HIREMATH, J. ( 1 ) THE appellants were the plaintiffs in the trial Court represented by their guardian maternal grand-father B. Mohamed Saheb. It may be stated that the 1 st plaintiff was 11 years of age and the 2nd plaintiff 8 years of age when the suit was filed in the year 1973. The respondents in this appeal were the defendants in the same order in the suit. Ghouse bi the 3rd defendant is their mother. Defendant-4 is the father. The 3rd defendant purchased the suit property on 21 -3-1964 for Rs. 1,000/- for herself and her two minor sons the present appellants. On 9-2-1970 under Ex. D-3 the same defendant-3 mother sold away the same property to the 2nd defendant Meenakshamma for Rs. 2,000/ -. Later under Ex. D- 2 the suit property was sold by defendant-2 to defendant-1 for the same consideration, namely, Rs. 2. 000/ -. Later it appears defendants-3 and 4 changed the character of their possession to one of tenants under defendant-2 after defendant-3 sold the property to her. H. R. C. 14/72, on the file of the Munsiff Court, Bellary, came to be filed by the 1 st defendant against defendants-3 and 4 for decree for eviction and defendants-3 and 4 suffered a decree for eviction. The present suit came to be filed by the minor plaintiffs through their next friend the maternal-grand father that the sales are not binding on their share and even so the decree for eviction in H. R. C. 14/72. It was specifically averred that the 3rd defendant acted all these days possibly at the instance and instigation of the 4th defendant in a manner detrimental to their interests and even the 4th defendant without caring for their interests entered into various documents including lease deed in favour of the 1st defendant. Thus in the suit they prayed for partition and possession of their 2/3rd share in the suit property and for direction that they be put in actual possession of their 2/3rd share. ( 2 ) RESISTING the suit defendants 1 and 2 justified the sales in their favour. The next friend P. Mohammed Saheb had only lent his name for the purpose of the suit to fight an unholy litigation. This is a collusive suit in as much as defendants-3 and 4 have colluded with the present plaintiffs in filing the suit. ( 2 ) RESISTING the suit defendants 1 and 2 justified the sales in their favour. The next friend P. Mohammed Saheb had only lent his name for the purpose of the suit to fight an unholy litigation. This is a collusive suit in as much as defendants-3 and 4 have colluded with the present plaintiffs in filing the suit. They maintained that defendants-3 and 4 paid the price when the property was purchased in the year 1964. Defendant-2 further contended that the 4th defendant got his sons name nominally in the Sale Deed dated 21-3-1964 and in fact the suit property belonged exclusively to the 3rd and the 4th defendants. Rest of the averments are not quite material for the disposal of this appeal. Defendants 3 and 4 did not contest the suit. ( 3 ) THE trial Court addressed itself only to two issues and found that defendants had succeeded in proving that the Sale Deed in favour of the minor plaintiffs dated 21-3-1964 was a nominal one and in fact defendants-3 and 4 were the real owners of the suit house. As far as the frame of the suit is concerned it found in favour of the plaintiffs. The suit thus came to be dismissed holding that the plaintiffs have no interest in the suit property. The first appeal also came to be dismissed, the first appellate Court concurring with the findings of the trial Court. ( 4 ) IN this second appeal the substantial question of law set down for determination is as follows: "whether the Courts below were right in dismissing the suit in the absence of an issue touching the right of the 3rd defendant, as the de facto guardian of the minors, to alienate the share of the property?" ( 5 ) THE plaintiffs had not attained majority even when this appeal came to be instituted in the year 1979. Thus the next friend who had filed the original suit also preferred this appeal on behalf of the minor plaintiffs. It appears the next friend maternal-grand-father of the appellants died during the pendency of this appeal though definite date is not forthcoming. I. A. III came to filed on 31-10-1990 by the appellants stating that they had attained majority and they may be permitted to prosecute the appeal and their next friend discharged. It appears the next friend maternal-grand-father of the appellants died during the pendency of this appeal though definite date is not forthcoming. I. A. III came to filed on 31-10-1990 by the appellants stating that they had attained majority and they may be permitted to prosecute the appeal and their next friend discharged. Again on 28-11-1990 they filed I. A. IV in which one of the appellants stated that their grand-father next friend Mohammed Saheb died in a motor vehicle accident about three years before and hence it has become necessary to discharge him and permit them to prosecute the appeal. In support of I. A. III the 1 st appellant had filed affidavit whereas in support of I. A. IV it is the 2nd appellant. The 1 st appellant had averred that their next friend has become very old and incapable of attending to the case, but the affidavit of the 2nd appellant in support of I. A. IV belies what the 1st defendant swore namely even on 31 -10-1990 he was alive but too old. However it is not now in challenge that the appellants have attained majority during the pendency of this appeal and have now come forward by filing the two applications under Order 32 Rule 12 CPC to permit them to prosecute the appeal themselves. ( 6 ) IN the year 1983 the 1 st appellant who had attained majority and the 2nd appellant by his next friend filed O. S. 181/83 against the present four respondents and also their maternal-grand-father P. Mohammed saheb for identical relief against defendants-1 to 4 and also impeaching the conduct of the 5th defendant in prosecuting the present suit. As far as the 5th defendant is concerned they alleged that during the trial of o. S. 324/75 the subject matter of the present appeal defendant-5 never entered the witness box, never gave evidence and thus the suit was dismissed and even R. A. 92/75. The 5th defendant did not adduce any evidence in the lower Court as he colluded with defendants-3 and 4 and even the present appeal may suffer a defeat and in that case their interests would be in jeopardy. Therefore the suit is also intended to set aside all the sales and other legal actions of the defendants. The 5th defendant did not adduce any evidence in the lower Court as he colluded with defendants-3 and 4 and even the present appeal may suffer a defeat and in that case their interests would be in jeopardy. Therefore the suit is also intended to set aside all the sales and other legal actions of the defendants. In addition to praying for awarding their 2/3rd share in the property they also made prayer that the decree in O. S. 324/75 is not binding on them. A plaint copy though not a certified copy has been filed on behalf of the respondents along with their counter affidavit which perhaps Is common to both these interlocutory applications. The main objection is that the appeal itself is liable to be dismissed as the appellants have abandoned the appeal in view of the fact that they have filed O. S. 181/83 on the file of the Civil Judge, Bellary, for the same relief. Under Order 32 Rule 12 cpc plaintiffs had to elect to proceed with the proceedings or abandon the same. By their conduct both of them have elected to abandon the appeal. Therefore they cannot now pray for discharge of their guardian ad litem. ( 7 ) IT was directed earlier that these applications shall be heard along with the main appeal and this is how arguments were advanced on these applications. Order 32 Rule 12 CPC reads as follows:"course to be followed by minor plaintiff or applicant on attaining majority - (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application. (2) Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name. (3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:- 'a. B. , late a minor, by C. D. , his next friend, but now having attained majority. (3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:- 'a. B. , late a minor, by C. D. , his next friend, but now having attained majority. ' (4) Where he elects to abandon the suit or application, he shall if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend. (5) Any application under this Rule may be made ex parte: but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend. "the contention of the respondents' Counsel has been that because of the admitted filing of O. S. 181/1983 the appellants must be deemed to have abandoned this appeal and therefore it requires to be dismissed. It is also stated at the Bar that presently O. S. 181/83 has been stayed by the trial Court under Section 10 C. P. C. It could be seen that under sub-rule (4) of Rule 12 if a plaintiff elects to abandon a suit or application he shall apply for an order to dismiss the suit or application on repayment of costs incurred by the defendant or opposite party or which may have been paid by his next friend. In the instant case the appellants have not come forward by filing an application to the Court for an order to dismiss the suit. There should be a positive prayer on the part of the minor plaintiff who has attained majority that the suit be dismissed as he does not elect to continue or in other words elects to abandon it. The same application will also state that on his repayment of costs incurred by the defendant or by the next friend the suit may be dismissed. Therefore when sub-rule (4) specifically makes it mandatory on the plaintiff attaining majority to make an application to the Court there is no scope to infer such abandonment by any conduct of like nature, namely, by filing another suit for relief staled therein which may also be identical. Therefore when sub-rule (4) specifically makes it mandatory on the plaintiff attaining majority to make an application to the Court there is no scope to infer such abandonment by any conduct of like nature, namely, by filing another suit for relief staled therein which may also be identical. In this behalf the appellants' counsel seeks to draw analogy from a Decision of the Kerala High court in the case of CHUMMAR vs ROSSA in which inter alia it was observed that a minor who comes of age before the final disposal of the suit is not prepluded from instituting a suit to have the decree set aside on the ground of gross negligence on the part of the guardian in the defence of the suit. Whatever the position may be in the case of a minor who comes of age during the pendency of the suit in the trial court that a minor who attains majority after the decree is passed by the trial Court and while the matter is pending in appeal is not precluded from instituting a suit for setting aside the decree on the ground of gross negligence on the part of the guardian in the defence of the suit. He may be able to prove negligence on the part of the guardian only in a fresh suit. The Court may have to hold an enquiry into the question and evidence may have to be adduced by the plaintiff to show that there was negligence on the part of the guardian in the defence of the suit. The minor who comes of age during the pendency of the appeal may not be able to satisfy the Appellate Court that there was negligence on the part of the guardian in the defence of the suit. One of the remedies open to a minor who has been adversely affected by the negligence of the guardian in the defence of a suit is a separate suit for setting aside the decree in the case. Reliance was placed on the case of SHAM LAL vs THARSITA and other cases. ( 8 ) IN the instant case it is urged for the appellants that the appellants have instituted the suit impleading their next friend as the 5th defendant and as pointed out earlier negligence has been alleged against him in prosecuting the suit. Reliance was placed on the case of SHAM LAL vs THARSITA and other cases. ( 8 ) IN the instant case it is urged for the appellants that the appellants have instituted the suit impleading their next friend as the 5th defendant and as pointed out earlier negligence has been alleged against him in prosecuting the suit. Therefore even though the alienations made by the 3rd defendant are also subject matter of the suit the suit now pending in O. S. 181 /83 cannot be considered as the suit with the same reliefs in all respects. Therefore it is contended for the appellants that when the minor plaintiffs on attaining majority even during pendency of the appeal could challenge the decree passed against them on the ground that their guardian was negligent or careless in defending the suit it follows that the negligence or carelessness on the part of the defending next friend herein will have to be gone into by taking evidence in the suit now pending. There is sufficient force, in my view, in the submission made on behalf of the appellants. In the first instance to sum up it may be said that there is no application by the plaintiffs-appellants that their suit be dismissed on account of they abandoning the appeal and secondly the suit now pending though has a prayer for partitioning their 2/3rd share is also against the next-friend alleging negligence on his part in conducting the suit. It is not possible to make an inference that by filing a suit the appellants have abandoned this appeal. Whatever findings that may be rendered in the present appeal may have certain consequences on the later suit filed and now pending in the trial Court but it cannot be said that inferentially the present appeal has been abandoned. In that view of the matter I. A. IV has to be allowed and the same is allowed discharging the next friend of the minor plaintiffs and allowing the application the appellants are permitted to prosecute the appeal. The cause title of the appeal memo shall be amended by the appellants in the manner required under sub-rule (3) of Rule 12 CPC. ( 9 ) AS directed in the first part of the Judgment amendment in the cause title has been duly effected. The cause title of the appeal memo shall be amended by the appellants in the manner required under sub-rule (3) of Rule 12 CPC. ( 9 ) AS directed in the first part of the Judgment amendment in the cause title has been duly effected. The thrust of the contesting respondents has been that the very purchase by defendants-3 on her behalf and on behalf of the appellants was on consideration of money being paid by defendant-4 the father of the appellants. In essence the appellants' mother was a name lender, defendant-4 being the real owner. Though the competence of defendant No. 3 as de facto guardian to alienate the suit property was in question as a principal issue the courts below having found that defendant-3 and the appellants are not the true owners but only name lenders appear to have not adverted to this point at all. Presently in view of the corning into force of the Benami transactions (Prohibition) Act, 1988 ('the Act' for short) under Section 4 (2) of the Act such a defence is not open to the purchasers at all. Section 4 (2) reads thus:"no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. "sub-section (1) however relates to enforcement of such a claim by filing a suit. The appellants' Counsel has rightly contended that when no such defence is available to the purchasers defendants-1 and 2 the Court has to consider that the persons whose name appear in the sale deed are themselves the real owners and the point would be whether the de facto guardian defendant-3 was competent to sell the share of the appellants. The respondents' Counsel however has nothing much to argue on the question of the benami plea raised by the respondents. In my view the appellants' contention has to prevail and the contesting respondents can no longer contend that the property was purchased by defendant-4 benami in the name of his wife and the two appellants. It therefore follows that defendant-3 and the appellants were having equal joint interest in the suit property. In my view the appellants' contention has to prevail and the contesting respondents can no longer contend that the property was purchased by defendant-4 benami in the name of his wife and the two appellants. It therefore follows that defendant-3 and the appellants were having equal joint interest in the suit property. ( 10 ) IF that be so Section 364 of the Mahomedan Law is attracted and it reads thus:"a de facto guardian (Section 361) has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is not merely voidable, but void. "section 361 defines the meaning of "de facto guardian". It states that a person who has voluntarily placed himself incharge of the person and property of a minor becomes a de facto guardian. He is merely a custodian of a person and property of the minor. Such a guardian is distinguished from legal guardians who are enumerated under section 359. They are in order of priority - the father; the executor appointed by the father's will; the father's father;' and the executor appointed by the will of the father's father. It thus follows that even a natural mother under the Mahomedan Law has to place in the list of legal guardians and becomes only a de facto guardian. Admittedly the sale deed in favour of the 2nd defendant was executed by her and it becomes void as far as the interest of the minors is concerned. Arguments were advanced on behalf of the respondents that because the father - defendant No. 4 also put his signature and was present at the time the sale deed was executed it must be deemed to have been transferred by the legal guardian, namely, the father. It is not possible to accede to such an interpretation for the reason that by no stretch of imagination a mere signatory as only a witness can be considered as an executor. At the most it may be said that even the father being present connived at such a transaction. All such acts of the father under no circumstances can validate the transaction entered into by defendant-3 if it is otherwise invalid. At the most it may be said that even the father being present connived at such a transaction. All such acts of the father under no circumstances can validate the transaction entered into by defendant-3 if it is otherwise invalid. In my view therefore the mere , presence of the father at the time of execution of the sale deed and he signing the sale deed as an attestor does not validate the sale as far as the interest of the minors is concerned. For the reasons aforesaid the Courts below were not justified in dismissing the suit and they further committed an error in not considering the effect of Section 364 of the Mahomedan Law. Consequently the appeal has to be allowed and it is allowed setting aside the Judgments and Decrees of the Courts below and declaring that the plaintiffs- appellants are entitled to separate possession of 2/3rd share in the suit property after partition. A preliminary decree shall be drawn accordingly. The appellants shall get their costs throughout. --- *** --- .