BHAGWAN DASS Vs. KASHI PRASAD

JUDGEMENT

(1.) This is an appeal by the defendant in a suit brought by the plaintiff-respondent for recovery of possession of certain property alleged to belong to him. The defence was that the plaintiff's suit was barred by limitation, as the defendant was an auction-purchaser in execution of a decree passed on foot of a mortgage made by the plaintiff's natural guardian, and as the suit had not been brought within three years after the plaintiff attained majority. Art. 44, Limitation Act, was relied on. The lower appeal Court held that that article did not apply in the circumstances of this case. The property in dispute was purchased by the plaintiff's father, on whose death the plaintiff inherited it. During the latter's minority one Panna Lai and the plaintiff's mother executed a deed of simple mortgage in favour of one Ram Charan. The deed, on the face of it, affords no indication whatever that the property belonged to the plaintiff and that his mother acted as his guardian in that transaction. On the contrary the recitals clearly show that the executants of the deed had contracted certain loams in lieu of which the mortgage-deed in question was executed. Subsequently the mortgagee instituted a suit on foot of the aforesaid mortgage and obtained a decree for sale. It is noteworthy that the plaintiff was not impleaded in that suit, and the property was treated as the property of those who had executed the mortgage-deed then in suit. A decree was passed against the plaintiff's mother and her co-mortgagor and their interests in the property should be deemed to have been sold and purchased by the appellant.

(2.) In my opinion, Art. 44 cannot apply to a case of this description. Where a minor's property is sold by his guardian who professed to act as such or who can be shown to have acted in that capacity, the minor may be bound to have the deed set aside within three years after attaining majority; but where the property has been alienated by the guardian as if it were his own and the mortgagee treats it as the property of the alleged guardian personally and has it sold as such Article 44 cannot apply. It cannot be said to be a case of a transfer of minor's property by his guardian. Where a guardian transfers property in circumstances which did not justify the transfer, such transfer is only voidable. Where however the transfer is void ab initio, Art. 44 does not apply. Where a minor's property is sold by another person, even though he be his guardian claiming it to be his own, the minor's interest is not affected by such transfer, which is void.

(3.) The decree appealed from is correct. The appeal is dismissed under Order 41 Rule 11, Civil P.C.