1. This appeal arises out of a suit brought by the reversionary heirs of one Asradhi Das for a declaration that a certain sale of the property left by him is not binding on the estate after the death of Jagat Priya the daughter of Asradhi. The relevant facts are these: Asradhi died in 1888 leaving four daughters surviving him. Two of them Saroda and Parbati were married during his lifetime. The maiden daughters Bama and Jagat Priya who were infants inherited their father's properties under the Hindu Law. Asradhi's mother Sarumala was appointed guardian of the infants under Act XL of 1858 in November 1888. Sometime after that Bama died unmarried. Jagat Priya then became the sole owner having a Hindu woman's estate in her father's properties. On 24th April, 1891, Sarumala, the guardian, sold the lands in dispute to the defendant without obtaining the permission of the Court as required by the law. Plaintiffs Nos. 1 and 2 are the sons of the two other daughters of Asradhi and plaintiff No. 3 is the son of Jagat Priya. Plaintiff No. 1 was born in 1896 and the other two plaintiffs were born in 1902. There is no question that they are the expectant reversioners entitled to succeed to the estate after the death of Jagat Priya. Jagat Priya did not question the sale by her guardian at any time, and any right she might have, has-been barred by limitation long ago.
2. The suit was dismissed by the trial Court, but on appeal by the plaintiffs the District Judge has reversed the decision and made a decree in favour of the plaintiffs. The learned Judge held agreeing with the trial Court, that necessity for the sale-was established, but that the sale was absolutely void under the provisions of Act XL of 1858, as made without the permission of the Court. He seems to have also held that the suit was governed by Article 125 of the Limitation Act and it was not barred. The defendant appeals and three points have been raised on his behalf : (1) the alienation having been for legal necessity, it conferred a complete title on the defendant; (2) The sale was not void but only voidable, and Jagat Priya not having avoided it, plaintiffs cannot do so; (3) The suit being governed by Article 125 of the Limitation Act is barred, as it was not brought within 12 years of the date of alienation as provided for in that article.
3. We do not think that the first ground is sustainable. The guardian was appointed under the statute and her powers of dealing with the property of the infant must be regulated by the provisions of the Statute It is not open to any person dealing with such a guardian to support an unauthorised : sale of a minor's property by calling in aid the personal law of the minor. The judgment of the learned Judge cannot be assailed on that ground. We have next to sea whether the sale was void or voidable. It was effected subsequent to-the date when the Guardians and Wards Act came into operation, which was OR the 1st of July, 1890. The sale would be voidable only under Section 30 of that Act. It is, however, contended by the learned Vakil for the respondent that it was absolutely void. His argument is this: It was held in a number of cases in this Court that an unauthorised sale by a guardian appointed under Act XL of 1858 was void. Although that Act was repealed by Act VIII of 1890, Section 2, Sub-section 2 of the later Act provides that all obligations imposed under the repealed Act shall be deemed to have boon imposed under the Act of 1890. An unauthorised sale by a guardian appointed under Act XL of 1858 would therefore be void even if made after the repeal of that Act. This contention is based on an obvious fallacy. The obligation of the guardian to obtain permission of the Court has not been altered by Act VIII of 1890. Section 30 of the Act has enacted what would be the effect of a disposal of the property of the minor without the permission of the Court as regards the rights of the transferee and rights acquired after that Act came into operation must be governed by its provisions. The sale in question therefore was not void but merely voidable. We must then consider what right the plaintiffs have. Under Section 30 of Act VIII of 1890 a disposal of the property of the infant by the guardian without the permission of the Court is voidable at the instance of any other person affected thereby. Jagat Priya did not avoid the sale, and she has allowed her right to be barred by limitation. She is, however, a qualified owner. The reversionary interest in the estate would be affected by the sale and the plaintiffs are entitled to take advantage of the provisions of Section 30 and avoid it, and it is of no consequence that the lady did not choose to do so, the only effect of her omission being that it stands good as far as her interest is concerned. Not being entitled to immediate possession the plaintiffs can ask for the declaration as prayed for in the plaint, under the provisions of Section 42 of the Specific Relief Act as has been observed by the Privy Council in Saudagar v. Pardip A.I.R. 1917 P.C. 196. Coming next to the question of limitation we do not think this case falls within Article 125 of the Limitation Act, as it is not a suit to have an alienation made by a Hindu female declared to be void except for her life. In our opinion it comes within Article 120 of the Limitation Act. The learned Vakil for the respondent contended relying upon the Full Bench case of the Allahabad High Court Bhagwanta v. Sukhi (1899) 22 All. (F.B.) and the case of Abinash v. Harinath (1905) 32 Cal. 62 that the right of the plaintiffs to sue accrued when they were born and as two of the plaintiffs are still infants and the third plaintiff brought the suit within 3 years of attaining majority, the suit is within time according to the provisions of Sections 6 and 8 of the Limitation Act. The learned Vakil for the appellant in reply to this refers to the case of Varamma v. Gopaladasayya (1918) 41 Mad. 659 (F.B.) and urges with considerable ingenuity that the right to sue accrues to the entire body of reversioners at one and the same time. If the reversioner for the time being does not choose to bring a suit within the period of limitation, it is not open to any person born afterwards to bring a declaratory suit as reversioner, on the allegation that the right to sue accrued to himself when he was born. We are unable to accept this contention. Whatever room there may be for argument with reference to the actual expressions used in the 3rd column of Article 125 of the Limitation Act, we cannot hold that in a suit falling under Article 120 the right to sue may be said to have accrued under any circumstance before the plaintiff was born. In a suit for a declaratory decree under Section 42 of the Specific Relief Act it is difficult to imagine that any person may be said to be interested in denying the right of the plaintiff before the plaintiff came into existence. In the view we take it is unnecessary for us to examine the Madras case in detail. We must, however, say, with very great respect, that we feel considerable doubt as to whether the decision in that case proceeded on a correct view of the decisions of the Privy Council in Venkatanarayan v. Subbammal A.I.R. 1915 P.C. 124 and Janahi v. Narayanasami A.I.R. 1916 P.C. 117. We hold that the present suit is not barred by limitation.
4. It was lastly argued on behalf of the appellant that in avoiding the sale the plaintiffs are bound to refund the purchase money to the extent of the benefit to the estate. This question was not raised in the written statement nor in any of the Courts below nor was it taken in the memorandum of appeal here. It may be that the reason is that the defendant has already realised from the property more than what he paid for it. Whatever may be the reason for this, we cannot allow the appellant to take this ground at this stage. All the grounds taken have failed; the appeal is dismissed with costs.
5. I agree.