The sale of a minor's property by the natural guardian without the court's permission is voidable at the instance of the minor, and the Consolidation Authorities have the power to adjudicate on the effect of such purported alienation.

JUDGMENT :

S.K. Mohanty, J. - Revisional order passed by Consolidation Commissioner u/s 37(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Acq. 1972, directing recording of land register plot No. 1442 measuring Act, 0.33 decimals in the name of opp. party No. 1 is under challenge in this proceeding. 1. Banambar and Birabar were two brothers. In a partition between them effected in the year 1959, the case plot fell in the share of Banambar. He died leaving behind his widow Basanta and minor adopted son Prakash (opp. party No. 1). In the land register prepared u/s 6(2) of the Act, Banambar and Birabar were shown as the land owners in respect of the said plot. The petitioner filed objection u/s 9(3) of the Act disputing the correctness of the entry in the land register on the ground that Basanta for self and as mother guardian of opp. party No. 1 sold the land in question in favour of the petitioner by registered sale deed dated 10-12-1979 and as such, his name should be recorded. The objection was sustained by the Consolidation Officer (vide Annexure-1) and the same was confirmed in appeal by Deputy Director, Consolidation (vide Annexure-2). The Consolidation Commissioner has by the impugned order, reversed the decisions of the Forums below.

2. The gist of the finding of the Consolidation Commissioner is that the Registered Sale Deed of 1979, by which the mother of the opp. party No. 1 had sold away minors' share in the joint property at a time when he was a minor and the mother was merely a custodian of the properties of the minor, is to be considered void ab initio and therefore it has to be construed that the opp. party No. 1 had authority to retain his right, title and interest in his share in the joint family property even beyond 1979.

3. Learned Counsel for the petitioner submitted that in the facts of the case and particularly when the petitioner had stepped into and was in possession of the plot in question, the opp. party No. 1 had his remedy in Civil Court to establish his title by setting aside the sale deed executed by his mother and the Consolidation Authorities lacked jurisdiction to entertain his claim.

4. Section 8(2) of the Hindu Minority and Guardianship Act, 1956 forbids sale of immovable property of a minor by the natural guardian without previous permission of the Court. Sub-section (3) provides that any disposal of the immovable property by a natural guardian in contravention of Sub-section (2) is viodable at the instance of the minor or any person claiming under him. In the case at hand, admittedly the mother did not take the previous permission of the Court before selling away the interest of opp. party No. 1 who was a minor at the relevant time. The expression--"voidable at the instance of the minor" came up for interpretation by this Court in Chaniram Sahu Vs. Samaru Nag and Others, wherein it has been held :

"It is not voidable in the sense that it is binding on him until set aside, but it means that although not binding on him the transfer may be ratified by the minor on attaining majority. It is open to the minor to avoid the transaction either by filing a suit to set aside the sale or by unilateral conduct. One such conduct may be to sell the very same property to another person ignoring the sale by the guardian. There may be situation in which the erstwhile minor may have to file a suit to establish his title to the property and in such a suit he has to seek the relief of setting aside the sale deed and has to pay Court fee on that basis. Such situation may arise where the minor is out of possession of the property and wants to recover possession from the purchaser.........If the minor fails to file the suit to set aside the transfer within the prescribed period his right to the property is not extinguished; the only consequence is that he is debarred from recovering possession of the property if he has been dispossessed therefrom.

5. As to the fact of alienation made i