Dua, J. - (1.) THE plaintiffs who are also the appellants in this Court instituted a suit for possession of agricultural land measuring 6 bighas and 11 biswas pukhta. situated in village Beri, Tehsil Jhajjar. According to their averments the land in dispute had been sold ostensibly on their behalf during their minority by their fathers as natural guardians in favour of Dalip defendant No. 1, with the object of defeating a suit for pre -emption that had been brought by one Ram Nath on the ground that he was proprietor of the land in the village. The plaintiffs had purchased the land sold from one Siri Krishan for a consideration of Rs. 5,896/ - as per registered sale deed dated 13th July, 1953. On a suit for pre -emption having been brought by Ram Nath, defendants Nos. 2 and 3 (Mughal alias Mughali and Ganga Ram), father of the plaintiffs, as their natural guardians, sold the land in question in favour of defendant No. 1. The defendant vendee, according to the plaintiffs' case, promised to retransfer this land in their favour after the dismissal of the pre -emption suit, but the vendee failed to do so. The sale made by their guardians during their minority was alleged to be collusive, fictitious, without consideration, illegal and also not for their benefit.
(2.) DEFENDANT Dalip resisted the suit inter alia on the ground that the plaintiffs had no cause of action and a suit for possession of land in dispute was not maintainable. The allegations were also denied on merits. The only issue which concerns this Court at the present stage relates to the maintainability of the suit in the present form, both the Courts below having held it not to be maintainable. The point which weighed with the Courts below is that the plaintiffs have not prayed for setting aside the impugned sale. The sale which purported to be on their behalf through their guardians ought, in the view of the Courts below, to be got set aside by the plaintiffs before they can claim possession because they must be considered to be parties to. the sale. Several decisions were relied upon in support of this view including a decision of the Lahore High Court in Labha Mal v. Malak Ram, I.L.R. 6 Lah 447, in which Sir Shadi Lal C.J. who prepared the judgment on behalf of the Letters Patent Bench made the following observations : There can be no doubt that a suit by a quondam minor to set aside an alienation of his property by his guardian is governed by article 44, and that, if he cannot establish his right to possession without first setting aside the alienation, the suit for possession is also governed by that article. Indeed, it has been expressly ruled by the Bombay High Court that, if the equity of redemption is sold by the minor's guardian to the mortgagee, the minor, on attaining majority, cannot claim redemption without first setting aside the sale within the period prescribed by article 44, vide Fakirappa Limanna Patil v. Lumanna Bin Mahadu Dhamnekar, I.L.R. 44 Bom. 742.
(3.) ON second appeal before me on behalf of the appellants Shri G.C. Mittal has contended, to begin with, that it was open to his clients to ignore the sale altogether and to sue for possession treating the sale to be a nullity. In support of this contention he has placed reliance on the following decisions: Bijoy Gopal Mukerji v. Krishna Mahishi Debi, I.L.R. 34 Cal 329 (P.C.), a case dealing with a lease granted by a Hindu widow for a term extending beyond her own life; Petherpermal Chetty v. Muniandy Servai, I.L.R. 35 Cal. 551 (P.C.), a case dealing with peculiar facts on which the deed in question having been held to be inoperative it was observed that the plaintiff need not have brought a suit for setting aside the said deed as a preliminary to his obtaining the possession of the property; Anandappa v. Totappa 33 I.C. 441, a Bench decision of the Bombay High Court in which the plaintiff had sued for a declaration that a certain deed of exchange was not binding upon him and for recovery of possession of his share in certain lands and it was held unnecessary for the plaintiff to have the documents set aside before he could recover possession and also that his suit for possession was governed by the twelve years' rule. There, the deed of exchange purported to be between the plaintiff, a minor interested in his own right as the adopted son of a Vatandar acting through his natural father, of the one part and the natural grandfather of the plaintiff of the other part. The two issues raised in the litigation related to : (i) whether the exchange effected was in the interests or for the benefit of the plaintiff and (ii) whether the suit to recover possession of his one -fourth share was barred by time. The trial Court had opined that the instrument being voidable at the option of the plaintiff it was necessary for him to set it aside before he could recover possession, the relief by cancellation being unnecessary only in case of a document ab initio void. The learned District judge on appeal reversed this decision considering the case to be covered by the ratio of the decision in Bijoy Gopal Mukerji's case 3. Whether or not the decision in the reported case lays down the correct rule of law does not concern me. On the facts, however, the decision was perhaps correct Unni etc. v. Kunchi Amma etc., I.L.R. 14 Mad. 26. This too appears to me to be out of point for the facts there are not similar to those before me. Arumilli v. Arumilli etc. : A.I.R. 1928 Mad. 816. In this case the earlier decision in the case of Unni 6 was followed; it may, however, be pointed out that this was a case in which the question of court -fee was involved and from the plaint the words for "setting aside" the transaction were allowed to be expunged. Obviously, this is no precedent to be followed in the case in hand. P. Kamaraju v. C. Gunnayya etc. : A.I.R. 1924 Mad. 322. In this case a minor's property was sold by his mother as guardian and on attaining majority he ignored the sale and conveyed the property to the plaintiff who sued for possession. The plaintiff's suit for recovery of possession without praying for setting aside the original sale was held to be competent. This case is again distinguishable. Mummareddi Naggi Reddi etc. v. Pitti Durairaja etc. : A.I.R 1952 S.C. 109. This again is a case dealing with alienation by a Hindu widow and can hardly be of much assistance to the appellants on the point canvassed. In reply the appellants' learned counsel cited two more decisions though he was not entitled to refer to any new decisions not cited in his opening address. I, however, permitted him in the interests of justice to refer to them and also gave an opportunity to the respondents to meet them. Hirday Narain etc. v. Babu Ram etc., A.I.R. 1941 Oud 172, is a case of a document having been executed by Pardanashin lady, but even otherwise it does not deal with the question which directly concerns me in the case in hand. Sham Chandra v. Godadhar Mandal 9 I.C 377, a decision of the Calcutta High Court, is the second decision cited in reply. This decision merely lays down that in order to determine whether a plaintiff is entitled to recover possession of the property covered by a 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 plaintiff to seek the cancellation of the instrument. If the transaction is merely voidable and is operative, so long as it is not avoided, the plaintiff cannot recover possession till he has avoided the instrument. The view taken in this decision is unexceptionable and indeed in our Court also this view has been approved : Pran Nath v. Bal Krishan etc., (1959) 61 P.L.R. 394, I am, however, unable: to appreciate how the observations relied upon help the appellants' contention. According to this view the plaintiffs, in my opinion, have to assail the alienation in question and seek its cancellation.;