JUDGMENT

Mookerjee, Actg., C.J. - This is an appeal by the plaintiffs in a suit for recovery of possession of land upon declaration of title. The land admittedly formed the occupancy holding of one Niamat Karikar, a Mahomedan, who had three sons and four daughters. One of these sons, Nabu, died during the lifetime of his father, and, consequently never acquired an interest in the disputed land by inheritance. Three of the plaintiffs (Nos. 6, 7 and 8) are descendants of Nabu, namely, a daughter and two sons by another daughter. These plaintiffs have clearly no title to enforce. The other five plaintiffs claim through Nagar, one of the surviving sons of Niamat Karikar. The first three plaintiffs are the sons of Nagar, the fourth is his daughter, and the fifth his widow. It is indisputable that they did acquire title to a share of the holding. The first three defendants, who have successfully contested the claim, base their title on a sale which was made in their favour by the widow of Nagar (the fifth plaintiff), who acted in the transaction not only on her own behalf but also as the guardian of her infant sons and daughters. Now, it appears that the two sons of Niamat Karikar who survived him, named Nagar and Yar, owed money to the first three defendants, which was not re-paid at the time of their deaths. the consequence was that one of the creditors sued some of the heirs of Nagar and obtained a decree, while the other creditors took steps to enforce their dues by suits. In these circumstances, the widow of Nagar sold the disputed land to the first three defendants in 1901 in satisfaction of their dues. The holding at that time was worth less than Rs. 300, and each of the first three defendants purchased an one-third share. The sale took place by delivery of possession, as each of the shares conveyed was less than Rs. 100 in value. The plaintiffs instituted this suit for recovery of the land, on the allegation that the contesting defendants were trespassers in wrongful possession. In answer to this claim, the defendants set up their title by purchase in their written statement. The question thereupon arose whether the sale by the mother had conferred a valid title on them. The Courts below have answered this question in favour of the defendants, on the authority of the decisions in Mafazzal Hosain v. Basid Sheikh 34 C. 36 : 4 C.L.J. 485 : 11 C.W.N. 71 and Ram Charan Saryal v. Anukul Chandra 34 C. 65 : 4 C.L.J. 578 : 11 C.W.N. 160 and have dismissed the suit. On the present appeal by the plaintiffs, it has been argued that the decisions mentioned can no longer be regarded as good law, in view of the pronouncement made by the Judicial Committee in Imambandi v. Mutsaddi 47 Ind. Cas. 513 : 45 I.A. 73 : 45 C. 878 : 28 C.L.J. 409 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom. L.R. 1082 : (1919) M.W.N. 91 : 9 L.W. 518 (P.C.). We are of opinion that this contention is well founded and must prevail.

2. In the case of Imambandi v. Mutsaddi 47 Ind. Cas. 513 : 45 I.A. 73 : 45 C. 878 : 28 C.L.J. 409 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom. L.R. 1082 : (1919) M.W.N. 91 : 9 L.W. 518 (P.C.) the Judicial Committee held that under the Muhammadan Law a mother has no power as de facto guardian of her infant children to alienate or charge their Immovable property. If such an alienation is made, it is not necessary for the infants to have it sat aside within three years after attainment of majority under Article 44 of the Schedule to the Limitation Act, because as pointed out by Lord Robson in Mata Din v. Ahmad Ali 13 Ind. Cas. 976 : 39 I.A. 49 : 34 A. 213 : 15 C.L.J. 270 : 23 M.L.J. 6 : 16 C.W.N. 338 : 11 M.L.T. 146 : (1912) M.W.N. 183 : 9 A.L.J. 215 : 14 Bom. L.R. 192 : 15 O.C. 49 (P.C.), the alienation must be deemed to have been effected, not by a guardian, but by a wholly unauthorised person. The infant whose property has thus been alienated is consequently e