- (1.) This is defendants' appeal under Section 100 C.P.C. and having lost in both the Courts below, he has come up in this appeal. The appeal has arisen from judgment and decree dated 27th January, 2011 passed by Sri Gopal Shankar Pathak, Additional District Judge, Court No. 1, Rampur in Civil Appeal No. 35 of 2008 dismissing appeal and confirming the judgment dated 7th May, 2008 of Trial Court i.e. Smt. Noopur, Additional Civil Judge (Junior Division), Court No. 3, Rampur passed in Original Suit No. 171 of 2004. While hearing this appeal under Order 41, Rule 11 C.P.C. this Court formulated only one substantial question of law having arisen in this appeal, needs to be adjudicated by this Court: Whether defendants-appellants were obliged to obtain permission under Section 29 of Guardians & Wards Act, 1890 (hereinafter referred to as "Act, 1890") or Section 8 of Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as "Act, 1956") from District Judge before selling the share of the property of minor despite the fact that defendant-appellant No. 1, who is the head of Joint Hindu Family and the property in dispute was a joint Hindu Property, in which the minor had her share.
(2.) Heard Syed Fahim Ahmed, learned counsel for the appellants and Sri P.K. Sinha, learned counsel for the respondent.
(3.) The plaintiff-respondent instituted suit No. 171 of 2004 for cancellation of sale-deed dated 9.10.2003, which was decreed by Trial Court vide judgment and decree dated 7.5.2008 and thereagainst defendants' appeal No. 35/08 has also been dismissed by Lower Appellate Court vide judgment and order dated 27.1.2011. Both the Courts below have held that property in dispute belongs to a minor and there being no permission obtained from District Judge, sale-deed executed by the mother of minor relating to property of minor was illegal. On this aspect, Trial Court formulated issue No. 1, which was returned against defendant-appellants. Sri Syed Fahim Ahmed, Advocate, placing reliance on Apex Court's decision in Sri Narayan Bal and others v. Sridhar Sutar and others, 1996 8 SCC 54, contended that no such permission was required. The Courts below have committed patent error and impugned orders are liable to be set aside.;