B.N. Banerjee, J.
1. This is a second appeal from a decree of the lower appellate court, affirming the decree of a learned Munsif.
2. Plaintiff who is the appellant, brought a suit for declaration of his title to and recovery of possession of the southern half portion of c.s. plot No. 712 of Mouza Bilashi. There was an alternative prayer for partition of the said plot No. 712, if the plaintiffs claim for separate possession of the southern half of the plot was uot made out.
3. Plaintiffs case was that defendant No. 1, Hrishikesh Ghose, was the owner of a moiety share of c.s. plot No. 712. During the minority of defendant No. 1, his paternal grandmother and guardian, Haribala Dasi, granted a permanent settlement of the southern half portion of plot No, 712 to one Satish Chandra Ghose, by a patta, dated Chaitra 17, 1349 B.S. (corresponding to March 31, 1943). Satish Chandra Ghose remained in possession of the said portion of c.s. plot no, 712 for some time and thereafter, by a conveyance, dated Chaitra 11, 1350 B. S. (corresponding to March 25, 1944), sold the said property to the plaintiff. The plaintiff claimed to have remained in possession of the southern half of the c.s. plot No. 712 after having effected a partition or under an amicable arrangement with his other co-sharers. until November 10, 1949, when he was dispossessed by defendants Nes. 3 to 16, who were in collusion with defendants Nos. 1 and 2. Hence the suit by the plaintiff, out of whieh this appeal arises.
4. The suit was contested by defendants Nos. 1 to 4 and defendants Nos. 17 to 22, who filed two separate written statements. Their defence in substance was that Haribala Dasi, the paternal grand-mother of minor Hrishikesh Ghose could not settle the property because she was never the guardian of the minor either de jure Or de facto. The mother of Hrishikesh Ghose was said to have been his guardian during his minority. It was further pleaded that there was no legal necessity for granting any permanent settlement to Satish Ghose and the transaction was not for the benefit of the minor. It was also alleged that neither Satish Ghose nor the plaintiff was at all in possession nor had they ever been in possession and that the possession of the disputed property was and had all along been the possession of defendant No. 1, Hrishikesh, and his co-sharers.
5. It is not disputed that the defendant No. 1 attained majority considerably beyond three years of the date of the suit.
6. The trial court dismissed the claim made by the plaintiff. The trial court was of opinion that Haribala Dasi, the paternal grand-mother of defendant No. 1, Hrishikesh, was no doubt the de facto guardian of the minor, inasmuch as the minor used to live under her care and protection. The patta granted by Haribala, as de facto guardian of defendant No. 1 was however, held to be not justified by any legal necessity of the minor. The settlement, according to the trial Court, did not at all benefit the minor. It was further held by the trial court that the settlement granted to Satish Ghose was not followed by delivery of possession to the purchase and neither Satish Ghose nor the plaintiff at all or at any time possessed the suit land. The possession was found to have remained throughout with the guardian of the minor and the other co-sharers of the minor and defendant No. 1 was, it was held, in possession of his own interest since after he had attained majority. The interest of defendant No. 1, therefore, was not extinguished either under Section 28 nor barred under Article 44 of the Indian Limitation Act, because Satish Ghose and the plaintiff had all along been kept out of possession.
7. The plaintiff appealed to the court of appeal below. Before the court of appeal below two points were principally urged, (l). the settlement by Haribala was justified by legal necessity of the minor, defendant No. 1, and (2) the settlement made to Satish Ghose, even if not justified by legal necessity and even if not for the benefit of the minor, was not a void transaction, but only voidable at the instance of defendant no. 1 within three years from the date of attainment of his majority. It was urged that inasmuch the defendant No. 1 had not taken step to avoid the settlement in favour of Satish Ghose within three years after the attainment of majority by him, the right of Satish Ghose and that of the plaintiff, after his purchase from Satish Ghose, became perfect and the plaintiff's claim could not be resisted by the defendant No. 1 and all, the more so, because the plaintiff himself filed the suit within 12 years from the date of the execution of the patta by Haribala.
8. The court of appeal below affirmed the finding of the trial court on the point that the settlement in favour of Satish Ghose was not justified by legal necessity and did not benefit the minor. That finding was not also seriously challenged before me by Mr. Mukherjee, the learned Advocate for the appellant. I have, therefore, to proceed on the basis that the settlement granted to Satish Ghose was not justified by any legal necessity and did not benefit the minor, defendant No. 1.
9. So far as the second contention of the plaintiff was concerned, the court of appeal below agreed with the learned Munsif that neither Satish Ghose nor the plaintiff had at any time been in possession. It was therefore held that it was not necessary for the defendant No. 1, Hrishikesh, to avoid the settlement, because he was in possession in spite of the execution of the patta (Ext. 1) in favour of Satish Ghose. Relying on a decision reported in : AIR1930All858 (Md. Reza Ahmad v. Zahoor Ahmed) the lower appellate court came to the following conclusion :
'In the particular circumstances of the present case there was no accrual of cause of action in Favour of Hrishikesh Ghose, when he was in possession of the disputed land in spite of execution of the patta, Ext. 1, by his de facto guardian. So tt was not at all necessary on the part of Hrishikesh Ghose to avoid the patta within 3 years from the date of attainment of his majority. Article 44 of the Limitation Act has no manner of application in the particular facts of the present rase. This view receives support from the case reported in AIR 1930 All 868. If the voidable deed was followed by possession the transferee would have acquired good title to the pattai land by adverse possession. In the present case the plaintiff and his vendor have not acquired title to the suit land by any such legal mode. Plaintiff's vendor has not also acquired any title on the basis of tha patta itself as it was not for the benefit of the estate of the minor. I accordingly hold that the plaintiff has no title to the disputed land and that he is not entitled to get any decree for recovery of khas possession therein or in the alternative any preliminary decree for partition as prayed.'
10. The decree of the lower appellate court affirming the decree of the trial court, is now being disputed before me in this second appeal,
11. Mr. Apurbadhan Mukherjee, learned Advocate for the appellant made a two-pronged attack on the judgment of the court of below. He argued in the first place that the right of defendant No 1 to the property in suit became extinguished on the failure of defendant respondent No. 1 to bring a suit to have the transfer by his guardian set asside within three years after he attained majority. Mr. Mukhcrje argued that after the extin-guishment of the right of defendant respondent No. 1, the claim of the plaintiff on the basis of the transfer could not be resisted by the defendants, Mr. Mukherjee had in his contemplation the provisions of Section 28 read with Article 44 of the Indian Limitation Act in this branch of his argument. In his second branch of attack Mr. Mukherjee argued that the transfer made by Haribala, the guardian of defendant No. 1 might have been voidable at the instance of defendant No. 1 but was a good transfer so long as not avoided. The defendant respondent No. 1 did not at any material time choose to avoid the transfer in favour of the plaintiff. So long as the transfer in his favour stood intact and did not become barred by adverse possession of the defendant respondent No. 1 and his co-sharers, the plaintiff was at liberty successfully jo maintain a suit for possession.
12. In support of the first branch of his submission Mr. Mukherjee invoked the following observations by Sir Richard Couch in the case of Guana Sambanda Pandara Sannadhi v. Velu Pan-daram, LR 27 Ind App 69 (76-77) (PC). --
'Chockalinga attained majority in 1880 and had by Article 44 of the Act three years for suing to set aside the sale by his guardian. He did not do so and by Section 20 of the Limitation Act his right became extinguished' (Section 20 of Limitation Act of 1887 is now Section 28 of Limitation Act of 1908.} Mr. Mukherjee argued that if the defendant No. 1 had a subsisting right he could resist the claim made by the plaintiff. But if the right of defendant No. 1 was itself extinguished, the plaintiff was entitled to declaration of his title on the footing of his purchase and to the consequential reliefs prayed. The Allahabad decision reported in AIR I930 All 858, relied upon by the lower appellate court, was characterised by Mr. Mukherjee as incorrect in so far as it was opposed to the decision of the Judicial Committee in Gnanasambanda's case (LR 27 Ind App 69 (PC)).
13. There are more reasons than one why the observation in Cnanasambanda's case. 27 Ind App 69 (PC), above referred to, is not applicable to the present case. In Gnanasambanda's case 27 Ind App 69 (PC) the hereditary trustees of a religious endowment sold their hereditary right of management and transferred the endowed properly. The plaintiff, who was the son of one of the transferees, brought a suit for possession. What was decided by the Privy Council in that case was that the sales were null and void, in the absence of a custom allowing them, and that the possession taken by the purchaser was adverse to the vendors and those claiming under them. The right of the plaintiff was held to have become barred because, according to the Judicial Committee, for any suit for possession of a hereditary office the period of limitation was 12 years, running from when the defendant took possession of the office adversely to the plaintiff or any other person from or through whom plaintiff derived his title to sue. Chockalingam, the legal representative of the other branch of hereditary trust, whose mother and natural guardian had, during his minority, absolutely transferred his right in the endowed property, did not join as plaintiff and the Privy Council was not called upon to decide if Chockalingam's right was also barred. The observation by the Privy Council to the effect that Chockalingam's right became extinguished inasmuch as he failed to bring a suit for setting aside the sale within the time allowed under Article 44 of the Limitation Act was only an obiter dictum. But even as an obiter dictum the observation would have been entitled to great respect from me, were I satisfied that the Privy Council meant to lay down the broad- proposition that a person, who was and continued in possession even after a voida. We sale made by his guardian, was. debarred from resisting the claim of a purchaser plaintiff for possession, if within three years after the attainment of his majority he had failed to file a suit for setting aside the sale and thereby obtaining a judicial decision of the sale. In making the observation quoted above, the Judicial Committee had not in its contemplation a case where the minor was in possession throughout and even after the attainment of his majority, such as in the present case, and I am unable to decide the present case only on the basis of an observation made by the Privy Council in circumstances completely different from circumstances of the present case.
14. The Privy Council decision being out of the way I have to decide the point raised by Mr. Mukherjee on other consideration.
15. There is no doubt that Haribala was never the de jure guardian of defendant respondent No. 1. The finding is that the defendant respondent No. 1 used to live under Haribala's care and protection and she was therefore a de facto guardian of the minor. Also there is the finding that the sale to the plaintiff was not for any legal necessity of the minor.
16. It is now settled by a long line of decisions that an alienation by a de facto guardian, which is for the legal necessity of a minor, cannot be impeached on the ground that the alienation was made by a person, who was merely a de facto guardian. I need only refer to three decisions in support of the point of view, namely, Mohanand Mondul v. Nafur Mondul, ILR 26 Cal 820, Seetharamamma v. Appiah, AIR 1926 Mad 457: ILR 49 Mad 768 and the majority judgment in Tulsidas Jesingbhai v. Raisingji Fulabhai : AIR1933Bom15 .
17. There are, however, weighty reasons against the generally accepted view that a transfer by a de facto guardian binds the minor if made for the benefit of the minor or for any legal necessity of the minor's estate. A guardian de facto is a guardian because he is so called by courtesy. He is merely a person, who assumes without authority the position of a guardian. It must be a bold thing to hold that by such assumption of position alone he acquires a right to deal with the minor's immoveable property. Dealing with the position of a de facto guardian under the Mohammedan Law, the Judicial Committee of the Privy Council expressed the definite view that a de facto guardian may assume important responsibilities in relation to a minor's property, but he cannot thereby clothe himself with legal power to sell it. Reference may in this connection be made to the cases of Mata Din v. Ahmad Ali, 39 Ind App 49 (PC) and Imambandi v. Mutsaddi, LR 45 Ind App 73 : (AIR 1918 PC 11). In the minority judgment by Beaumont, C.J. in the case of : AIR1933Bom15 it was observed that the views of Lord Rob-son in 39 Ind App 49 (PC) on the limitation of the power of de facto Mohammedan guardian to sell minor's immoveable property should apply with equal force on the powers of a de facto guardian under the Hindu Law as well. I quote below a relevant extract from the judgment of Beaumont, C. J., in the aforesaid case: --
'I express an opinion on a pure question of Hindu Law with diffidence, but I am confirmed in my view by the fact that my brother Patkar, I believe, concurs with me in this part of this case and also by what was said by Kurnaraswami Sastri. J. in the case of Ramaswamy v. Kasinatha : AIR1928Mad226 :
'Were the matter res Integra I would be disposed to hold that the observations of Lord Robson above quoted, i.e. those I have quoted) would be applicable equally to cases where the parties are Hindus as there is nothing peculiar to the Hindu system of jurisprudence which confers on a person who without authority assumes the office of guardianship any special powers.' The principle enunciated by Lord Robson has been applied by the Madras High Court in the case of Sundara Nadan v. Annammal, AIR 1931 Mad 529, to Indian Christians. It has also been applied in Ranja Khan v. Ma Chit, AIR 1931 Rang 178; to Burmese law, and it is of course clear that under English law a de facto guardian of an infant cannot sell the infant's property. Mr. Divatia however says that under Hindu law a different rule should prevail. He says that in Hindu law the touchstone is necessity, and that once it is established that it is necessary in the interest of an infant that his property should he sold, then anybody who is in fact managing the property is authorized to sell it. He is, I think, really seeking to draw an analogy between the position of a guardian of an infant and that of a manager of a Hindu joint family. The conception of a Hindu joint family under which minors become interested at birth almost necessarily involves the idea of a manager with power to dispose of the property in a Proper case. But the position of such a manager seems to me to be essentially different to that of a guardian of a minor. Where there is no natural guardian available, the Court can appoint any person to be the guardian of a minor, and it is to be observed that if the de facto guardian in the present case had been appointed to act by the Court she would have had no power to make the sale in question without an order of the Court: see Section 29, Guardians and Wards Act.
It is indeed a strange conclusion that a power should be annexed to an office held without authority which would not be so annexed if the office were held under legal sanction. There is obvious risk of abuse in allowing unauthorised persons to deal with the property of minors. Nor do I see any advantage from the point of view of convenience in allowing such a practice, which impose upon the purchaser the duty of ascertaining whether or not the vendor is in truth a de facto guardian.'
18. I need not, however, go into the power of sale of a minor's property by a de facto guardian for the minor's necessity or for the minor's benefit, firstly because there is a long line of authorities consistently holding that a de facto guardian has such authority and secondly because the instant case is not one of sale by a de facto guardian for any necessity of the minor.
19. Here is a case of sale by a de facto guardian not for any necessity of the minor. I am called upon to decide whether the sale by the de facto guardian was a void transaction which could be ignored by the minor or a voidable transaction which might either be ratified by the minor or avoided by him. For the purpose of finding out the answer to the question I have to ascertain incidentally what is the meaning of the expression de facto guardian and his legal position and power. Also I have to determine how, when and in what manner is such a sale to be avoided by a minor, if at all. In the case of Sriramulu v. M. Pundari-kakshayya, reported in , Kania, C.J., observed as follows:
'In law there is nothing like a de facto guardian. There can only be a de facto manager, although the expression de facto guardian' has been used in text books and some judgments of Courts. If that description is adopted (and I consider it to be the correct description of a person generally managing the estate of a minor without having any legal title to do so) the powers of a natural guardian are not brought into consideration in defining the position of such a manager. On first principles, it appears clear that a manager, who manages the estate of the minor because he finds it necessary to do so, although he has no legal title to handle the estate, must have his powers circumscribed by the limits of the necessity or benefit to the estate of the minor. The Law has tried to find a solution out of two difficult situations. When a Hindu minor has no legal guardian, there will be no one who can handle and manage his estate in law, so that unless someone is deemed to have such authority, the minor will not receive any income or return from his estates. The second point is that a person having no title cannot be permitted to intermeddle with the minor's estate so as to cause a loss to the minor. Judcial decisions have tried to find a way out of these difficulties. It may be noted that these difficult situations are not confined to Hindu minors only. Minors of all communities and everywhere have to face these difficulties. There appears to me no justification for treating the minors of different communities on different principles or to lay down different principles for the safety of the minor's estate, unless the personal law of the minor justified such a distinction. Waghela Rajsanji v. Sheikh Masludin, 14 Ind App 89: (ILR 11 Bom 551) (PC) was decided by the Judicial Committee on this line of reasoning.
The principle of the minor's estate being liable in case of necessity has been recognised by an Act in India in 1872 in Section 68, Contract Act which is applicable to all persons. Under that section, it is provided that if necessaries were supplied to a minor his estate could be made liable for the same. The statement of law by the Privy Council in Hunooroan Pershaud Pandey v. Mt. Babooee Mundrai Koonweree, 6 Moo Ind App 393: 18 Suth WR 81 F N (PC) has been followed in India for nearly a century and titles to properties have been created on that basis. Similarly, loans taken for the necessity of a Hindu minor have been ordered by the' Courts to be repaid out of the minor's estate for several years past. It is unnecessary to have a discussion here on that question. That however, will be no justification for extending the application of the principle of necessity to transactions which do not strictly conform to that test. I do not think that the Court can overlook the duty of safeguarding the minor's estate against indiscriminate borrowings on the part of the guardian. As the minor cannot enter into a contract, I am reluctant to accept the argument that a de facto manager is the authorised agent of the minor and can therefore make his estate liable even in cases of necessity by making a contract in the name of the minor. That would be permitting a person without legal title to do something which the minor cannot himself do.
20. That being the position of a de facto guardian, he is no better than an officious inter-meddler with the estate and affairs of the minor. If transactions by such a person have been for the benefit of the minor and for minor's necessity, there is a strong body of opinion which held such transactions to be binding on the minor. It is not possible for me to hold that a view so long accepted is wrong and should not be accepted as the true position under the Hindu Law. Nevertheless it must require compelling reasons to extend this power of a de facto guardian to transactions which have not sanction of the consideration either of benefit to the minor or of necessity of the minor.
21. The cases in which transfers by de facto guardian were upheld, so far as I have been able to ascertain, are all cases of alienation fur necessity of the minor. I have not been able to find out a single case in which any court ever came to the conclusion that an alienation by a de facto guardian not for the legal necessity of a minor nor even for minor's benefit, was binding on the minor.
22. Starting from the position that such a transfer is not binding on the minor, as is also the case in this appeal, 1 am now to ascertain whether such a transaction is ab initio void transaction or is voidable at the instance o the minor.
23. In Mulla's Hindu Law (11th Edition) at page 629 the law on this point is stated to be as follows:
'An alienation by a de facto guardian, which is neither for necessity nor for the benefit of the estate of the minor, is not void but only voidable, and may therefore be ratified on the minor attaining majority.'
24. It is not understandable, regard being had to the legal position of a person who is commonly and losely called to be a de facto guardian, why a transfer by a de facto guardian not for necessity or benefit of the minor should not be treated as a void transaction. In this case, however, I am not called upon to go so far, because void or voidable, in either event the appellant plaintiff is not entitled to get any relief against defendant respondent No. 1, whose property was sold during his minority.
25. The reasons why I hold the above view are these. In order to avoid a sale made by de facto guardian, which is not for the benefit of the minor or for his necessity, it is not necessary tor the minor to do so by a suit and by obtaining a judicial rescission of the sale. It may be done by an expression of the minor's intention not to honour, respect or abide by the alienation made by the de facto guardian. An expression of such an intention would certainly be by retaining possession of the alienated property or by dispossessing the transferee.
26. Under Article 44 of the Indian Limitation Act if a minor desires to set aside a transfer of property by his guardian, he must bring a suit within three years of his attaining majority. A minor would certainly be compelled to bring such a suit where the transfer was made by his lawful or de jure guardian without legal necessity or against the minor's interest. A minor would also be required to bring a suit to have a sale by his guardian, whether de jure or de facto, set aside when a minor is out of possession and cannot, except through the aid of the court, recover possession of the property. But where the minor is in possession of the alienated property, the alienation notwithstanding, it is not necessary for the minor to resort to a court of law and obtain a formal declaration that the alienation by the guardian was bad and should he set aside. My attention was invited to a decision by A.N. Sen, J. in the case of Monmohan v. Bidhu Bhusan : AIR1939Cal460 in which his Lordship made the following observation:
'It is now well established that the sale by the natural guardian of a Hindu minor, of the minor's property when there is no legal necessity for such sale is not void but voidable and that the sale is valid until set aside. The minor on attaining majority has - the right to have the sale set aside and he must do so within the period fixed by Article 44 of the Indian Limitation Act. No question of limitation arises in this case but Manimohan though he has attained majority, has not yet had the sales set aside. The sales therefore stand and are valid. It certainly cannot be said that the sales have been set aside merely because Manimohan has chosen to ignore the sales by his guardian and to sell the same property to the defendants Nos. 4 and 5.''
27. It was argued that the same principle would apply in case of transfer made by the de facto guardian under circumstances which made the transfer merely voidable at the instance of the minor. I am unable to accept the argument, because the decision by Sen, J. is in many respects distinguishable from the instant case. In the first place that was a case where the transfer had been made not by a de facto guardian but by a natural guardian. Then again in that case the suit was by a transferee from the minor's guardian for establishment of his title. The suit succeeded because it was held that the transfer was binding on the minor on account of existence of legal necessity for such transfer. His Lordships, however, made the observation, quoted above for the decision of a side issue, namely, whether a transferee from a minor, after the transfer in favour of the plaintiff, got any right in the property enabling him to contest the plaintiff's claim. It was held in that connection that a minor retained after transfer only a right to sue to have the sale set aside, which right again was not a transferable right. The observation about the point of limitation was made in that connection and was more or less of the nature of an obiter dictum. I, therefore find nothing contained in the judgment of Sen, J. which compels me to take a view contrary to the view hereinbefore expressed by me.
28. The expression Voidable,' in my opinion, does not imply that the transfer is binding on the minor until set aside. It only means that although not binding on the minor the transfer may be ratified by the minor on his attaining majority. The view which I take in this matter is also the view of the High Court of Patna expressed in the case of Kailash Chandra v. Rajanikanta, ILR 24 Pat 273: (AIR 1945 Pat 298). I quote below an extract from the concurring judgment of Chatterjee,
'The distinction between the powers of the two classes of guardian lies in the fact that while the de jure guardian is under the law clothed with authority to deal with the minor's property, the de facto guardian is not clothed with similar authority, though if the latter alienates the minor's property for his benefit the Court will uphold the transaction. In the case of an alienation by a de jure guardian, not for the benefit of the minor, the guardianship acts in excess of his authority derived under the law, whereas in the case of a similar alienation by a de facto guardian his act is wholly unauthorised. In the latter case, however, the minor may choose to ratify the transaction, though it is not binding on him. To that extent the alienation is voidable. The position is the same as in the case of an alienation by a Hindu widow, unsupported by legal necessity, which, as pointed out by the Privy Council in Bejoy Gopal Mukherji v. Krishna Maheshi Debi, 34 Ind App 87 (PC) may be affirmed by the reversioner, though it is not binding on him. and is in that sense voidable.''
29. Dealing with the case of alienation by a Hindu widow having a limited interest in the alienated property without legal necessity or for the benefit of the estate, P. N. Mookerjee, J. observed as follows, in the case of Jagadindra Nath v. Ulangini Dasi, : AIR1955Cal312 :
Usually, no doubt, such alienations are said to be voidable and not void but they are not to be understood as valid until set aside by the reversioners in court proceedings. They are not void as they may acquire full validity and become binding on the estate by affirmance or assent of the reversioners, and they are voidable in the sense that they may be disowned or repudiated by the reversioners within, of course, the relevant period of time, and, on such timely repudiation, they cease to have effect. The choice lies with the reversioner and he has only to elect in time and exercise his option if he wants to avoid the alienation.
It is not, however, necessary for the reversioners to come to Court or institute any suit or proceeding for the purpose of avoiding such alienations. Any overt act or sufficient expression of intention by the reversioners to repudiate the alienation will have the legal effect of avoiding it and will invalidate the same, so far as he is concerned. In a suit, therefore, by the alienee for any relief in respect of the disputed property on the strength of such alienation, when it is disowned or repudiated by the reversioners in time, the alienee cannot succeed unless he proves that the transaction was justified by legal necessity' or in the theory of 'benefit of estate' or unless he can prove requisite enquiry or rely on express or implied affirmation by the reversioners, and the reversioners' defence of repudiation will be sufficient to defeat the alienee's suit in the absence of proof of 'justifying causes' for the alienation or the relevant enquiry or express or implied affirmation, as stated above.
This, in my opinion, is the true effect of the decision of the Judicial Committee in the case of 34 Ind App 87 (PC) (which, by the way, was the case of an 'ijara' lease) as subsequently explained and elaborated by the Board in the cases of Kodama Naicker v. Kandasami Goundar AIR 1924 PC 50 at pp. 59-60 and 'Kalyandappa v. Chanbasappa,' AIR 1924 PC 137 at p. 143, and if I may add with respect, that is the true legal position in Hindu Law.'
30. In my opinion, when a minor on attaining majority wants to avoid a sale made by his de facto guardian, the manner of avoidance need not be different from what was held by P.N. Mookerjee, J. in connection with avoidance by a reversioner of a transfer made by a limited owner.
31. In this case the finding is that the transfer to Satish notwithstanding, the de facto guardian continued in possession and after attaining majority the minor himself was in possession. This is enough indication of avoidance or repudiation of the transfer.
32. Article 44 of the Indian Limitation Act prescribes a time limit for a suit by a minor to set aside a sale by his guardian. Here is a case where the minor was not required to have the sale set aside, because he was in possession, after having given enough expression of his intention to avoid the sale.
33. In the Allahabad decision relied on by the court of appeal below : AIR1930All858 , Niamatullah, J. observed as follows:
'Cases contemplated by Article 44 are those in which 'transfer of property' has been made by a guardian. It implies that the property has changed hands and does not apply to cases where the erstwhile minor is in possession of his property In spite of the deed of transfer executed by his guardian.'
34. I respectfully agree with the observations of Niamatullah, J. Article 44 of the Indian Limitation Act bars the remedy of the minor to have sales set aside by way of a suit. It does not debar a minor to take up a defence that the sale was not binding on him in a case like the present one,
35. In the view that I take, I have to overrule both the contentions of Mr. Mukherjee. I hold that the title of defendant respondent No. 1 in the disputed property was not extinguished in this case and Section 28 of the Limitation Act has no application to the facts of the present case. I further hold that the defendant respondent No. 1 effectively avoided the sale made by his guardian.
36. This appeal, therefore, fails and is dismissed with costs.