The Judgment of the Court was delivered by

Varadachariar, J.:— This appeal arises out of a suit brought by the appellants' predecessor (the original plaintiff) for recovery of possession of several items of property alienated during his minority by his father acting as his guardian. Most of the properties new claimed belonged to one Asma Begum who, by a deed of settlement, Ex. A, settled them on the original plaintiff and his deceased brother. By the same document the donor settled certain other properties upon another brother of the plaintiff and another set of properties upon Mabub Begum, the plaintiff's mother, The plaint schedule comprises two other small items which were subsequently acquired for the plaintiffs' benefit by his?father under Exs. H and 15. The evidence shows that these minor items were purchased with borrowed money. At the time that Asma Begum executed Ex. A, the properties given to the plaintiff and his deceased brother were subject to a mortgage (evidenced by Ex. B) in favour of two Hindu ladies securing repayment of a sum of Rs. 5000 and interest. Ex. A stated that the gift was made subject to this mortgage. The settlement deed also referred to a sum of Rs. 2500 raised by Mabub Begum by the pledge of her own jewels and made available to the settlor for the purpose of making repairs and improvements to the Victoria Diamond Jubilee Market which formed one of the properties given to the plaintiff. It went on to state that the sum of Rs. 3400 which was due for principal and interest under this head had been excused by Mabub and that accordingly there was nothing due under that head, meaning apparently that it was not necessary for the settlor to make any provision for its discharge.

2. During the years 1903 and 1904, Hyder Sheriff, the plaintiffs' father, sold the suit properties to several persons under Exs. 2, J, K, L and 3. All of them refer to the mortgage debt under Ex. B as necessitating the alienation to enable the vendor to discharge the debt. Ex. 3 also refers to money having been borrowed for acquiring under Exs. H and 15, the two minor items comprised in Ex. 3. Hyder Sheriff died in 1905 and Mabub Begum died in 1910. The plaintiff's brother who was the other donee along with the plaintiff of the properties now in question predeceased Hyder Sheriff. After Hyder Sheriff's death, the plaintiff was represented by certain other persons appointed guardian by the Court. He attained majority in 1920 and filed this suit in July 1923, for recovery of possession of the suit properties alleging that the alienations by his father were all unnecessary and invalid. The learned Judge in the Court below dismissed the suit, holding that the alienations were justified by necessity as otherwise the debts payable by the plaintiff could not have been discharged. Hence this appeal by the supplemental plaintiffs who came on the record as the legal representatives of the original plaintiff. An extreme contention was put forward on behalf of the plaintiff in the Court below that the principal and interest due under Ex. B could have been discharged by careful management, out of the income of the properties of the minor and that none of the sales was therefore necessary. The lower Court has rightly found that there is no reasonable basis for this contention and as that extreme contention was not pressed before us, we do not refer to it in detail. On 20th November 1903, the date of the first sale (Ex. 2), the position was that interest up to the end of 1902 had been paid though the learned Judge doubts the genuineness of the endorsements on Ex. B relating to the interest payments. In any event, the amount of Rs. 5000 undoubtedly remained due on that day and a sale of some of the hypotheca for Rs. 3750 was certainly justified by the necessity of having to pay off the mortgage. It might be mentioned in this connexion that the term fixed in the mortgage for payment had expired by this time and the evidence of D.Ws 6 and 7 examined on commission justifies the view of the lower Court that the mortgagees were pressing for payment. There is accordingly no justification for the attack against Ex. 2.

3. Out of the amount realized by the sale under Ex. 2, it appears from the endorsements on Ex. B that only a sum of Rs. 3520 had been paid towards principal and interest due under that document as late as 22nd November 1903. What Hyder Sheriff did with the balance of the sale proceeds under Ex. 2, it is not possible to say. On 30th November 1903 and 1st December 1903, Hyder Sheriff executed three sale deeds Exs. J, K and L for Rs. 1200, 900 and 1500 respectively. It also appears from these documents that he received some small amounts in advance. Here again from the endorsements on Ex. B we find that only a sum of Rs. 500 was endorsed on 28th November 1903. It has been argued on behalf of the appellants that the amount remaining due under Ex. B about the end of November 1903 or the beginning of December 1903 could have been discharged by the sale proceeds under Ex. L and the balance that remained under Ex. 2 and that in this view the sales under Exs. J and K were unwarranted. We do not think that this line of attack is open to the plaintiff. All the three sales were in favour of three different individuals and had been arranged before the end of November. It is not suggested that they acted together or that any of them had knowledge of the transaction entered into, by the other. Every one of them would in those circumstances have only believed that the sale to himself was necessary to enable Hyder Sheriff to pay off the balance undoubtedly remaining under Ex. B. The fact that Hyder Sheriff did not make the best use of the moneys raised under Exs. J, K and L or of the balance available under Ex. 2 cannot affect the purchasers in the absence of proof that they were parties to any improper scheme or purpose of Hyder Sheriff. We must accordingly confirm the decree of the lower Court even as regards Exs. J, K and L.

4. The position as to Ex. 3 is somewhat different. It is a sale of June 1904 for a sum of Rs. 6500. As stated already, part of the consideration for that sale is stated to be for the discharge of a sum of Rupees 1125 borrowed for purchases under Exs. H and 15. The only other purpose recited in the document is the discharge of the debt (or debts) due on the market, etc., to the mortgagees under Ex. B. An examination of Ex. B and the endorsements thereon on the date of the sale under Ex. 3 would have undoubtedly enabled the alienee to understand that on that date nothing like the amount of the sale price under Ex. 3 was required to discharge the mortgage debt. The alienee examined as D.W 3 admits that he knew of the previous sales by Hyder Sheriff and states that as Hyder Sheriff and Bashacharlu who were bringing about the sale were respectable men, he did not think it necessary or proper to make further enquiries and ascertain what I was the amount that was still due under Ex. B. This is obviously no defence at all. It might be that he acted honestly in the transaction in view of the status of the persons with whom he was dealing, but that is not sufficient to make the transaction binding on the minor.

5. D.W 3 has further stated that the sale under Ex. 3 was intended not only to discharge the debt remaining due under Ex. B and the money borrowed for the purchases under Exs. H and 15 but also to pay off large sums due to the same creditors on a jewel pledge which Mabub Begum had made. It has been suggested on the plaintiffs' side that this is an after-thought, as Ex. 3 itself makes no reference to any such jewel pledge loan. It seems to us that there is some force in this suggestion of the plaintiff. All that the alienee can rely on is the use of the plural in Ex. 3, referring to ‘debts’ due on the market, etc. We do not however pursue this point, because even if Ex. 3 could be read as referring to any such jewel pledge loan, the alienee has still to show that was a loan which the minors' estate was liable to discharge. The factum of the loan has no doubt been spoken to by D.Ws 6 and 7 whose evidence has been accepted by the lower Court but that evidence and the evidence of D.W 3 make it clear that the jewel loan referred to can only be the jewel loan mentioned in Ex. A itself. But Ex. A certainly does not make the gift in favour of the plaintiff and his brother subject to the liability to discharge that loan.

6. On behalf of the alienee, Mr. Venkatachariar has argued that there must have been some contemporaneous agreement between the donor and Hyder Sheriff and Mabub Begum that the latter would pay off the debt raised by Mabub Begum on the pledge of her jewels as they were getting the properties for Mabub Begum and for the boys. There is very little basis in the evidence or in the probabilities in favour of any such agreement. It is true that Mabub Begum having raised the loan on the pledge of her own jewels was liable to discharge the debts but beyond the recital in Ex. A that the settlor was released from liability in that connexion, no reference is made in Ex. A itself as to how or by whom that loan was to be discharged. Even assuming that there was an agreement between the settlor and Mabub Begum and Hyder Sheriff of the kind alleged by Mr. Venkatachariar, it is difficult to see how the minors' estate could be made liable for that debt. A further suggestion is accordingly made that as the money had been borrowed for the improvement of the Diamond Jubilee Market, it must have been expected to be discharged out of the sale thereof or as a charge there, on. We cannot assume what the settlor would have provided if it had been made clear to her that some provision should be made for the discharge of her debt. Mabub Begum herself was a donee under Ex. A and the parties might well have thought that she would herself have discharged the pledge loan.

7. It seems to us doubtful whether any additions can be made by oral evidence to the terms of Ex. A so as to import a condition that the plaintiff and his brother took the gift subject to the liability to discharge the pledge loan. Even if this course was permissible, there is absolutely nothing in the evidence or in the probabilities to warrant an agreement of that kind and much less to make an agreement of that kind, if indeed it was entered into by Mabub and Hyder Sheriff, binding upon the minor. It has been suggested that any other inference would amount to an imputation against Hyder Sheriff that he acted in fraud of the minors' right. We do not think that this necessarily follows, because the parents might well have thought that as all their property would be going to the minors, it was immaterial how they discharged the jewel pledge loan. But even assuming that any such inference is inevitable, we do not see how an inference of the minor's liability can be drawn in the circumstances. We must accordingly hold that there was no justifying necessity for the alienation under Ex. 3. The question then arises as to what relief the plaintiff is entitled. Two matters have got to be dealt with in this connexion: one, that the gift under Ex. A was in favour of the plaintiff and his brother, and the other, that the alienee under Ex. 3 alienated portions of the property purchased by him in favour of defendants 17 and 18 and these latter defendants were not impleaded as parties to this suit till March 1931. The first question is material as bearing on the quantum of share that the plaintiff will be entitled to recover.

8. If the deceased brother of the plaintiff was entitled to a half share in severalty, that half share would, on his death, have admittedly devolved on Hyder Sheriff and Mabub Begum, the parents, and any suit by them, to recover that half share, even assuming that Hyder Sheriff could have impeached his own acts, would have been barred long before the present suit was instituted. It has accordingly been contended on behalf of the plaintiff that the deceased brother of the plaintiff did not take any interest in severalty and that the gift under Ex. A in favour of the plaintiff and his brother created only a joint tenancy with the result that on the brother's death in 1905, the whole property passed to the plaintiff by survivorship. This contention has been accepted by the learned Judge. We are free to say that the matter is not beyond doubt, but, having given the matter our best consideration, we have come to a different conclusion. Mr. Venkatachariar went the length of contending that a gift in the nature of a joint tenancy will be invalid under the Mahomedan law and he relied upon certain passages in text books-bearing upon the validity of a joint gift. They show considerable conflict of opinion amongst the Mahomedan lawyers; but the distinction emphasized in those passages is not between a joint tenancy and a tenancy in common but between a gift of properties, physically divided and a joint gift without such physical division. It may be a question, of some nicety whether this line of argument can be seriously relied on at this time of the day, in view of the observations of the Privy Council in 35 Cal 1,1 and it is not by any means clear how far this line of argument would affect the present case. But we think it unnecessary to pursue it, because we have accepted Mr. Venkatachariar's alternative contention that the gift under Ex. A does not really create a joint tenancy in the sense known to the English law. It cannot be denied that kind of joint tenancy is unknown to the Mahomedan law and the creation of that kind of interest is scarcely likely to have been intended by the donor. There is also great force in the argument urged by Mr. Venkatachariar that it could hardly have been the donor's intention that even if one of the two brothers died after attaining, majority and leaving children, the other brother should take the property by survivorship to the exclusion of the children of the deceased brother.

9. The only basis in the document for the claim of joint tenancy is the use of the word ‘jointly’ in the conveying clause. It is no doubt in a sense a technical term of the English law and there is some force in the argument that as the document appears to have been drawn up on the lines of English precedents and in the English language, the Court should place on that word its ordinary interpretation in the English law. But in the later clauses of the document, there is nothing whatever to suggest that the lady contemplated anything analogous to devolution by survivorship. On the other hand, the use of the term ‘jointly’ in that particular context is capable of another reason, able explanation, namely that in the same document the lady was making gifts in favour of two other individuals there being a separate gift in favour of each individual. As the plaintiff and his brother were minors at the time, represented by their father, the lady apparently thought that it was unnecessary to make a separate gift to each of them. That might well account for the use of the word ‘jointly’. On the principle recognized by the Judicial Committee in 23 Cal 6702 it seems to us reasonable to construe this document consistently with the principles of the Mahomedan law and hold that the plaintiff and his brother took the gift only as tenants-in-common. In this view the plaintiff is entitled only to recover a half share of the properties covered by Exhibit 3.

10. It remains to consider the effect of the omission to implead defendants 17 and 18 till March 1931. According to Section 22 of the Lim. Act, these defendants must be treated as having become parties to the litigation only in March 1931. If Article 44, Lim. Act could be applied even in respect of the claim to recover the properties in their possession, the suit will undoubtedly be barred to that extent. The learned Subordinate Judge has however decided this question in favour of the plaintiff on the ground that as the purchase by them was only in 1922, they had not had adverse possession for 12 years thereafter and that as the suit was instituted in time against defendant 1, it must be held to be in time against these defendants as well. We find it difficult to follow this line of reasoning. Before us, the learned counsel for the appellants put his argument in a somewhat different way. He contended that Article 44, Lim. Act, would be applicable only to the suit against an alienee from the guardian and not to suits against persons who might derive title by an alienation by such alienee. He maintained that so far as the persons of the latter kind are concerned, Article 144 is the only Article applicable. We are unable to accede to this contention. It is too late now to deny that Article 44 contemplates a suit for possession. In 23 Mad 2713 at page 279 the Privy Council observed that if the suit under Article 44 was not brought within the time limited, Section 28 of the Limitation Act would apply and extinguish the plaintiff's rights. This can only be on the footing that the suit contemplated is a suit for possession and not a mere suit for declaration. If it is a suit for possession, it must obviously be instituted against the parties in possession.

11. The position of alienees deriving title pendente lite is of course different, because they will be bound by the result of the suit against the alienee; but where the purchaser from the guardian had alienated the whole or a portion of the property before the suit, the alienee from the purchaser will certainly not be bound by any adjudication which the ward may obtain against the original purchaser. If the ward seeks to dispossess the second alienee, the question of the validity of the alienation must undoubtedly be retried, and the policy of Article 44 is that a question of that kind should be investigated and decided within a period of three years after the attainment of majority by the ward. It seems to us fantastic to hold that even if the original alienee had parted with the whole property in favour of a stranger, the requirements of Article 44 will be satisfied by obtaining a decree against the original alienee in the absence of the later purchaser, and on principle, it can make no difference whether the later alienation is of the whole property or only of a part of the property. Mr. T.M Krishnaswami Ayyar admitted that Article 44 will apply to a suit against an heir or legal representative of the original alienee. We do not see how the position will be different as regards the purchaser from him. It is no doubt true that the purchaser is not for all purposes in the same position as an heir or a legal representative of his vendor, but so far as the property purchased is concerned, he is entitled to all the protection which the vendor was entitled to and in that sense he is his representative though not a legal representative. Mr. Krishnaswami Iyer raised a question by way of analogy as to the applicability of Article 44 to a suit against a trespasser, who had trespassed on the possession of the alienee. He put it to us whether even such a suit was to be brought within the three years period limited by Article 44. Whether the Article will be directly applicable or not, it may be a question whether the trespasser cannot plead that in the absence of a suit under Article 44, the title of the ward had been extinguished by the operation of Section 28 of the Limitation Act. Whatever may be the position of a trespasser, a person claiming title under the original alienee can certainly say that till that alienation is vacated his possession cannot be disturbed.

12. We accordingly hold that as against defendants 17 and 18, the suit would be barred if the alienation in their favour is real and they had taken possession in pursuance thereof prior to the date of the suit. The circumstance relied on by the learned Subordinate Judge that the encumbrance certificate obtained by the plaintiff did not disclose the alienation in their favour seems to us of no consequence. It has not been suggested that this omission was the consequence of any fraud played by these defendants. If it was a mistake, either of the plaintiff in wording his application or of the office in granting the certificate, it is of no avail to the plaintiff. Defendants 17 and 18 are the wife and brother-in-law respectively of defendant 1 and the plaint contains a specific allegation that the alienations in their favour are nominal. The bearing of this question on the plea of limitation does not seem to have been very clearly realized in the Court below. There are no doubt some statements in the evidence bearing upon the nature of the alienations in favour of defendants 17 and 18, but having regard to the interests involved, we do not think it proper to decide this question upon the existing evidence. It will be fair to have a specific issue raised on the point and to give an opportunity to both the parties to lead evidence bearing upon the question whether the sales by defendant 1 in favour of defendants 17 and 18 were nominal transactions and whether these defendants were in possession of the properties covered by the sale deeds in their favour, before the date of the suit.

13. The only other question remaining for consideration is the relief that plaintiff is entitled to as against defendant 1 and as against defendants 17 and 18 if the suit as against the latter should be held to be in time. Some of the properties covered by Ex. 3 have been acquired by the Government under the Land Acquisition Act and the compensation amount has been paid either to defendant 1 or to defendants 17 and 18. The claim of the plaintiff to a share of the amount paid to defendants 17 and 18 will, to some extent, depend on the question of limitation above referred to. As regards defendant 1, there is no plea of limitation; but there is a claim made by him for the value of improvements. The evidence undoubtedly shows that he has made some improvements but in the view that the lower Court took, it was unnecessary to give a definite finding on this point. In respect of the properties in defendant 1's possession, the plaintiff will be entitled to recover a half share subject to the obligation to reimburse defendant 1 to the extent to be presently mentioned. He will also be entitled to a half share of the amount of compensation received by defendant 1 subject to the like obligation. Though we have held that the alienation in favour of defendant 1 was not warranted by law, we see no reason to think that defendant 1 is not entitled to the benefit of Section 51 of the Transfer of Property Act. The circumstances justify the conclusion that he must have bona fide believed that he was absolutely entitled to the property.

14. The lower Court will have to determine how far the property in his possession or the compensation amount received by defendant 1 was enhanced as a result of the improvements effected by him after his purchase and defendant 1 will be entitled to credit therefor. The principle to be applied is indicated by the Privy Council in 40 Cal 5554 at p. 564. After making this deduction, defendant 1 will also be entitled to reimbursement in respect of a proportionate share of the sum of Rs. 1125, which was undoubtedly a binding debt and also a like share in respect of the balance due under Ex. B on the date of Ex. 3 after making allowance for the endorsements made up to 2nd December 1903. The liability in respect of these two sums will have to be distributed on all the properties covered by Ex. 3 and only a corresponding proportion will be deducted in respect of the property in the possession of or the compensation received by defendant 1. If the Court should ultimately hold that the suit is in time even as against defendants 17 and 18, a similar calculation for improvements, if any, made by them, as also a proportionate share for which they can claim credit in respect of the sum of Rs. 1125, and the balance under Ex. B must also be deter, mined. If they are in possession of any of the properties covered by Ex. 3, the plain, tiff will be entitled to recover a half share therefrom just as in the case of the properties, if any, in the possession of defendant 1, but this again will be subject to the same obligation to recoup them in respect of the improvements and in respect of the liability to the two items of debt. On amounts if any, found due to the plaintiff after the above deductions had been made, the plaintiff will be entitled to interest at 6 per cent, per annum from 1st July 1930 to date of payment. In the result the appeal is dismissed so far as it relates to the properties covered fay Exs. 2, J, K and L. Defendants 5 and 6 will be entitled to their costs of the appeal. To the extent necessary to give relief to the plaintiff on the lines above indicated, the decree of dismissal is set aside, so far as at relates to the properties covered by Ex. 3. The case will be remanded to the lower Court for framing an issue on the lines suggested above in respect of the sale in favour of defendants 17 and 18 and for disposal of the other questions above indicated in the light of the foregoing observations. The costs of the appeal, so far as it relates to the properties covered by Ex. 3 will be provided for in the revised decree of the lower Court.

C.R.K/V.B.B

15. Order accordingly.