JHAVERBHAI HATHIBHAI PATEL Vs. KABHAI BECHER PATEL

JUDGEMENT

(1.) The appellant is the purchaser from one Bhavan Girdhar, whose father and guardian had transferred the property to the defendants predecessor-in-title in February 1912. Bhavan Girdhar attained majority on August 11, 1923, and sold the property to the appellant in 1925. The present suit was brought by the appellant and Bhavan Girdhar. It appears that Bhavan Girdhar who was plaintiff No. 2 made an application to withdraw from the suit in August 1926, and without any objection on the part of the appellant he was allowed to withdraw from the suit, After withdrawal by plaintiff No. 2 from the suit a preliminary question was raised for argument as to whether the suit by the assignee, the appellant, was within time. The learned Subordinate Judge held that the plaintiff's suit was barred by limitation. On appeal, the learned District Judge agreed with the view of the lower Court.

(2.) It is contended on behalf of the appellant that the suit which was originally filed was within time, and that if plaintiff No. 2 had not withdrawn from the suit, both the plaintiffs would have succeeded in getting a decree after the sale in favour of the defendants had been set aside, and reliance is placed on the decision in Hanmant Gurunath V/s. Ramappa Lagmappa, s.c. 27 Bom. L.B. 211. It is further contended that Art. 44 of the Indian Limitation Act applies not only to the miner ward but also to the transferee from such ward, and reliance is placed on the decision in the case of Raja Ramaswami V/s. Govindammal (1928) 58 M.L.J. 332, that in any case the suit having been filed by both the plaintiffs within three years of the ward attaining majority the suit was within time, and that the fact that plaintiff No. 2 withdrew from the suit subsequently would not make any difference.

(3.) According to the decision of the full bench in Fakirappa Limanna V/s. Lumanna bin Mahadu, s.c. 22 Bom. L.R. 680, a Hindu minor on his attaining majority cannot sue to recover possession of property transferred by his mother acting as his natural guardian during his minority without suing to set aside the transfer within the period of limitation provided by Art. 44 of the Indian Limitation Act, and that Art. 44 is not limited to sales by guardians who are appointed under testaments or by the Court but is wide enough to include sales by natural guardians, who may have some authority, however limited, to alienate the property of the minor, When the property is sold by the guardian it ceases to belong to the ward and the interest passes to the purchaser subject to the right of the ward to bring a suit to set aside the sale. After the sale is set aside in a suit by the minor on his attaining majority the property would revert to him, and the subsequent purchaser from the minor would be entitled to enforce his right against the minor under Section 43 of the Transfer of Property Act or by virtue of the doctrine of feeding a grant by estoppel referred to in Tilakdhari Lai V/s. Khedan Lal, s.c. 22 Bom. L.R. 1319. Under the Indian Limitation Act, Art. 41, a period of three years is prescribed for a ward to set aside the transfer by a guardian. In the case of a mortgage the equity of redemption would vest in the minor and he would be competent to sell it notwithstanding the mortgage created by his guardian. But in the case of a sale by the guardian the property would pass to the purchaser, and unless the sale is set aside, the (subsequent purchaser from the minor after attaining majority would not be able to enforce his rights under the second sale-deed.