IMPORTANT POINT
The court upheld the validity of a sale-deed executed by a father to repay antecedent debt, affirming that minors are bound by such transactions when legal necessity is established.

ORDER :

(Rekha Borana, J.)

1. The present Second Appeal pertains to the category of ‘Specifically Fixed Matters’.

2. The present second appeal has been preferred against the judgment and decree dated 11.01.1993 passed by the Additional District Judge No.2, Jodhpur in Civil First Appeal No.105/1986 whereby the judgment and decree dated 16.04.1984 passed by the Additional Munsif and Judicial Magistrate No.2, Jodhpur in Civil Original Suit No.405/1981 had been reversed. Vide the judgment and decree dated 16.04.1984, learned Trial Court decreed the suit for cancellation of sale-deed dated 21.09.1971 in favour of the plaintiffs and cancelled the sale-deed in question. However, learned First Appellate Court, while allowing the appeal preferred on behalf of defendant No.1 Labhchand, set aside the said judgment and decree.

3. While admitting the present second appeal on 23.07.1997, four substantial questions of law were framed, which have been referred to in the subsequent paras.

4. The facts are that a suit for cancellation of sale-deed dated 21.09.1971 was filed on behalf of the plaintiffs with an averment that vide the said sale-deed, the residential house of the plaintiffs was sold out by their father Mohanlal (defendant No.2) to Labhchand (defendant No.1) without permission of the Court, which was essential in terms of Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as ‘the Act of 1956’). It was submitted that the house in question is an ancestral property, in which the plaintiffs too had a share and their father could not have sold out the said property without the permission/leave of the Court, as the plaintiffs were minors at that point of time. It was further averred that there was no legal necessity or any antecedent debt because of which defendant No.2 was required to sell out the property.

With the said submissions, it was prayed that the sale-deed dated 21.09.1971, being in contravention of Section 8 of the Act of 1956, be cancelled.

5. The case of defendant No.1 Labhchand, the purchaser, was that firstly, the property was a self-acquired property of Mohanlal and secondly, the property was sold out by Mohanlal as Karta of the joint Hindu family to repay the debt owed by him to one Karamjeet. The property been sold out to repay a legal debt did not require any permission of the Court and was perfectly valid.

6. Written statement was filed by defendant No.2 Mohanlal also, wherein he averred that he intended only to mortgage the property but defendant No.1, in collusion with Karamjeet, got the sale deed executed. He further averred that the amount as received from the said mortgage/sale was not utilised for the benefit of the family or the estate.

However, no evidence was led by the defendant No.2 in support of his pleadings.

7. On basis of the pleadings as made by the parties, the learned Trial Court framed the following seven issues :

1- vk;k oknxzLr edku ekSjrh gksus ls la;qDr ifjokj dh laifr gS\

2- vk;k oknxzLr edku esa oknhx.k dh gd o fgLlk gS\

3- vk;k izfroknh la[;k 2 Jh eksguyky ds vdsys dks oknxzLr edku fnukad 21-09-71 dks izfroknh la[;k 1 ykHkpan dks cspus dh dksbZ vf/kdkj ugha Fkk\

4- vk;k oknxzLr edku dk cspku fnukad 21-09-71 oknhx.k ds bUVªsLV ds fo#/k gksus ls voS/k gS\

5- vk;k izfroknh la[;k 2 dks oknhx.k dk ukckfyxku dh rjQ ls cspku djus ls ifgys l{ke U;k;ky; ls vuqefr ysuk vko';d Fkk\

6- vk;k izfroknh la[;k 1 oknhx.k ls dEisUlVjh dksLV : 1000@& ikus dk vf/kdkjh gS\

8. Substantial questions No.1 & 3 as framed in the present second appeal are as under :

“1. Whether the finding recorded by the learned trial court to the effect that the sale-deed executed by Mohan Lal, was not to pay the antecedent debt of father has been set aside by the learned first appellate court without meeting cogent and convincing reasons given by the learned trial court?

3. Whether the plaintiff-appellants being minors have legal justification to get the sale-deed declared void within the meaning of Section 8 of the Hin