The main legal point established in the judgment is that the sale of minor's property without obtaining permission from the Court is voidable at the instance of the minor or any person claiming under him, as per Section 8(2) of the Hindu Minority and Guardianship Act.

JUDGMENT :

L. Mohapatra, J. - Defendant No. 1 is the appellant before this Court against a reversing judgment.

Respondents 1 and 2 filed the suit for cancellation of sale-deed executed by the defendant No. 2 in favour of defendant No. 1 and/for eviction of the defendant No. 1 from the suit land.

2. Case of the plaintiff-respondents 1 and 2 is that both the plaintiffs are brother and sister and are also minors represented by their mother-guardian Sarojini Behera. Defendant No. 2 is their father. It is the case of the plaintiff-respondents that the suit land extending to an area of Ac. 0.142-1/2 decimals to the south of plot No. 173 in Khata No. 91, Ac. 0.021 decimals 4 Kadis to the west, Ac. 0.009 decimals 7 kadis at Markandeswar Sahi in the district of Puri had been purchased in the name of the plaintiffs with the money given by their maternal grand-father as their father-defendant No. 2 got addicted to drugs and did not look after them as well as their mother. The said lands even though were purchased in the name of minor plaintiffs with the money given by their maternal grand-father, defendant No. 2 sold the lands to defendant No. 1 for a consideration of Rs. 8,000/- without any legal necessity and therefore the suit was brought for cancellation of the said sale-deed and declaration of title of the plaintiffs over the suit land and also for eviction of defendant No. 1 from the suit lands.

Defendant No. 2, father of the plaintiffs, did not contest the suit and purchaser-defendant No. 1 contested the suit by filing written statement wherein he denied the plaint allegations. A specific plea was raised by defendant No. 1 stating that no permission from the District Judge having been obtained for filing the suit against father, the suit was not maintainable. It was also case of the defendant No. 1 that the suit land had been purchased by the father-guardian of the plaintiffs from out of his own funds and therefore mother-guardian cannot file suit against father-guardian. It was also contended in the written statement that the disputed land having been purchased from out of the income of the defendant No. 2 though in the name of minors. It was benami transaction and the defendant No. 2 had all the legal authority to sell the same for any purpose and accordingly the suit is liable to be dismissed.

3. Learned Additional Sub-Judge, Puri on consideration of the pleadings of the parties framed six issues and dismissed the suit on the following findings :

(i) No permission having been obtained u/s 8(2) of the Hindu Minority and Guardianship Act, 1956 before institution of the suit, the same is not maintainable.

(ii) There was legal necessity to sell the minors land when the defendant-No. 2 had no other alternative by which he could look after welfare of the minors.

4. The appeal carried by the plaintiffs was allowed on the following findings :

(i) No permission u/s 8 of the Hindu Minority and Guardianship Act was necessary for filing the suit as minors had filed the suit against father and the mother-guardian came into picture only because she had to represent the minors.

(ii) Merely because the properties were purchased in the name of defendant No. 2 it cannot be said that the properties belong to him and under such circumstances the alienation made by the defendant No. 2 without obtaining permission of the District Judge as required u/s 8 of the Hindu Minority and Guardianship Act makes the sale-deed voidable.

5. At the time of admission of the second appeal this Court formulated the following substantial questions of law for adjudication.

"(A) For that impeachability of a transaction on the ground of non-fulfilment of the prerequisite condition of obtaining permission of the District Judge as laid down in Section 8(2) of the Hindu Minority and Guardianship Act being primarily dependent upon the character of the property forming the subject matter of transaction being the minor's property and in the instant case, the contesting defendant No. 1 ha