ORDER SHIVDAYAL, J. 1. The only question in this appeal is whether the appellants' 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 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. 3. In Asaram vs. Lubdheshwar, 23 MPLC 234=ILR 1939 Nag 1 (FB), it was held that when a proprietor of a sir land transfers the occupancy rights in it in contravention of section 59 (1) of the C.P. Tenancy Act, the transferee becomes a quasi-trustee under section 80 of the Indian. Trusts Act and holds for the benefit of the ex-proprietor. He, therefore, neither dispossessed 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 qausi-trustees. Trusts Act and holds for the benefit of the ex-proprietor. He, therefore, neither dispossessed 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 qausi-trustees. That position being reached, the Court must declare that the surrender being illegal, the reasons in possession under it hold as quasi-trustees, that such quasi-trust should be determined and that defendants do relinquish possession on terms that are equitable and that have the effect of restoring as 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 que trust which trust is being determined." And Vivian Bose, J. observed as follows:- "In my opinion there is a quasi-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 it 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. 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 inspite 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. 4. In my opinion, the principle laid down in Asaram (supra) 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 dejure, is not merely voidable but absolutely void. See Husen vs. Rajaram, 5 MPLC 267=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's case, 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 vs. Usufali, 24 MPLC 264=AIR 1939 Nag. 7. 5. 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 quasi-trust. 7. 5. 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 quasi-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 I, Schedule II to the C.P. Tenancy Act, 1920, is therefore, oat 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 I, 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 govern 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. 6. 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 vs. Ramji. That judgment is not available. The other case is Pisau vs. Mst. Bhagwantin 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. 7. The question is:- "Where the property of a minor occupancy tenant under the C.P. Tenancy Act, 1920, is sold by a de facto manager without legal necessity or benefit of the estate, will it be said that there was either dispossession or exclusion from possession within the meaning of Article 1, Schedule II to that Act, so as to attract its application to a suit for recovery of possession from the transferee?" 8. Let the case be laid before my Lord the Chief Justice for constituting an appropriate Bench to decide that question. ORDER V.R. NEWASKAR, J. 1. Let the case be laid before my Lord the Chief Justice for constituting an appropriate Bench to decide that question. ORDER V.R. NEWASKAR, J. 1. Material facts leading to t his reference are as follows:- Plaintiffs alleged that after the death of their father Surit, defendant No.4 (hereinafter referred to as de facto guardian), who was an outsider, began to manage the lands left by him without his being appointed a guardian under any order of the Court and that in the course of such management sold away the lands bearing Khasra No. 581 measuring 1.72 and Khasra No. 623 measuring 0.55 in suit under a sale-deed dated 28.1.1952. Plaintiff No.1 Kejuram attained majority on 3.4.1959. On 21.9.1959 he filed the present suit for possession of the suit lands on behalf of himself and the minor brother Sukhan. 2. The suit was resisted by the alienee inter alia on the ground that the claim for possession was barred under Article 1, Schedule II of the C.P. Tenancy Act, the same having been filed more than three years from the date of the sale deed and his dispossession, Sections 6 and 7 of the Limitation Act being specifically excluded in their application to the claims for possession under the Act because of Section 104 (4) of the C.P. Tenancy Act, 1920. 3. This contention was upheld by the lower appellate Court and the suit was dismissed. 4. The plaintiff appealed and the learned Judge of the High Court who heard the appeal referred the following question of law for consideration by a larger bench:- "Where the property of a minor occupancy tenant under the C.P. Tenancy Act, 1920, is sold by a de facto manager without legal necessity or benefit of the estate, will it be said that there was either dispossession or exclusion from possession within the meaning of Article 1, Schedule II to that Act, so as to attract its application to a suit for recovery of possession from the transferee"? 5. 5. It seams from his referring order that prima facie the learned Judge was inclined to hold that the principle laid down in the Full Bench decision of this Court reported in Asaram vs. Lubdeshwar, 23 MPLC 234=ILR 1939 Nag 1, ought to be extended to the case of a void alienation made by a de facto guardian of minor's property without there being any legal necessity or benefit to the estate. The transferee, according to him, should be placed in the position of quasi-trustee and should be taken to hold the property for the benefit of the minor. There would in such a situation be neither dispossession nor exclusion from possession according to the learned Judge. The Transferee would be prevented, by joint application of section 95 and 14 of the Indian Trusts Act, from setting up their adverse interest as against the minor plaintiffs. 6. The reasoning upon which the aforesaid opinion is based can best be put in the words of the learned Judge:- "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 quasi-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 I, 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 I, 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." Before considering the applicability of the above reasoning or the decision of the Full Bench in Asaram's case it will be material to refer to provisions of Section 104 and Article 1, Schedule II of the C.P. Tenancy Act, 1920. Section 104:- "(1) The suits and applications specified in the second schedule annexed to this Act shall be instituted and made within the time prescribed in the schedule for them respectively and every such suit instituted and application made after the period of limitation so prescribed shall be dismissed. (4) Subject to the provisions of sub-section (1), the provision of the Indian Limitation Act, 1908, with the exception of sections 6, 7, 19 and 20 thereof shall apply to suits and applications under this Act." Schedule II Article 1:- 1. For possession of a Three years. From the date holding by a person of dispossession claiming to be a tenant or exclusion. from which he has been dispossessed or excluded from possession by any person. It is clear from these provisions that this being a suit governed by the special Act namely C.P. Tenancy Act, 1920, the period provided by that Act will apply in place of ordinary period of limitation under the Indian Limitation Act. It is also clear that the plaintiffs in such a case will not be in a position to claim benefit under sections 6 and 7 of the Limitation Act those sections being specifically excluded in their application to the suits governed by the C.P. Tenancy Act. The present suit for possession was filed by the plaintiffs on 21.9.1959 against the defendants who had secured possession as a result of the transfer elected in their favour by the plaintiffs de facto guardian on 28.1.1952. The claim thus is clearly barred under Schedule II Article 1 of the C.P. Tenancy Act, 1920. The plaintiffs, though minor at the date of transfer, could not claim the benefit of their minority for the delay of more than three years provided by the Act in bringing the present action. 7. The decision in Asaram vs. Lubdheshwar, 23 MPLC 234=ILR 1939 Nag 1, cannot aptly apply in the present case. In that case section 84 of the Trusts Act was directly applicable. The proprietor effected in that case, the transfer of his Sir land by committing fraud upon the statute namely section 49 of the C.P. Tenancy Act which prohibited transfer of Sir land by a proprietor. The device adopted by him was that the effected sale of his four annas share reserving to himself the cultivating rights in the Sir land. The proprietor effected in that case, the transfer of his Sir land by committing fraud upon the statute namely section 49 of the C.P. Tenancy Act which prohibited transfer of Sir land by a proprietor. The device adopted by him was that the effected sale of his four annas share reserving to himself the cultivating rights in the Sir land. On the same day the Sir land were also surrendered in favour of the transferee. All this was held to involve a device to defeat the provisions of law namely the statutory prohibition to a proprietor to transfer his Sir land. To permit the transferee to continue under the circumstances was held to amount to defeating the provisions of section 49 of the Act. Transferee, under the circumstances, was held to be quasi-trustee in respect of the land and would held the land for the benefit of the transferor. Consequently it was held that no question of limitation was involved as there was neither dispossession nor exclusion from possession. Sections 95 and 14 were called into play along with section 84. 8. In the present case although the transfer by a de facto guardian might be void but for that reason it cannot be held that it was meant to defeat provisions of any law. The motive for the de facto guardian could, at the most, be to make an illegal gain. Moreover section 84 of the Trust Act in terms will not apply as there is no transfer by an owner in this case. It is a transfer by a person who is an outsider and having no authority to act in the name of the minors. The action may be wrong or reprehensible but for that reason the transferee cannot be constituted a quasi-trustee. Moreover it cannot be said that the motive for the transfer in the manner done was to defect any provision of law. 9. It certainly would appear that minors who could not protect their interest are being deprived of their property due to the action of a wrong doer and the Courts cannot come to his aid. But apparent hardship arises due to inapplicability of Sections 6 and 7 of the Limitation Act and nothing else. 10. Other cases of hardship to minor are conceivable and the Courts may not be able to come to their rescue. 11. Mr. But apparent hardship arises due to inapplicability of Sections 6 and 7 of the Limitation Act and nothing else. 10. Other cases of hardship to minor are conceivable and the Courts may not be able to come to their rescue. 11. Mr. Dharmadhikari sought to rely upon the decision in Morgan vs. Morgan, 26 ER 310. 12. It is difficult to import principle of that case in view of the fact that the Indian Trust Act constitutes a Code and is exhaustive in respect of which it declares the law. 13. It would appear to be an attractive principle if a thief or a wrong doer taking another's property were constituted a trustee by law, but as is well-known this is not the legal position. 14. My brother Pandey, J., sitting singly in Pusgu and others vs. Mst. Bhagwantin, S.A. No. 486 of 1960, has taken the same view with reference to a provision in section 25 of the C.P. States Land Tenure Order, which is in similar terms as section 104 of the C.P. Tenancy Act, 1920, with Schedule II almost in identical terms. There too section 25 (4) of the Order made sections 6 and 7 of the Limitation Act inapplicable to a claim governed by the Order and the Schedule thereunder. The points of view sought to be canvassed in the present case no doubt were not done before him. But that will not alter the position as those points, to my mind are untenable. 15. I would, therefore, answer the reference in the affirmative by holding that in the case of a transfer by a de facto guardian of a minor tenant governed by the C.P. Tenancy Act, 1920, there could be dispossession or exclusion from possession of the minor due to passing of the property to a stranger transferee and a suit for possession, if not brought within three years of such dispossession or exclusion from possession, it would be barred by time. 16. I agree.