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2014 DIGILAW 671 (CAL)

Banamali Das v. Salma Khatun

2014-07-24

MRINAL KANTI CHAUDHURI, TAPAN KUMAR DUTT

body2014
JUDGMENT TAPAN KUMAR DUTT, J. : This Court has heard the learned Advocates for the respective parties and has considered the materials on record. The facts of the case, very briefly, are as follows: The plaintiff/respondent filed a suit against the defendant No.1/ predecessor-in-interest of the present appellants and the other respondent Nos.2 to 10 and the proforma defendant No.11/respondent. The plaintiff, in the said suit, prayed for a decree for declaration that the right, title and interest of the plaintiff and the proforma defendant in the suit property has not been affected by the deed in question of the year 1954 and also a decree for partition declaring 50% share of the plaintiff and the said proforma defendant in the suit property. The schedule A of the suit property is land measuring 22 decimals in a certain plot of land and 8 decimals in another plot of land. Schedule B of the suit property happens to be land measuring 15 decimals in a certain plot of land. The said suit was numbered as title suit No. 178 of 1997 and was placed before the learned Civil Judge(Senior Division), 2nd Court, Howrah. The case of the plaintiff/respondent was that the said schedule A property belonged to Mobarak Ali Mallick and the said Mobarak Ali Mallick died leaving behind his two sons, that is, Abdulla Mallick and Saifuddin Mallick; the said Abdulla Mallick died leaving behind one son Guljar Ali Mallick who is the proforma defendant No.11 in the suit and one daughter Salma Khatun who is the plaintiff in the suit. Plaintiff’s case is that the plaintiff and the proforma defendant No.11 were minors at the time of death of their father Abdulla. Saifuddin Mallick died leaving behind the principal defendant Nos. 2 to 10 as his legal heirs and as such the plaintiff, the proforma defendant No.11 and the defendant Nos. 2 to 10 are co-sharers in the A schedule property. According to the plaintiff, the plaintiff and the proforma defendant No.11 have 50% share in the A schedule property and the defendant Nos. 2 to 10 have remaining 50% share in the suit property and they are in joint possession of the said A schedule property. The plaintiff’s case is that the defendant Nos. 2 to 10 have allowed the defendant No.1 to possess the suit property in spite of plaintiff’s objection and the said defendant Nos. 2 to 10 have remaining 50% share in the suit property and they are in joint possession of the said A schedule property. The plaintiff’s case is that the defendant Nos. 2 to 10 have allowed the defendant No.1 to possess the suit property in spite of plaintiff’s objection and the said defendant Nos. 2 to 10 have disclosed that their predecessor has already sold the said property to the defendant No.1. The plaintiff obtained the certified copy of the deed of sale for the year 1954 on 02.05.1997 and came to know that the said Saifuddin Mallick had fraudulently executed a deed relating to the suit property described in schedule B to the plaint in favour of the defendant No.1 and that the plaintiff was not aware of the said deed prior to 02.05.1997. The plaintiff alleged that the said deed of sale is a void deed because Saifuddin did not obtain any permission either from the learned District Judge or from any competent authority regarding the sale of minor’s property and that the plaintiff and the proforma defendant No.11 are still in possession of the suit property and the said deed of the year 1954 has not been acted upon. The further case of the plaintiff is that the defendant No.1 is a stranger/purchaser and the said defendant No.1 in collusion with defendant Nos. 2 to 10 threatened the plaintiff with dispossession from the suit property and they are interfering with the plaintiff’s peaceful possession and enjoyment of the suit property. The further case of the plaintiff is that the defendant No.1 may be entitled to 50% share in respect of the B schedule property and the remaining 50% share devolves upon the plaintiff and the proforma defendant No.11. The plaintiff has further stated in the plaint that, alternatively, the plaintiffs including the said proforma defendant are co-owners with the defendant No.1 in the suit premises and the plaintiff claims partition relating to the suit property against the defendant No.1 in respect of the B schedule property. The plaintiff has alleged that the defendant No.1 refused to make partition of the suit property as described in schedule B of the plaint. The plaintiff has also alleged that the defendant Nos. The plaintiff has alleged that the defendant No.1 refused to make partition of the suit property as described in schedule B of the plaint. The plaintiff has also alleged that the defendant Nos. 2 to 10 also refused to make partition of the suit property and the said defendants have been attempting to make construction on the undivided property by changing the nature and character of the same and hence the said suit was filed by the plaintiff. The said defendant No.1 contested the said suit by filing written statement denying the material allegations made in the plaint. The case of the said defendant No.1 is that he has purchased 15 decimals of land in two suit Dags out of total 30 decimals from Saifuddin Mallick and the plaintiff or the proforma defendant No.11 have no right, title, interest and possession in any part of the suit Dag Nos. 859 and 861 and the sale made by Saifuddin Mallick as guardian of the plaintiff and the proforma defendant No.11 was absolutely for legal necessity and for the benefit of the plaintiff and the proforma defendant No.11 who were minors at the material point of time and as such the aforesaid transfer made in favour of the defendant No.1 has been absolutely legal, valid and has been duly recorded in the finally published settlement records of right and the defendant No.1 has been paying taxes to the Panchayet and the State Government for the said purchased land. The further case of the defendant No.1 is that he has constructed a pucca two storied building on such purchased land and has been residing therein and he has also inducted premises tenant in the said building and has been collecting monthly rent from such tenants. According to the defendant No.1, the suit should be dismissed. The said suit came up for hearing when evidence was adduced on behalf of the respective parties and the learned Trial Court by judgment and decree dated 30th March, 2002 decreed the said suit in part to the effect that the title of the plaintiff along with the proforma defendant No.11 in the suit property to the extent of their joint 7/16th share in respect of 4 annas share, that is, 15 sataks of land of Mobarak Ali Mallick in the suit plots hereby declared. The learned Trial Court also declared that the plaintiff’s and the proforma defendant No. 11’s right, title and interest in respect of the aforesaid share in the suit plots have not been affected in any way by virtue of the sale deed dated 16.08.1954 executed by Saifuddin Mallick and Amina Khatun in favour of Banamali Das(Defendant No.1). The learned Trial Court also granted a decree to the effect that the plaintiff and the proforma defendant No.11 do get separate possession thereof on partition by metes and bounds. Parties were given a certain time to effect partition amicably failing which any of the parties will have the liberty to apply to the Court for partition by metes and bounds by appointment of a Partition Commissioner. It appears from a perusal of the judgment passed by the learned Trial Court that the issues with regard to the maintainability of the suit and as to whether or not the suit is bad for non-joinder of the parties such issues were not pressed at the time of hearing and the learned Trial Court found that the issues have to be answered in favour of the plaintiff. The learned Trial Court found that the plaintiff has examined herself as P.W.1 and the proforma defendant No.11 has examined himself as P.W.2. It further appears that the son of the defendant No.1 has examined himself as D.W.1. The learned Trial Court found that admittedly the said Mubarak Ali Mallick was the original owner of the suit property and on his demise his widow Amina Khatun and the said two sons Abdulla and Saifuddin got the property by way of inheritance and that the said Amina Khatun got 2 annas share and the two sons got 7 annas share each in the suit property. The learned Trial Court further found that the registered sale deed dated 16.08.1954 was executed by Saifuddin Mallick, Amina Khatun and by Saifuddin on behalf of the minors Salma Bibi and Guljar Ali Mallick in favour of the defendant No.1. The learned Trial Court found that the said Saifuddin Mallick and Amina Khatun have sold away their respective shares in the suit plots to the defendant No.1 and the said Saifuddin Mallick also sold away the share of the plaintiff and the proforma defendant No.11 who were minors at that point of time as guardians of the said minors. The learned Trial Court found that the said Saifuddin Mallick and Amina Khatun have sold away their respective shares in the suit plots to the defendant No.1 and the said Saifuddin Mallick also sold away the share of the plaintiff and the proforma defendant No.11 who were minors at that point of time as guardians of the said minors. The said learned Trial Court came to the finding that the said Saifuddin Mallick was neither a legal guardian nor he was appointed by any Court as guardian of the minor and proforma defendant No.11 and as such the said Saifuddin may be treated as a de-facto guardian of the said minor heirs of Abdulla. The learned Trial Court came to the conclusion that it is a settled principle of law that a de-facto guardian of a minor Mohammedan has no power to sell or transfer the immovable property of the minor. The learned Trial Court also found that there is no averment in the said sale deed that the said Saifuddin was appointed as a guardian for the minor plaintiff and the proforma defendant No.11 by any competent authority or by any competent Court of law nor he took any permission from any such competent authority and/or competent Court of law to sell the minor’s share in the property. The learned Trial Court came to the conclusion that the said Saifuddin Mallick had no authority to sell the share of the minor plaintiff and the proforma defendant No.11 but the said Saifuddin and Amina had every right to transfer and/or sell their own shares in the suit property to the defendant No.1. The learned Trial Court found that the defendant No.1 cannot claim exclusive right, title, interest and possession over the entire 15 sataks of land of his previous predecessor Mobarak Ali Mallick in the suit plots by virtue of the said sale deed but he can claim only 9/16 share in the said land. The learned Trial Court found that the right, title and interest of plaintiff and the proforma defendant No.11 in respect of their 7/16th share in the suit plots have not been affected in any way by the said sale deed. The learned Trial Court found that the right, title and interest of plaintiff and the proforma defendant No.11 in respect of their 7/16th share in the suit plots have not been affected in any way by the said sale deed. The learned Trial Court also found that the plaintiff, defendant No.1 and the proforma defendant No.11 are in joint possession and in respect of the said 15 sataks of land which once belonged to the said Mubarak Ali Mallick in both the suit plots and the defendant No.1 has acquired his right, title, interest and possession in 9/16 share in respect of the said 15 sataks of land in both the suit plots. The learned Trial Court found that since the plaintiff, the proforma defendant No.11 and the defendant No.1 have become the co-sharers and as they are in joint possession of the said 15 sataks of land in both the suit plots and since the said property has not yet been partitioned the plaintiff is entitled to get the decree as passed by the learned Trial Court. Challenging the said judgment and decree passed by the learned Trial Court the defendant No.1 has preferred the instant appeal being F.A.T. 1509/2002. The learned Advocate for the appellants submitted that the plaintiff/respondent did not file the suit during the life-time of Saifuddin but after a long time since the plaintiff attained majority the said suit was filed only in the year 1997. The said learned Advocate further submitted that records would show that the said defendant No.1 is residing in the suit property. According to the said learned Advocate, the learned Trial Court erred in not framing any issue with regard to the question as to whether or not the suit is barred by the law of limitation even though the defendant No.1 has stated in his written statement that the plaintiff’s claims has become barred by the law of limitation. The said learned Advocate submitted that the learned Trial Court committed a mistake is not discussing in its judgment the point with regard to limitation as it was the duty of the learned Trial Court to consider such point of limitation. The said learned Advocate submitted that the learned Trial Court committed a mistake is not discussing in its judgment the point with regard to limitation as it was the duty of the learned Trial Court to consider such point of limitation. The said learned Advocate submitted that the records would show that the plaintiff had become a major sometime in the year 1964 but the suit was filed in 1997 and, therefore, the suit is clearly barred by the law of limitation. The said learned Advocate also submitted that the plaintiff is estopped by her conduct from making her claim as she has made in the said suit as the said defendant No.1 after purchasing the said property mutated his name, paid khajna, and Panchayet tax, raised constructions on the said property and let out some portion of the building to tenants and have been realizing rent from such tenants but the plaintiff did not ever object to the same. The said learned Advocate referred to Section 115 of the Indian Evidence Act in support of his submissions in this regard. Section 115 of the Indian Evidence Act, 1872 is quoted below: “Paragrph 115. Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” The said learned Advocate further submitted that the total land is 30 decimals as would appear in the plaint out of which the defendant No.1 purchased 15 decimals and there are other co-sharers in respect of 15 decimals who have not been made parties to the suit. According to the said learned Advocate, prayer for partition has been made in the suit but the suit is bad for non-joinder of necessary parties and such suit is not maintainable. The learned Advocate for the appellants has referred to Section 3 of the Limitation Act in support of his contention that even if the limitation is not set up as a defence in a suit it is the duty of the Court to dismiss such suit if the suit is barred by the law of limitation. The learned Advocate for the appellants has referred to Section 3 of the Limitation Act in support of his contention that even if the limitation is not set up as a defence in a suit it is the duty of the Court to dismiss such suit if the suit is barred by the law of limitation. The said learned Advocate referred to Article 60 of the Limitation Act in support of his contention that for the purpose of setting aside a transfer of property made by the guardian of a ward at the instance of the ward who has attained majority the suit should be filed within three years from the date when such ward attained majority. According to the said learned Advocate, the suit filed by the plaintiff/respondent thus is clearly time barred and Transfer of Property Act will prevail over the personal Mohammedan Law. While making his submission by referring to Section 3 of the Limitation Act the learned Advocate for the appellant cited a decision reported at AIR 1964 SC 1336 (Manindra Land & Building Corporation Ltd.-v- Bhutnath Banerjee & Ors.) The said learned Advocate cited a decision reported at 2008(5) SCC 444 (Lachhman Singh (Deceased) through Legal representatives & Ors. –v- Hazara Singh(Deceased) Through Legal representatives & Ors.) and referred to Paragraph 13 of the said reports wherein the Hon’ble Court has been pleased to observe that Section 3 of the Limitation Act puts an embargo on the Court to entertain a suit if it is found to be barred by limitation. The said learned Advocate cited a decision reported at 2008(14) SCC 445 (Noharlal Verma –V- District Cooperative Central Bank Limited, Jagdalpur) in support of his contention that if a Court finds that the suit is barred by a law of limitation such suit cannot be entertained by the said Court and the Court has independent duty to look into the aspect of limitation even though limitation has not been set up as a defence. The said learned Advocate referred to Paragraphs 32 and 33 of the said reports in this regard. The said learned Advocate cited a decision reported at 1999(9) SCC 446 (Madhukar Vishwanath –V- Madhao And Others) in support of his contention that the provision of Article 60 of the Limitation Act applies to the suit under consideration. The said learned Advocate referred to Paragraphs 32 and 33 of the said reports in this regard. The said learned Advocate cited a decision reported at 1999(9) SCC 446 (Madhukar Vishwanath –V- Madhao And Others) in support of his contention that the provision of Article 60 of the Limitation Act applies to the suit under consideration. It appears that in Paragraph 5 of the said reports the Hon’ble Supreme Court was pleased to observe that the said Article 60 relates to a suit to set aside a transfer of property made by the guardian of a ward who attained majority and the period prescribed is three years commencing on the date on which the ward attains majority. The learned Advocate for the appellants cited a decision reported at AIR 2001 SC 2607 (Vishwambhar and others –VLaxminarayana( Dead) through L.Rs. and another) and referred to paragraph 9 of the said reports in support of his contention that in view of Article 60 of the Limitation Act the suit was filed much beyond the limitation-period of three years. But it appears from paragraph 9 of the said reports that the prayer made in the suit concerned included the prayer for setting aside certain sale-deeds which is not so in the instant case. The said learned Advocate cited a decision reported at AIR 2010 SC 211 (Abdul Rahim & Ors. –V- Sk. Abdul Zabar & Ors) and referred to para 19 of the said reports wherein the Hon’ble Court has been pleased to observe, inter alia, that a suit for cancellation of transaction whether on the ground of being void or voidable would be governed by Article 59 of the Limitation Act and such suit should be filed within three years from the date of knowledge of the fact that the transaction which according to the plaintiff was void or voidable had taken place, otherwise, it becomes time-barred. In the instant case, however, the plaintiff has pleaded that her date of knowledge is 02.05.1997 and the suit was filed in the year 1997, and, moreover, there is no prayer in the plaint for setting aside any sale deed. The said learned Advocate also cited a decision reported at AIR 2012 Gujarat 71 (Sunderlal Bhanabhai Bhagat & Ors. In the instant case, however, the plaintiff has pleaded that her date of knowledge is 02.05.1997 and the suit was filed in the year 1997, and, moreover, there is no prayer in the plaint for setting aside any sale deed. The said learned Advocate also cited a decision reported at AIR 2012 Gujarat 71 (Sunderlal Bhanabhai Bhagat & Ors. –V- State of Gujarat & Ors) and AIR 2001 Gujarat 118 (Jadav Prabhatbhai Jethabhai and others –V- Parmar Karsanbhai Dhulabhai & Ors.) in support of his contention that the suit was filed much beyond the period of limitation. The said learned Advocate cited a decision reported at (2008) 2 WBLR(Cal) 689( Hamida Begum Alias Alo Bibi –V- Umran Bibi & Ors.). In paragraph 20 of the said reports the Hon’ble Court has observed that if a suit has to be brought under Section 31 of the Specific Relief Act for avoiding a transaction then in that event it has to be brought within three years (Article 59 of Limitation Act) from the time when the facts entitling the plaintiff to cancel or set aside the instrument first became known to him. The learned Advocate appearing on behalf of the appellant submitted that transfer made on behalf of a minor is not ipso facto void but only voidable and such right to have declared from a competent court that such transaction should be declared void and has to be exercised within three years of attainment of majority by the minor. The said learned Advocate cited a decision reported at AIR 1965 Cal 444 ( Rabi Narayan Upadhyaya –V- Kanak Prova Debi) in support of his contention that as to how far a father as the natural guardian of a Hindu minor son has power to sell the minor’s estate for the benefit of the estate. It appears that the said case was not a case related to the Mohammedan Law. The said learned Advocate cited another decision reported at 2004(8) SCC 785 (Nangali Amma Bhavani Amma –V- Gopalkrishnan Nair and others). It appears that the said case was not a case related to the Mohammedan Law. The said learned Advocate cited another decision reported at 2004(8) SCC 785 (Nangali Amma Bhavani Amma –V- Gopalkrishnan Nair and others). It appears from the said reports that the issue which arose for determination in the said case was whether a sale entered into by the natural guardian of a minor without obtaining the prior permission of the Court under Section 8(2) of the Hindu Minority and Guardianship Act, 1956 was void or voidable and if it is voidable at the instance of the minor, what is the period of limitation within which the minor must file a suit impugning the sale? The Hon’ble Court, in Paragraph 8 of the said reports, was pleased to hold that such transaction is only voidable at the instance of the minor and the suit must be filed by a minor in order to avoid the transaction within the period prescribed under Article 60 of the Limitation Act. The said learned Advocate cited another decision reported at AIR 2001 Gujarat 118 in support of his contention that alienation by a natural guardian of a minor is only voidable and it is valid unless and until it is set aside. It appears that the said reports did not involve the Mohammedan Law on the subject. But it appears that the Hindu Law on this aspect of the matter was discussed in the said reports. The said learned Advocate cited another decision reported at AIR 1974 Cal 248 (Sk. It appears that the said reports did not involve the Mohammedan Law on the subject. But it appears that the Hindu Law on this aspect of the matter was discussed in the said reports. The said learned Advocate cited another decision reported at AIR 1974 Cal 248 (Sk. Nasirul Haque –V- Minor Johora Khatun Bibi) wherein Section 362 of the Mohammedan Law came up for consideration and a learned Single Judge of this Court pleased to hold that where minor is seized of properties and if they yield no income it would not only be proper but essential and necessary that all or some of the properties of the minor should be sold out for his maintenance and viewed in this light there must be evidence to prove that the usufructs of the minor’s properties are sufficient for his maintenance and if it is not so and no evidence is adduced to prove that the usufructs of his properties are sufficient for his maintenance it will not be possible to contend that merely because the minor has other properties, the sale of the property by his legal guardian is void even if such sale was necessary for his maintenance. According to the said learned Advocate, in the instant case the said Saifuddin had to sell the plaintiff’s share in the property because of legal necessity. The said learned Advocate cited a decision reported at AIR 1971 Madras 44 (Mohamed Naziruddin –v- Govindarajulu Appah and others). It appears that the said reports did not deal with the power of a de-facto guardian of a minor to dispose of the minor’s properties under the Mohammedan Law. It will appear from the facts and circumstances of the instant case that the said Saifuddin was a defacto guardian of the plaintiff when the plaintiff was a minor. The learned Advocate for the appellant submitted that the transfer made by the said Saifuddin on behalf of the plaintiff was valid and legal and the said Saifuddin acted as a natural guardian as indicated in the sale deed in question. The said learned Advocate further submitted that after the father of the plaintiff died the plaintiff’s mother abandoned the family and the said Saifuddin was compelled to sell the plaintiff’s share in the said property for the plaintiff’s maintenance. According to the said learned Advocate, the said sale was valid and legal. The said learned Advocate further submitted that after the father of the plaintiff died the plaintiff’s mother abandoned the family and the said Saifuddin was compelled to sell the plaintiff’s share in the said property for the plaintiff’s maintenance. According to the said learned Advocate, the said sale was valid and legal. The said learned Advocate cited a decision reported at AIR 1936 Calcutta 326 (Yeajuddin Pramanik & Anr. –V- Rup Manjuri Dasi & Ors.). It appears from the said reports that it relied upon the principle that in the case of a sale by a guardian of Mohammedan minor there must be an absolute necessity for the sale or it must be for the benefit of the minor but the question that was involved in the said case is whether there was necessity for the mortgage and whether such mortgage was for the benefit of the minors. It appears that the said case did not deal with the power of a de-facto guardian of a minor to dispose of the minor’s share in a property under the Mohammedan Law. The said learned Advocate cited a decision reported at 2011(1)ICC 639 ( Ramjas Foundation and Another –V- Union of India and Others) in support of his contention that a person who does not come to Court with clean hands is not entitled to be heard on the merits of his grievance. The said learned Advocate submitted that the plaintiff stated in her evidence that the tenants in the suit property were inducted by her father but the deed in question will show that only lands were transferred. The said learned Advocate cited a decision reported at 2009(8) SCC 46 ( State of Kerala & Anr. The said learned Advocate submitted that the plaintiff stated in her evidence that the tenants in the suit property were inducted by her father but the deed in question will show that only lands were transferred. The said learned Advocate cited a decision reported at 2009(8) SCC 46 ( State of Kerala & Anr. –V- Peoples Union for Civil Liberties, Kerala State Unit & Ors.) and referred to Paragraph 79 of the said reports wherein it has been observed, inter alia, by the Hon’ble Court that if a person is in possession of a land which he had obtained by reason of a valid transaction as it then was, which was subsequently sought to be invalidated, he would ordinarily receive protection by reason of doctrine of prescription provided for under the Limitation Act, by reason whereof if he has been in possession thereof for a period of more than 12 years, he would have acquired an indefeasible right thereto despite the fact that the transaction has been invalidated by later Act. The said learned Advocate submitted that the defendant No.1/appellant has been in possession of the suit property since 1954 doing all over acts and, therefore, the appellant’s right should be protected under the Limitation Act. It has to be noted here, that the question that is, germane in the instant case whether the transaction of sale in so far as the plaintiff’s share is concerned when the plaintiff was a minor, was a valid one or not and whether the said Saifuddin had any legal authority to sell the plaintiff’s share during the plaintiff’s minority and whether or not such transaction is void. The said learned Advocate cited a decision reported at AIR 1960 Supreme Court 1368 (Radhakishan Laxminarayan Toshniwal –VShridhar Ramchandra Aeshi & Ors.) in support of his contention that transfer of property, where the Transfer of Property Act, applies has to be under the provisions of the Transfer of Property Act only and the Mohammedan Law of transfer of property cannot override the statute law. But it appears that the question as to whether or not a de-facto guardian of a Mohammedan minor can sell the property of a Mohammedan minor without fulfilling the necessary conditions or not was not an issue in the said reports and, therefore, the question of deciding such issue in the said reports did not arise. But it appears that the question as to whether or not a de-facto guardian of a Mohammedan minor can sell the property of a Mohammedan minor without fulfilling the necessary conditions or not was not an issue in the said reports and, therefore, the question of deciding such issue in the said reports did not arise. Thus, the said reports cannot be of any assistance to the appellant. The said learned Advocate cited a decision reported at 2004(13) SCC 385 (Mohammadbhai Kasambhai Sheikh & Ors. –V- Abdulla Kasambhai Sheikh). It appears that the only issue in the said reports related to the period of limitation with regard to the claim of the respondent to his share in the family property. It appears that the said reports does not have relevance in the facts and circumstances of the instant case. The said learned Advocate cited a decision reported at 2004(1)SCC 317 (Khetrabasi Biswal –V- Ajaya Kumar Baral & Ors.) in support of his contention that in the absence of a necessary party the order passed is a nullity and does not have a binding effect. The said learned Advocate cited another decision reported at AIR 1994 AP 87 (Nalla Venkateshwarlu –V- Porise Pullamma and another) in support of his contention that if a necessary party is not impleaded in a suit or an appeal, it will have to be dismissed on that ground. However in the instant case it does not appear from the record that any necessary party has been left out. The said learned Advocate for the appellant also referred to the provisions of Section 90 of the Indian Evidence Act, 1872 and submitted that since the said sale deed of the year 1954 is more than 30 years old the provisions of Section 90 would apply. It is difficult to appreciate as to how the provisions of the said Section can be of any assistance to the appellant considering the question involved in the present appeal. The said learned Advocate cited a decision reported at AIR 1983 Gujarat156 (Ali Amad –V- Sindhi Ebrahim Kasam & Ors.) in support of his contention that in a partition suit all the co-sharers of the property concerned should be impleaded as parties as otherwise the suit becomes liable to be dismissed. The said learned Advocate cited a decision reported at AIR 1983 Gujarat156 (Ali Amad –V- Sindhi Ebrahim Kasam & Ors.) in support of his contention that in a partition suit all the co-sharers of the property concerned should be impleaded as parties as otherwise the suit becomes liable to be dismissed. While making such submissions, the said learned Advocate referred to the evidence of DW.1 who is the son of the defendant No.1. The said DW.1 deposed that one Anowar Sardar and Saiful Mohajon have become the owners of the remaining 8 annas share of the suit plots by way of purchase( Page 73 of the paper book). It may be noted that the said DW.1 also deposed thereafter that he has not seen any papers of Anowar Sardar and Saiful regarding their purchase of the suit plots and he has no personal knowledge as to how the said Anowar and Saiful became the owners of half share of both the suit plots, he also stated in his evidence that he has no knowledge as to whether Anowar and Saiful have become owners of half share of the suit plots. It may also be recorded that the said witness also stated in his evidence that he has no papers to show that the defendant No.1 has constructed two storied pucca building and a shop room on the suit plot after his purchase. Thus, the question of not impleading other co-sharers in the suit property does not arise. The learned Advocate for the appellant submitted that the plaintiff is estopped by her conduct from making her claim as made in the suit. The said learned Advocate referred to Section 115 of the Evidence Act and submitted that after the appellant had purchased the property in dispute, he mutated his name, paid Khajna and Panchayet taxes, raised constructions and let out some portion of the building to tenants and realizing rent from such tenants but the plaintiff never objected to such acts of the said defendant No.1 at any point of time and now the plaintiff is estopped from challenging the deed in question. The said learned Advocate submitted that the defendant Nos. 2 to 10 have originally refused to make partition because such defendants knew that their predecessor had transferred the share in the suit property. The said learned Advocate submitted that the defendant Nos. 2 to 10 have originally refused to make partition because such defendants knew that their predecessor had transferred the share in the suit property. The said learned Advocate cited a decision reported at AIR 1995 Supreme Court 1205 (Mahboob Sahab –V- Syed Ismail and others) wherefrom it appears that the Hon’ble Court was pleased to hold that when there is a sale of land by a Muslim father and the son had attested such sale and no objection was raised by the son that the sale was against his interest, the son was estopped from challenging such sale subsequently. The said learned Advocate referred to Paragraph 7 of the said reports in this regard. It appears that the said reports is not of any relevance in the facts and circumstances of the instant case as the question involved in the instant case is quite a different one, as already indicated above. The said learned Advocate cited a decision reported at AIR 1965 Supreme Court 1812 (R.S. Maddanappa(deceased) after him by his legal representatives –V- Chandramma and another) and referred to Paragraph 6 of the said reports. The Hon’ble Court held in the facts and circumstances of the said case that the conduct of the first defendant in the suit concerned did not justify the inference of estoppel but it does not mean that the said defendant impliedly admitted she has any interest in the properties. It cannot be said that the said reports has any relevance to the facts and circumstances of the instant case and it also appears that the said reports can be of no assistance to the appellant in the instant case. The said learned Advocate cited another decision reported at AIR 1954 Supreme Court 82 (Sunderabai w/o Devrao Deshpande and another –V- Devaji Shankar Deshpande) and referred to Paragraph 14 of the said reports wherein the Hon’ble Court was pleased to observe that estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Evidence Act which is the rule of estoppel by conduct as distinguished from an estoppel by record which constitutes the bar of res judicata. There cannot be any dispute with regard to such legal principle. There cannot be any dispute with regard to such legal principle. The learned Advocate on behalf of the plaintiff/respondent submitted by referring to the evidence of D.W.1, that is, the son of the defendant No.1, that the defendant No.1 has no objection to make partition of the suit property keeping 15 sataks purchased land to himself. The said learned Advocate referred to the plaint where it has been stated that the plaintiff, the defendant Nos. 2 to 10 and proforma defendant are in possession of the A schedule property and the plaintiff is already possessing the property in question as a co-sharer. He has further referred to the plaint where the plaintiff has contended that the plaintiff came to know of the purported deed of the year 1954 on 02.05.1997 and the plaintiff was not aware of the said deed prior to 02.05.1997. He also referred to the plaint where the plaintiff has stated that the defendant No.1 in collusion with the defendant Nos. 2 to 10 have been threatening the plaintiff with dispossession from the suit property. The said learned Advocate also referred to the prayer made in the plaint and submitted that there is no prayer in the plaint for setting aside the sale deed dated 16.08.1954 and, therefore, Article 60 of the Limitation Act is not applicable in the instant case. The said learned Advocate submitted that in so far as the transfer of the said Saiffudin and Amina Khatun’s shares are concerned the plaintiff has not challenged the same and, therefore, the entire deed could not be challenged by the plaintiff. The said learned Advocate submitted that the right to sue accrued to the plaintiff when the plaintiff came to know about the said deed of the year 1954, that is, on 02.05.1997 and the cause of action of the suit arose when the possession of the plaintiff was attempted to be disturbed by the defendants and there was a refusal of the partition on the part of the defendants. It will appear from the evidence of the DW.1 that the DW.1 could not prove, that his father had made any constructions on the suit plot after his purchase. It will appear from the evidence of the DW.1 that the DW.1 could not prove, that his father had made any constructions on the suit plot after his purchase. The said learned Advocate submitted that the main question in this present case is as to whether or not the said Saifudin being a defacto guardian of the plaintiff and the proforma defendant No.11 who were minors at the relevant point of time could at all sell the minor’s property without fulfilling the conditions stipulated under the Law. The learned Advocate for the plaintiff/respondent referred to some of the principles of Mohammedan Law as indicated below. “359. Legal guardians of property:- The following persons are entitled in the order mentioned below to be guardians of the property of a minor(z):- (1) the father; (2) the executor appointed by the father’s will; (3) the father’s father; (4) the executor appointed by the will of the father’s father. 360. Guardian of property appointed by Court- In default of the legal guardians mentioned in scc.359, the duty of appointing a guardian for the protection and preservation of the minor’s property falls on the judge as representing the State(b). 361. De-facto guardian:- A person may neither be a legal guardian(S.359) nor a guardian appointed by the Court (S.360), but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called de-facto guardian. A de-facto guardian is merely a custodian of the person and property of the minor(f). 362. Alienation of immovable property by legal guardian:- A legal guardian of the property of a minor(s.359) has no power to sell the immovable property of the minor except in the following cases, namely, (1) where he can obtain double its value; (2) where the minor has no other property and the sale is necessary for his maintenance; (3) where there are debts of the deceased, and no other means of paying them; (4) where there are legacies to be paid, and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; and (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution(g). 363. 363. Alienation of immovable property by guardian appointed by Court:- A guardian of property appointed by the court under the Guardian and Wards Act, 1890(s.360) has no power without the previous permission of the Court, to mortgage or charge, or transfer by sale, gift, exchange, or otherwise, and part of the immovable property to this ward, or to lease any part of that property for a term exceeding five years, or for any term extending more than one year beyond the date on which the ward will cease to be a minor. A disposal of immovable property by a guardian in contravention of the foregoing provisions is voidable at the instance of the minor or any other person affected thereby(k). Permission to be guardian to do any of the acts mentioned above must not be granted by the Court except in case of necessity or for any evident advantage to the ward (Guardian and Wards Act, 1890, ss.29,30,31). 364. Alienation of immovable property by de facto guardian :- A de facto guardian(s.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(n).” The said learned Advocate cited a decision reported at AIR 2002 Supreme Court 215 ( Madhegowda(D) by L.Rs, -V- Ankegowda(D) by LRs and others). Of course, Section 11 of the Hindu Minority and Guardianship Act, 1956 had come up for consideration in the said reports. However, in Paragraph 15 of the said reports the Hon’ble Court was pleased to observe that “the statute recognizes a natural guardian or a testamentary guardian or a guardian appointed by the Court. In law a person who is not a guardian as aforementioned who takes interest upon himself, the general management of the estate of a minor can be more appropriately described as a ‘de-facto manager’”. The Hon’ble Court was further pleased to hold that any alienation by a de-facto guardian will be governed by the provisions in Section 11 of the Act. The Hon’ble Court was further pleased to hold that any alienation by a de-facto guardian will be governed by the provisions in Section 11 of the Act. The alienation, being against the statutory prohibition, would be void ab initio and the alienee would not acquire any tittle to the property.” In paragraph 16 of the said reports the Hon’ble Court was pleased to hold that even a natural guardian is required to seek permission of the Court before alienating any part of the estate of the minor and the Court is not to grant such permission to the natural guardian except in case of necessity or for an evident advantage to the minor . In paragraph 23 of the said reports the Hon’ble Court was pleased to hold that the existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. The said learned Advocate cited a decision reported at AIR 1952 Supreme Court 358 (Mohd. Amin and others –V- Vakil Ahmad and others). In Paragraph 9 of the said reports the Hon’ble Court was pleased to observe that “it is admitted that plaintiff 3 Ishtiaq Husan was a minor of the age of about nine years at the date of the deed, and he was not represented as already stated by any legal guardian in this arrangement. The minor’s brother had no power to transfer any right or interest in the immovable property of the minor and such a transfer if made was void (See Mulla’s Mahomedan Law, 13 Edition. Page 303, S, 364”. The minor’s brother had no power to transfer any right or interest in the immovable property of the minor and such a transfer if made was void (See Mulla’s Mahomedan Law, 13 Edition. Page 303, S, 364”. In paragraph 10 of the said reports the Hon’ble Court was pleased to refer to a Privy Council decision and observed that the mother who was neither legal guardian of her minor children nor had been appointed as their guardian under the Guardians and Wards Act had purported to transfer the shares of her minor children in the property inherited by them from their deceased father and the Hon’ble Privy Council was pleased to observe to the effect that under the Mohammedan Law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a “de-facto guardian”, has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant. The Hon’ble Court was pleased to take note of the fact that the test of benefit resulting from the transaction to the minor was negatived by the Privy Council. The said learned Advocate cited another judgment reported at 26 CWN 246 (Sarat Chandra Gupta –V- Kanailal Chakrabarty & Anr.) wherefrom it appears that the Mohammedan mother of two minors had executed an agreement on behalf of such minors but the said mother was not appointed as a guardian of the properties of the minors by the District Judge under the Guardian and Wards Act. It is also appears that the guardian of the minor’s properties appointed by the District Judge subsequently gave his assent to the agreement. It was held in the said case that a natural guardian can perform acts which are purely advantageous to the infant but can impose no obligations on the infant, and it was also held that legal guardian’s assent subsequently given to the agreement cannot validate the agreement. It was held in the said case that a natural guardian can perform acts which are purely advantageous to the infant but can impose no obligations on the infant, and it was also held that legal guardian’s assent subsequently given to the agreement cannot validate the agreement. The said learned Advocate cited another decision reported at AIR 1960 Calcutta 446( Panchu –V- Hrishikesh Ghose and others) and referred to Paragraph 17 of the said reports wherein the Hon’ble Court was pleased to observe that dealing with the position of a defacto guardian under the Mohammedan Law the Judicial Committee of the Privy Council expressed the definite view that a de-facto guardian may assume important responsibilities in relation to a minor’s property, but he cannot thereby clothe himself with legal power to sell it . In Paragraph 25 of the said reports the Hon’ble Court has been pleased to observe that in order to avoid a sale made by defacto guardian, which is not for the benefit of the minor or for his necessity, it is not necessary for the minor to do so by a suit and by obtaining a judicial rescission of the sale and it may be done by an expression of the minor’s intention not to honour, respect or abide by the alienation made by the de-facto guardian. The said learned Advocate cited another decision reported at AIR 1963 Patna 108 ( Sk. Md. Zafir –V- Sk. Amiruddin and others) and referred to Paragraph 5 of the said reports in support of his contention that a de-facto guardian had no power to covey to another the right, title and interest of the immovable property and that such transfer is not merely voidable but void ab initio under the Mohammedan Law. The said learned Advocate cited another decision reported at AIR 1955 Patna 475( Kharag Narnin –V- Mst. Bibi Hamida Khatoon and others) and referred to Paragraph 6 of the said reports wherein the legal guardians of a minor under the Mohammedan Law were noted and it was observed that in default of the legal guardians, a guardian for the protection and preservation of the minor’s properties has to be appointed by the District Judge under the provisions of Guardians and Wards Act but a de-facto guardian has no power in law, to transfer a right or interest in immovable property of the minor. The said learned Advocate cited another decision reported at AIR 1940 Calcutta 589( Lalit Kumar Das Chaudhury and others –VNogendra Lal Das and others) wherein the Hon’ble Court has been pleased to observe that a manager, loosely, described as a de-facto guardian, is not a guardian at all. The learned Advocate appearing on behalf of the plaintiff/respondent submitted that right to sue accrued to the plaintiff when the defendant No.1 tried to disturb the plaintiff’s possession and refused to partition the property. The plaintiff has pleaded in Paragraph 10 of the plaint that the plaintiff including the proforma defendant are the co-owners with the defendant No.1 in the suit premises and the plaintiff has, alternatively, claimed partition in respect of the suit property. The learned Advocate for the plaintiff/respondent submitted that there is no evidence on record to prove that the defendant made any construction in the suit property. He referred to the evidence of P.W.1 wherein P.W.1 has stated that the tenants in the suit property were inducted by her father and uncle. The said learned Advocate submitted that no suggestion was given to the P.W.1 that there was no construction before purchase by the defendant No.1 or that the defendant No.1 had made any construction. The said learned Advocate also referred to the evidence of D.W.1 wherein he stated in cross-examination that he has paper to show that his father had constructed two storied pucca building and a shop room but ultimately could not prove the said allegation and no document was produced in this regard. The said learned Advocate also referred to the cross-examination of D.W.1 where the said witness stated that he has no personal knowledge about the purchase of the suit property by his father and about the delivery of possession of the same in favour of his father. The learned Advocate for the plaintiff/respondent submitted that the plaintiff has not been cross-examined with regard to her statement that she came to know of the deed of the year 1954 on 02.05.1997. The learned Advocate for the plaintiff/respondent submitted that the plaintiff has not been cross-examined with regard to her statement that she came to know of the deed of the year 1954 on 02.05.1997. The said learned Advocate cited a decision reported at AIR 1961 Calcutta 359(A.E.G. Carapiet –V- A.Y. Derderian) and referred to Paragraph 10 of the said reports wherein it has been observed that wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. The said learned Advocate, thus, submitted that the appellant cannot be permitted to dispute the date of the knowledge of the plaintiff with regard to the said sale deed of the year 1954. The said learned Advocate submitted that P.W.2 stated in evidence that he had read over and explained the deed of sale of the year 1954 to the plaintiff on the plaintiff’s request. The said learned Advocate also submitted that it will appear from the evidence of P.W.2, that is, the brother of the plaintiff, that at the time of institution of the suit he was at Midnapore, Daspur and he could not join with the plaintiff at the time of filing of the suit. The learned Advocate for the respondent submitted that non-framing issue on the point of limitation is not fatal as the parties knew each other’s case and lead their respective evidence. The said learned Advocate cited a decision reported at AIR 1987 Calcutta 248(Smt. Katya Bala Dasi and another –V- Nilmoni Pakhira and others) in support of his contention that even if there is an omission to frame an issue since the parties have gone to trial with full knowledge of each other’s case and receiving all opportunities to establish their respective cases the trial of the suit cannot be vitiated and on such ground the suit need not be remanded. The said learned Advocate also cited another decision reported at AIR 1956 Supreme Court 140(Pratap Singh –V- Shri Krishna Gupta and others) in support of his contention that Courts should avoid technicality as it is the substance that counts and must take precedence over mere form. The learned Advocate submitted that even this Court can decide the question as to whether the suit was barred by the law of limitation or not. The learned Advocate submitted that even this Court can decide the question as to whether the suit was barred by the law of limitation or not. The said learned Advocate submitted that even the learned First Appellate Court could have decided such allegation and in support of such contention he cited a decision reported at 27 CWN 1025. The said learned Advocate submitted that Article 60 of the Limitation Act does not apply in those cases where the transaction does not bind the minor; it applies only where the transaction under challenged deed binds the minor in this regard. The said learned Advocate also referred to the provisions of Section 8(3) of the Hindu Minority and Guardianship Act. The said learned Advocate submitted that Article 60 of the Limitation Act applies when the transaction is voidable as it contemplates a suit for setting aside the transfer. According to the said learned Advocate, the transfer, in such circumstances, unless set aside is binding. The said learned Advocate submitted that Article 60 of the Limitation Act is not at all applicable to the facts of the instant case as the transaction in question in the instant case is a void one. It would appear from Section 364 of the Principles of Mohammedan Law, as quoted above, that it stipulates that a transfer by a de-facto guardian of a minor’s immovable property is not merely voidable but void. The said learned Advocate submitted that Article 58 of the Limitation Act applies to the instant case and the period of limitation is three years from the date of knowledge (02.05.1997) of the plaintiff about the said deed of sale of the year 1954. The said learned Advocate cited decisions reported at ILR 5 Calcutta 364(Dulputty Singh –V- Sikher Chund) and 85 CWN 606 (Ranjanibala Rakshit –V- Biswanath Rakshit and others) in support of his contention that it would not be incumbent upon the plaintiff to sue to set it aside the purported deed of sale. The said learned Advocate also cited a decision reported at ILR 35 Calcutta 551(Petherpermal Chetty –V- Muniandy Servai) in support of his contention that the purported deed of sale being an inoperative instrument, it is even unnecessary for the plaintiff to have it set aside by filing a suit in Court of law. The said learned Advocate also cited a decision reported at ILR 35 Calcutta 551(Petherpermal Chetty –V- Muniandy Servai) in support of his contention that the purported deed of sale being an inoperative instrument, it is even unnecessary for the plaintiff to have it set aside by filing a suit in Court of law. The said learned Advocate cited another decision reported at 1995 Supp(3) SCC 249( State of Orissa and others –V- Brundaban Sharma and another) wherein it has been observed in Paragraph 18 of the said reports that a non-est order is a void order and it confers no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage. The said learned Advocate submitted that the defendant No.1 has not pleaded adverse possession and thus the defendant No.1 cannot be permitted to claim adverse possession. The said learned Advocate submitted that the plaintiff is in possession of the property and has prayed for partition. The said learned Advocate referred to Article 65 of the Limitation Act wherein it has been stipulated that for possession of immovable property or any interest therein based on title the period of limitation is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. The said learned Advocate submitted that since the defendant has not claimed any adverse possession, the question of limitation does not arise. The said learned Advocate submitted that the plaintiff’s suit is based on title. The said learned Advocate referred to a decision reported at AIR 1974 Supreme Court 2177( K.Ramadas Shenoy –V- The Chief Officers, Town Municipal Council Udipi and others) and referred to Paragraph 30 of the said reports wherein it has been observed that an excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel and the Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. The learned Advocate appearing on behalf of the plaintiff/respondent submitted that it will be absurd to suggest that if a minor does not file a suit within three years after attaining majority for avoiding void transfer, the purchaser will perfect his title only because such suit was not filed. The learned Advocate appearing on behalf of the plaintiff/respondent submitted that it will be absurd to suggest that if a minor does not file a suit within three years after attaining majority for avoiding void transfer, the purchaser will perfect his title only because such suit was not filed. Since the law provides that a de-facto guardian under the Mohammedan Law has no power to transfer a minor’s properties and if such transfer is made then in that event it is a void one, it is not necessary for such minor to file a suit for setting aside the transaction. The said learned Advocate submitted that if a stranger to a minor’s properties sells the minor’s property to another stranger and subsequently the minor does not file a suit for setting aside such void transaction it would be disastrous to hold that since the minor has not filed a suit for setting aside the transaction the socalled transferee has perfected his title. The learned Advocate appearing on behalf of the plaintiff/respondent submitted that the said defendant No.1 did not press the issue with regard to maintainability of the suit and nonjoinder of necessary parties as would appear from the judgment of the learned Trial Court itself. The said learned Advocate submitted that in cross-examination the D.W.1 stated that he has not seen any papers of Anowar Sardar and Saiful Mohajon regarding their purchase of the suit plots and he has no personal knowledge as to how the said Anowar and Saiful became the owners of half share of both the suit plots. The said learned Advocate, thus, submitted that the evidence on behalf of the said defendant No.1 cannot in any way support the stand taken by the learned advocate on behalf of the defendant No.1 that the suit is bad for non-joinder of the necessary parties. The said learned Advocate cited a decision reported at AIR 1993 SC 1587 ( Laxmishankar Harishankar Bhatt –V- Yashram Vasta(dead) by L.Rs.) and referred to Paragraph 13 of the said reports in support of his contention that a vague allegation of the said two persons who are co-owners in respect of the suit property without any sufficient proof thereof cannot non-suit the plaintiff on the ground of non-joinder of the parties. The said learned Advocate cited another decision reported at AIR 1942 Calcutta 586( Prosanna Kumar Roy Choudhury -V-Smt. Adya Sakti Dasi w/o Hari Kishore Das) in support of his contention that since the issue of necessary parties was framed in the suit but the defendant No.1 did not press such issue, the said defendant No.1 cannot be entitled to raise such question in the present appeal. The said learned Advocate cited another decision reported at AIR 1968 Calcutta 550(Mohammed Seraj –V- Adibar Rahaman Sheikh and others) and referred to Paragraph 16 of the said reports where the Hon’ble Court has been pleased to hold that if an issue is not pressed before the Trial Court, it is not open to the party doing so to agitate it over again in the court of appeal. The said learned Advocate also cited another decision reported at 1998(6) Supreme Court 439(Sri Babu Ram @ Durga Prasad –VSri Indra Pal Singh(Dead) by LRs.) and referred to Paragraph 17 of the said reports wherein the Hon’ble Supreme Court was pleased to hold that the High Court in second appeal exceeded its jurisdiction under Section 100 C.P.C. in giving a finding on an issue which was not pressed in the Trial Court. The said learned Advocate cited a decision reported at AIR 1957 Supreme Court 314 (P.Lakshmi Reddy –V- L.Lakshmi Reddy) and referred to Paragraph 4 of the said reports wherein it has been observed that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. The Hon’ble Court was further pleased to observe that when one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. It is also observed by the Hon’ble Court that a coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus of his own part in derogation of the other co-heir’s title. It is also observed by the Hon’ble Court that a coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus of his own part in derogation of the other co-heir’s title. The said learned Advocate cited a decision reported at AIR 1928 Privy Council 152 ( Nawab Sadiq Ali Khan and others -v-Jai Kishori and others) in support of his contention that since the purported transaction of sale of the year 1954 was a void one the defendant/appellant cannot take the plea of estoppel. Having heard the learned Advocates for the respective parties and having considered the relevant materials on record it appears that there is no dispute with regard to the fact that when the plaintiff’s share in the suit property was purported to be sold by the said Saifuddin the plaintiff was a minor and the said Saifuddin was a defacto guardian under Mohammedan Law. The records of this case do not at all show that the defendant No.1 has been able to prove by way of any corroborative evidence that at the time of the said sale, that is, in the year 1954 the said Saifuddin was compelled to sell the plaintiff’s share in the suit property owing to any legal necessity. The D.W.1 who is the son of the defendant No.1 even did not mention in his evidence-in-chief that the said Saiffudin had to sell the property owing to legal necessity. The said D.W.1 also did not say anything with regard to any circumstances which could have arisen compelling the said Saifuddin to sell the minor-plaintiff’s share. The decision cited by the learned Advocate for the appellants on the point as to whether or not the de-facto guardian under the Mohammedan Law can sell a minor’s property without fulfilling the necessary conditions are distinguishable as the facts and circumstances involved in the said reports are not similar to the facts and circumstances of the instant case. The defendant No.1 who is living was not brought to the witness box nor he did give evidence in any other way in respect of the said transaction of the year 1954. The D.W.1 has stated in his evidence that he has no personal knowledge about the purchase of the suit property by his father. Thus, the best evidence was withheld by the defendant No.1/appellant. The D.W.1 has stated in his evidence that he has no personal knowledge about the purchase of the suit property by his father. Thus, the best evidence was withheld by the defendant No.1/appellant. Section 364 of the Mohammedan Law clearly stipulates, as noted above, that a de-facto guardian has no power to transfer any right or interest in the immovable property of a minor and if at all such transfer is made then it is not merely voidable but void. In AIR 2002 Supreme Court 215 (Supra) the Hon’ble Court has been pleased to observe that in the case of any invalid transfer the existence or otherwise of any legal necessity is not relevant and a transferee of such an alienation does not acquire any interest in the property. The Hon’ble Court was also pleased to observe that such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding and the minor concerned, on attaining majority, can repudiate the transfer in any manner as and when the occasion for it arises. It will appear from the decision reported at AIR 1952 Supreme Court 358 (Supra) which deals with the said Section 364 of the principles of Mohammedan Law that a de-facto guardian has no power to convey to another any right and/or interest of a minor in an immovable property and such transfer, if made, is void. It will appear from the decision reported at 26 CWN 246 (supra) that a de-facto guardian without fulfilling the necessary conditions cannot transfer a minor’s share in any immovable property and that even by subsequent consent of a guardian appointed by any competent Court in respect of minor's properties cannot validate the agreement which was made on behalf of the minor by the de-facto and/or natural guardian at a previous point of time without fulfilling the necessary conditions. In the decision reported at AIR 1960 Calcutta 446 (supra), as discussed above, it has been held that a minor on attaining majority need not even file a suit to set aside the invalid transaction, that is, the alienation made by the de-facto guardian illegally and it would be sufficient even if a minor only expressed his intention not to honor, respect or abide by such alienation. It will also appear from the other reported cases, as discussed above, cited at the Bar that a de-facto guardian under the Mohammedan Law cannot transfer the share of a minor in any immovable property without fulfilling the necessary conditions. There cannot be any dispute, in the facts and circumstances of the instant case, that the said Saifuddin was not at all appointed as a guardian of the plaintiff’s property by any competent Court. Thus, it appears that the learned Advocate for the plaintiff/respondent No.1 was right in his submission that the purported transfer made by the said Saifuddin in favour of the said defendant No.1 in respect of the plaintiff’s share was a void one and that it is not even necessary for the plaintiff to make a specific prayer in the suit for setting aside such sale deed in so far as the plaintiff’s share is concerned as the purported sale in so far as the plaintiff’s share is concerned is void ab initio. It appears that the learned Advocate for the plaintiff/respondent No.1 was also right in his submission that since the plaintiff/respondent No.1 has not been cross-examined on behalf of the defendant No.1 with regard to the plaintiff’s statement that she came to know of the said deed of the year 1954 on 02.05.1997 it has to be presumed that such testimony could not be disputed by the said defendant No.1 in view of the decision reported at AIR 1961 Calcutta 359. Thus, the plaintiff has been able to prove the date of knowledge with regard to the said deed of the year 1954, that is, 02.05.1997. It appears from the judgment of the learned Trial Court that the learned Trial Court framed an issue of maintainability of the suit but such issue was not pressed at the time of hearing of the suit and the learned Trial Court found that there is nothing adverse with regard to the maintainability of the suit. It appears from the judgment of the learned Trial Court that the question of delay was raised and submissions were made in that regard. The learned Advocate appearing for the said defendant No.1 before the learned Trial Court raised the question as to why the plaintiff remained silent for 33 years. It appears from the judgment of the learned Trial Court that the question of delay was raised and submissions were made in that regard. The learned Advocate appearing for the said defendant No.1 before the learned Trial Court raised the question as to why the plaintiff remained silent for 33 years. But the records of the present case clearly prove that the date of knowledge of the plaintiff in respect of the said void transaction was 02.05.1997 and, thus, the question of limitation can easily be decided also in the instant appeal. As already noted above, it was observed by the Hon’ble Court in AIR 1956 Supreme Court 140 (Supra) that the tendency towards technicality should be deprecated. In the facts of the case both the parties knew each other’s case and they adduced evidence in support of their respective cases and the matter went up for trial. The records of the case are sufficient enough to decide the question of limitation. The learned Advocate for the appellants relied upon the provisions of Article 60 of the Limitation Act. It appears from the said provision that the said Article is applicable in the case where the suit is filed to set aside a transfer of property made by the guardian of a ward. In the instant case there is no such prayer. It appears that the submissions made by the learned Advocate for the plaintiff/respondent No.1 on the point of limitation that in the facts and circumstances of the instant case the provisions of Article 60 of the Limitation Act is not applicable, is correct. The said learned Advocate rightly submitted that the said Article 60 of the Limitation Act applies to a transaction which is voidable. But in the instant case that the transaction of the year 1954 was a void one. As already noted above, it was not necessary for the plaintiff to make a formal prayer in the plaint for setting aside the said deed of the year 1954 which is a void one. The said learned Advocate was right in his submission that in the facts and circumstances of the instant case the provisions of Article 58 of the Limitation Act is applicable and such period of limitation is three years from the date of knowledge of the plaintiff that is, 02.05.1997. The said learned Advocate was right in his submission that in the facts and circumstances of the instant case the provisions of Article 58 of the Limitation Act is applicable and such period of limitation is three years from the date of knowledge of the plaintiff that is, 02.05.1997. The suit was filed in the year 1997 itself, that is, in May, 1997 which is well within the period of three years from the date of knowledge. As already noted above, the learned Advocate for the plaintiff/respondent No.1 has already cited certain decisions in support of his contention that it was not incumbent upon the plaintiff to make a prayer in the plaint for setting aside the purported deed of sale of the year 1954. Thus, this Court is of the view that the learned Advocate for the appellants was not correct in his submission that the suit filed by the plaintiff is barred by any law of limitation and since the materials on record are quite sufficient to decide such issue this Court finds that the argument made by the appellants’ learned Advocate in this regard is unacceptable. The learned Advocate for the plaintiff/respondent No.1 rightly submitted that the defendant No.1 cannot be permitted to claim adverse possession as he has not pleaded the same and the question of limitation also does not arise as the suit is well within the period of limitation in view of the provisions of Article 65 of the Limitation Act. The point taken by the learned Advocate for the appellant on the question of estoppel is also untenable. The decision cited at the Bar that is, AIR 1974 Supreme Court 2177 (supra), as already noted above, may be referred to. Discussion in this regard has already been made above. Since the law stipulates that a de-facto guardian of a Mohammedan minor cannot transfer the minor’s property without fulfilling the necessary conditions such transfer is void ab initio. With regard to the point of non-joinder of necessary parties, as taken by the learned Advocate for the appellants, it has already been discussed above, and it has already been noted above, that the defendant could not adduce any convincing evidence in support of such point and, that apart, before the learned Trial Court the defendant No.1 did not press the issue with regard to non-joinder of necessary parties. As already noted above, in the decision reported at AIR 1968 Calcutta 550 it was held that if an issue is not pressed before the learned Trial Court, it is not open to the party doing so to agitate it over again in the court of appeal. As already noted above, the decision reported at AIR 1957 Supreme Court 314 the Hon’ble Court has been pleased to observe that co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It also appears that the learned Advocate for the plaintiff/respondent was right in his submission that the said defendant No.1 could not prove that he had made constructions in the suit property. Even though the D.W.1 stated that he has papers to show that his father had constructed two storied pucca building and a shop room but ultimately no such paper was adduced in evidence. In view of the discussions made above, this Court is of the view that there is no merit in the present appeal which is dismissed. There will, however, be no order as to costs. The lower court records be sent back to the learned Court concerned immediately along with a copy of this judgment. Let this be done by Special messenger and the Special messenger cost for such purpose shall be put in by the plaintiff/respondent No.1 within one week.