JUDGMENT
1. This appeal is brought on behalf of the plaintiff Kamta Prasad Singh, from a judgment of the Additional Subordinate Judge of Gaya, dated 11-9-1947.
2. The plaintiff claimed that his predecessor-in-interest had purchased an area of 18.37 acres of ‘bakasht’ land in village Bahadurpur by several registered sale deeds dating from the year 1914.
3. It is the plaintiff’s case that he was born on 13-10-1920. During his minority, his mother was appointed as a guardian of his person and property by an order of the District Judge under the Guardians and Wards Act. The plaintiff stated that he attained majority on 14-10-1941. The plaintiff brought the suit on the ground that defendant No. 1, the sixteen annas ‘Mukarraridar’, had dispossessed him from the land in dispute through defendants 2 to 10 who are the settlees of defendant No. 1.
4. All the defendants except defendants Nos. 2 and 8 contested the suit mainly on the ground that the plaintiff had no tenancy right, and that the land in dispute was ‘bakasht’, and defendant No. 1 could validly make settlement of the same in favour of defendants 2 to 10.
5. The learned Munsif, who heard the suit in the first instance, found in the first place, that the plaintiff had acquired a valid title by virtue of the registered sale deeds dating from the year 1914, and, secondly, that the plaintiff attained majority on 14-10-1941, and that the suit was not barred by the law of limitation. The learned Munsif, accordingly granted a decree in favour of the plaintiff.
6. An appeal was taken to the Subordinate Judge of Gaya who reversed the decision of the Munsif, and held that the suit brought by the plaintiff should be dismissed. The Subordinate Judge found that the plaintiff attained majority in 1936, and not in 1941, and that the plaintiff was actually born in the year 1915. As regards the sale deeds the Subordinate Judge was of opinion that the plaintiff had acquired title by virtue cf the sale deeds, but there was a disclaimer of title by the plaintiff’s mother during his minority. In Rent Suit No. 506 of 1932 instituted by the landlord, the plaintiff’s mother appeared as a natural guardian on behalf of the plaintiff and filed a written statement disclaiming his interest in the holding. The Subordinate Judge held that the disclaimer cf the plaintiff’s mother constituted in law, an abandonment or surrender of the holding in favour of defendant No. 1. The Subordinate Judge further held that Article 44, Limitation Act, governed the case, since the suit was brought, on 12-2-1944, beyond three years from the date prescribed by that Article. The Subordinate Judge held that the suit was time-barred. Two other issues were also raised, namely, whether the suit was barred by ‘res judicata’ and whether the special period of limitation prescribed under the Bihar Tenancy Act applied to the case. All these issues, the Subordinate Judge found in favour of the plaintiff.
7. Two submissions were made by Mr. Lalnarayan Sinha in support of this appeal. He said, in the first place, that the Subordinate Judge was erroneous in holding that the disclaimer of the plaintiff’s mother was a valid disclaimer which could effectively distinguish the title of the plaintiff. Counsel did not, for the purpose of this argument, dispute the point that the disclaimer by the plaintiff’s mother was tantamount to an act of surrender or abandonment of the holding in favour of defendant No. 1, but the contention on behalf of the appellant is that the disclaimer of the guardian was not for the benefit or advantage of the minor plaintiff, and was not legally binding upon him. In this connection, learned Counsel drew our attention to a passage in the judgment of the lower appellate Court printed at page 38 of the paper book. The argument of learned Counsel was that the finding of the Subordinate Judge that the disclaimer was of advantage to the minor was a finding supported by no evidence whatsoever. The only reason given by the Subordinate Judge for holding that the disclaimer was beneficial to the minor is that
“the plaintiff has not filed anything to show that he or anybody on his behalf paid rent for the lands in suit to defendant No. 1 subsequent to the death of his father.”
Mr. Harihar Nath Sinha, who presented the case of the respondents, submitted that the fact that no rent was paid would suggest that it was not profitable to cultivate the land. It is, however, impossible to accept this submission, since non-payment of rent may be due to various reasons, and not necessarily to the fact that the land was not profitable to cultivate. The Subordinate Judge has further stated that
“there is no evidence on the record to prove that the mother of the plaintiff was an imprudent lady and was not properly managing the affairs of the minor.”
The reason given by the Subordinate Judge is hardly convincing and there is nothing to show that the transaction was beneficial to the minor. The Subordinate Judge further proceeds to state :
“It may be that the mother of the plaintiff might have thought it unprofitable to retain possession of the lands in suit and pay heavy rent to the landlord, and as such she disclaimed all connection with them.”
The Subordinate Judge has not cited any evidence to support this finding which appears to be purely speculative. On behalf of the respondents, Mr. Harihar Nath Sinha has also not been able to show that there is any evidence on the record to support this finding. The argument of Mr. Lalnarayan Sinha on this point roust, therefore, be accepted and it must be held that the disclaimer of the plaintiff’s mother in the written statement filed in the rent suit was not for the benefit or advantage of the plaintiff, and. in consequence, not binding upon him. It follows, that the title of the plaintiff over the lands in suit is not affected by the disclaimer of the plaintiff’s mother in the rent suit, and the learned Munsif was right in holding that the title of the plaintiff was proved, and he ought to be granted a decree declaring his title to the land in dispute.
8. The second submission of Mr. Lalnarayan Sinha is that the lower appellate
Court was wrong in applying Article 44 of the Limitation Act. The argument on behalf of the appellant is that this Article applies only to a case of actual transfer of property by the guardian of a minor, and not to a case of constructive transfer. Article 44 states that “Limitation is three years for bringing a suit by a ward, who has attained majority, to set aside a transfer of property by his guardian.”
The ‘terminus a quo’ for the period of three years starts from the time when the ward attains majority. In our opinion the argument en behalf of the appellant on this point is correct, and Article 44 of the Limitation Act is not applicable to the present case. This opinion is supported by a decision of the Judicial Committee in — ‘Ghulam Mohammad v. Ghulam Hussain’, AIR 1932 PC 81 at p. 87 (A) in which the question arose whether a document of March, 1910, which effected a family settlement, should be read as having effected a transfer of the panchmi property by the mother acting on behalf of the appellant to the first respondent, and, therefore, whether the suit was barred under Article 44 of the Limitation Act.
The trial Judge took the view that the Article had no application, on the ground that there was no transfer by a deed, but the High Court took the opposite view. The Judicial Committee confirmed the view of the trial Judge, holding that Article 44 had no application to the case. We, therefore, think that the present case is governed not by Article 44 but by Article 144 of the Limitation Act, and, since the plaintiff has brought the suit within twelve years from the date of the disclaimer, it is manifest that the suit is not barred by limitation.
9. For these reasons, we hold that the suit
brought by the plaintiff should be decreed,
that the decree of the lower appellate Court
should be reversed, and that this appeal
should be allowed with costs throughout.