1. In this case the plaintiff's suit has been dismissed by the Courts below as barred by limitation. The facts found by the lower Appellate Court are these: The property in dispute originally belonged to one Kalinath Roy, who died in Bhadro 1251 (Aug.-Sept. 1844), survived by his widow Oma Tara and an infant son Gobind Dass. In 1254 (1847) Oma Tara executed, in favour of the defendant, a mourasi izara of the property in suit. In this document she does not describe herself as guardian or mother of Gobind Dass; but the District Judge is apparently of opinion that it was executed by Oma Tara as guardian of Gobind Dass. In this opinion we think, he is right. See Hunooman Persaud Panday v. Mussamat Babooee Munraj Koonweree (6 Moo. I.A., 393).
2. Gobind Dass died, before attaining majority, in Bhadro 1262 (Aug.-Sept. 1855), and, under an anumati pattro executed by Kalinath before his death, the plaintiff in this case was adopted by Oma Tara in Assar 1265 (June-July 1858). Oma Tara died in Pous 1268 (Dec. 1861 and Jan. 1862). The plaintiff, attaining his majority on the 28th Magh 1278 (10th Feb. 1872), has instituted this suit, within three years, on the 27th Magh 1281 (8th Feb. 1875), to set aside the mourasi izara patta granted to the defendant by Oma Tara in 1254 (1847). The District Judge is of opinion that the suit is barred by limitation, because the cause of action accrued to Gobind Dass when the property was alienated in the year 1254 (1847) and possession taken by the defendant, and therefore, time having once begun to run against Gobind Dass, the subsequent disability of the plaintiff could not, under Section 9 of Act IX of 1871, save the case from the operation of the law of limitation.
3. We are of opinion that the District Judge is not right in taking this view of the law. The cause of action did not accrue to Gobind, who was a minor at the time of the alienation, and died before attaining majority. An alienation of a ward's property by the guardian or manager is not void ab initio, but voidable by the ward on attaining majority. Although Act XV of 1877, the new Limitation Act, is not applicable to this case (it being governed by the Limitation Act of 1871), yet Article 44 of the second schedule of that Act may be referred to in support of the view that, in a case like the present, the cause of action does not accrue to the minor during his minority. The time, therefore, did not begin to run against Gobind, who died a minor.
4. The District Judge, in support of his view, refers to Gobind Coomar Chowdhry v. Huro Chunder Chowdhry (7 W.R., 134); but in that case the guardian was dispossessed from a portion of his ward's property, therefore the cause of action accrued when wrongful possession was taken by the defendant. That case, therefore, cannot apply to the facts of this case.
5. In the course of argument the case of Gobindo Nath Roy v. Ram Kanay Chowdhry (24 W.R., 183) was relied upon by the defendant's pleader. But that case is also distinguishable. There the alienation by the mother of the plaintiff's adopted son was made not in the capacity of a guardian of any infant, but in her capacity of a Hindu widow. The suit was brought in the lifetime of the widow. The cause of action to set aside an alienation by a Hindu widow during her lifetime accrues from the date of the alienation. A separate right to the reversionary heir--viz., the right to immediate possession--arises upon the death of the widow. In this case the facts are entirely different. The suit is to set aside an alienation of a guardian by a person who occupies the same position as the ward for whom the guardian acted at the time of the alienation. This suit has been also brought for immediate possession after the death of the plaintiff's adoptive mother. We think, therefore, that the cause of action in this case arose on the plaintiff's attaining majority. The suit having been brought within three years from that date is within time.
6. If it be supposed that the alienation in this case was made by Oma Tara as a Hindu widow, then the cause of action would arise on her death, and, as at that time the plaintiff was a minor, the present suit is also within time under Section 7 of Act IX of 1871.
7. It has been further contended that the defendant took possession of the property in suit under an alienation made by Oma Tara, who was an utter stranger to it. Upon the finding of the lower Appellate Court, it is not open to the defendant's counsel to contend for this view of the case. But allowing the defendant to put forward this view of the mourasi izara of 1254, still the suit does not seem to us to be barred by limitation.
8. Upon the facts found, the property in dispute on Gobind's death devolved upon Oma Tara. Therefore the izara patta, which she executed as an unconcerned party in 1254, had the force and effect of an alienation, so far as her rights were, concerned, the moment she succeeded to the property. Therefore, in this view of the case, also the defendant having been in possession since Bhaulro 1262--i.e., since the death of Gobind Dass, as an alienee of a Hindu widow, the cause of action to the next reversioner for possession of the property accrued on the widow's death, when, as already stated, the plaintiff was a minor.
9. The plaintiff's claim is, therefore, not barred by limitation.
10. We reverse the decree of the lower Appellate Court, and remand the case for re-trial to that Court. Costs to abide the result.