SH1V DAYAL J. - (1.) THE only question in this appeal is whether the appellant's suit was within time. THEy alleged that on the death of their father, Surit, they had neither a natural guardian, nor a guardian appointed by the Court. Ramcharan (defendant 4) just started managing their property. Later on, without any right or authority, he transferred the suit property to the other defendants. THE plaintiff, therefore, claimed a decree for possession of the alienated lands. THE trial Court held that the Ramcharan acted merely as a de facto guardian; that the transfer of the suit land was without any legal necessity, nor was it for the benefit of the estate; and that Ramcharan brought the sale proceeds to his own use. A decree for possession was passed in the plaintiffs' favour. THE first appellate Court, while maintaining the finding that the sale could not be upheld for want of legal necessity or benefit of the estate, reversed the decree of the trial Court holding that the suit was barred by limitation. THE finding of fact has not been, nor could be, attacked before me.
(2.) THE demised lands were occupancy within the meaning of the C. P. Tenancy Act, 1920. THE sale deed is dated 28 January 1952. Plaintiff 1, Kejuram, attained majority on 3 April 1959. THE suit was commenced on 21 April 1959. THE first appellate Court applied Article 1 of Schedule II to the Act under which the limitation prescribed is 3 years from the date of dispossession or exclusion from possession. Sections 6 and 7 of the Limitation Act do not apply (see section 104, C. P. Tenancy Act, 1920). THE present suit was clearly instituted beyond 3 years from the date of the transfer. In Asaram v. Lubdheshwar, AIR 1938 Nag 335=ILR 1939 Nag 1(F.B.), it was held that when a proprietor of a sir land transfers the occupancy rights in it in contravention of section 49 (1) of the C. P. Tenancy Act, the transferee becomes a guasi-trustee under section 80 of the Indian Trusts Act and holds for the benefit of the ex-proprietor. He, therefore, neither dispossesses nor excludes the ex-proprietor from possession and consequently Article 1, Schedule II to the Tenancy Act does not apply. Stone C. J. observed as follows: "Illegality being established, even though not pleaded, it follows that the surrenderees have to be placed in the position of quasi-trustees. That position being reached, the Court must declare that the surrender being illegal, the persons in possession under it hold as guasi-trustees, that such guasi-trust should be determined and that defendants do relinquish possession on terms that are equitable and that have the effect of restoring ss nearly as may be the status quo. Though that result is similar in effect to that which a tenant would obtain if he sued a landlord who had wrongly dispossessed him in that in both cases the plaintiff gets possession, the two causes of action are entirely different. The decree which results in the plaintiff getting possession is not directed against the defendant as a person dispossessing but as a person in the position of a trustee holding for the cestui quo trust which trust is being determined." And Vivian Bose J., observed as follows: "In my opinion there is a guasi-trust in such cases under section 84 of the Trusts Act by virtue of which the transferee holds the property for the benefit of the transferor, and if he does that then as I view the law there is neither dispossession nor exclusion from possession in the sense in which those words are used in the schedule. Under section 95 of the Trusts Act he holds as if he were a trustee for the transferor and under section 14 he is prohibited from setting up any adverse interest. I cannot regard this as constituting either dispossession or exclusion from possession within the meaning of the 2nd Schedule of the Tenancy Act." Shri Dabir endeavours to distinguish that decision from the present case. The argument is that in that case there was fraud committed on the statute, namely, section 49, C. P. Tenancy Act, 1920, which prohibited transfer of sir land by a proprietor. In order to get over the prohibition, on 14th April 1923, a sale deed was executed of the four annas share reserving to the vendors cultivating rights in the sir land. On the same day the sir lands were also surrendered. Both these parts of the transaction, namely, transfer of the malguzari share and the surrender in favour of the transferee were but a fraudulent device. It was, therefore, held that the sir land never lost its character so as to become occupancy because the transfer of the proprietary share being in spite of the prohibition contained in section 49, was no transfer in the eye of law at all and had no results generally and in particular of altering the character of the land as sir. In my opinion, the principle laid down in Asaram, AIR 1938 Nag. 335=ILR 1939 Nag 1 (FB), must be extended to a case of void alienation of a minor's property. It is settled that the expression de facto guardian is not correct. An alienation of the property of a minor by a person who is merely a de facto manager, but not a guardian de jure is not merely voidable but absolutely void. [(See Husen v. Rajaram, 10 NLR 133]. A transfer of a minor's property by a person who has no authority to transfer is no transfer at all in the eye of law. A de facto manager holds the minor's property in trust. A transferee from him is also in the position of a trustee. Therefore, applying the principle of Asaram case (1), the plaintiffs were neither "dispossessed" nor "excluded from possession" when Ramcharan sold the land to the other defendants. I would further recall the distinction between "dispossession" and "discontinuation of possession" which was succinctly stated by Bose J., in Meharban v.Usufali, 1938 NLJ 418=AIR 1939 Nag 7=ILR 1941 Nag 655.
(3.) THE position seems to be this: (1) A de facto guardian is truly speaking a de facto manager who just has superintendence or supervision over the minor's estate. (2) THE de facto guardian (manager) holds the property of the minor in guasi-trust. If he had continued in management for more than 3 years or 12 years, he could not have set up a title in himself on the ground of adverse possession. (3) Alienation by a de facto manager, which is neither for legal necessity nor for the benefit of the estate, is null and void. (4) THEre is no dispossession, nor exclusion from possession. Article 1, Schedule II to the C. P. Tenancy Act, 1920, is, therefore, not applicable. THE possession of the transferee is merely permissive. (5) This is not to apply section 10 of the Limitation Act, but it is to say that Article 1, Schedule II to the C. P. Tenancy Act, does not govern the present suit. (6) Article 1 of Schedule II to the C. P. Tenancy Act being inapplicable, Article 144 of the Limitation Act governs such a suit and the starting point of limitation is the date on which the de facto manager or his transferee denies the minor's title. Shri Dabir presses for a reference to a Division Bench having regard to the importance of the question and certain decisions of this Court, which, according to him, take a contrary view. Reliance is placed on Namdeo v. Ramji, 1955 NLJ Note No.271 (S.A. No. 345 of 1949, D/- 1-2-1955.). That judgment is not available. The other case is Pisau v. Mst. Bhagwantin, S. A. No. 486 of 1960, D/- 27-8-1963, by Pandey J. The facts of that case are not quite similar. If the view taken there is contrary to mine, I respectfully do not agree. I would agree to refer this case to a Division Bench.;