V.K.Shukla, J. - (1.) PRESENT second appeal has been filed against the judgment and decree dated 16.5.2009/20.5.2009 passed by the Additional District Judge Court, No. 17 Agra in Appeal No. 37 of 2009 Smt. Veermati and another Vs. Raju Singh, arising out of judgment dated dated 19.3.2009 passed by Civil Judge (Junior Division) Agra in Original Suit No. 307 of 2006.
(2.) BRIEF background of the case is that plaintiff-respondent filed suit for declaration for cancelling sale deed dated 27.2.2006 and also for the relief of injunction. Suit was filed by Raj Kumari as next friend and guardianship in the year 2006 with the allegation that Raju Singh was minor, his mother Smt. Veermati had no authority to sale any plot without permission of the District Judge, Agra. Suit was contested by the defendants/appellants on the ground that Smt. Veermati is mother of Raju singh and Mohan Singh, and after death of Hakim Singh, she become natural guardian and no permission was required from District Judge, Agra, and for maintenance of children left by her husband, said sale deed in question was executed. Separate written statement was filed on behalf of the defendant/respondent no.1 Smt. Veermati and separate written statement filed on behalf of defendant/respondent no.2 Sri Geetam Singh. After pleadings inter-se parties have been exchanged, in all seven issues were framed. From the side of plaintiff/respondent PW-I Raju Singh, PW-2 Janak Singh and PW-3 Jantar Singh were produced as witness and also filed documentary evidence. From the side of defendant/respondents. DW-1 Veermati, DW-2 Gautam Singh, and DW-3 Dinesh appeared as witness and filed documentary evidence. Trial Court on the basis of evidence adduced, decreed the suit. Aggrieved against the said decree, appeal was filed and said appeal has been partly allowed, and by means of the same decree in question has been affirmed in so far as it relates to the share of Raju Singh and for the rest of parcel of land, suit has been dismissed, at this juncture present second appeal has been filed. Sri S.O.P. Agarwal, Advocate, learned counsel for the appellant contended with vehemence that in the present case courts below have erred in law in observing that permission of the District judge was required for sale of land belonging to minor, whereas provision of Section 8(2) of Hindu Minority and Guardianship Act was not applicable and further appellate court has erred in law in cancelling the sale deed dated 27.2.2006 partially to the extent to the share of Raju Singh, as such judgment passed by the both the courts below on aforementioned substantial question of law are liable to be set aside. After respective arguments have been advanced, undisputed factual position, which is emerging in the present case is that Late Hakim Singh was owner of 1/2 portion i.e. area 0.634 hectare of land of Gata No. 250, area 1.0268 hectare, situated at village Fatehpura, Tehsil Kirawali, District Agra and name of Late Hakim Singh was duly recorded in the revenue record. Late Hakim Singh left behind him Raju Singh and Mohan Singh as his legal heirs and representative and as such both of them claim to have become owner in possession of aforesaid property. Smt. Veermati is mother of Raju Singh and Mohan Singh and was natural guardian. She after death of Late Hakim Singh, performed another marriage. Sale deed was executed by her on 27.2.2006 and then suit has been filed for declaration that sale deed is totally illegal, null and void and does not confer any right. Suit was contested by filing written statement, contending therein that Smt. Veermati has sold the property in question, claiming the same for welfare of the minor. Under sub-section (1) of Section 8 of Hindu Minority and Guardianship Act, 1956, natural guardian, subject to the provision of the section, are empowered and entitle to do acts which are reasonable and proper and for the benefit of minor or for realization, benefit and protection of the minors estate, and have been specifically debarred from binding minor by personal covenant. Sub- section (2) of Section 8 prohibits transaction in respect of immovable property without the permission of court. Sub-section (3) of Section 8 makes transaction of immovable property voidable, made in contravention of sub-section (1) and (2), at the instance of minor.
(3.) THIS court in the case of Smt. Sursati Devi Vs. The Joint Director of Consolidation, Basti and others 1982 All. L.J. 1473 has taken the view that no permission of the District Judge is required under sub- section (2) of Section 8 of the Act while making transfer of agricultural land in question, said judgment in no way restricts the authority of the court to declare sale deed in question as void, once terms and conditions are fulfilled i.e. transfer was neither for the benefit of his estate nor was compelled by any pressure on the estate, nor it is such as a prudent owner would reasonably enter and that he has acted improperly in his trusts. The minor can, however, repudiate and get the transfer deed set aside either he himself within three years of his attaining majority or even during minority through a next friend, on the ground that transfer was neither for the benefit of his estate nor was compelled by any pressure on the estate, nor it is such a prudent owner would reasonably enter into and that he has acted improperly in his trust. The minor can urge and show that the transfer made by his natural guardian is highly prejudicial to his interest and is absolutely unfair as there was no legal necessity at all for making the transfer or that it was not sold for adequate sale consideration or that it was got executed by practising calculated fraud or misrepresentation on the guardian himself while getting impugned deed executed. The aforesaid are not at all but some of the grounds on which alienation can be questioned. Relevant extract of said judgment is being quoted below:- "The minor can, however, repudiate and get the transfer deed set aside either he himself within three years of his attaining majority or even during minority through a next friend, on the ground that transfer was neither for the benefit of his estate nor was compelled by any pressure on the estate, nor it is such a prudent owner would reasonably enter into and that he has acted improperly in his trust. The minor can urge and show that the transfer made by his natural guardian is highly prejudicial to his interest and is absolutely unfair as there was no legal necessity at all for making the transfer or that it was not sold for adequate sale consideration or that it was got executed by practising calculated fraud or misrepresentation on the guardian himself while getting impugned deed executed. The aforesaid are not at all but some of the grounds on which alienation can be questioned." Both the courts below have recorded categorical finding of fact after scrutinizing the evidence on record specially statement of Smt. Beermati herself that interest of minor has been totally sacrificed and in-fact no benefit whatsoever has been extended to the minor, and said finding of fact neither being perverse nor being unreasonable are not at all liable to be interfered with.;