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Smt. Laikunnissah Vs. Hari Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 99 of 1970-B
Judge
Reported inAIR1980All63
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 90; Evidence Act, 1872 - Sections 114; Hindu Law
AppellantSmt. Laikunnissah
RespondentHari Prasad and ors.
Appellant AdvocateGyan Prakash, Adv.
Respondent AdvocateM.P. Singh, Adv.
DispositionAppeal allowed
Excerpt:
- - in the decree of the trial court as well as the plaint, hari prasad's father's name is shown as shiv dhain ram. 5. the lower appellate court found on the first point that inadequacy of consideration can be a good ground for setting aside the sale of the ancestral house; but that not having been done, it can be presumed that the price fetched at the auction sale was the best price that the property sold could fetch in the circumstances, i, therefore, hold in disagreement with the learned judge of the lower appellate -court, that the auction sale in the present case was not for an inadequate consideration and could not be set aside on the ground of inadequacy of the consideration and that there was no reason to suppose that the price fetched at the auction sale was so inadequate as..........disputed property was not less than rs. 1800/- and the sale was made for rs. 681/- only and the sale consideration was wholly inadequate, and on point no. 3, that the debt for which the property in suit was sold was 'avyavaharika'. 6. the learned counsel for the defendant-appellant contended before me that the sale of the property having taken place in execution of a decree, the sale could not be set aside for inadequacy of the consideration except on an application under order 21, rule 90 of the civil p. c, made before the executing court. the case of dudh nath v. sat narain ram 1966 all lj 107, (fb) relied upon by the lower appellate court is distinguishable for the sale in question in that case was a private sale and not an auction sale in the execution of a decree. there is a.....
Judgment:

Deoki Nandan, J.

1. This is a defendant's second appeal in a suit for setting aside the sale of two rooms of a house in execution of the decree in suit No. 36 of 1962.

2. Smt. Laikunnissah, defendant-appellant, was the decree-holder in the earlier suit No. 36 of 1962 in execution of which the two rooms in question were sold. The decree was for arrears of rent of a property tenanted by Shiv Dahin Ram, the pro forma respondent No. 2. The plaintiff-respondent No. 1 Hari Prasad and the pro forma-respondent No. 3 Parmanand are the sons of Shiv Dahin Ram. The plaintiff-respondent Hari Prasad's father's name was wrongly shown as Shiv Tahal Ram in the memorandum of appeal. The mistake occurred because in the decree of the lower appellate Court also the name of the father of Hari Prasad, plaintiff-appellant, before the lower appellate Court, was shown as Shiv Tahal Ram. In the decree of the trial court as well as the plaint, Hari Prasad's father's name is shown as Shiv Dhain Ram. On the request of the learned counsel for the appellant, I permitted him to correct the father's name of Hari Prasad, plaintiff-respondent No. 1, in the memorandum of appeal in this Court. The same correction will also be carried out in the decree of the lower appellate Court by the office.

3. The decree was for Rs. 584/- and two rooms of the ancestral house of the family of Shiv Dhain Ram were sold. The sale was sought to be set aside by the plaintiff-respondent Hari Prasad on the grounds that the decree in suit No. 36 of 1962 was 'Avyava-harika': that the value of the two rooms sold was not less than Rs. 4000/- and their sale for only Rs. 681/- was for a grossly inadequate consideration; that the sale was not for legal necessity and further that the defence of suit No. 36 of 1962, by Shiv Dahin Ram, was imprudent. The trial Court dismissed the suit but the lower appellate court allowed the appeal and set aside the sale in question.

4. The lower appellate Court formulated three points for its consideration:

1. Whether the inadequacy of consideration is a ground sufficient to set aside the sale of ancestral house?

2. Whether the disputed property was sold for an inadequate consideration?

3. Whether the debt was avyava-harika?

5. The lower appellate Court found on the first point that inadequacy of consideration can be a good ground for setting aside the sale of the ancestral house; on point No. 2, that the value of the disputed property was not less than Rs. 1800/- and the sale was made for Rs. 681/- only and the sale consideration was wholly inadequate, and on point No. 3, that the debt for which the property in suit was sold was 'avyavaharika'.

6. The learned counsel for the defendant-appellant contended before me that the sale of the property having taken place in execution of a decree, the sale could not be set aside for inadequacy of the consideration except on an application under Order 21, Rule 90 of the Civil P. C, made before the executing court. The case of Dudh Nath V. Sat Narain Ram 1966 All LJ 107, (FB) relied upon by the lower appellate Court is distinguishable for the sale in question in that case was a private sale and not an auction sale in the execution of a decree. There is a presumption of regularity of proceedings taken by the Court and if the sale was irregular or such as caused substantial injury to the judgment-debtor by reason of it being for a grossly inadequate consideration, it could be set aside on an application made under Order 21. Rule 90 of the Civil P. C. but that not having been done, it can be presumed that the price fetched at the auction sale was the best price that the property sold could fetch in the circumstances, I, therefore, hold in disagreement with the learned Judge of the lower appellate -Court, that the auction sale in the present case was not for an inadequate consideration and could not be set aside on the ground of inadequacy of the consideration and that there was no reason to suppose that the price fetched at the auction sale was so inadequate as to have been liable to be set aside on the principle that an imprudent transaction by a Hindu father or manager of a joint Hindu family is liable to challenge by the sons.

7. The finding of the learned Judge of the lower appellate Court that the debt created by the decree in Suit No. 36 of 1962 was 'avyavaharika' is equally unsustainable in law. A decree properly obtained against a Hindu father and 'Karta' of a Hindu Joint Family is binding on his sons, except in a case where it could be shown by the sons that the debt for recovery of which the suit in which the decree was passed, was itself 'avyavaharika'. It was stated before me that the decree in suit No. 36 of 1962 was for arrears of rent and costs. Indeed, as would appear from the plaintiff's case, as recited in the judgment of the lower appellate Court under point No. 3, the grievance was that Shiv Dahin Ram should have admitted the claim for rent for if he had done so the suit would have been decreed ex parte with costs. It is not suggested that the rent for which the suit was filed was not due. I do not see how a decree for recovery of rent in such a case, even if the father had contested that suit on some fanciful ground instead of admitting the claim, can be said to be 'avyavaharika'. The learned Judge of the lower appellate Court did not correctly appreciate the legal position on this point and it must be held that the debt due under the decree in suit No. 36 of 1962 was not 'avyavaharika',

8. In the result, the appeal succeeds and is allowed with costs. The judgment and decree of the lower appellate Court are set aside and the plaintiff's suit shall stand dismissed with costs throughout. The record may be sent down to the executing Court at once.


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