JUDGMENT : Banerji, J.:— This appeal arises out of a suit brought by the appellants, for partition of a third share of two houses which originally belonged in equal shares to three brothers, Turab Ali, Liakat Ali, and Irshad Ali. They sold the houses on 4th November, 1878, to Zahur Ali, Muzaffar Ali and Abdul Rahim, On 13th July, 1887, the aforesaid purchasers reconveyed the houses to Turab Ali, Latafat Ali son of Liakat Ali, and Musammat Inayat Fatima, wife of Irshad Ali, She was described in the sale-deed as the guardian of her son, Mahmud-ul-Hasan, On the 5th of October, 1887, Turab Ali and Latafat Ali, sold their two-thirds share in the houses to the defendants Makhan Lal and Chain Sukh, and Inayat Fatima also sold the remaining one-third share to them. Her son, Mahmud-ul-Hasan, on attaining majority, sold the said third share to the plaintiffs by sale-deed dated the 9th July, 1897, and it is by virtue of this sale that the plaintiffs claim a third share of the two houses. One of the defendants to the suit is Reoti Ram who alleges himself to be the purchaser of the two-thirds share of Turab Ali and Liakat Ali under an auction sale held in 1878,.and it is as such purchaser that he has been made a party to the suit. 2. Both the Courts below have dismissed the suit on the sole ground that Inayat Fatima was the purchaser of a third share on her own behalf, that she was competent to sell that share to the defendants Makhan Lal and Chain Sukh, that Mahmud-ul-Hasan, the plaintiff's vendor, had no right to sell it, and that the plaintiffs had acquired no title under their purchase and were not competent to maintain the suit. 3. Both these Courts have come to the above findings upon a construction of the sale-deed executed in favour of Inayat Fatima and others on the 13th July, 1887. The correctness of this construction is questioned by the appellants in appeal. 4. 3. Both these Courts have come to the above findings upon a construction of the sale-deed executed in favour of Inayat Fatima and others on the 13th July, 1887. The correctness of this construction is questioned by the appellants in appeal. 4. The learned Vakil for the respondents raised a preliminary objection to the hearing of the appeal on the ground that it has been found in a previous stage of this suit (and this is conceded on behalf of the appellants) that the plaintiffs are benamidars for the defendant, Reoti Ram; that Reoti Ram has not appealed; and, that consequently the decree of the Court below has become final and this appeal is not maintainable. In my jugdment there is no force in this objection. It has been held by tin's Court that a benamidar may sue in his own name on behalf of the beneficial owner—Nand Kishore Lal v. Ahmad Ata : [1895] I.L.R., 18 All., 69 and Yad Ram v. Umrao Singh : [1889] I.L.R., 21 All., 380. It necessarily follows that, a benamidan can appeal on behalf on the beneficial owner. Consequently the appeal must, be deemed to have been brought by the beneficial owner through and in the name of the benamidar. If Reoti Ram is the beneficial owner, as he has been found to be, this appeal must be regarded as having been brought by him through the plaintiffs. In his character of defendants to the suit he could not have appealed, as the decree of the Court below was one dismissing the suit and was consequently in his favour. I accord-ingly over-ruled the preliminary objection and heard the appeal. 5. In my judgment the Courts below have misinterpreted the sale-deed of the 13th July, 1887. In that document Inayat Fa-tima is, as I have already stated, described as “the guardian of Mahmud-ul-Hasan, minor.” Was the intention of the vendors to sell the third share to her personally or to her son, who was at the” lime a minor under her guardianship? The vendors were reconveying the property to the very family from which they had purchased it. The intention manifestly was to give it back to the person who would have held it, or at least the great bulk of it, had the sale to the vendors not taken place. The vendors were reconveying the property to the very family from which they had purchased it. The intention manifestly was to give it back to the person who would have held it, or at least the great bulk of it, had the sale to the vendors not taken place. The one-third share in question belonged to Ishad Ali and was sold by him. If he had not sold it, the whole of if, with the exception of the small share of his widow, Inayat Fatima, would have gone to his son, Mahmud-ul-Hasan. The reasonable inference, therefore, is that the property was restored to Mahmud-ul-Hasan. That this was so, is evident from the fact that the person whose name was entered in the sale-deed was ‘described in it as his guardian. There could be no” possible object in so describing her unless she purchased the property in her capacity as guardian of her minor son. Ordinarily, a purchaser is described as the son or daughter or wife (as the case may be) of some person. But unless the sale is made to the guardian of a minor in his or her capacity as such, that is, in reality to the minor himself, the pur-chaser is never described as guardian of the minor. I am unable to agree with the learned Judge that the mention of Inayat Fatima's son and ward in the sale-deed was made as a description of Inayat Fatima. I am clearly of opinion that the sale-deed has been misconstrued and that the property was sold under it to the minor and not to Inayat Fatima personally. She was not, therefore, competent to sell it to the defendants as her own property, as sire professed to do. If she be taken to have sold it as the guardian of Mahmud-ul-Hasan, although she did not purport to do so, since she was appointed guardian by the Court and she did not obtain the permission of the Court to sell the property, the sale was void, or at least voidable at the instance of the minor and could be repudiated by him. However, it is not the defendant's case that she sold it on behalf of her minor son. They assert that she herself was the purchaser, and that her son, the plaintiff's vendor, had no right to the property. However, it is not the defendant's case that she sold it on behalf of her minor son. They assert that she herself was the purchaser, and that her son, the plaintiff's vendor, had no right to the property. Upon a true construction of the sale-deed this contention cannot in my judgment he supported. 6. There were other questions raised in the case, such as that of the liability of the plaintiffs to make restitution to the defendant, which the Courts below have not determined. 7. As the suit was dismissed upon a preliminary point and the decision on that point is erroneous, I allow the appeal, set aside the decree of the Courts below and remand the case to the Court of first instance under the provisions of section 562 of the Code of Civil Procedure for trial on the merits. The appellants will have the costs of this appeal including fees on the higher scale. Other costs will follow the event.