Govinda vs Narain

Bilgrami, J.—This second appeal by the Defendant is directed against aj judgment and decree of the District Judge of Bid, reversing in appeal a decision of the. Munsif of Ashti, and decreeing the suit of the Plaintiff for possession of one half of a plot of land survey No. 663, situate in Salwadi village, Ashti Taluq, District Bid. The Plaintiff''s case is, that on 18th Aban, 1338 F Gita Bai obtained a decree of foreclosure or sale against Defendant No. 1, Govinda, and the father of Defendant No 2 Bapu in regard to this land, which was mortgaged to them without possession, and took possession of it under the decree in 1339 F.

The Plaintiff''s adoptive mother Mathura Bai alias Radha Bai, was the daughter of Gita Bai, and inherited this property from her. After her death, the Plaintiff was in possession of it till dispossessed by the Defendants on 10th Khurdad, 1357-F. The Defendants admit the Plaintiff being the adopted son of Mathura Bai.

They allege that they were minors, and not properly represented; their mother through whose guardianship the decree for foreclosure was obtained against them, was indifferent to their interests and did not defend the case, as a result of which the decree was passed ex parte, and is therefore not binding on them.

They further state that on attaining majority when they demanded that the land be given back in their possession Mathura Bai told them that Rs. 40/- principal mortgage debt with compound Interest were due to her, and that she will restore the land in their possession after this amount is realised from the income.

The Defendants consented to this, and in pursuance of this agreement, after ten years the land was restored to them in 1357-F. The Plaintiff in his replication denied all adverse allegations, and reiterated the statement made in the plaint. The trial Court held that the decree in favour of Gita Bai of 1338-F was a nullity, and dismissed the Plaintiff''s suit.

The first appellate Court in the judgment, which is the subject-matter of this appeal, held that the decree was not a nullity, for no gross negligence of the guardian was proved, or can lie gathered by any material on record, and that the oral agreement set up by the Defendants was not proved, and decreed the suit; hence this appeal.

The first point raised by the counsel of the Appellant is that the final decree which is in the following terms;

The preliminary decree be made final. The decree of foreclosure pertaining to the land, the former survey No. of which was 596, measuring 29 acres, 38 guntas subject to a revenue tax of Rs. 11/- to the extent of one half portion measuring 14 acres, 39 guntas the revenue tax of which is Rs. 5-8-0 situate is Salawadi village, Taluq Ashti, District Bid, is made final and possession may thereof be handed over,

does not extinguish the right of redemption, and unless the right to redeem is expressly extinguished, and the decree contains a declaration that the mortgagor is debarred from all rights to redeem, the right remains despite the fact that a final decree has been passed, I entirely agree. Authorities on the point are numerous.

I shall content myself with citing only the following few cases. In - AIR 1934 205 (Privy Council) , it was held by their Lordships of the Privy Council, that a suit for redemption by the mortgagor was maintainable, though formerly a decree for redemption was obtained by the mortgagee 28 years before the institution of this suit, & the mortgage amount not being paid thereunder the mortgagee remained in possession, because it was merely mentioned, in the decree that if the amount fixed was, not paid within the time fixed, the suit will stand " dismissed, and it; was not stated anywhere that, the right of redemption was extinguished. It was observed by their Lordships as follows: (at p. 207).

if the Appellants fail to establish... that the old decree extinguished the right to redeem, there is, in their Lordship''s opinion, no ground for saying that the old decree operated by way of res judicata so as to prevent the Courts, u/s 11, CPC from trying the present suit.

A Full Bench of this High Court in - ''Khaimanna v. Rangiah 40 D LR 63 (B), a case in which a decree for foreclosure was formerly obtained by the mortgagee in this decree it was stated, that if the amount was not paid within the time fixed the property was to be given in possession of the mortgagee & the mortgagee thereunder obtained possession & remained in possession for nearly 25 years; it was held that the right of redemption was not lost, as the decree contained no declaration that such a right was extinguished.

In ''Subba Rao v. Matapalli Raju'' 1950 FC 1 : AIR V 37 (C), the Federal Court has held, that the right of redemption is an incident of subsisting mortgage, and subsists as long as the mortgage it self subsists, and can only be extinguished by a decree which is strictly in accordance with the provisions of Section 60, Transfer of Property Act. If the decree contains no declaration that the right of redemption is extinguished, it remains, and the mortgagor can, within the period of limitation fixed for redemption, redeem despite the decree.

Mere passing of the final decree for foreclosure and sale, without such declaration, does not extinguish the right. See in this regard - ''Mt. Sukhi v. Gulamsafdar Khan 1922 PC 11 (DM The reason 6n which these decisions are based is that Section 30, Transfer of Property Act, confers a right of(sic) redemption on the mortgagor which is only waited(sic) by the proviso in the following terms:

provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a Court.

A mortgagor can only be deprived of this right as pointed out by their Lordships of the Privy Council in Raghunath Singh''s case, (A)'', by means and manner indicated for this purpose, which should be strictly complied with. A recent Division Bench case of this High Court in which the same view was expressed is - ''Ram Rao v. Bhim Rao AIR1955 Hyd 190 (S) V 42(E). To this case, I shall advert later.

Thus the correctness of the proposition advanced on behalf of the Appellant to this extent, is well established by the authorities, and cannot be questioned. The question is, if the possession of the mortgagee after the decree continues for more than 12 years, can it be considered adverse?

The answer to this, as far as I can judge, will depend on, as to whether the mortgage was with, or without possession. If the mortgagee was entitled to possession under the mortgage, and the decree did not have effect of extinguishing the right of redemption, the result will be, that the mortgage will subsist and the mortgagee if he continues in possession, will be considered as being in possession as a mortgagee, and he cannot set up the defence of adverse possession, as a observed by Lord Devey who delivered the judgment of the Board in - ''Khiarajmal v. Daim 32 Cal 296 (PC) (F) (at p. 312).

As between them (a mortgagor and mortgagee) neither exclusive possession by the mortgagee for any length of time short of the statutory period of sixty years, nor any acquiescence by the mortgagor not amounting to release of the equity of redemption will be a bar or defence to a suit for redemption if the parties are otherwise entitled to redeem.

If on the other hand, the mortgagee was not entitled to possession under the mortgage and was let in possession under the decree for foreclosure, it is obvious that his possession cannot be attributed to mortgage, and cannot be possibly considered as that of a mortgagee, & must be deemed adverse, if other requirements of such possession are not wanting.

I am fully Supported in this view by a decision of the Oudh Chief Court ''Syed Humayun Quadir v. Suraiya Begam AIR1931 Oudh 69(2) V 18 (G). In this case, the mortgagee who was not entitled to the possession under the mortgage, but to receive a certain rent in lieu of interest, obtained a decree and subsequently entered into , possession of the mortgaged property, it wag held that the possession of the mortgagee was adverse. The reasons on which this opinion is based are summed up as follows in the Judgment (at p. 71):

The terms of the mortgage did not provide for possession and the agreement accompanying It relating to the mode of payment of interest, was not given effect to; in other words, the mortgaged property remained in the possession of the mortgagor all along until the mortgagee entered into possession and he could not have so entered at any moment of time prior to the decree. On those facts it must be held that as the mortgagee had no right to possession his possession was adverse.

Similarly a Division Bench of the Lahore High Court in - ''Nizam Din Khan v. Rashid Ali Khan AIR 1934 Lah 902 V 21 (H) held, that the rule that a mortgagee in possession cannot by assertion of his title under an invalid sale, convert a possession into an adverse one, cannot be extended to a case where the mortgagee is, not in possession at the date of the sale, but acquires a possession as the result of the sale.

Two further rulings may be cited in this regard in which the facts were very much like those of the present case, and the question which had to be determined was the same. In - ''Jowahar v. Amarchand 93 Ind. Cas 934 (Lah) (I) it was held that if the mortgage was without possession, and the mortgagee entered into possession under foreclosure proceeding which was irregular, and did not extinguish the right of redemption, his possession will be deemed to be adverse.

In that case also like the present there was a condition in the mortgage deed, that if the mortgage debt was not paid within certain time the mortgagee will be entitled to possession. The case of ''Indar v. Assa Singh'' 65 P&h1908 (J) which was cited as an authority to the contrary was distinguished in this decision on the ground, that in that case the mortgagee had in the first place taken possession as a mortgagee, and he was under the mortgage entitled to possession.

An earlier case of the same High Court, ''Jiwakhan v. Lakhmichand'' 11 Ind Cas 429 (Lah), (K), was followed, in which the mortgagee was /tot entitled to possession under the mortgage, and it was held that his possession became adverse when he entered into possession. The eases of Bakha Singh and Others Vs. Ram Narain Singh and Others, and ''Kishen Gopal v. Abdul Latif'' 1940 Oudh 97 AIR v 27 (M), in which a different view appears to have been. taken, are clearly distinguishable from the present case inasmuch as in those cases the mortgagee had come into possession of the land as a mortgagee, and not under any other title.

AIR 1934 205 (Privy Council) are all cases in which the mortgagee was entitled to possession under the mortgage. It is argued on behalf of the Appellant that the Full Bench case of this Court 40 D LR 63 (FB) (B)'', is an authority for holding that even if the possession is handed over under the decree to the mortgagee his possession will not be adverse, because the decree to which reference is made there was for possession.

I cannot agree with this contention. In the beginning of the judgment where facts are related, it is shown that the disputed property was given in the possession of the Defendant under the mortgage, and the following extract from the judgment dealing with the question of adverse possession at p. 68 makes abundantly clear that what their Lordships intended to lay down was, that it is only in a case in which the mortgagee is entitled to possession under the mortgage, that his possession cannot be deemed adverse.

If it is mentioned in the decree that possession be handed over to the mortgagee, it is either because though entitled to possession under the mortgage the mortgagee was not given possession, or he was later dispossessed. It may also be, that what is meant is, that he may take possession of it as an owner.

In view of the fact that possession was handed over to the mortgagee is expressly stated in the judgment, there is no room for concluding from the form and wording of the decree otherwise. In AIR 1955 Hyd 190 ((S) V. 42) (E) no doubt the mortgage was not with possession but in that case the question as to what is the effect of the mortgagee not being entitled to possession, on the plea of adverse possession, was not raised or decided and I cannot hold that case as authority for a view contrary to what I have taken in relation to this matter in the present case.

The objection, that if the decree of foreclosure is taken as ineffective, for extinguishing the right of redemption, the right subsists till the expiry of the period of limitation for a suit of redemption which was 30 years under Article 134 of the Hyderabad Limitation Act, (which corresponds to. Article 148 of the present Limitation Act, in which the period is 60 years,) is incompatible with the view that the title of the Plaintiff is lost by prescription owing to adverse possession for a lesser period of 12 years; and that as u/s 28 of the Limitation Act, the title is only lost when a remedy by the way of a suit for possession becomes time-barred; also in my opinion has no force. In view of the rulings I have cited above, I am not prepared to follow the Single. Bench case of the Nagpur High Court, ''Gulabchandsao v. Bashiruddin AIR 1941 Nag 141 (N) which is cited as representing this view.

In that case although possession was obtained by, mortgagee under foreclosure proceedings it was held that possession was not adverse. I am unable to agree with the reasoning on which this view is based. It was observed in that case to hold that a mortgagor whose right of redemption subsists, and who is entitled to redeem within a period of 60 years, could lose his title by prescription a result of adverse possession of 12 years Will not be proper, because the mortgagee should not be allowed by his own default to curtail and eventually extinguish the right of the mortgagor.

In my opinion, in a case where the mortgagee Is allowed by the mortgagor to enter into possession and remain in continuous & undisturbed possession for 12 years, and the mortgagor does not take the trouble to find out whether the decree or foreclosure proceeding was regular or. Invalid it cannot be said that the curtailment of the period of limitation and loss of title was not due to his fault, but entirely that of the mortgagor. As was held in - Luchi Rai and Another Vs. Jagarnath Sahu and Others, by a Division Bench of the Allahabad High Court where a mortgagee in spite of his proceedings for foreclosure being defective, enters Into possession, when he had no right of possession under the mortgage, he becomes a trespasser, and for a suit of possession against him, the period of limitation is 12 years.

This was, also a case like the present in which the foreclosure proceedings in the previous suit Were ineffective for extinguishing the mortgagor''s right of possession. The following observations (at p. 198) from the judgment in the case above contain the reasoning on which the view is based:

If that is so, it seems to us to follow that the predecessor of the present Defendants, who took possession, had no right to possession at all. He had, as we have pointed out, no right of possession under the mortgage deeds and was only entitled to get possession upon taking foreclosure proceedings strictly In accordance with the provisions of the regulation. As those proceedings have been found to be irregular, it follows that the Defendants predecessor got possession without title and must, therefore, be deemed to have been a trespasser.

It cannot be doubted that, when he entered into possession the predecessor of these Defendants was entering under a claim of full proprietorship; for under the two mortgage deeds it was provided that after foreclosure had taken place the mortgagee was to have possession as owner(sic) and zemindar.

This passage brings out precisely the grounds on which I wish to base my opinion in regard to this question.

I conceded that if the mortgage in this suit was a simple one as is urged by the counsel of the Appellant, the possession of the mortgagee could not be considered adverse. It was held by the Judicial Committee of the Privy Council, in - ''Papamma Rao v. Ramchandra Raju 23 Ind. App. 32 (PC) (P), that a, decree of foreclosure cannot be passed in a suit to enforce a simple mortgage as u/s 67, Transfer of Property Act, the only remedy open to the mortgagee is sale of the mortgaged property. If however, a decree of foreclosure is passed, it will be considered illegal, and the possession obtained thereunder by the mortgagee, even though he was not entitled to possession under the mortgage, will be considered as that of ft mortgagee with possession. In the present case| under the mortgage a period was fixed for payment of the mortgage debt, and in the event of default the mortgagee was entitled to enter into possession of the land.

Such a mortgage is an anomalous mortgage u/s 58, and u/s 67(a) a decree of foreclosure can be passed to enforce it. The rule ''Papamma Rao''s case (P)'' does not apply to such cases.

That the Plaintiff has been continuously in possession since the decree, till dispossession alleged by them has been found by both the courts below; this concurrent finding has not been questioned, nor I think any reason that can justify interference therein exists. I have shown above that possession will be deemed adverse, as the Defendants had no right of possession under the mortgage.

I agree with the opinion of the first appellate court that the oral agreement to continue the possession as mortgagee for 10 years set up in defence has not been proved by the Defendant. I am not willing on the oral statement of the Defendants and some of his witnesses to believe a highly improbable story that the land worth Rs. 2000/- should be mortgaged for ten years with possession for satisfaction of a debt of Rs. 40/-.

That the Plaintiff who has perfected his title v. or acquired it Adhilakshmi Ammal Vs. T. Nallasivan Pillai (died) and Others, : by adverse possession, as in this, case, can sue for possession, if dispossessed by the original owner is a proposition that admits off no doubt. See - ''Ram Brich Singh v. Mt. Sonjhari Koer AIR 1920 Pat 538 (Q).

It is argued that the Plaintiff has not based his claim on adverse possession and cannot succeed on that ground. I do not agree. If the opposite party is not taken by surprise, and not prejudiced thereby, the Plaintiff who has set out the facts which constitute adverse possession can obtain the relief he seeks on proof thereof, though he has not expressly based his claim on adverse possession. See in this regard - ''Karupanan v. Sundara Raja AIR 1940 Mad 71 27 (R), in which it was held that a decree can be passed on the basis of possession, if alleged in the plaint, though the suit was based on title Similarly it was held in - ''Adhilakshmi Ammal v. Naliasivan Pillai AIR 1944 Mad 530 V 31 (S) that if the facts, are set out in the plaint on which relief sought can be granted, it should not be refused because the cause of action was no based on it.

In the present case the fact of his continuous possession as of right from 1339-F till 1357 F has been pleaded by the Plaintiff and evidence led by the parties on this behalf and absence of a plea or an issue on the question cannot , in my judgment, cause the other party to be taken by surprise.

The question that now remains to be determined is the effect of the minority of the Defendants at the time the decree of 18th Aban, 1338-F was passed against them. The learned advocate of the Appellant contends, that since the mother who represented the minors did not appear at the last hearing, when the decree was passed, this amounts to a gross negligence on her part, and the decree is not binding on the minors.

He places reliance on - Kamakshya Narain Singh Bahadur Vs. Baldeo Sahai and Others, in which the question referred to the Full Bench was, whether a minor can avoid a decree passed against him on the ground of gross negligence of the guardian ad litem, by bringing a subsequent suit, even if he has not succeeded in proving collusion on the part of such guardian. This question was answered in the affirmative by the majority, Narayan, J. dissenting.

This case was regarding a suit to set aside the decree on behalf of the minors, and not a case like the present in which the minors plead that the decree is a nullity, and not binding on them. The decree may be voidable at the instance of the minors, if they had brought a suit within time after attaining majority, but this does not mean that it is void ab initio, and not binding on the minors at all.

For minors to avoid liability under the decree on the ground that it is a nullity, when they were represented by guardian, it is necessary, in my opinion that gross negligence, fraud or collusion of the guardian should be proved. This cannot be inferred solely from failure of the guardian to appear on the date of final hearing.

Whether such non-appearance will amount to gross negligence or not, will depend on the circumstances of each case. There must be some circumstance to indicate, that there was a good ground for defence which the guardian neglected to take up, and that the minors suffered through this negligence.

Authorities on this point are numerous. It was held in - K. Ananthachariar Vs. Rangachariar and Others, , that the assumption of fraud against the guardian ad litem cannot be made from the mere fact that he did not ''defend the suit. Similarly in- (Maddali) Visweswara Rao Vs. (Maddala) Suryarao and Others, , it was held that the mere fact that the guardian abandoned the case is not sufficient to infer gross negligence.

It will be assumed that he did so because he honestly thought it fit that the suit cannot be contested with success, unless there are some circumstances which show that he had valid defence which he did not put up. In this case, there is no material on record showing that there was a defence which the guardian neglected to put forward.

She had prayed for instalments and then the decree was passed when she was not present. The Defendants have not shown by any evidence, any collusion or fraud, or even the existence of any defence which could have been successful. I do not think, under these circumstances, that the minors can say that the decree is a nullity and not binding on them. - ''Basappa v. Mullam''(sic) 28 DLR 981 (W), was cited by the counsel of the Appellant against this view. I do not see how this case can apply to the present.

In that case it was decided that if a minor was not represented and the court failed to appoint a guardian, the decree is not binding on him. It cannot be said that the minor was not represented here. There is obiter dicta in that case to the effect, that any minor act of negligence of the guardian is not sufficient for concluding that he has been grossly negligent or for inferring fraud or collusion; which supports the- view I take in this matter.

Having came to the conclusion that the mortgagee can set up adverse possession, and acquire a prescriptive title, and the minor cannot plead that the decree is a nullity, the next question that arises for consideration is whether the time for the purpose of establishing adverse possession can begin to run during his minority. In - ''Khem Chand v. Dayaram AIR 1941 Sind 50 V 28 (X), it was held that title by adverse possession cannot originate during the minority of the person sought to be defeated by adverse possession, because an exclusion or ouster amounting to open assertion of title hostile to the owner of which the owner has knowledge, and which he is in a position to resist, is essential and a minor is not in a position to either know or resist.

The Calcutta High Court also in - Lalit Kumar Das Chaudhury and Others Vs. Nogendra Lal Das and Others, has taken the view that since it is not necessary for a minor to bring a suit to avoid a transaction which is voidable at his instance, his failure to institute a suit within three years of attaining majority cannot ipso facto perfect the title of the person claiming under such transaction. It has also been observed in - Fakirgowda Basangowda Patil Vs. Dyamawa Gowdappagowda Patil, that adverse possession would, not run against a minor during his minority. The- Madras High Court however in - Kalidindi Seetaramaraju Vs. Vegesana Subbaraju and Others, has taken a different view which will, (appear from the following observations:

We do not think it can be stated as a general proposition that there could be no adverse possession of property which belongs to a lunatic or minor during the continuance of the lunacy or minority of the owner. The question has in each case to be decided with reference, to the anterior relationship between the person taking possession and the minor or lunatic, and to whether any circumstances exist which would entitle the court to hold that the person who entered into possession did so under circumstances which would in law make him only an agent or bailiff of the minor or lunatic.

This view appears to have found favour in a number of decisions of different High Courts and may be taken as the generally accepted and correct. It will suffice here to refer only to a few of such cases. The Bombay High Court in -- ''Fatesingh v. Bemanji 27 Bom 515 (Z2), held'' that if a minor, against whom adverse possession has commenced during his minority, fails to bring a suit within three years after attaining majority against the party in adverse possession, his title is lost.

The same High Court, again in - ''Shidlingava Sadeppa v. Rajava Tanesaheb AIR 1932 Bom 23 V 19 (Z3), took a similar view. In this case the mother and the paternal uncle of the Plaintiff during his minority had sold the equity of redemption of the suit property to the predecessor in title of some of the Defendants, who redeemed the property after purchase. The minor Instituted the suit after attaining majority and 19 years after the sale of the equity of redemption.

It was held that there can be an adverse possession in regard to the equity of redemption against .the minor, and that the period of adverse possession can commence during the minority of the owner. The decision of the Madras High Court in ''Seetharama Rama Raju''s case (Z1), referred to above was cited with approval. A later case of that High Court on this point is - Rachappa Totappa Vs. Madivalawa Rachappa,

In this case a stranger had entered into possession under a void deed of gift during the minority of the Plaintiff. It was held that the possession was an adverse one from the very beginning. Decisions of the Nagpur High Court also support the same view. In - ''Narain Bhai v. Narbada Parsad AIR 1941 Nag 357 V 28 (Z5), it was observed that minority does not prevent ouster and does not stop the commencement or running of adverse possession.

The only privilege which a minor gets is another 3 years after attaining majority, if the time expires before three years. A discussion of divergent views and cases in conflict on the question is to be found in a later case of the same- High Court in - AIR 1948 253 (Nagpur) in which after a review of most of the authorities on the point, the view of the Madras High Court in ''Seetharama Raju''s case (Z1)'', was approved and adopted and the decisions of the Calcutta High Court In Lalit Kumar Das Chaudhury and Others Vs. Nogendra Lal Das and Others, were cited and distinguished.

The Patna High Court has also in - Sri Padma Kumari Patto Mahadevi Vs. Nanda Padhan and Another, , a. case in which a stranger being under no obligation to the minor, had entered into possession of a part of the minor''s property in assertion of his own title, held, that the possession will be considered adverse for the purposes of acquiring prescriptive title from the date such a person entered into possession.

Lastly I may also cite a decision of the Judicial Committee of the Privy Council, - ''Vasudevapadhi v. Maguni Devon'' 24 Mad 387 (Z8). It does not appear from the judgment in this case that the question whether the adverse possession could commence during the minority was expressly raised, but from the facts of the case it did arise, and this case may also be taken as an authority on the point that the minority of the owner will not prevent the time from running.

In this case the Defendant who was the Appellant claimed the land in dispute as his separate property from which he was dispossessed during his minority. It was observed that since the Defendants failed to bring a suit within three years after attaining majority their title was lost by operation of Section 28, Limitation Act.

I do not think the observation in ''Khem Chand''s case (X)'', of Sind Chief Court, the knowledge cannot be imputed to the minor can be construed to mean that under any circumstances such knowledge cannot be presumed. As was observed by Lord Philli-more in - ''Kalyandappa v. Chanbasappa AIR 1924 PC 137 V 11 (Z9) at p. 141 the view that knowledge cannot be imputed to a minor is not in accordance with the facts of human nature.

I do not think that the guardian being Instrumental in enabling a stranger to obtain possession, can make any difference for the purposes of the commencement of the period of adverse possession against minor during his minority in view of some clear authorities.

In Sorimuthu Thondaman and Another Vs. Perumal Ammal, the Madras High Court held, that a person to whom the minor''s property was conveyed by the guardian could set up adverse possession from the date of the conveyance under which he took possession during the minority of the Plaintiff, in an action brought by the minor on attaining majority for impeaching this transaction.

In a recent Full Bench case of this High Court, - ''Nanne Khan v. Ganpati AIR 1954 Hyd 45 the same view was taken. In this case the Defendant was a miner 10 years of age when the property, in dispute was sold to the Plaintiff under a deed of sale by his guardian.

Eighteen years later the Plaintiff was dispossessed. It was held that though the sale was nod binding on the Defendant, his right was extinguished by virtue of Section 28 of the Limitation Act, and that the Plaintiff acquired a prescriptive title.

After a careful consideration of all these authorities the law on the point may be summed up as follows. If a person entering into possession of a property of the minor is a total stranger, under no obligation to him through antecedent relationship, or for any other reason, so as to be considered his agent, guardian or bailiff and can be deemed to be holding in possession the property on his behalf, or under a duty so to hold, and takes possession for his own benefit, and in assertion of his own title hostile to the Defendant, the limitation will begin to run from the date of his entering into possession.

Whether such obligation or duty exists or not, is a question of fact to be determined in each case by the evidence and material on record. This will be so even if the guardian has been instrumental in giving possession to the person claiming adverse possession, or if the possession was taken by his connivance, or permission express or tacit. The weight of opinion as expressed in the judicial pronouncements cited and discussed above inclines towards this view.

The minor no doubt will be entitled to the benefit of Sections 6 and 8 of the Limitation Act if the period of 12 years from the date of dispossession expires before 3 years after attainment of majority have elapsed. The title will not be lost by prescription in such a case till 3 year after attaining of majority have passed.

In the present case the question of the application of these sections does not arise, because the age given of the Defendant Govinda of 1338-F. is 12 years; he therefore attained majority in 1347-F. and the twelve years from dl session did not expire till 1351-F. The Plaintiff therefore pan claim to have acquired a prescriptive title and is entitled to a decree of possession that ground.

I have dealt with at some length all the points on which the arguments of the learned advocate of the Appellant Shri Prabhakar rested and also such as arose from the facts of this case No other point remains to be considered.

In the result, this appeal fails and dismissed with costs.