JUDGMENT : L. Mohapatra, J. - Defendant No. 1 is the appellant before this Court against a reversing judgment. Respondents 1 and 2 filed the suit for cancellation of sale-deed executed by the defendant No. 2 in favour of defendant No. 1 and/for eviction of the defendant No. 1 from the suit land. 2. Case of the plaintiff-respondents 1 and 2 is that both the plaintiffs are brother and sister and are also minors represented by their mother-guardian Sarojini Behera. Defendant No. 2 is their father. It is the case of the plaintiff-respondents that the suit land extending to an area of Ac. 0.142-1/2 decimals to the south of plot No. 173 in Khata No. 91, Ac. 0.021 decimals 4 Kadis to the west, Ac. 0.009 decimals 7 kadis at Markandeswar Sahi in the district of Puri had been purchased in the name of the plaintiffs with the money given by their maternal grand-father as their father-defendant No. 2 got addicted to drugs and did not look after them as well as their mother. The said lands even though were purchased in the name of minor plaintiffs with the money given by their maternal grand-father, defendant No. 2 sold the lands to defendant No. 1 for a consideration of Rs. 8,000/- without any legal necessity and therefore the suit was brought for cancellation of the said sale-deed and declaration of title of the plaintiffs over the suit land and also for eviction of defendant No. 1 from the suit lands. Defendant No. 2, father of the plaintiffs, did not contest the suit and purchaser-defendant No. 1 contested the suit by filing written statement wherein he denied the plaint allegations. A specific plea was raised by defendant No. 1 stating that no permission from the District Judge having been obtained for filing the suit against father, the suit was not maintainable. It was also case of the defendant No. 1 that the suit land had been purchased by the father-guardian of the plaintiffs from out of his own funds and therefore mother-guardian cannot file suit against father-guardian. It was also contended in the written statement that the disputed land having been purchased from out of the income of the defendant No. 2 though in the name of minors. It was also contended in the written statement that the disputed land having been purchased from out of the income of the defendant No. 2 though in the name of minors. It was benami transaction and the defendant No. 2 had all the legal authority to sell the same for any purpose and accordingly the suit is liable to be dismissed. 3. Learned Additional Sub-Judge, Puri on consideration of the pleadings of the parties framed six issues and dismissed the suit on the following findings : (i) No permission having been obtained u/s 8(2) of the Hindu Minority and Guardianship Act, 1956 before institution of the suit, the same is not maintainable. (ii) There was legal necessity to sell the minors land when the defendant-No. 2 had no other alternative by which he could look after welfare of the minors. 4. The appeal carried by the plaintiffs was allowed on the following findings : (i) No permission u/s 8 of the Hindu Minority and Guardianship Act was necessary for filing the suit as minors had filed the suit against father and the mother-guardian came into picture only because she had to represent the minors. (ii) Merely because the properties were purchased in the name of defendant No. 2 it cannot be said that the properties belong to him and under such circumstances the alienation made by the defendant No. 2 without obtaining permission of the District Judge as required u/s 8 of the Hindu Minority and Guardianship Act makes the sale-deed voidable. 5. At the time of admission of the second appeal this Court formulated the following substantial questions of law for adjudication. "(A) For that impeachability of a transaction on the ground of non-fulfilment of the prerequisite condition of obtaining permission of the District Judge as laid down in Section 8(2) of the Hindu Minority and Guardianship Act being primarily dependent upon the character of the property forming the subject matter of transaction being the minor's property and in the instant case, the contesting defendant No. 1 having specifically averred in the written statement that the disputed plot was the self acquired land of defendant No. 2 but purchased in the names of his minor children for definite reasons which receivers support from the recitals in Ext. A, non-framing of any issue to afford the parties a scope to lead complete evidence in that regard causing prejudice has vitiated the impugned judgment and decree which are liable to be set aside. (C) For that the finding recorded by the lower appellate Court that the land in dispute was the absolute property of the plaintiffs since it was acquired by their grand father is erroneous and perverse having been founded upon the bare assertion of the plaintiffs without any assessment of evidence particularly when there is no document in support of such claim." 6. Learned counsel appearing for the defendant No. 2-appellant referring to the substantial questions of law on which the appeal has been admitted contended that the sole question that has to be considered is whether the suit property was purchased by the defendant No. 2 from out of his own income or same was purchased with the money advanced by the maternal grand-father of the plaintiffs. It was also contended by the learned counsel, for the appellant that in the event it is found that the suit property had been purchased from out of own income of the defendant No. 2 he was at liberty to sell the property even though the same has been purchased in the name of minors without fulfilling the requirement as envisaged in Section 8(2) of the Hindu Minority and Guardianship Act. It was necessary to frame an issue regarding financial capability of defendant No. 2 at the time of purchase of the land. No such issue having been framed and no evidence having been led in that regard, a prayer was made on behalf of the learned counsel for the appellant to remit the matter back to the trial Court for framing such issue and decide such matter afresh. Learned Counsel for the respondents, on the other hand, submitted that knowing fully well the questions involved in the suit the parties have led evidence and therefore, even if a particular issue is not framed, the parties having led evidence in that regard, there is no reason for this Court to remit the matter back for fresh disposal. Learned Counsel for the respondents, on the other hand, submitted that knowing fully well the questions involved in the suit the parties have led evidence and therefore, even if a particular issue is not framed, the parties having led evidence in that regard, there is no reason for this Court to remit the matter back for fresh disposal. Learned Counsel for the respondents also submitted that the documents and the evidence placed before this Court clearly indicate that the properties were purchased in the name of minors by the father-guardian with the money advanced by maternal grandfather of the plaintiffs and there being no legal necessity for sale of land, the lower appellate Court was justified in decreeing the suit. 7. There is no dispute about the fact that the defendant No. 2 being the father is the natural guardian. But from the discussion made by the lower appellate Court it appears that the defendant No. 2 had deserted minor-plaintiffs and their mother for which mother had filed a case u/s 125, Cr.P.C. for maintenance vide Misc. Case No. 26 of 1975 and maintenance was granted in favour or minors and mother also. In absence of natural father under the above circumstance the minors could have filed the suit through mother-guardian and therefore, the learned counsel for the appellant rightly did not object to maintainability of the suit. Learned counsel only submitted that the property had been purchased from out of the income of the defendant No. 2 in the name of minors. In this connection, reference may be made to Ext. 1. Said document indicates that the property in dispute was purchased by the defendant No. 2 as father-guardian of the minors-plaintiffs. Ext. A under which the defendant No. 1 purchased the suit property shows that the defendant No. 2 sold the same as father-guardian of minor-plaintiffs. Therefore, there cannot be any dispute that the suit property had been purchased in the name of minor-plaintiffs. The other question that is required to be decided is as to whether consideration money for purchasing the land had been paid by maternal grand-father of the plaintiffs or the same was paid from out of the income of the defendant No. 2. From the side of the plaintiffs maternal grand-father was examined as P.W. 1. He in his evidence stated that the suit property was purchased for consideration of Rs. From the side of the plaintiffs maternal grand-father was examined as P.W. 1. He in his evidence stated that the suit property was purchased for consideration of Rs. 2,000/- and he had paid the amount. Said witness further contended that the defendant No. 2 never looked after welfare of the children and as the plaintiffs and their mother had no house he purchased the suit property for them. Said witness has also stated that the defendant No. 2 used to feed the plaintiffs two to three days in a month and got addicted Ganja and opium for the last 15 years. Plaintiff No. 1 who was examined as P.W. 2 in her evidence stated that they were being beaten by their father and they were staying in the house of maternal grand-father. She has also stated that for their maintenance, their maternal grand-father was extending help. In paragraph 3 of her deposition she has stated that her maternal grand-father had paid money to purchase the suit land. The only evidence placed in favour of the defendant No. 2 is the sale-deed. Ext. A, in which it is stated that the suit property had been purchased from out of the income of the defendant No. 2, Said recital in the sale-deed is not supported by the evidence adduced on behalf of the defendant No. 2, I am, therefore, of the view that even though no specific issue has been framed with regard to financial capability of defendant No. 2 at the time of purchase of the said land, the parties having led evidence to that effect, non-framing of such an issue has not affected the suit. In this connection a decision of the Apex Court in the case of Nedunuri Kameswaramma Vs. Sampati Subba Rao, may be referred to. The Apex Court in the aforesaid decision observed as follows : "Where the parties went to trial fully knowing the rival case and led ail the evidence not only in support of their contention but in refutation of those of the other side, it cannot be said that the absence of, an issue was fatal to that case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer." 8. Next question that arise for consideration is whether the properties were sold for legal necessity of minor children. So far as Section 8 of the Hindu Minority and Guardianship Act is concerned, it is provided therein that natural guardian shall not, without previous permission of the Court, transfer by sale any part of the immovable property of minor and any such disposal of immovable property by natural guardian is voidable at the instance of the minor or any person claiming under him. Admittedly, no permission has been obtained from the Court for sale of the land even though it is mentioned in Ext. A that the same had been sold for legal necessity. In view of the admitted position that no permission had been obtained from the Court for sale of the land, such sale is in contravention of Sub-section (2) of Section 8 of the Hindu Minority and Guardianship Act and is voidable at the instance of minors. 9. In view of the reasons stated above. I do not find any merit in the appeal and the same stands dismissed. Final Result : Dismissed