The main legal point established in the judgment is the requirement for legal evidence supporting the necessity for incurring debts in a sale deed by a guardian, and the distinction between de jure and de facto guardians in determining the binding nature of such alienations.

Ramesam, J.

1. This second appeal arises out of a suit by the plaintiff to recover certain properties purported to have been sold by his guardian on 20th March 1919 under Ex. 1 for Rs. 800 to defendants 1 to 3 and 10. Defendants 4 to 9 are members of. an undivided family along with defendants 1 to 3, and defendants 11 to 13 form one undivided family with defendant 10. The District Munsif found that the sale was not binding upon the plaintiff and gave a decree. On appeal the Subordinate Judge differing from the District Munsif found that the sale dead was executed for necessity and dismissed the plaintiffs suit. The plaintiff files this second appeal.

2. In second appeal plaintiffs advocate Mr. Jagannadha Das argues that there is no legal evidence in support of the necessity relied on by the defendants. But before I discuss this question it will be convenient to dispose of another point raised by Mr. Sambasiva Rao the learned advocate for the respondents as it arises first; in logical order; it is that the suit is barred by limitation. This point was raised by issue 1. Both the lower Courts have found that the plaintiffs suit was brought more than three years after he attained majority. Mr. Sambasiva Rao contends that Article 44 applies to the suit and the suit is therefore barred by limitation.

3. Now suits brought by persons to set aside alienations by their guardians during their minority may be divided into three categories: (1) Where guardians are de jure guardians. Such suits are obviously governed by Article 41, This is not denied by the appellants advocate: see Fakirappa Limanna v. Luminna Mahadu [1920] 44 Bom. 712 in which certain observations suggesting the opposite view in Balappa v. Chanbasappa [1915] 33 I.C.444 and Anandappa v. Totappa [1915] 17 Bom. L.R. 1137 were disapproved. (2) Alienations by de facto guardians. To this class Article 44 does not apply: vide Thayummal, v. Kuppanna Koundan [1915] 38 Mad 1125 and Ramaswami Pillar v. Kasinatha Ayyar AIR1928Mad226 . Such alienations by de facto guardians can be ignored by a minor and he can bring a suit within me larger period, generally 12 years allowed by the general law. The transactions are not void because, if the alienations were for justifiable necessity, they may be upheld wholly or partially. They are only void able, but one has to use the term " voidable " carefully in respect of such cases. Voidability by minors of such alienation is analogous to the voidability of widows alienations by the reversioners who can ignore the widows alienations and bring a suit within 12 years under Article 141: see my judgment in Appavu Naicken In Re A.I.R. 1931 Mad. 377. The word " voidable " in such cases is not used in the same sense in which it is used in the law of contracts: see also In the matter of, Amrithalinga Tevan AIR1928Mad986 Where the alienation is made by a person who pretends to be a guardian though he is not the real guardian and is only an intermeddler just for the purpose of the transaction. It is unnecessary to discuss the incidents of the third category as it is agreed on both sides that the present suit does not fall under that category.

4. The learned advocate for the respondents claims that the present suit falls tinder the first category whereas the learned advocate for the appellant claims that it falls under the second category. The question whether it falls under the first or second of the categories above mentioned really depends on the question whether the guardian who alienated the suit property should be regarded as de jure guardian or de facto guardian. For the purpose of deciding that question I have to state some further facts. The suit property belonged to one Baidharo an Oriya Brahmin who died in 1906 leaving a widow, a daughter, a mother and two sisters. Immediately after his death there were disputes about his property and the present plaintiff was alleged to be his adopted son. As he was then a minor his natural father put forwar