JUDGMENT 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. 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 in the husband's family including the husband's Sapindas. 6. IN the instant case it is agreed that the husband's maternal uncle was not a male member of the husband's family. 6. IN the instant case it is agreed that the husband's maternal uncle was not a male member of the husband's family. On behalf of the respondent it is, however, urged before us that the maternal uncle was a Sapinda and, as such, he was entitled to be placed in the management of the widow's estate in preference to the widow's father. If seems to us that this contention must be upheld. So far as the Dayabhaga school is concerned, the Sabdakalpadruma Vol. II at page 1668 gives the meaning of Sapinda inter alia, in these words: This definition of a Sapinda brings the maternal uncle within the category of Sapindas. We find also support for this proposition in Mulla's hindu Law, 12th Edition, at page 171 in Art. 32. The relevant portions of this Articles run thus :- "a Hindu governed by the dayabhaga law is the Sapinda (3) Of those who are bound to offer a pinda to the ancestors to whom he is bound to offer a pinda those ancestors being his three immediate paternal ancestors and his three immediate maternal ancestors; and all of them are his sapindas. " The maternal uncle is bound to offer a Pinda to the three immediate maternal ancestors mentioned above and, as such, he is a Sapinda under the Dayabhaga law. His claim to guardianship has, therefore, priority over the claim of the widow's father. 7. WE may also mention that in macnaughten's Hindoo Law Volume II at page 204 there is a question which reads as follows : "in the case of a childless widow who is a minor, and whose father and husband's sister's son are both living, which of the individuals in question is entitled to the management of her property?" The reply runs thus : "of the individuals above specified, that is, the widow's father and her husband's sister's on, the latter is her proper guardian in respect of her maintenance, and in the disposal of the property and care of herself; as on her death, he is the successor to the property. This opinion is conformable to the Dayabhaga and other authorities. " 8. THE same principles can be applied to the facts of this case. This opinion is conformable to the Dayabhaga and other authorities. " 8. THE same principles can be applied to the facts of this case. As the widow's husband, on the evidence on record, had no other relations but the maternal uncle, it was the maternal uncle who was the successor to the husband's property. He was, therefore, the proper guardian of the widow in respect of her maintenance and in the disposal of the property and care of herself. Reference in this connection may be made to the Judicial Committee's decision in (3) Pudma Coomari Debi and others v. The Court of Wards and another 8 LA. 229. There appears, therefore, to be no doubt that, in the instant case, the proper person for the widow's guardianship was the maternal uncle and not the father. But Mr. Apurbadhan Mukherjee, learned Advocate for the Appellant argues before us that, as the maternal uncle was never appointed as guardian by any Court of law and the widow came to live with her father and the widow's father in fact looked after her properties he was her defacto guardian. Mr. Mukherjee argues further that Article 44 of the limitation Act applies both to a de jure and a defacto guardians And since the suit was instituted one day after the expiry of three years, from the attainment of the widow's majority the Suit was barred by limitation. Before we deal with this argument of Mr. Mukherjee it would be convenient to set out Article 44 of the Indian Limitation Act, 1908. The Article is as follows: Description of Suit Period of Limitation Time from which period begins to run By a ward who has attained majority, to set aside a transfer of property by his guardian. Three years When the ward attains majority 9. THE real controversy before us in this appeal is whether Article 44 or article 144 of the Limitation Act would apply to the facts of this case. There is no dispute that the widow's father was the defacto guardian. When the defacto guardian alienates property without legal necessity the trend of judicial decisions appears to be that the alienation is void ab initio. There is no dispute that the widow's father was the defacto guardian. When the defacto guardian alienates property without legal necessity the trend of judicial decisions appears to be that the alienation is void ab initio. It is no doubt open to the minor on attaining majority to adopt the alienation but it the minor does not chose to do so and has already been dispossed he or she can simply file a Suit for an appropriate declaration of title and for recovery of possession on the ground that the alienation was void. And such a suit would be governed not by Article 44 but by Article 144 of the limitation Act. The first case we intend to refer to is a Division Bench Judgment of the Patna High Court in (4) Kailash Chandra Pradhan v. Rajani kanta Panda, and another reported in a. I. R. 1945 Patna at page 298. The patna High Court in this case, points out the difference between alienation by a dejure guardian and alienation by a defacto guardian. It is stated that under the Hindu law a defacto guardian is in the same position as a dejure guardian so far as acts done for the minors benefit are concerned, and alienation by the defacto guardian for the minor's benefit is valid. But to extend this analogy says the Patna High Court, to cases where the alienation by a defacto guardian is not for the benefit of the minor would be to assign to a defacto guardian the same position as that of a legal guardian which is not justified. According to the Patna High Court the distinction between the powers of a dejure and defacto guardian lies in the fact that while the dejure guardian is under the law clothed with authority to deal with the minor's property, the defacto guardian is not clothed with similar authority, though if the defacto guardian alienates the minor's property for his benefit, the Court will uphold the transaction. In the case of an alienation by a dejure guardian, not for the benefit of the minor, the guardian acts in excess of his authority derived under the law, whereas in title case of a similar alienation by a defacto guardian his act is wholly unauthorised. In the latter case, however, the minor may choose to ratify the; transaction, though it is not binding on him. In the latter case, however, the minor may choose to ratify the; transaction, though it is not binding on him. To that extent the alienation is voidable. The position is the same, says the Patna high Court, as in the case of an alienation by a Hindu widow unsupported by legal necessity, which may be affirmed by the reversioner, though it is not binding on him, and is in that sense voidable. 10. FOR these reasons the Patna high Court has come to the conclusion that an alienation by a defacto guardian of a Hindu minor if for necessity is binding on the minor. But it does not follow that an alienation by a defacto guardian, not supported by necessity, is voidable in the sense that is binding on the minor until it is set aside. If the alienation is not for the benefit of the minor it not binding on the minor. The minor, however may choose to ratify it though it is not binding on him and it is only to that extent that it is voidable. A Suit, therefore, to set aside an alienation made by a defacto guardian of a hindu minor is governed by Article 144 and not by Article 44. It is stated further that Article 44 can have no application unless the transfer sought to be set aside is voidable in the sense that it is binding on the minor until it is set aside. Let us now try to apply these principles which the Patna. High Court has laid down to the facts of the case before us. Here a defacto guardian alienated the minor's property and this alienation was neither for the minor's benefit nor for legal necessity. The minor upon attaining majority brought a suit for recovery of possession. It is true that the first prayer of the plaint is for setting aside the alienation. But this prayer was wholly unnecessary and was in fact given up in the Courts below. The Suit, it appears, proceeded on the basis of other prayers in the plaint relating to recovery of possession as the alienation by the defacto guardian was void. To a Suit of this nature Article 144 of the limitation Act, 1908, applies and the period of limitation is 12 years. The Suit, it appears, proceeded on the basis of other prayers in the plaint relating to recovery of possession as the alienation by the defacto guardian was void. To a Suit of this nature Article 144 of the limitation Act, 1908, applies and the period of limitation is 12 years. We also intend to refer to the Privy Council's Judgment in Bijoy Gopal Mukherji and others v. Srimati Krishna Mahishi Debi and others reported 34 LA. at page 89. This was suit for a declaration that an jara granted by a Hindu widow of her husband's estate had become inoperative as against the plaintiffs (heirs of her husband) since her death, and for khas possession of the properties in suit with means profits. The Privy Council has held that Article 144 applies to the suit, which is substantially one for possession. There was no necessity for the declaration prayed, or to cancel or set aside the jara, which the plaintiffs were, after the widow's death, entitled to treat as a nullity, and this was substantially a suit for recovery of possession. 11. THE principles we have discussed above can also be substantiated by the judgments reported in A. I. R. 1953 Bombay 273; 34 C. W. N. 642; 25 C. W. N. 258; and 60 C. W. N. 338 P. C. Our attention has boen drawn to a judgment of mr. Justice Binayak Nath Banerjee reported in A. I. R. 1960 Calcutta at page 446. It is not a direct authority on the point we have been called upon to decide in this appeal but there are observations in this judgment which, Mr. Apurbadhan Mukherjee has urged, are in his favour. Since these observations do not appear to be in conformity with the Privy Council's view in the judgment cited above we are not inclined to follow them. In the result this appeal is dismissed. There will be no order as to costs.