S.K. Ghose, J.
1. Plaintiffs sue for recovery of possession of the disputed land on a declaration of their title thereto. It appears that there were two brothers, Trailokya Laha and Gobinda Laha. Trailokya the elder died in 1312 B.S. leaving a son Ashu defendant 8. Gobinda died in 1314 B.S. leaving two sons Krishna, plaintiff 1 and Netai, plaintiff 2. It appears that in 1301 Gobinda acquired mourashi right to the land in suit by a document Ex. 2. On 23rd Jaistha 1318, corresponding to 6th June 1911, defendant 8, purporting to act as guardian of the minors plaintiffs 1 and 2 and alleging that they had four annas share each and he had the remaining eight annas share in the land in suit, granted a permanent lease to one Tarini by the document which is marked Ex. C. Tarini'a heirs, defendants 6 and 7, conveyed the lease-hold to defendants 1 to 5. Plaintiff's case is that the disputed land was acquired by Gobinda Laha alone after he had separated from his brother Tarini in 1290 B.S. that defendant 8 was never the guardian of the plaintiffs and was not entitled to grant mourashi pottah to Tarini, that the aforesaid pottah is a mare paper transaction and that the plaintiffs were not benefited by it. Hence the plaintiffs sue for a declaration that the pottah in question was null and void and for recovery of possession of the disputed land from the defendants. The suit is contested by defendants 4 and 5. Their defence is that Gobinda and Trailokya never separated in 1290 B.S. as alleged by the plaintiffs, that separation between Ashu defendant 8 and the plaintiffs took place only in 1322 B.S., that Ashu was de facto guardian of the plaintiffs during their minority and he granted the pottah in suit for the benefit of the minors estate, and that the pottah conferred good title on Tarini. The learned Munsif held that Trailokya and Gobinda separated in 1290 B.S. that the property in the suit was acquired by Gobinda alone in 1301 B.S.; that the pottah in suit was not a bona fide nor valid transaction and that it was not for necessity or benefit to the estate of the minors. He accordingly decreed the suit.
2. On appeal by defendants 1 and 5 the learned Subordinate Judge held that Tarini never separated from Gobinda and that the disputed land was the joint property of the two brothers. He therefore found that Ashu had eight annas share and the plaintiffs had the remaining eight annas share in the property. He further found that Netai plaintiff 2, on attaining majority in 1323, accepted rents from the lessee and thereby ratified the lease to the extent of his share. He also held that as the suit had not been brought within three years of Netai's attaining majority the suit with regard to him was barred by limitation and so the lease to the extent of Netai's four annas share must stand good. With regard to the remaining four annas share of plaintiff 1, Krishna, he held that the pottah was not for pressing necessity nor for the benefit of the minor and therefore it was liable to be set aside. He accordingly decreed the suit in part for four annas share of plaintiff 1. The present second appeal is preferred by the plaintiffs.
3. There is a preliminary objection that the appeal is incompetent because defendants 1, 2 and 3 have not been made parties respondents. These defendants have never appeared to contest and the suit was decreed as against them ex parte with costs. The contesting defendants 4 and 5 in para. 6 of the written statement pleaded that defendants 1, 2, 3, 6 and 8 were not necessary parties and that because of them the suit was bad for misjoinder of parties. In their appeal before the lower appellate Court also these contesting defendants left out the other defendants whom they alleged to be unnecessary parties. It does not therefore lie in their mouth now to take the point in this Court that the appeal is incompetent because these very same persons are not impleaded as parties respondents. So far as the plaintiffs-appellants are concerned, they are content to leave these defendants out and let the decree of the lower appellate Court remain untouched with regard to them. Therefore it cannot be said that the present appeal is incompetent because these defendants have been left out.
4. Coming to the merits, the point is whether the learned Subordinate Judge was right in holding that the suit as regards plaintiff 2 is barred by limitation. He has taken this view evidently relying upon Article 44, Lim. Act. It is contended by the learned advocate for the appellants that that article would not apply unless it could he shown that Ashu defendant 8 was either the natural guardian, or testamentary guardian, or guardian appointed by a competent Court in respect of the two minors. This view is supported by the decision of this Court in appeal from appellate decree 2362 of 1922 in which the learned Judges followed the case of Matadin v. Ahmad Ali (1912) 34 All. 213. The learned Munsif took the correct view in holding that Ashu was not the natural guardian in view of his relationship towards the minors : see for instance the case of Kristo Kisor Neogy v. Kadermoyee Dassee 2 C.L.R. 783. In the case to which I have already referred the de facto guardian was an uncle, while in the present case Ashu is an uncle's son, and the present, case is also rather worse, because it has-been concurrently found that the lease was not for legal necessity nor for the benefit of the minors. In this view the learned advocate for the appellants has contended that Article 44 did not apply and that the proper article would be Article 142, Lim. Act, according to which the suit would be within time from the date of the lease to Tarini. The learned advocate for the respondents concedes that Article 44 does not apply, but he contends that in any case Article 91 would apply. This contention cannot be accepted because Article 91 is a residuary article and it has also no reference to a-case or suit for recovery of possession. I must hold therefore that the learned Munsif is correct in deciding that the suit is not barred by limitation, the plaintiffs having come within 12 years from the date of the pottah of 1318.
5. The next point is whether plaintiff 2 can have the pottah set aside with regard to his four annas share. The learned Subordinate Judge has taken the view that he has ratified the lease on attaining majority. It is contended by the learned advocate for the appellants that the lease was void ab initio because Ashu was not an authorized guardian and therefore he had no authority to make any transfer of the minor's shares, and it has been found that there was no benefit to the minor's estate. It is contended on the other side that, even though Ashu was not the guardian, still he was in the position of a karta, of the joint family. But that would not give him authority to alienate the minor's share, without having first taken the Court's sanction as guardian. The alienation was thus void ab initio and subsequent acceptance of rent by plaintiff 2 did not have the effect of ratification : see for instance the case of Mauji Ram v. Tara Singh (1881) 3 All. 852. In this view the pottah is liable to be set aside with regard to four annas share of plaintiff 2.
6. It is further contended by the learned advocate for appellants that the learned Subordinate Judge was wrong in reversing the Munsif's finding that Ashu had no share at all in the disputed property. But on this question the matter is concluded by the findings of fact arrived at by the learned Subordinate Judge. No doubt, in his judgment, the learned Judge has not considered in detail all the points mentioned by the learned Munsif; still the judgment shows that the evidence and the circumstances were considered and the findings of fact are there. On this point therefore the appeal must be dismissed.
7. The result is that the appeal will succeed with regard to four annas share of plaintiff 2 and the suit would be decreed in respect of that share. The appeal is thus allowed in part with proportionate costs in all the Courts.