JUDGMENT :

BANERJI, J.

1. This appeal arises in a suit brought by the respondent for possession of certain immoveable property which originally belonged to one Ibrahim Ali and of which a perpetual lease was granted to the applicant on 28th March, 1890, during Ibrahim Ali's minority, by his grandmother, who had been appointed, his guardian by the Court. The lease was granted by the guardian without previously obtaining the permission of the Court. Ibrahim Ali attained majority on 7th December, 1901 and on 21st of October, 1902, he sold the property to the plaintiff-respondent. It is by virtue of this sale that the plaintiff claims the property. In his plaint he also asks for the cancelment of the lease.

2. The Court of first instance held that the claim was barred by limitation, and accordingly dismissed the suit.

3. The Lower Appellate Court, differing from that court upon the question of Limitation, has set aside its decree and has remanded the case for trial on the merits.

4. The plea of limitation has been reiterated in this appeal and it is urged that article 91, schedule If, of the Limitation Act, governs this suit. The contention is that the lease is only voidable under section 30 of the Guardians and Wards Act (VIII of 1890), and that it was essential that it should be avoided by suit before the plaintiff's vendor or the plaintiff could recover the property.

5. No doubt, a voidable act is an act which is valid until repudiated. If the transfer in question had been made by the plaintiff's vendor himself or by some one through whom he claimed, and effect had been given to it, it would be necessary for him to get the instrument of transfer out of the way before he could recover the property. But when the act is the act of the guardian and not of the owner himself or of his predecessor in title, it is, I think, sufficient for him to repudiate the act, and it is not necessary to have the instrument cancelled. The claim to have the instrument cancelled must, in such a case, be ‘deemed to be only ancillary to the substantive claim for possession. As the lease in this case was granted by Ibrahim Ali's guardian on the 28th March, 1890, that is, before Act No. VIII of 1890 came into operation, the guardian must have been appointed under Act No. XL of 1858, and in granting a lease for a longer period than five years, without the permission of the court, she violated the provisions of section 18 of that Act. It was held by this Court in Mauji Ram v. Tara Singh, [1981] I.L.R., 3 All., 852 that an instrument executed in contravention of section 18, Act No. XL of 1858, was ab initio void and could not be ratified by the minor on attaining majority. In the later case, however, of Girraj Bakhsh v. Kazi Hamid Ali, [1886] I.L R., 9 All, 340 it was held that such a transfer was not illegal or void ab initio, but that the omission to obtain sanction from the court “relegates the parties to the position in which they would lie if no certificate had been granted.” In either view it would not be necessary to set aside the transfer made by the guardian, it not being a sale provided for by article 44 of the second schedule of the Limitation Act. It was held by this Court in Ramausar Pandey v. Raghubar Jati, [1883] I.L.R., 5 All. 420 that a suit for possession of immoveable property and to set aside a mortgage made by the plaintiff's guardian on his behalf during his minority was not governed by article 91, The Madras High Court in Unni v. Kunchi Amma, [1890] I.L.R., 14 Mad., 2 observed that it had been held in the case of the guardian the Manager of a Hindu family and the Hindu widow wrongly alienating property, that the suit which may be brought to recover it is not governed by article 91 of the Limitation Act. The view of the court below is, therefore, fully supported by authority. The present case is that of a lease by a person whose authority to make it extended to a lease for a period not exceeding five years. The lease could have operation, if a