JUDGMENT 1. - Heard learned counsel for the parties. 2. This appeal has been filed by the appellant against the judgment and order of the learned Additional District Judge Raisinghnagar dated 23rd August, 1986 in Civil Suit No. 101/80. 3. The suit was filed by the appellants in the background that there was a land purchased in their name while the appellants were minor. These lands were sold by their father on 16.05.75 in the name of respondent Nos. 1 and 2. These lands were sold by their father purporting to be the guardian of the appellants. The recital of the sale deed show that the father of the appellants stated himself in the sale deed as the guardian of the minors. He made the sale as the guardian of the minors a reason for sale was that because the money was required for the family use. 4. The defendants contested and alleged that the father had every right to sell the property as the same was purchased by his money in the name of the plaintiffs who were minors and they were benamidars. The real owner was father only and, therefore, father had the right to sell the property. 4. The defendants contested and alleged that the father had every right to sell the property as the same was purchased by his money in the name of the plaintiffs who were minors and they were benamidars. The real owner was father only and, therefore, father had the right to sell the property. On the basis of the pleadings the following issues were framed : 1- D;k oknhx.k dk firk xqjc['kflag fooknxzLr lEifRr Hkh mlus izfroknhx.k dks fodz; dh] dk vlyh ekfyd Fkk o mlus lEifRr oknhx.k ds uke ls dsoy fn[kkos gsrq dz; dh Fkh\ 2- D;k xqjc['kflag }kjk fodz; i= fnukad 16-6-75 fd;s tkus dh rkjh[k dks oknhx.k ukckfyx Fks o mudh tUe frfFk;ka dze'kk% 3 flrEcj] 1975 o 5 tqykbZ] 1960 gSa\ 3- D;k xqjc['kflag us oknxzLr Hkwfe vius nqO;Zluksa dh iwfrZ gsrq tSlk fd okn i= esa crk;k gS] fooknxzLr tehu csph\ 4- D;k oknxzLr lEifRr cspus ls iwoZ xqjc['kflag us U;k;ky; dh vuqefr ugha yh\ 5- D;k bl U;k;ky; dks okn dh lquokbZ djus dk vf/kdkj tokc nkok ds iSjk la0 7 ds crk;s dkj.kksa ls ugha gS\ 6- D;k U;k; 'kqYd iwjk vnk ugha fd;k x;k gS\ 7- D;k thrflag iq= xqjc['kflag vko';d i{kdkj eqdnek gS\ 8- D;k oknxzLr Hkwfe [kjhnus ds ckn izfroknhx.k us Hkwfe dks Bhd djus esa :i;s 10]000@& [kpZ fd, gSa\ 9- vuqrks"k\ oknhx.k fdl lgk;rk ds ik= gSa\ 10- vk;k nkok oknh feltksbaMj vkQ dkt vkQ ,sD'ku ds nkos ls xzflr gSa ;fn ,slk gS rks bldk D;k vlj\ 11- vk;k izfroknh i= ds en ua0 14 ds vuqlkj nkok oknh pyus ;ksX; ugha gS vkSj cS;ukes vkaf'kd :i ls fo[kafMr ugha fd;s tk ldrs gSa\ 5. The trial court, after considering the evidence of the parties, came to the conclusion on issue No. 1 that from the evidence it is established that the property belonged to father as the real owner and the plaintiffs were only ostensible owner and the property was benami. Such has been held by the trial court on the basis of oral evidence. 6. Assailing the findings on issue No. 1, the learned counsel for the appellants, submitted that the best evidence in this regard could only be the sale deed itself. Such has been held by the trial court on the basis of oral evidence. 6. Assailing the findings on issue No. 1, the learned counsel for the appellants, submitted that the best evidence in this regard could only be the sale deed itself. If this is recited in the sale deed by the seller that he is the real owner and the appellants are only ostensible owners and, therefore, he has a right, then only the seller, who is the father of appellants, could sell that property. 7. A bare reading of the sale deed show that it has been sold as the guardian of the owner of the property. The sale deeds are the best evidence to show as to what was the status of the seller at the time when the sale was made. The oral evidence in this regard would not be sufficient to conclude that the sale deeds were not the correct reflection of the situation and it has to be concluded that the property was benami. In the presence of the best evidence, the sale deed itself, any conclusion to the contrary, would defy the mandate of Section 91 of the Evidence Act, 1872, wherein it has been stated that best evidence being there, the same should be considered. Every other evidence shall be excluded. 8. The learned counsel for the defendant, per contra, supported the findings of the trial court on issue No. 1 and asserted that the minors had no means to purchase the property, they were only benamidars and purchase in their name did not confer any right, title or interest of the minor who had not invested any money on the land in question and, therefore, the findings of the trial court on issue No. 1 are not liable to be disturbed. 9. I have considered the rival submissions and have perused the record. 10. The recital in sale deed in favour of the defendants show that the father of the appellants had not claimed in the sale deed that he is selling it as real owner and the appellants are benamidars. Thus, at the relevant time when the sale deed was made, it was not made by the father as the real owner, claiming that those who were the owners of the property were only ostensible owners. Thus, at the relevant time when the sale deed was made, it was not made by the father as the real owner, claiming that those who were the owners of the property were only ostensible owners. That being the position, the traversing of the evidence by the trial court of the oral nature, was not sufficient to discard the right defined in the sale deed. The recitals made in the sale deed are of primary importance. If the father had not claimed as the real owner then the oral evidence adduced would clearly be of no consequence to nullify the presumption, as available in favour of the appellants that if the father did not claim at the relevant time that the minors were benamidars then the sale as was made in favour of the minors, was a sale intended to clothe them with the real owners and not benamidars. 11. In this background, the conclusions of the trial court that it was benami transaction cannot be sustained. That being the position, the argument of the learned counsel for the defendant on the basis of a case relied on by him in the matter of Sayed Abdul Khader v. Rami Reddy, AIR 1979 SC 553 which is quoted herein below would be of no assistance "24......The genesis of the concept of benami is that consideration for a transfer must flow from one person and the transfer is taken in the name of other person and the consideration so flowing for the transfer was not intended to be a gift in favour of the person in whose name the transfer is taken. All these ingredients of benami are absent in this case and, therefore, the contention that the plaintiff was a benamidar cannot be accepted." 12. The aforesaid law does not help the appellants in the background that the sale was of the property of the minor. The question of implication of Section 8 of the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as 'the Act'), was not in consideration before he court. In this case the father, while making the sale, has not claimed that he is making the sale as the owner of the property. He has stated in the sale deed that he is making the sale as the guardian. In this case the father, while making the sale, has not claimed that he is making the sale as the owner of the property. He has stated in the sale deed that he is making the sale as the guardian. A guardian can only sale the property of a minor after seeking permission from the court in terms of section 8 of the Act. That having not been taken, the sale made is a sale without the permission of the court, being sale of the property of a minor. In this background, finding of the trial court on issue No. 1 cannot be sustained, and accordingly the same is set aside. 13. The effect of the setting aside of the findings of issue No. 1 is that the trial court itself has held on the discussions on issue No. 4 that the permission of the court was not taken. Therefore, the ultimate conclusion also cannot be sustained and in that view of the matter, the findings of issue No. 1, as given by the trial court, are liable to be disturbed and it is held that issue should have been decided in favour of the appellant. 14. Issue No. 1 having set aside in favour of the appellant, the suit deserves to be decreed and the sale made by their father, of the property belonging to them is liable to be set aside. 15. Accordingly the decree of the trial court is set aside and it is ordered that the sale as made is not liable to be sustained and the same is set aside.Appeal allowed - Decree of trial court set aside - sale set aside. *******