up to sale in execution and bought for 132 rupees. It is also in evidence that an application was made for rateable distribution. The learned Judge is right in refusing to go behind the decree. He thinks however that the elder brother was acting treacherously and that some thing less might have been sold. The idea of treachery seems to be purely conjectural. As for the possibility of selling less, a share in a holding cannot be divided at the will of the seller alone, so that it should yield just the required sum and no more. Moreover there was the matter of plaintiff's maintenance; he was living with his uncle but there is nothing to show that a sum of cash would not be for his benefit. It is true that the surplus may not have been used to his benefit, but that is a matter between him and his mother.
4. In my opinion the plaintiff failed to show that there was no necessity to warrant the sale. I think therefore that the appeal should be allowed and the suit dismissed with costs in all Courts.
5. This appeal arises out of a suit for declaration of plaintiff's jamai right to certain lands and for confirmation of possession therein.
6. The plaintiff's case was that the said lands represented 1/6th share therein that he was in separate possession of his share from his boyhood, and that he came to know in Falgoon 1325 that the defendant in collusion with the said Sashi Bhusan Bag had fraudulently and without consideration got both the shares transferred to himself by a deed of sale, dated 17th Sravan 1316, which purported to have been executed by plaintiff's mother on behalf of the plaintiff who was represented as a minor therein and by the said Sashi Bhusan Bhag for himself. Plaintiff alleged that as a matter of fact he was major at the date of the sale and there was no necessity for the sale at all. He also prayed for setting aside the deed of sale if that was considered necessary.
7. The trial Court found the plaintiff was not a minor at the date of the sale, and although in that view it was not necessary, in the opinion of that Court, to investigate the question whether the plaintiff's mother sold the lands for the plaintiff's benefit as she had no right to dispose of the property on any account, the Court on a consideration of the facts and circumstances came to the conclusion that the sale was not for 'legal necessity' and was not binding against the plaintiff. In this view of the matter the trial Court decreed the suit, declaring the plaintiff's right, confirming his possession declaring the deed of sale as not binding on the plaintiff and restraining the defendant from interfering with plaintiff's possession.
8. The defendant thereupon appealed. The appellate Court came to the conclusion that the plaintiff was a minor at the date of the sale and finding that the plaintiff was benefited to the extent of Rs. 46-0-6 out of Rs. 80 which represented his share of the purchase money, made a decree to the effect that the decree obtained by the trial Court would stand if the plaintiff paid the defendant Rs. 46-0-6 within a certain time, failing which the suit would stand dismissed.
9. The defendant has appealed to this Court and on his behalf the contentions put forward are substantially three in number : firstly, that the suit was barred by limitation, secondly, that the suit was not maintainable in the absence of a substantive prayer for cancellation of the sale-deed, and thirdly, that upon the facts found by the Court of appeal below the suit should have been dismissed.
10. As regards the second of the above contentions I may say at once that I am not at all pressed By it. The suit substantially was one for setting aside the deed of sale, although that relief was sought for as only ancillary to the other reliefs. Omission to pray for that relief cannot affect the maintainability of the suit.
11. As regards the first contention the appellant contends that the suit is governed by Article 44 of Schedule I of the Limitation Act. The plaintiff's suit, however, was not by a ward who has attained majority to set aside a transfer of property by his guardian. His suit as framed rather related to an alienation by an unauthorised person. As has been held by the Judicial Committee in Mata Din v. Ahmad Ali (1911) 31 Al. 213 in a case of this nature, article 44 has no application. The lower appellate Court took the view that the suit was not barred as it had been instituted within 12 years from the date of the kobala and within 3 years from the knowledge thereof. The lower appellate Court therefore seems to have thought that so far as the cancellation of the kobala was concerned it was governed by article 91. Possibly the lower appellate Court was right in this respect having regard to the view that it took of the facts as proved. It is unnecessary, however, to pursue this matter further as in my opinion the appellant's third contention must prevail. With regard to this contention if the findings of the lower appellate Court be examined, they amount to the following : The plaintiff was a minor at the date of the sale, there was an auction sale of the shares of the plaintiff and his brother in execution of a decree obtained by one Rupchand, the sale took place in July 1909, the kobala was on the 3rd August, 1909, and the sale was set aside on the 30th August, 1909, the plaintiff and his brother came to remain in possession under a sublease granted verbally to the plaintiff's brother; plaintiff's brother sold his interest in the sub-lease to one Soshi Pal; there was a decree for ejectment against Soshi Pal; and after this decree the present suit was instituted. The further findings of the said Court are that the rent-decree in execution of which the auction-sale took place cannot be assumed to be otherwise than valid and bona fide, that there is strong suspicion that Soshi Pal caused the suit to be instituted in order to undo the effect of the ejectment decree that had been obtained against him, and as a matter of fact the plaintiff had been benefited to the extent of Rs. 46-0-6. The respondent contends that the finding of the lower appellate Court as to the plaintiff's minority is wrong. I am inclined to agree. I think the finding of the Court of first instance has been too lightly set aside by the lower appellate Court and its reasons are to say the least not at all convincing. I do not however see how the plaintiff will be in a better position if it be held that he was not a minor. The position then will be that being a major, and presumably fully aware of the transaction that his mother entered into on his behalf - it being wholly impossible to believe that the sale could or did take place without his knowledge or otherwise than with his approval he allowed himself to be benefited by it, and then after an interval of nearly 10 years has sought to repudiate it. On the footing that he was a minor his position seems to me to be somewhat more favourable to him. Be that as it may, we have it that at the auction-sale the two shares were sold for Rs. 132, the defendant paid Rs. 160 for them, and the plaintiff and his brother were also allowed to remain on their family homestead under a sub-lease. The learned Subordinate Judge is right in his observation that 'it was not necessary for the purchaser to enquire whether the decree and the sale thereunder were for valid reasons.' It may be that the other debts for which the sale was made have not been proved. That however cannot detract from the bona fide character of the purchase made by the defendant from the mother who was the natural guardian of the plaintiff, and against whom, though gross fraud and misconduct was alleged by her worthy son, nothing absolutely has been proved to suggest that she acted either improperly or contrary to the best interest of her ward. Such a transaction in my opinion, should be upheld in its entirety.
12. I would accordingly reverse the decisions of the Courts below and dismiss the suit with costs.