MANMATHA NATH MANDAL Vs. KHIRODHAR GHOSH

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit to set aside a conveyance and to recover possession of immoveable property. On the 30th November 1899, while the plaintiff was an infant, his mother, for alleged legal necessity, transferred the disputed property to the defendants for valuable consideration. The plaintiff commenced the present action on the 10th August 1909. It has been found that he attained majority more than three years before the institution of the suit. It has been found by the lower Appellate Court that although there was no legal necessity for the alienation by the mother of the plaintiff, yet the money had been, in fact, applied for his benefit. The Court thereupon expressed the opinion that if it was still open to the plaintiff to have the sale set aside and to recover possession of the property, relief would be afforded to him only on terms,, that is, upon a refund of the consideration money to the purchasers. But the Courts also held that the claim of the plaintiff to have the sale avoided was barred by limitation.

(2.) On the present appeal it has been argued on behalf of the plaintiff that this view is erroneous and that Article 44 of the second Schedule to the Indian Limitation Act has no application. It has not been disputed that the decision of Sham Chandra Dafadar v. Gadadhar Mandal 9 Ind. Cas. 377 : 13 C.L.J. 277., which is founded upon the decision of the Judicial Committee in Gnanasambanda Pandara Sannadhi v. Velu Pandaram 23 M. 271 : 4 C.W.N. 329 : 27 I. A. 69 : 10 M.L.J. 29. negatives the contention of the appellant. An endeavour has been made, however, to question the correctness of the view, taken in Sham Chandra Dafadar v. Godadhar Mandal 9 Ind. Cas. 377 : 13 C.L.J. 277., and our attention has been invited to two decisons of the Madras High Court in the cases of Until v. Kunchi Amma 14 M. 26. and Kamakshi Nayakan v. Ramasami Nayakan 7 M.L.J. 131.. These cases are clearly inconsistent with the decision of the Judicial Committee in Gnanasambanda v. Velu Pandaram 23 M. 271 : 4 C.W.N. 329 : 27 L.A. 69 : 10 M.L.J. 29 and the Madras High Court has on this ground declined to follow them : [Sivavadevelu Pillay v. Ponnammal 15 Ind. Cas. 365 : 22 M.L.J. 404 : 11 M.L.T. 198 : (1912) M.W.N. 383. which follows an earlier decision to the same effect in Madugula Latchiah v. Palli Mukkalinga 30 M. 393 : 17 M.L.J. 220 : 2 M. L. 350.]. Our attention has also been invited to the case of Ramautar v. Raghubar Jati 5 A. 490 : A.W.N. (1883) 64. That case, however, is clearly distinguishable, because there it was alleged by the plaintiff that the person who professed to act as his guardian had no authority to do so under the law to which he was subject. Consequently the case was that of, an alienation by an unauthorized, guardian and is consequently similar to the decision of the Judicial Committee in the case of Mata Din v. Ahmad Ali 13 Ind. Cas. 976 : 34 A. 213 : 16 C.W.N. 338 : 11 M.L.T. 145 : (1912) M.W.N. 183 : 9 A.L.J. 215 : 15 C.L.J. 270 : 14 Bom.L.R. 192 : 15 O. C. 49 : 23 M.L.J. 6 : 39 I. A, 49 (P.C). and to the same effect is the decision in Sardar Sah v. Haji 1 Ind. Cas. 545 : 182 P. L.R. 1908 : 28 P. R. 1909 : 170 P. W.R. 1908. We, therefore, adhere to the view taken in the case of Sham Chundra Dafadar v. Gadadhar Mondal 9 Ind. Cas. 377 : 13 C.L.J. 277.

(3.) It has finally been contended that Article 44 has no application to a case where, as here, the alienation has been made by a guardian who has not been appointed as such by the Guardians and Wards Act or by a similar statutory provision. We see no reason to adopt this restricted view of the scope of Article 44 which is not justified by the generality of the language used by the Legislature.