To an alienation by the de jure guardian without legal necessity Article 44 of the Limitation Act applied while, if the said alienation was by the de facto guardian the enlarged period of limitation of 12 years applied.

JUDGMENT :- This is a plaintiff's appeal against the confirming decision of the First Additional Subordinate Judge, Cuttack.

2. The plaintiff sued for her own title and for a declaration that the defendants 1 to 4 had not acquired any title by virtue of their sale deeds. She also wanted affirmation of her possession and permanent injunction restraining the defen-dants from interfering with her right and possession.

3. The plaintiff became an orphan and the defendant no.5 said to be her maternal uncle as de facto guardian transferred her entire property in favour of the defendant no.1 on 7th June 1948 (Ext.C). The defendant no.1 sold a part of that property under two separate registered sale deeds in favour of the defendants 3 and 4 on 9th February, 1951 (Ext.B) and 21st January, 1959 (Ext.A) respectively. A short genealogy would show the relationship of the plaintiff and the defendant no. 1.

4. The plaintiff alleged that the alienation by the de facto guardian was not for necessity nor for consideration and was not binding upon her. Accordingly, she wanted the alienations to be set aside.

5. The defendants 1,3,4 and 5 contested; the defendants 1 and 5 filed one joint written statement, while the defendants 3 and 4 filed another. They contended that the sale was for legal necessity and the minor had benefited by the transaction.

6. The trial court found that the defendant no.5 was the maternal uncle of the plaintiff. He found that Ext.C was not valid nor genuine. There was no necessity for the transaction and as such the plaintiff was not bound by the alienation. He further found that the defendant no.1 acquired no title under Ext.C and accordinely Exts.A and B were also not operative. He however, came to hold that the suit was barred by limitation as it was filed on 14th May, 1960 and applying Article 44 of the old Limitation Act of 1908, the suit was beyond the period of limitation The plaintiff was found to have attained majority sometime in 1952 and, therefore, the bar of limitation was applied.

7. The learned appellate Judge found that the transaction was for legal necessity and for the benefit of the minor and. therefore, the sale deed was binding on the minor and she was not entitled to challenge the alienation. He accordingly upheld the decree of the trial court dismissing the suit.

8. Against this affirming decision of the learned appellate Judge, this appeal has been filed.

9. The counsel for the appellant claimed that the appellate court did not apply its mind to the facts of the case and committed serious errors of record. After I was satisfied that there was some truth in the contention raised by counsel I thought it proper to examine the entire evidence so that the actual position may be found out. The appeal was heard at considerable length and both sides referred to facts.

10. The sale in this case is by the de facto guardian of the plaintiff It is well settled that to an alienation by the de jure guardian without legal necessity Article 44 of the Limitation Act applied while, if the said alienation was by the de facto guardian the enlarged period of limitation of 12 years applied. After discussing a series of decisions of different Courts, his Lordship Mr. Justice Misra (My Lord the present Chief Justice) in the case of Narayan Prasad Rath v. Sukumari Dei, ILR (1964) Cut 298 stated:

"The correct legal position of law may be summarised as follows:

(i) The observations in many of the authorities that a de facto guardian has the same power as a de jure guardian must always be restricted to cases where the alienation is for legal necessity and benefit of the minor:

(ii) While alienation by de iure guardian without a legal necessity is voidable in the sense used in the Contract Act, such alienation by a de facto guardian is void ab initio and is voidable in the sense that the minor on attainment of majority may either ratify it or avoid it by treating it as a nullity:

(iii) An alienation by de facto guardian under the Mohammedan