ABDUL HADI, J.

This appeal has been posted before us on being referred to by Bellie, J., since the view he is taking on the question involved in the appeal is in conflict with the view taken by Ratnam, J., in his decision reported in Pattayi Padayachi v. Subbaraya Padayachi, (1980) 2 Mad LJ 296.

2. This appeal is by the plaintiff against the dismissal of his suit O.S. No. 296 of 1975 on the file of Sub Court, Cuddalore praying for setting aside the sale under Ex. B.4 dated 2-8-1961, effected by his mother when he was a minor, in so far is his 3/4th share therein is concerned and for partition and separate possession of the said share. The question to be answered is whether the said sale is hit by S. 8 of The Hindu Minority and Guardianship Act, 1956 since admittedly the plaintiff's mother did not obtain the previous permission from the Court as contemplated in the said Section, and consequently whether the plaintiff could avoid the said sale with reference to his above said 3/4th share. The contention of the learned Counsel for the plaintiff Mr. M.N. Padmanabhan is that S. 8 operates and the plaintiff could avoid the sale. On the other hand, the contention of the learned Counsel for the defendants 3 to 10 (respondents 2 to 9 herein) who are the legal representatives of the deceased 2nd defendant, the vendee under the above said Sale deed Mr. V. R. Gopalan, is that the said property being the joint family property, the said Section is not attracted that consequently the above said permission from the Court is not called for and that the said sale having been effected for legal necessity of the family, should be upheld as valid as the Court below has done.

3. The lst defendant (lst respondent review) is the plaintiff's mother and under the said sale, she sold not only the above said 3/4th share belonging to the plaintiff on his behalf, she also sold her own 1/4th share therein. She remained ex parte both in the Court below and in this Court.

4. Admittedly, the above said property was a joint family property of the family of' one Rajamanickam Padayachi, his son, the plaintiff and his wife, the 1st defendant, till his death in 1960, after the coming into force of the Hindu Succession Act of 1956, leaving behind his said widow the lst defendant and his son, the plaintiff. There is also no dispute that pursuant to Section 6 proviso and Explanation therein read with Sec. 8 of the said Act, a notional partition between Raja-aniokam Padayachi and his son, the plaintiff had taken place immediately before the death of Rajamanickam Padayachi that the plaintiff thereby got half share in the suit property by survivorship and in the remaining half share of Rajamanickam Padayachi, his two heirs, viz., the lst defendant and plaintiff got 1/4th share each by inheritance and that in all the plaintiff got 3/4th share and the lst defendant got the remaining 1/4th share. Bellie, J., in his referring judgment has come to the conclusion that the above said undivided 3/4th share was the joint family property of the family of the plaintiff and his mother, after the death of the plaintiffs father, that consequently S. 8 of the Hindu Minority and Guardianship Act is not attracted and that though she is not a co-parcener and consequently not the kartha of the family, she can alienate the said 3/4th share as de facto guardian of her minor son for the legal necessity of the minor or for the benefit of the estate of the minor, since she is, in the absence of the father, the natural guardian of the person and the private property of the minor. For coming to this conclusion Bellie, J, has held that S. 11 of the Hindu Minority and Guardianship Act, which says that after the commencement of the said Act, no person shall be entitled to dispose of the property of a Hindu Minor merely on the ground of his being the de facto guardian of the minor is not applicable to an undivided interest of a minor in the joint family property. But, in this regard, (as also