The sale of ancestral property by the father on behalf of minor children is voidable, not void, under the Hindu Minority and Guardianship Act. Failure to seek setting aside of the sale or a declaration of its non-binding nature renders a suit for partition not maintainable.

1. The plaintiffs are the appellants.

2. The plaintiffs filed the suit for partition of their ¾ share in the suit property and for permanent injunction restraining the respondents from interfering with their peaceful possession and enjoyment of the suit property. The case of the appellants/plaintiffs was that the suit property is the ancestral property of the plaintiffs and the first defendant, who is their father and the suit property was allotted to the share of their father under an oral partition between him and his brother. Therefore, the plaintiffs/appellants are entitled to ¾ share in the property and without any legal necessity, the first defendant/fourth respondent viz., their father sold the property to the second defendant and the same is not binding on the plaintiffs/appellants and they are entitled to claim their share viz., ¾ share in the property. Hence, they filed the suit for partition.

3. The Trial Court decreed the suit holding that the sale deed executed by the father of the appellants viz., the first defendant/fourth respondent will not bind the appellants and therefore, there is no need to set aside the said sale and as the plaintiffs/appellants are entitled to ¾ share, they are entitled to the relief of partition. The lower appellate court reversed the said finding and allowed the appeal filed by defendants 2 to 4 holding that the plaintiffs were parties to the sale deed executed by the father in favour of the second defendant and therefore, they are bound by the sale deed and they ought to have prayed for setting aside the sale as the sale is voidable and therefore, in the absence of any prayer for setting aside the sale, the suit for partition is not maintainable.

Hence, the second appeal.

4. The following substantial questions of law were framed at the time of admission:-

"1. Whether the first appellate court is correct in dismissing the suit when the plaintiffs have not been made as parties to the sale deed Ex.B2 for want of declaratory relief.

2. Whether the first appellate court is correct in holding that the sale deed Ex.B2 is valid unless and until it is set aside by the competent civil court."

5. Learned counsel for the appellants submitted that the sale in favour of the second defendant was not for family necessity and the sale was without getting permission of the court and therefore, they are not bound by the sale and hence, there is no necessity for them to pray for setting aside the sale. He further contended that the appellants also filed application in M.P.No.1 of 2011 seeking permission of this court to amend the plaint to include the relief of declaration that the sale deed Ex.B2 is not binding on the appellants and therefore, that application may be allowed and the appellants may be permitted to include the relief of declaration.

6. Mr.M.S.Subramanian, learned counsel for respondents 1 to 3 submitted that the lower appellate court rightly distinguished the judgment reported in AIR 2002 SC 215 in the matter of Madhe Gowda (died) by L.Rs. v. Angegowde (died) by L.Rs and others and held that when any alienation is made by the natural guardian, section 8 of the Hindu Minority and Guardianship Act, 1956 will apply and the sale is only voidable and not void and unless the sale is set aside, the appellants cannot claim any relief in respect of the property and without a prayer for setting aside the sale, the suit is not maintainable and therefore, the lower appellate court has rightly allowed the appeal and dismissed the suit. He further submitted that the application filed by the appellants in M.P.No.1 of 2011 is not maintainable at this stage and admittedly, the suit was filed in the year 2004 and they were aware of the proceedings pending in court and the first appellant can represent appellants 2 and 3 and therefore, the present application cannot be entertained at this stage after the disposal of the first appeal.

7. As rightly pointed out by the learned counsel for the respondent