ASHOK KUMAR Vs. GURDIAL SINGH

JUDGEMENT

(1.) This judgment will dispose of Regular Second Appeal Nos. 1067 and 1046 of 1972, as common questions of law are involved therein. The facts, as given in Regular Second Appeal No. 1067 of 1972, are as follows.

(2.) The plaintiff-appellant, filed the suit for possession of the agricultural land measuring 107 kanals 8 marlas, against the defendants-respondents on the allegations that the suit land was owned by him. During the minority, his father Nathu Ram, as his natural guardian, agreed to sell the same to the defendants and executed the agreement to sell on March, 30, 1963, Exhibit D.1. No sale deed was subsequently executed between the parties in pursuance of the agreement to sell Exhibit D.1, and the plaintiff, on attaining majority, filed the present suit for possession of the suit land on the plea that his father had no authority to execute the said agreement to sell in favour of the defendants, without obtaining the sanction of the guardian Court. It was also averred that the transaction was not for the benefit of the minor and so, it was not binding upon him. The defendants resisted the suit and pleaded that the plaintiff's father was fully competent to enter into the agreement to sell, Exhibit D.1 as his natural guardian and that he had also obtained the permission of the guardian Court on November 20, 1963, vide order, Exhibit D.2. It was further pleaded that the defendants were in possession of the suit land in part performance of the agreement to sell, Exhibit D.1, and hence, their possession could not be disturbed by the plaintiff. It was also alleged that the plaintiff derived benefit under the questioned agreement and that they were in lawful possession of the suit land. On the pleadings of the parties, the trial Court framed the following issues :-

(3.) The main contention raised on behalf of the appellants, is that Nathu Ram could not execute the agreement to sell, Exhibit D.1, without the prior permission of the guardian Court under Section 8 of the Hindu Minority and Guardian Ship Act, 1956, (hereinafter called the Act). According to the learned counsel the agreement to sell, Exhibit D.1, amounted to creating a charge on the immovable property of the minor plaintiff and in view of the provisions of sub-section (2)(a) to Section 8 of the Act, the natural guardian of a minor could not, without the previous permission of the Court, mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor. In support of this contention, the learned counsel placed reliance on Rabindra Nath Banerjee v. Harendra Kumar Chakrawarty and others, 1956 AIR(Cal) 462, and Major Darbara Singh v. Kaminder Singh and others,1979 PunLR 367. On the other hand, the learned counsel for the respondents submitted that, admittedly, the permission as envisaged under Section 8 of the Act, was obtained by Nathu Ram, the natural guardian of the appellant, vide order dated November 20, 1963, Exhibit D.2, from the guardian Court and, therefore, it could not be said that the execution of the agreement to sell, Exhibit D.1 by him, was without the permission of the Court, and was thus unauthorised. In support of this contention, reliance was placed on Paras Ram v. Bhal Singh,1973 RLR 37 and Jugal Kishore and another v. Dr. Pirbhu Dayal and another,1980 RLR 719.