Narayan, J.:— This is a plaintiffs' appeal arising out of a suit for setting aside a decree and the sale held in execution of that decree and also for confirmation or recovery of possession over the land which had been sold in execution of the decree. The decree in question was passed on 31-1-1928 in Kent suit no. 2378 of 1927, and the sale in execution of the decree was held on 10-7-1928. The decree holders themselves purchased the property at the execution sale. The suit out of which this appeal arises was instituted on 9-7-1940 by the two appellants and by two other persons who did not prefer any appeal against the decision of the Court of first instance. The plaintiffs' allegation was that the processes had all been suppressed and that the plaintiffs were not able to know of the fraud perpetrated by the decree-holders until 1-7-1939, Some of the defendants resisted the plaintiffs' claim, firstly, on the ground that there was no suppression of processes and no fraud with regard to the proceedings, and, secondly on the ground that the plaintiffs' claim was barred by limitation.

2. The Court of first instance negatived the case of fraud set up by the plaintiffs and held that the suit was barred by limitation. There was an appeal preferred against the decision of that Court by there two appellants, but the appeal was dismissed by the First Additional Subordinate Judge of Chapra. Aggrieved by the decision of the learned Subordinate Judge the original plaintiffs 1 and 2, who were the appellants before the learned Subordinate Judge, have preferred this second appeal.

3. The findings of the Courts below that there was no fraud with regard to the proceedings are binding on us in second appeal, and Mr. Rahman for the appellants had nothing to say before us so far as these findings are concerned. But he strenuously pressed the contention that there was no valid decree against the original plaintiffs 3 and 4, whose interest has now been acquired by plaintiffs 1 and 2, and that the interest of plaintiffs 3 and 4 cannot be deemed to have passed to the decree-holdere-auction purchasers by the auction sale. Mr. Rahman has further argued that the lower appellate Court is wrong in holding that the claim of plaintiffs 1 and 2 in so fir as it represents the interest originally possessed by plaintiffs 3 and 4 is barred by limitation. In my opinion, the contention of Mr. Rahman is well-founded.

4. It is common ground that plaintiffs 3 and 4 were minors even at the time when the rent suit was instituted, and that the rent suit was prosecuted against them treating them as majors.

5. These two plaintiffs were minors even up till the time the sale was held, but they were all along treated as majors, and hence the decree as against them and the sale so far as their interest is concerned cannot be regarded as valid in law. But the learned Subordinate Judge was of the opinion that as the “right, title and interest of plaintiffs 3 and 4 came to be the subject-matter of the suit” on 30-6-1943 and as possession to the decree-holders-auction purchasers was delivered in the year 1930, the claim of the plaintiffs 1 and 2 as purchasers of the interest of plaintiffs 3 and 4 would also be deemed to be barred by limitation. It appears that on 30-6-1943 the plaintiffs 1 and 2 had filed a petition before the trial Court praying that their names should be substituted in place of plaintiffs 3 and 4, as they had purchased the interest of these plaintiffs on 22-1-1941 in a court sale held in Exn. case No. 6 of 1940, and this prayer of plaintiffs 1 and 2 was allowed by the learned Munsif. Plaintiffs 3 and 4 had attained majority before the date of the institution of the suit, that is, before 9-7-1940, but they were described as minors in the plaint of this suit; and, as pointed out above it was on 30-6-1943 that plaintiffs 1 and 2 came to be substituted in their place and their names were struck off. The learned Subordinate Judge was of the opinion that because they were described as minors in the plaint though they were, in fact, majors when the suit was instituted, and that as it was on 30-6-1913 that plaintiffs 1 and 2 were substituted in their place, the interest possessed by them cannot be deemed to have been represented in this suit before 30-6-1943. If the learned Subordinate Judge is right in his view that the interest of these plaintiffs 3 and 4 cannot be deemed to have been represented in this suit before 30.6.1943, then certainly the claim of the plaintiffs, even in so far as it represents the interest of plaintiffs 3 and 4, must be held to be barred by limitation. But if the plaintiffs 3 and 4 would be deemed to have been parties to this suit even on the day this plaint was filed, then their interest must be deemed to have been represented in the suit ever since the filing of the plaint, and because the decree passed in the rent suit and the sale held in execution thereof are not binding on them, plaintiffs 1 and 2 would be entitled to a decree in this suit with regard to the interest which they have purchased from plaintiffs 3 and 4. It was held by the Calcutta High Court in Taqui Jan v. Obaidulla, 21 Cal. 866, that when a suit is instituted by a person alleging himself to be a minor and the suit is brought through a next friend and when it is found that the plaintiff was not actually a minor at the date of the institution of the suit, the Court should not dismiss the suit and that in such a case the proper course for the defendant is to pray that the plaint be taken off the file or be amended. Their Lordships further observed that if the plaint is not amended, the next friend's name should be treated as mere surplusage and the suit should be allowed to proceed. According to the view taken by their Lordships in this case, it cannot be held that because plaintiffs 3 and 4 instituted the suit as minors though they were majors at the time of the institution of the suit, there would be deemed to be no suit on their behalf. The High Court of Madras held in Shanmuga Chetty v. Narayana Ayyar, 40 Mad. 743 : (A.I.R (5) 1918 Mad. 916) that the law had been laid down correctly in Taqui Jan v. Obaidulla (21 Cal. 866). The case of Taqui Jan was also referred to with approval by the Allahadad High Court in Wali Muhammad Khan v. Ishaq Ali Khan, 54 All. 57 : A.I.R (18) 1931 All. 507 S.B) which was a decision by the Full Bench of that Court. In this Allahabad case the decision of the Madras High Court in Shanmuga Chetty v. C.K Narayana Ayyar, (40 Mad. 743 : A.I.R (5) 1918 Mad. 916) was also referred to with approval. Their Lordships of the Allahabad High Court further referred to a decision of the Judicial Committee reported in Mohini Mohun Das v. Bungsi Buddan Saha Das, 17 Cal. 680 (P.C) and I would respectfully adopt the interpretation which has been placed by their Lordships on this Privy Council decision. The Privy Council decision has been referred to in the following terms in this Full Bench case:

“We may also refer to the case of Mohini Mohun Das v. Bungsi Buddan Saha, 17 Cal. 580 (P.C), derided by their Lordships of the Privy Council. There three suits had been filed by one of three joint creditors, the others being named as co-plaintiffs with him in the plaints, which he alone had signed and verified. The record did not show that the other plaintiffs, who had omitted to sign the plaints or to verify them, had repudiated the suits. It does not appear from the judgment that they had given any express approval of the suits to the Court before the period of limitation had expired. The question was whether the other two plaintiffs must be considered to have been plaintiffs to the suits from the very beginning or from the date when certain orders intended to cure the defect were passed. Their Lordships of the Privy Council dearly held that the other plaintiffs became parties to the suits from the time when the plaints were filed and that the suits were not barred by lapse of time. This, in our opinion, is a dear authority for the proposition that the absence of signatures or verification or, for the matter of that, the absence of presentation on the part of some of the plaintiffs out of several, does not affect the jurisdiction of the Court, and the suit must be deemed to have been duly instituted on their behalf if it was filed with their knowledge and authority.”

I find myself in respectful agreement with their Lordship's view that the Privy Council case is a clear authority for the proposition that the absence of presentation on the part of some of the plaintiffs does not affect the jurisdiction of the Court and suit must be deemed to have been instituted on their behalf as well if it was filed with their knowledge and authority. Their Lordships of the Judicial Committee have said that there is no rule providing that a person named as a co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint. A Division Bench of this Court held in Mt. Sheorani Kuari v. Kamakshya Narayan Singh, 21 P.L.T 269 dissenting from the view taken by Jwala Prasad J., in Sekal Singh v. Chanderdip Lal, A.I.R (6) 1919 Pat. 10 : (49 I.C 627) that a decree obtained against a person treating him as a minor while in reality he is a major on its date is not a nullity, and their Lordships, Agarwala J., (as he then was), and Rowland, J. relied on a case of the Madras High Court decided by a Division Bench of that Court and reported in Seshagiri Rao v. T. Jagannadham, 39 Mad. 1031 : (A.I.R (4) 1917 Mad 318). This Madras case also lays down that a decree obtained against a person treating him as a minor while in reality be is a major on the date the decree was passed is not to be regarded as a nullity. The principle applicable being the same, a suit instituted by a plaintiff describing himself as a minor, though he was a major on the date of the institution of the suit cannot be regarded as a suit to which he was not a party. The several authorities referred, to above including the Privy Council case of Mohini Mohun Das v. Bungsi Buddan Saha Das, (17 Cal. 680 P.C) lead us to hold in disagreement with the view taken by the learned Subordinate Judge that this suit which was instituted on 9-7-1940 would be deemed to be a suit instituted on behalf of plaintiffs 3 and 4 as well whose interest was acquired by the plaintiffs 1 and 2 at the court sale held on 22-1-1941. The learned Subordinate Judge was also of the view that because plaintiffs 3 and 4, though they were majors at the time when the sale in Exn. Case no. 6 of 1940 was held were described as minors, plaintiffs 1 and 2 cannot be deemed to have acquired their interest, inasmuch as they would be deemed to be no parties to the execution case. The case of K. Seshagiri Rao, 39 Mad. 1031 : (A.I.R (4) 1917 Mad. 818) is a clear authority in support of the proposition that a sale held in execution of such a decree cannot be regarded as a nullity. If this suit can be deemed to be a suit instituted by plaintiffs 3 and 4 as well, then plaintiffs 1 and 2 as purchasers of the interest of plaintiffs 3 and 4, plaintiffs 3 and 4 not questioning their title as purchasers of their interest, would be entitled to a declaration that the sale held in execution of the decree passed in Bent Suit No. 2378 of 1947 does not affect the interest which was possessed by plaintiffs 3 and 4 and which has now been acquired by them. As already pointed out, the Court had allowed the prayer for the substitution of plaintiffs 1 and 2 in place of plaintiffs 3 and 4. The interest of plaintiffs 3 and 4 had been acquired by plaintiffs 1 and 2 during the pendency of the suit, and it is, therefor, that they applied for sub-stitution.

6. In the result I hold that plaintiffs 1 and 2 are entitled to a declaration, that the decree and the sale do not bind the interest of plaintiffs 3 and 4, which has now been acquired by plaintiffs 1 and 2 and that the claim of plaintiffs 1 and 2 in so far as it represents the interest originally possessed by plaintiffs 3 and 4 is not barred by limitation.

7. The appeal is allowed in part and the suit is decreed so far as the interest originally possessed by plaintiffs 3 and 4 is concerned, and it is declared that the sale has not affected that interest which has now been acquired by plaintiffs 1 and 2. The parties will bear their own costs throughout.

8. Sinha, J.:— I agree.

G.M.J

9. Appeal allowed.