Amarpur, formally district Bhagalpur, now Banka v. Surihari, PS. Amarpur, District Banka

Heard learned counsel for the appellant.

This second appeal has been filed by defendant- respondent-appellant challenging the judgment and decree of the learned court of appeal below.

The matter arises out of Title Suit No. 87 of 1987, which was filed by the plaintiffs-respondent 1st set for declaration that the deed of exchange bearing no.4218 and 4219 dated

05.03.1986 executed by defendant 1st party and defendant 2nd party in favour of one another with respect to the suit land detailed in Schedule-A of the plaint, was fraudulent, illegal, without jurisdiction, null and void, inoperative and not binding upon the plaintiffs and also for a decree of recovery of possession. 2

The aforesaid suit was dismissed on contest with cost by the learned Munsif, Banka vide judgment and decree dated

14.06.1996. The said judgment and decree of the learned trial court was challenged by the plaintiffs in Title Appeal No 67 of 1996, which was allowed on contest without cost by learned Additional Judge-II, Banka, vide judgment and decree dated

08.04.2004. The said judgment and decree of the learned court of appeal below is under challenge in the instant second appeal.

The learned court of appeal below after considering the pleadings, evidence of the parties and the provisions of law applicable to the case came to the conclusion that admittedly the property belonged to the plaintiffs and while they were minor the deed of exchange was executed by their father, which was not legal. Learned court of appeal below also found that Article 528 and 531 of Hindu Law by Mulla does not provide that the natural guardian can transfer the property without the previous permission of the court. It was further found that the impugned deed executed by the father of the minor was in clear contravention of sub-section 2(a) of Section 8 of Hindu Minority and Guardianship Act, 1956 and thus it became voidable at the instance of the minors or any person claiming under him, hence it was found that defendant 2nd party as coparcener of the joint Hindu family consisting of himself and his sons, namely the plaintiffs and had no legal right to exchange Schedule-A land of the suit without the previous permission of the court and the 3 plaintiffs had every right to challenge the same in a court of law after attaining majority. In the aforesaid facts and circumstances this court does not find any illegality in the impugned judgment and decree of the learned court of appeal below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed. harish/ ( S.N.Hussain, J.)