LALIT KUMAR DAS CHAUDHURY Vs. NOGENDRA LAL DAS

JUDGEMENT

(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 Art. 44, Limitation Act. Art. 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. Art. 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 Art. 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.