JUDGMENT
1. We are of opinion that Article 44 of the Limitation Act 1877 cannot properly be applied to this case.
2. No doubt in the sale-deed the plaintiff’s brother is described as the guardian of the minor as well as his senior brother, but the family was admittedly an undivided one, and it is a well-established principle of law that in an undivided family no guardian can be appointed for a minor co-parcener who has no separate property [see Gharibullah v. Khalak Singh 25 A. 407 : 30 I.A. 165 : 5 Bom. L.R. 478 : 7 C.W.N. 681 : 8 Bar. P.C.J. 483 (P.C.) and Bindaji v. Mathurabai 30 B. 152 : 7 Bom. L.R. 809]
3. The case reported as Sivavadevelu Pillay v. Ponnammal 15 Ind. Cas. 365; 22 M.L.J. 404; 11 M.L.T. 198; (1912) M.W.N. 383 was one in which the minor’s guardian was his mother and no question of co-parcenary property was raised. The transaction evidenced by the sale-deed, Exhibit I, was essentially one of sale by the managing member of a joint Hindu family. Article 44 may apply to cases in which a person acts as a guardian of a minor in respect of property in which he has individual rights of ownership.
4. The view that we take coincides with the view taken in a similar case, Radhu Bam v. Mohan Singh 29 Ind. Cas. 199 : 84 P.L.R. 1915 : 96 P.W.R. 1915, and we adopt the reasoning of the learned Judges who decided that case. Under Article 144 of the Limitation Act we think that the plaintiff had 12 years’ time to sue for possession. We, therefore, allow the appeal and remand the case to the lower Appellate Court for decision according to law of the other issues arising in the case. Costs in this Court and in the lower Appellate Court will abide and follow the result.
