An alienation by a de facto guardian of a Hindu minor, if not for necessity, is not binding on the minor and is void ab initio. A suit for recovery of possession of property alienated by a de facto guardian without legal necessity is governed by Article 144 of the Limitation Act, 1908, which provides a limitation period of 12 years.

1. THIS is a second appeal from the judgment of the district Judge of Bankura delivered on the 18th January 1963 affirming the judgment of the Munsif at Bishnupur delivered on the 15th September, 1960. The courts below have found that the plaintiff was born on the 23rd April, 1935. In 1938, when the plaintiff was only three years old, she was married to one Surendra Nath Kundu since deceased. She was taken to her husband's place when she was six or seven years of age and became a widow at the age of about nine or ten. Thereafter she came to her father's house:

2. ON the 20th November, 1944 the plaintiff's father alienated certain properties which the plaintiff had inherited from her husband. The alience was the defendant No. 1. On March 24, 1950 the defendant No. 1 sold small portions of these properties to the defendants nos. 1 (ka) to l (gha. The plaintiff attained majority on the 23rd April, 1953. She instituted the suit on April 24, 1956. The first prayer in the plaint is a prayer for setting aside the alienation on the ground that it was not made either for legal necessity or for the benefit of the estate of the plaintiff. This prayer is rather unhappy and need not have been made at all on the facts of this case. In the second prayer, however, the plaintiff has asked for possession of the properties in suit obviously on the basis that the alienations were void. The suit has been dismissed against the defendants Nos. 1 (Ka) to l (gha) on the ground of limitation. With respect to the other properties, however, both the courts below have come to the conclusion, on the evidence on record, that the alienations were not made for legal necessity. In this second appeal we were invited to reconsider whether this decision of the courts below was correct. But we do not find any scope for such reconsideration. In any event, upon going through the evidence, it does not appear to us that either the trial court or the first Appellate Court had erred in their conclusions on facts.

3. THE first point therefore, that arises for our consideration is whether the plaintiff's father, was the natural guardian or the defacto guardian of the plaintiff at the time of the alienation. The learned District Judge points out that at all material times the plaintiff's husband's maternal uncle, one Manindra bhuin, was alive and he was the only person entitled in lad to be the guardian of the minor plaintiff. In other words, so long as this maternal uncle was available, the plaintiff's father could not act as the plaintiffs guardian.

4. IT is common case that the parties are governed by the Dayabhaga School of Hindu Law. In a case like this our court has relied on a text of Narada and we shall refer to the decisions at the appropriate time. To start with, let us look into the original text. It runs thus:

In Macnaughten's Hindoo Law, vol. II, Chapter VII at page 203, the text of Narada quoted above has been translated thus:

"when the husband is deceased, his kin are the guardians of his childless widow. In the disposal of the property, and care of herself, as well as in her maintenance, they have full power. But if the husband's family be extinct or contain no male, or be helpless, the kin of her own father are the guardians of the widow, if there be no relations of her husband within the decree of a sapinda. "

The above passage in Macnaughten has been quoted by Sir Gooroodas banerjee (who was sitting with Beverley, J.) in (1) Khudiram Mookerjee v. Bonwari Lal Roy, I. L. R. 16 Cal. 584 at page 586. In this case a certificate of administration, under Act XL of 1858 was granted to the relations of the widow's husband in preferences to her paternal relations.

5. THIS passage of Narada was also relied on by Sir Asutosh Mookerjee in (2) Satish Chandra Ghosh v. Kalidasi dassi reported in 34 C. L. J. 529 at 539 the position, therefore, is that the paternal relations of a widow are entitled to act as the widow's guardian only when there are no male relations