RAJENDRA SINGH Vs. RADHEY SHYAM AND

JUDGEMENT

(1.) THE plaintiff applicants who are minors, under the guardianship of their mother, instituted a suit for the cancellation of a sale deed executed by their father, of an ancestral house as also for the cancellation of a decree obtained in suit No. 67 of 1975, in regard to house No. 464, Attarsuiya, Allahabad. A further prayer was made that the defendant respondents who had obtained the decree for eviction in. suit No. 67 of 1975 be permanently restrained from evicting the plaintiff-applicants from the house in suit. THE facts leading to the case are very simple. THE house originally belonged to Chhotey Lal. He died leaving two sons who inherited the property. One of the sons was the father of the plaintiff applicants. In 1968 the two brothers viz. Krishna Chandra and Narendra Singh executed sale-deed. At that time Rajendra Singh plaintiff applicant had been born, but Roshan who is now aged about fight years, was not born. THE sale deed was for a consideration of Rs. 5500/-. After the sale was executed, possession of the house was given to defendant respondents who thereafter gave the house in tenancy to Krishna Chandra and Narendra Singh on a monthly rent of Rs. 174/-. THEreafter, it appears that Krishna Chandra and Narendra Singh did not pay the rent and so the defendant respondent filed a suit for eviction, using suit No. 67 of 1975 of the court of the Civil Judge, Allahabad. THE suit was decreed and a decree for arrears of rent and eviction was passed. At this stage the plaintiff-applicants filed the instant suit for the reliefs mentioned earlier in this judgment. THEreafter the plaintiff-applicants applied for an interim injunction restraining the defendant respondent from executing the decree for eviction. THE trial court granted the interim injunction. It found that the sale deed was for Rs. 5500/-, whereas the value of the house was not less than eleven to twelve thousand rupees. Having regard to the circumstances of the case and to the fact that the house was an ancestral property, and that the ancestral property might be found to have been sold for less than the adequate consideration, the injunction was granted by the trial court. Aggrieved by the order of the trial court the defendant respondent filed an appeal. THE said appeal has been allowed. THE District Judge has found that there were circumstances indicating that the sale deed had been executed for legal necessity. It, however, did not set aside the finding of the trial court that the property had been sold for less than the adequate consideration. It has been ob-fie-ved by the appellate court as follows: - "With regard to the alleged inadequate consideration, it appears from the sale deed that there was pressing need for money. According to the defendants the actual assessment in the Municipality was Rs. 168/- per annum. THErefore, the house cannot be considered worth Rs. 40,000/-. No doubt, the house was let out to the defendants 3 and 4 vendors at Rs. 174/- per month. It appears that defendants 3 and 4 were in dire need of money and they also wanted to live in the house after having sold it to the defendants 1 and 2. In these circumstances it appears that they agreed to sell the house for Rs. 5500/- and also agreed to pay a high rent of Rs. 174/- p.,m. In this circumstances just on the ground of inadequacy of consideration temporary injunction cannot be issued in plaintiffs' favour." Aggrieved by the order of the appellate court the plaintiff applicants have filed the instant revision. Dr. Gyan Prakash appearing on behalf of the plaintiff applicants has submitted that the District Judge misunderstood the law in regard to the sale of joint family property in which minors are involved. In this connection he invited a reference to the decision of a Full Bench of this Court in the case of Dudh Nath v. Sat Narain Ram (A.I.R. 1966 Alld. 315,) where it was held that in order to uphold an alienation where joint Hindu family property by the father or the manager, it is not only necessary to prove that there was legal necessity, for the sale but also that the father or the manager acted like a prudent man and did not sacrifice the property for inadequate consideration. This Full Bench case directly applies to the findings recorded by the District Judge in appeal. THE District Judge has found legal necessity for the sale. He has also found that the sale was for inadequate consideration. In view of the above Full Bench decision of this court the order of the District Judge in appeal is clearly erroneous. In deciding whether to grant an interim injunction or not to grant it the courts are required to determine whether the plaintiff who seeks an injunction has a prima facie case showing title to the property and that the balance of convenience is in his favour. In this case there is certainly a prima facie case in favour of the plaintiff-applicants as the finding so far recorded is that the sale was for an inadequate consideration. THE plaintiff-applicants are living in the house with their mother, though it is true that their father also lives in the house. If the decree obtained in suit No. 67 of 1975 of the court of the Civil Judge, Allahabad is executed, the plaintiff-applicants will be evicted from the house. THEse are days of acute shortage of accommodation in this city and, therefore, the balance of convenience require the grant of an interim injunction in the circumstances of the case. Misplacing or misunderstanding of the balance of convenience raises a question of jurisdiction. It has been submitted by the learned counsel for the respondent that this Court cannot interfere with the order of the lower appellate court in view of the provisions of Section 115, C.P.C. In particular, he has invited my attention to the provisions of the proviso to sub-section (1) of Section 115. C.P. C. His submission is that the High Court cannot interfere. However, clause (b) of the proviso to Section 115(1) says that the High Court has jurisdiction under Section 115, C.P.C. if it finds that the order if allowed to stand, would occasion failure of justice or cause irreparable injury to a party to a case. I find that if the order of the District Judge in appeal if allowed to stand, it will cause irreparable injury to the plaintiff-applicants. THE observations in this judgment should not be taken as finding the Courts below while finally deciding the case. In the result, the revision is allowed. THE order of the District Judge in appeal is set aside and the order of the trial court is restored. In the special circumstances of the case the parties will bear their own costs.