RAMESH, J. ( 1 ) THIS second appeal is against the order of the Civil Judge (Sr. Dvn ). , Nanjangud in RA 17/1998 by order dated 26. 8. 1999 wherein the lower appellate court has passed an order on remand by this Court in RSA 506/1994 wherein this Court had directed the lower appellate court to consider whether the sale is valid without the court permission; whether the mother can be a defacto guardian entitled to act under S. 11 and whether such a sale is valid; whether there is any legal necessity in the eye of law; even if it be held, whether the sale is binding so far as the mother's share is concerned. While answering the above points raised by this Court, the lower appellate court dismissed the appeal filed ( 2 ) BY the defendants. Hence, this appeal. As it transpires, the original suit property bearing Sy. No. 4/1 measuring 3. 30 acres situate at Madalli Village of Nanjangud taluk was mortgaged by one Nanjundappa in favour of the deceased Mallappa on 10. 9. 1956 for a sum of Rs. 2,500/- It appears subsequently the mortgagor Nanjundappa is shown to have disappeared and on the presumption of natural civil death, his wife has sold the property in the year 1963 in favour of mallappa the mortgagee stating family necessities and as well as for discharging the mortgage debt. Thereafter, the plaintiffs filed a suit challenging the sale deed by their mother. The said suit was contested by the defendants alleging that for family and legal necessities the property was sold by the mother of the plaintiffs and that in continuation of the usufrctuary mortgage there was such a sale by the mother of the plaintiffs in favour of the defendants and the question of survival of the mortgage right does not arise. The trial court having raised as many as seven issues, decreed the suit for redemption against which defendants preferred an appeal before the Civil Judge (Sr. Dvn ). The appeal came to be dismissed while confirming the order of the trial court. Against the said order, second appeal was preferred by the defendants before this Court and in the earlier round of the second appeal, there was an order of remand to the appellate court on the points raised as noted above. Dvn ). The appeal came to be dismissed while confirming the order of the trial court. Against the said order, second appeal was preferred by the defendants before this Court and in the earlier round of the second appeal, there was an order of remand to the appellate court on the points raised as noted above. On such remand also, on suffering an order of dismissal, the defendants are before this Court assailing the order of both the courts below on various grounds. ( 3 ) HEARD the counsel for the appellants and the respondents. It is the submission of the appellants that though the suit filed by the plaintiffs was for redemption and possession and for mesne profits in respect of the suit property, since there was a sale deed in respect of the defendants, the mortgage right merged with the sale deed and, as to the contention of the defendants that, it is a subsequent sale by the mother of the plaintiffs in favour of the defendants, there was no denial by way of pleading except the oral evidence. The plaintiffs not even examined their mother who executed the sale deed in favour of the defendants and in the absence of any such denial, there was no question of considering the case of the plaintiffs for allowing the suit for redemption as the mortgage right has merged with the sale. It is further submitted that even on the question of right to sell the minors' property is concerned, as per the decision of the Apex Court in the case of narayan BAL vs SRIDHAR SUTAR referring to S. 8, the Apex Court has held that any member of the family or the kartha in the management of the joint family property can alienate the property in the family which involves an undivided interest of the minor in the said joint family and accordingly submitted that the bar under S. 11 of the Hindu Minority and Guardianship Act, 1956 will not come in the way of disposal of the property by the mother of the minors in the joint family in the undivided interest. Accordingly, it is submitted that the finding of the trial court as well as the appellate court are perverse. To a similar effect, learned counsel also relied upon the decision PALCHURI hanumayamma vs TADIKAMALLA KOTLINGAM (DEAD) BY LRS and ORS. Accordingly, it is submitted that the finding of the trial court as well as the appellate court are perverse. To a similar effect, learned counsel also relied upon the decision PALCHURI hanumayamma vs TADIKAMALLA KOTLINGAM (DEAD) BY LRS and ORS. Learned counsel for the respondents submitted that when both the courts below in a concurrent finding have held that the sale deed is not validly proved and also there is a bar for selling the minors' interest, then the mortgage rights of the mortgagor remains and they could very well seek for redemption, as such, the finding of the trial court as well as the appellate court does not call for interference and the mother of the plaintiffs had not right to minors' share and accordingly, there is no perversity in the order of both the courts below. ( 4 ) IN reply, appellant's counsel submitted that even it is held to be not proved as regards the minor's interest is concerned, the plaintiffs have also not discharged their burden of rebutting the registered sale deed executed by their mother in favour of the defendants and, the son of the scribe has identified the signature of the scribe as the scribe was no more at that time and the witnesses examined on behalf of the plaintiffs have not properly given evidence to prove that the sale is invalid. In the absence of any cogent evidence, the trial court as well as the appellate court have, in a perverse finding, held that the sale is not proved. Accordingly, he submitted that when there is a registered sale deed, there will be initial presumption on the part of the defendants in this context that the sale deed was duly executed. Even assuming that such right was not available to the mother to alienate the minors' interest without court's permission, but the fact remains that the right to the interest of the share of the mother can be redeemed i. e. , to an extent of 1/3rd share and accordingly submitted that the order of the trial court as well as the order of the appellate court, even on assumption was not proper and surfers from perversity. ( 5 ) AT the time of admission, the following substantial question of law was framed on 1. 2. ( 5 ) AT the time of admission, the following substantial question of law was framed on 1. 2. 2000 "whether the appellants are entitled to get whole property or only the share of the mother of the plaintiffs in view of the mortgage". Undisputedly, the property was mortgaged in favour of the defendants by way of a usufructuary mortgage by the father of the plaintiffs. Thereafter, the father of the plaintiffs by name nanjundappa is said to have died a civil death as he was not traced and, during 1963 there was a sale deed executed by the wife of nanjundappa as at Ex. D1 wherein it is also mentioned that the sale was being effected for the purpose of discharging the mortgage debt as well as for legal necessities. The mortgage amount was Rs. 2,500/- and the property was sold for Rs. 3,000/-in the year 1963 whereas the mortgage is of the year 1956. It appears the trial court disbelieving the evidence of the son of the scribe and also without properly appreciating the evidence on record has come to the conclusion that the sale is not valid and has given a perverse finding. Apart from that, on the score that without the permission of the court as per S. 11 of the Hindu minority and Guardianship Act the sale has been effected, it has also declared the sale as invalid. ( 6 ) THE trial court admittedly has answered issue 1 i. e. , whether the plaintiffs prove that they are the members of the joint family, in the affirmative. It presumes that the mother of the plaintiffs as well as the plaintiffs constituted members of the joint family and the entire property in the said survey number is being sold in favour of the defendants subsequent to the mortgage, then necessarily not only the share of the plaintiff has been sold but even the share of the mother is also being sold. Although it has answered issue 3 i. e. , whether the defendant proves that gowramma, the mother of the plaintiff sold the suit property in favour of him for family necessity including the suit mortgage, it appears there is no such rejoinder being filed in this regard by the plaintiffs in so far as sale of suit property by Gowramma in favour of defendant except pleading that the property was mortgaged by their father as a usufructuary mortgage and now they have sought for redemption. In the absence of such denial by the plaintiffs more so when the defendant has produced the registered sale deed, the initial presumption would be on the defendants to the effect that there is a sale deed duly executed. Even assuming that the plaintiffs have made an attempt to deny the sale deed executed by Gowramma in favour of the defendants in their evidence, in the absence of any pleading, mere evidence would not be sufficient to disprove the same. It appears the defendants are also shown to have examined the son of the scribe as the scribe was dead, along with one more attesting witness in support of the registered sale deed. Of course, when the defendants have set up their claim in respect of the suit property by way of a sale, there was an initial burden on them and they are shown to have discharged the same. In the absence of any such denial by way of pleading, even proving the same may not arise as per the proviso to S. 68 of the Evidence Act as is held in the decision in the case of SMT SHAYAMADEVI vs SMT Premvathi and ORS. As such, there is perversity in the finding of the trial court to the effect that necessarily not only the share of the plaintiff has been sold but liven the share of the mother is also being sold. As such, there is perversity in the finding of the trial court to the effect that necessarily not only the share of the plaintiff has been sold but liven the share of the mother is also being sold. Although it has answered issue 3 i. e. , whether the defendant proves that gowramma, the mother of the plaintiff sold the suit property in favour of him for family necessity including the suit mortgage, it appears there is no such rejoinder being filed in this regard by the plaintiffs in so far as sale of suit property by Gowramma in favour of defendant except pleading that the property was mortgaged by their father as a usufructuary mortgage and now they have sought for redemption. In the absence of such denial by the plaintiffs more so when the defendant has produced the registered sale deed, the initial presumption would be on the defendants to the effect that there is a sale deed duly executed. Even assuming that the plaintiffs have made an attempt to deny the sale deed executed by Gowramma in favour of the defendants in their evidence, in the absence of any pleading, mere evidence would not be sufficient to disprove the same. It appears the defendants are also shown to have examined the son of the scribe as the scribe was dead, along with one more attesting witness in support of the registered sale deed. Of course, when the defendants have set up their claim in respect of the suit property by way of a sale, there was an initial burden on them and they are shown to have discharged the same. In the absence of any such denial by way of pleading, even proving the same may not arise as per the proviso to S. 68 of the Evidence Act as is held in the decision in the case of SMT SHAYAMADEVI vs SMT PREMVATHI and ORS. As such, there is perversity in the finding of the trial court to the effect that the defendants have failed to establish that Gowramma had duly executed the sale deed in their favour in respect of the suit property. Even on remand, the lower appellate court has not properly considered all the points raised by this Court. As such, there is perversity in the finding of the trial court to the effect that the defendants have failed to establish that Gowramma had duly executed the sale deed in their favour in respect of the suit property. Even on remand, the lower appellate court has not properly considered all the points raised by this Court. Even this Court in the earlier order, by over sight, is shown to have not looked into the aspect while insisting upon the defendants to prove the sale deed duly executed in the absence of any such pleading/denial by the plaintiffs in this regard. ( 7 ) IN so far as the right of the mother who is a natural guardian to dispose of the property, the possession of the mother of the plaintiffs in the instant case is not only as a guardian but it also appears to be the case of an elderly member of the joint family and whether she could have sold the joint family property. Of course there is a rider under S. 11 to seek permission of the Court before such alienation but, however, the Apex Court in the judgment in Narayan Bal's case cited supra is of the view that no such permission was necessary when the entire joint family property is sold including the share of the minors. Under such circumstance, the joint family property if it is sold by the mother of the plaintiffs including her share and that of the minors, then the property has to be treated as a legal entity capable of being acted through its kartha and other adult members of the joint family in the management of the joint family property. Further, in the above cited decision, it is also observed that even S. 8 will not come in the way of disposing of the undivided interest of the minors in the joint family property. However, whether there was legal necessity or not is disputed question of fact. ( 8 ) HOWEVER, the trial court as well as the appellate court insisting upon the permission as per S. 11 i. e. , defacto guardian not to deal with the minors property, has held that the sale of the property by the mother as to the minors/plaintiffs share as invalid. ( 8 ) HOWEVER, the trial court as well as the appellate court insisting upon the permission as per S. 11 i. e. , defacto guardian not to deal with the minors property, has held that the sale of the property by the mother as to the minors/plaintiffs share as invalid. Further, the trial court as well as the appellate court in a perverse order has held that the entire sale is not valid without noting that there is no requirement of want of proof of sale in the absence of any denial by way of pleadings. In the circumstances, even if it is held that the sale of the property in respect of the minors share is invalid, but so far as sale of property by gowramma, the mother of the plaintiff to the extent of her share, in favour of the appellants is concerned has to be held as valid when the defendants are able to produce the registered sale deed executed by Gowramma and her signature as well as the signature of the scribe has been identified and the sale is duly registered, in the absence of such denial in the pleadings by way of rejoinder by the plaintiffs. ( 9 ) THUS, even assuming that it is not for legal necessity the property was being sold to the extent of share of the plaintiffs, the sale of the property by the mother to the extent of 1/3rd share to the defendants cannot be held to be invalid nor it suffers from any illegality. In the circumstances, the right of the appellants have to be recognised to the extent of 1/3rd share of Gowramma, the mother of the plaintiffs wherein under a registered sale deed she has conferred title in favour of the defendants and in so far as redemption of mortgage to the defendants is concerned, to the extent of 1/3rd share of Gowramma plaintiffs cannot claim any right. Further, in so far as right of redemption of share of the plaintiffs to the extent of 2/3rd share in the suit property is concerned, they are entitled to the same on depositing the mortgage amount to the extent of 2/3rd share and they are entitled to delivery of share to the extent of 2/3rd on deposit of the mortgage amount. Accordingly, while answering the substantial question of law in favour of the appellants, the appeal is allowed in part. Parties to bear their own costs.