1. This is an appeal on be-half of the plaintiffs in an action for recovery of possession of a two-thirds share in a parcel of immovable property. There is no controversy between the parties as to the circumstances under which the claim has been put forward. The disputed property originally belonged to one Kailas Chandra Dufadar, who left, as his heirs, three infant sons, the two plaintiffs and their brother, now deceased, represented by his infant widow, the sixth defendant. In 1895, the widow of the original owner, acting as the natural guardian of her infant children, executed a mortgage by conditional sale of the disputed property for a consideration of rupees three Hundred. On the 7th January 1898, she executed a conveyance in favour of the mortgagees. The deed recited that the consideration, rupees eight hundred, was to be applied in satisfaction partly of the debt due on the mortgage, and partly of the arrears of rent due to the superior landlord. The first plaintiff attained his majority in June 1898, and the second plaintiff in June 1900. On the 4th March 1907, the plaintiffs commenced this action for recovery of possession of their two-thirds share in the disputed property from the purchaser. They alleged that the conveyance had been executed without; consideration, and, in the alternative, that it had been made without legal necessity, and was, in no way beneficial to them. The defendants purchasers resisted the claim substantially on the ground that the suit was barred by limitation, and that the transfer had been effected for consideration and for the benefit of the infants concerned. The Court of first instance found that the sum advanced, when the mortgage bond was executed, was applied in discharge of judgment-debts due by the father of the plaintiffs to his creditors, and that the additional sum paid, when the conveyance was executed, was applied in satisfaction of the claim for arrears of rent of the superior landlord. The original Court also held that the suit was barred by limitation, as it had not been brought within three years from the date of execution of the conveyance or of the attainment of majority by either of the plaintiffs. In this view, the suit was dismissed. Upon appeal, the learned Subordinate Judge has declined to examine the merits of the case, but has affirmed the decree of the original Court on the ground that the suit is barred under Article 44 of the second Schedule of the Limitation Act. The plaintiffs have now appealed to this Court, and on their behalf it has been contended that the suit is governed, not by Article 44, but by Article 142 of the second Schedule of the Limitation Act. In support of this proposition, it has been argued that the transfer was entirely void and not merely voidable, and that consequently it is not obligatory upon the plaintiffs to have the instrument set aside before a decree for possession can be made in their favour. In our opinion, the judgment of the Subordinate Judge cannot be supported.
2. In order to determine whether the plaintiffs are entitled to recover possession of the property covered by the conveyance without cancellation of the instrument, it is essential to determine the true character of the transaction. If it is void and inoperative in its inception, it is not necessary for the plaintiffs to seek the cancellation of the instrument. If, on the other hand, the transaction is merely voidable and is operative so long as it is not avoided, the plaintiffs cannot recover possession till they have avoided the instrument, Now, in the case before us, the plaintiffs alleged that the consideration mentioned in the conveyance was fictitious, and that it was inoperative from its very commencement. The Subordinate Judge did not investigate the facts of the case, and it was not open to him to dismiss the suit as barred by Article 41 of the limitation Act before he had determined that there was a genuine sale binding upon the plaintiffs till set aside at their instance. This is obvious from the very phraseology of Article 44, which provides that a suit by award, who has attained majority, to set aside a sale by his guardian must be brought within three years from the date when he attained majority. This obviously applies only to cases in which the plaintiff seeks to set aside a genuine transaction. If, therefore, as the plaintiffs allege, the conveyance executed by their mother is wholly inoperative, because the consideration was fictitious, it is not necessary for them to have the sale set aside; in other words, if the facts are as alleged by the plaintiffs, the defendants never acquired any title under the conveyance, and the plaintiffs are entitled to recover possession from them as trespassers. If, on the other hand, there was consideration for the sale although the conveyance was executed by mother of the plaintiffs in excess of her authority, as explained by their Lordships of the Judicial Committee in Hunoomanpersaud v. Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81 (Note), the plaintiffs may be entitled to have the instrument set aside and to recover possession. In such a contingency, they would have to sue, within three years of the attainment of majority under Article 44 of the Limitation Act. This is clear from the decision of their Lordships of the Judicial Committee in Gnana Sumbanda v. Velu Pandaram 23 M. 271 at p. 279 : 27 I.A. 69. In that case, the mother and natural guardian of two infants transferred a hereditary religious office in which her sons were interested. Their Lordships ruled that the assignment was beyond the legal competence of the guardian and as the sons upon attainment of majority did not sue to set aside the sale by the guardian with in three years under Article 44, their right became extinguished under Section 28 of the Limitation Act. The distinction between a transaction which is ab initio void and a transaction which is voidable because entered into by a person, clothed with a qualified right of alienation, in excess of his powers, is explained in the judgment of this Court in the case of Eastern Mortgage and Agency Company v. Rebati Kumar Roy 3 C.L.J.260 at p. 69. It was there pointed out that in the latter class of cases, the transaction, if it is set aside, ought to be cancelled only upon equitable terms because no person who is entitled to avoid a transaction ought to be allowed to do so in such a manner as to enable him to recover property which would otherwise be lost to him and at the same time to keep the money or other advantage which he has obtained under it. This distinction goes to the very root of the matter, and indicates the reason why a person entitled to avoid a voidable transaction should be called upon to do so before he recovers the property alienated. It is not necessary for our present purposes to attempt an exhaustive enumeration of the cases in which an alienation by a guardian of the property of his ward can be treated as void or voidable. The nature of the transaction may obviously be affected by statutory provisions on the subject. To take one illustration, an alienation by a certificated guardian in excess of the powers conferred by Section 18 of Act XL of 1858, was treated as void Mahome Arif v. Saraswati Debya 18 C. 259 at p. 262 although the contrary view has been some times maintained Girraj v. Kazi Hamid Ali 9 A. 340; an alienation by a certificated guardian in excess of his powers under Act VIII of 1890, is, on the other hand, expressly made voidable by Section 30 Lala Hurro Prasad v. Basarat All 25 C. 909 To take another illustration, a lease granted by a manager, without the orders of the Court of Wards, has been held to be not void but voidable at the option of the ward Uma Charan v. Narendra 10 C.W.N. 126 at p. 130 : 33 C. 273. In any concrete instance, it may be a question of considerable nicety to determine whether the transaction impeached is void or voidable, and the cases to be found in the books are by no means easy to reconcile See for example, Unni v. Kunchi 14 M. 26; Ranga v. Narayana 28 M. 423 and Kamakshi v. Ramasami 7 M.L.J. 131. In so far however, as the case of an alienation for consideration by the natural guardian of an infant is concerned, the decision of the Judicial Committee in Gnana Samitanda v. Velu Pandaram 23 M. 271 at p. 279 : 27 I.A. 69 supports the view that the transaction is voidable and has to be avoided within the period prescribed by Article 44 see also Satish Chandra v. Chunder Kani 3 C.W.N. 278. The subtle distinction adopted in Bhagwant v. Kondi 14 B. 279 that where the necessity of impugning a sale made by a guardian of the plaintiff of his equity of redemption to the defendant arises from the defendant setting it up and resisting the plaintiff's suit to redeem, Article 44 or Article 91 does not apply because the necessity is subservient to that suit cannot be maintained in view of the decision of the Judicial Committee in Malkarjun v. Narhari 25 B. 337 at p. 351 : 27 I.A. 216 (P.C.). The learned Vakil for the appellants placed reliance also upon the decisions of the Judicial Committee in the cases of Bejoy Gopal v. Krishna Mahishi 34 C. 329 : 9 Bom. L.R. 602 : 11 C.W.N. 424 : 5 C.L.J. 334 : 2 M.L.T. 133 : 17 M.L. 154 : 4 A.L.J. 329; Father Permal v. Muniaddy 35 C. 551 : 12 C.W.N. 562 : 7 C.L.J. 528 : 5 A.L.J. 290 : 14 Bur. L.R. 108 : 10 Bom. L.R. 590 : 18 M.L.J. 277 : 4 M.L.T. 12 : 4 L.B.R. 266 and Janki Kunwar v. Ant Singh 15 C. 58 : 14 I.A. 148. None of these cases, however, deals with the question of the true character of an alienation by a guardian of the property of his ward, and they are consequently not of any direct assistance in the determination of, the point raised before us but they afford illustration of the difficulty of a line of demarcation between void and voidable transactions. Much reliance was finally placed by the learned Vakil for the appellants upon the observation of the Judicial Committee, in Mahomed Mumtaz Ali v. Farhatali 28 I.A. 190 : 23 A. 394, that it is not within the power of a guardian to make a voluntary alienation in perpetuity, of his ward's real estate but it is to be observed that their Lordships added that it is open to the ward on attainment of twenty-one to challenge the validity of such a transaction. This appears to us to indicate that such alienation, if made for consideration, is voidable at the instance of the ward, a view as we have already explained, supported by the earlier decision in Guana Sambanda v. Velu 23 M. 271 at p. 279 : 27 I.A. 69. We must, consequently, hold that the learned Subordinate Judge took an erroneous view of the law when he held that the alienation in the case before us was voidable whatever its true nature might be.
3. We may add that an the course of the arguments addressed to us, it was suggested that Article 44 6f the Limitation Act applies only to cases of alienations by statutory guardians of the property of their was, and a similar suggestion appears to have been made in the case of Ghulam Rasul v. Ajab Gul 57 P.R. 1891. In the case of Gnana Sambanda v. Velu 23 M. 271 at p. 279 : 27 I.A. 69, Article 44, however, was assumed to be applicable to an alienation by a guardian de facto as well as that by a guardian de facto and de jure. We are not prepared, upon the arguments addressed to us, to take a restricted view of the scope of Article 44, but it is worthy of remark that even if the narrow interpretation suggested on behalf of the appellants were adopted Article 9l would be applicable to voidable transactions by a natural guardian of an infant, the only difference would be that in the one case time would run from the date of attainment of majority, whereas, in the other, it would run from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside be came known to him and this distinction also would disappear, if the facts of the case were such as to attract the operation of Section 18.
4. The result, therefore, is that this appeal must be allowed and the decree of the Sub-Judge reversed. The case will be remitted to him in order that he may determine upon the evidence whether the transaction impeached by the plaintiff was void or merely voidable. If he finds that there was no consideration for the conveyance and the antecedent mortgage-bond, the plaintiffs are entitled to succeed. If on the Other hand, he affirms the view of the Original Court that the mortgage and the conveyance were given for consideration the suit is barred by limitation and must fail on that ground The costs of this appeal will abide the result.