1. This appeal has arisen in connexion with a dispute to four annas share in a certain tank. Eight annas of this tank originally belonged to one Durga Charan which was inherited by his sons Khagendra and Jogendra, pro forma defendants 6 and 7. Khagendra sold it to the plaintiffs' father during the minority of Jogendra. Subsequently, Jogendra sold it to &he; appellants after attaining his majority. The question in dispute therefore is which of these sales is to prevail. The Munsif dismissed the plaintiffs' claim on the ground that Khagendra was not the guardian of Jogendra. The Subordinate Judge reversed this finding holding that Khagendra was the do facto guardian. He allowed the plaintiffs' claim on two grounds : (1) that Jogendra's title was extinguished by adverse possession and (2) that the sale was for legal necessity.
2. These findings have been challenged here, firstly, because no such cause was made in fine pleadings and secondly because there is DO evidence upon which they can be supported. It is quite true that neither of these cases was made in the plaint and no issues were framed to deal with them. It was asserted in the written statement that there was no legal necessity for the transfer. The plaintiffs should therefore have raised an issue if they wished to press it. Inasmuch as I am going to allow the appellants to call evidence on another matter I shall allow the plaintiffs to call evidence on this question. Then in the second place the evidence is quite insufficient to justify either finding. This of course is not unnatural in view of the fact that no issues were framed. Furthermore the possession of the plaintiffs could not be adverse to Jogendra until he attained his majority. There is a finding of fact that he attained his majority in 1926. Accordingly twelve years had not elapsed when the suit was filed and the appellants had entered into possession at a still earlier date. The result is that the judgment of the lower Appellate Court as it stands cannot be supported.
3. Mr. Rakshit, however, attempted to support the decree on another ground which was overruled by the Munsif and not decided by the Subordinate Judge. His contention is that the plaintiffs' title was perfected by the failure of Jogendra to take proceedings within three years of his majority in view of Article 44, Limitation Act. Article 44 prescribes the period of limitation of suits by a ward who has attained majority to set aside a transfer of property by his guardian. The first argument advanced is that after this period of three years has elapsed Jogendra's title would be extinguished under the provisions of Section 28. Section 28 provides for the extinguishment of a right to property at the termination of the period limited for instituting suits for possession. Article 44 has nothing whatever to do with suits for possession. The only thing which will become barred at the expiry of that time would be Jogendra's right to set aside a transfer. I am aware that it is sometimes said that when a person is bound to set aside a document before he can obtain possession, the failure to sue within the time prescribed will extinguish the right to the property under the provisions of this Section. I am bound to say that this appears to me to be due to some confusion of thought. A suit by the appellants after their purchase to recover possession would not have been barred by limitation. A suit by their vendor to set aside the transfer was already barred before their purchase. In such circumstances the appellants' suit would fail not because their right was extinguished under Section 28 but because their conveyance was defeated by an earlier conveyance which could no longer be impugned. It is really only after the lapse of 12 years from Jogendra's attainment of majority that this section would come into play at all. Then in the second place Article 44 has no application either. This article refers to the relationship of guardian and ward. A manager, loosely, described as a de facto guardian, is not a guardian at all. Further the article would only apply if the transfer was binding unless it was set aside by a suit.
4. This brings in the second argument to the effect that altogether apart from Section 28 the failure of Jogendra to institute a suit within three years of his majority ipso facto perfected the title of the plaintiffs. This argument would be unanswerable if a suit is the only method of repudiating a transaction. In this connexion Mr. Rakshit very fairly drew my attention to Trevelyan's Law relating to minors. At page 202 the learned author says this:
A transaction which is voidable at the instance of the minor may be repudiated by any act or omission of the late minor, by which he intends to communicate the repudiation, or which has the affect of repudiating it.... It is not necessary that he should bring a suit....
5. Reliance was however placed on the decision in Dwijendra Mohan v. Monorama Dassi ('22) 9 A.I.R. 1922 Cal 150. In that case however the learned Judges were dealing with quite a different question. They were not considering a repudiation by the late minor. They were considering the effect of Section 30, Guardians and Wards Act. Consequently it throws no light upon the present question.
6. Finally Mr. Rakshit pointed out that the appellants could not succeed unless there is a finding that Jogendra did repudiate the former sale. No issue was raised on this question and there is no evidence. The conveyance in favour of the appellants does not refer to the former transaction at all. It may be that Jogendra had never heard of it and unless he knew of it, he could not repudiate it. The decree of the lower Appellate Court is accordingly set aside and the case is remanded for re-hearing in accordance with these directions. The learned Judge will remit to the First Court the following two issues : (1) Was there legal necessity to justify the kobala by Khagendra in favour of the plaintiffs' father? and (2) Did Jogendra after attaining majority repudiate this transaction? Both sides will be at liberty to adduce evidence. The Munsif will then submit the evidence with his findings to the lower Appellate Court for final determination. If the former issue is answered in the affirmative the defendant's appeal will be dismissed. If it is answered in the negative the learned Judge will then proceed to come to a finding on issue 2. If this is answered in the affirmative the appeal in the Court below will be allowed, otherwise it will be dismissed. I make no order as to costs in this Court. Other costs will be in the discretion of the lower Appellate Court.