Karnataka High Court
Sri Gopalaiah S/O Sri. Thammaiah vs Smt Jayakumari W/O Sri. Surya Kumar on 6 June, 2013
Bench: N.Kumar, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 6th day of June, 2013
PRESENT
THE HON'BLE MR. JUSTICE N KUMAR
AND
THE HON'BLE MR. JUSTICE B SREENIVASE GOWDA
RFA No.430 of 2009
BETWEEN:
1. Gopalaiah
Son of Sri Thammaiah
Aged about 64 years
2. Sri Venkatesh
Son of Sri Thammaiah
Aged about 60 years
Since dead by his L.Rs:-
(a) Mrs. Parvathamma,
W/o Venkatesh,
Aged 56 years,
(b) Girish,
Aged 33 years
(c) Muralidhar,
Aged 27 years
2
(b) & (c) are sons of Venkatesh
All are r/a DS-60,
Palani Mudaliar Street,
Ulsoor, Bangalore - 8.
(d) Smt. Jayamala,
W/o Rangaswamy,
Aged about 33 years,
r/a 110/E, 3rd 'E' Cross,
Netajinagar,
Jalahalli Cross,
Bangalore - 57.
3. Sri Chandrashekaraiah
Son of Sri Thammaiah
Aged about 58 years
Nos.1 to 3 residing at No.29
Ramakrishna Mutt Road
Ulsoor
Bangalore - 560 008 ...Appellants
[By Sri M.S. Purushothama Rao, Advocate, for appellants
and proposed Appellant No.4(a) and (b)]
AND:
1. Smt. Jayakumari
Wife of Sri Surya Kumar
2. Ms. Sunitha
3. Ms. Ramya
Nos.2 and 3 daughters of
Sri Surya Kumar
3
All Majors, residing at
C/o Sri R. Srinivas
Andharahalli
Opp: Ganesh Temple
Vishwaneedam Post
Bangalore - 560 091
4. Smt. Kempamma
Since deceased by L.Rs.,
4(a) Smt. Jayamma
Wife of Sri Kempanna
Aged about 60 years
4(b) Sri Shivakumar
Aged about 33 years
4(c) Sri Ranganatha
Aged about 31 years
Nos.(b) & (c) sons of
Sri Kempanna
All residing at No.29
R.K.Mutt Road, Ulsoor
Bangalore - 560 008
5. Smt. Sarswathi Rajshekar
Major, residing at No.54/5
1st Main Road
Marenahalli
Vijayanagar
Bangalore - 560 040
6. Smt. Lakshmi
Wife of Sri Topaiah
Major, residing at No.395/2
Annasandrapalya Extension
4
Vimanapura Post
Bangalore - 560 017
7. M/s. Megha City Developers
And Builders Ltd.,
120, K.H. Towers
Bangalore - 560 027
Represented by its
Managing Director ...Respondents
(By Sri Rameshchandra, Advocate, for R1 to R3;
Sri Gurudev I. Gachinmath, Advocate for R5;
Sri B.M. Mahesh, Advocate for R6;
R4(a) appeal abated v/o dated
3-4-2012;
R4(b) and R4(c) are served;
R7 notice dispensed with v/o dated 8-3-2013)
This RFA filed under Section 96 of CPC against the
judgment and decree dated 04-02-2009 passed in OS
No.719/2004 on the file of the I Additional City Civil &
Sessions Judge, Bangalore, decreeing the suit for partition
and separate possession.
This RFA coming on for orders this day,
N. KUMAR J., delivered the following:
JUDGMENT
This appeal is preferred by defendants-1, 3 and 4 against the judgment and decree of the trial Court, which has decreed the suit of the plaintiffs for partition and 5 separate possession granting 1/7th share to the plaintiffs in the suit schedule properties.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. One Thammaiah is the propositus. His wife is Uchithamma. They had five sons and two daughters. Plaintiffs are the widow and two minor daughters of Suryakumar, one of the sons of Thammaiah, who died on 02.09.1987. The first defendant is his eldest son of Thammaiah. Kempanna is his second son who died during the pendency of the proceedings and therefore his wife and children are brought on record as defendants-2(a), (b) and
(c). Third son of Thammaiah is the 3rd defendant by name Venkatesh and 4th son is Chandrashekaraiah, who is the 4th defendant. Defendants-6 and 7 are two daughters of Thammaiah by name Saraswathi Rajashekar and Lakshmi. The 5th defendant is the purchaser.
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4. The subject matter of the suit is agricultural lands situated at Thammanna Doddi, Kenchanakuppe Village, Bidadi Hobli, Ramanagara Taluk, which are more particularly described under items-1, 2 and 3 of the plaint schedule. Item No.4 of the plaint schedule is property bearing No.89, Ramakrishna Mutt Road, Ulsoor, which is a family house. Item No.5 is the property bearing No.1, 6th street, Palani Mudaliar Cross, Ulsoor. Item No.6 is a movable property.
5. The case of the plaintiffs is, first plaintiff was married to Surya Kumar on 26th April 1985 at Bangalore. Plaintiffs-2 and 3 are their children. Surya Kumar is the son of Thammaiah, who was the Kartha of the Joint Hindu Undivided Family consisting of himself and his children, including Surya Kumar. Surya Kumar was the youngest son of Thammiah. He died intestate on 02.09.1987, leaving behind the plaintiffs as his only legal heirs. Thammaiah inherited several ancestral properties. Item Nos.1 and 2 of 7 the schedule properties are ancestral properties inherited by Thammaiah. In so far as Item No.3 is concerned, it was a tenanted land cultivated by the joint family. Thammaiah filed Form No.7 claiming occupancy rights and it was granted by order dated 20.06.1992. Therefore it is a joint family property. Thammaiah owned item No.4 of the schedule property. Item No.5 of the property was acquired and developed by joint family fund and therefore it is also a joint family property. First plaintiff's husband Surya Kumar and defendants-1 to 4 were enjoying all the properties as joint family properties.
6. Defendants-1 to 4 stealthily and behind the back of the plaintiffs appear to have partitioned the property bearing No.29, Ramakrishna Mutt Road, Ulsoor, Item No.4 of the schedule property, which was purchased out of the joint family funds and developed it from joint family funds and it was yielding an income of Rs.70,000-00 as rent from 30 tenants in its occupation. However, defendants-1 to 4 are 8 paying Rs.4,000-00 per month to plaintiffs since last one year. Defendants 1 to 4 stealthily partitioned the schedule properties excluding the plaintiffs. On coming to know of the same they demanded partition. When their request was not acceded to, they were constrained to file the suit for partition. They also pleaded the properties which were granted by the Land Tribunal in the name of Thammaiah were unlawfully sold to the 5th defendant by defendants 1 to 4 and Thammaiah. Therefore, the said sale is not binding on the plaintiffs. The sale is also in contravention of the mandatory provisions of the Land Reforms Act as the sale was effected within the period of non-alienation. Therefore, the plaintiffs sought for their 1/5th share in all the plaint schedule properties.
7. Defendants 1 to 3 filed written statement contesting the claim of the plaintiffs. The relationship between the parties was admitted. After denying all the allegations in the plaint they have set out their case. Their 9 case is, the suit schedule properties were partitioned as far back as in 1969 itself among Thammaiah. Defendant No.4 filed a civil suit in O.S. No. 96/69 on the file of the Civil Judge, Bangalore, seeking partition against his father, brothers and sisters of the joint family properties. The said suit came to be disposed of in terms of the compromise decree. The decree provides that the plaintiffs and defendants 1 to 4 each got 1/9th share in and over the schedule properties. Later in terms of the said decree the suit schedule properties were divided by metes and bounds. Surya Kumar was allotted land measuring 20 guntas in Sy.No.104 of Ulsoor Village and house property No.16, Someshwara Temple Street, Ulsoor and cash of Rs.4,445/-. T.Surya Kumar was owning and possessing the said property allotted to him as the absolute owner thereof and he had no manner right, title or interest in and over the other properties. Thus, there was disruption of the joint family and partition by metes and bounds. Hence, no joint family exists as claimed by the plaintiffs. Item Nos. 1 to 3 were 10 allotted to the share of M. Thammaiah being the Kartha and elder member of the family and also for the provision of maintenance for the mother Uchitamma. The said Thammaiah being the absolute owner of item Nos.2 and 3 of the suit schedule properties sold the same way back in the year 1997 itself. However, defendants 1 to 4 were asked to join in the execution of the sale deed formally.
8. Defendants 1 to 3 submit that there was a reunion of the joint family among Thammaiah and defendant Nos. 1 to 4 excluding Surya Kumar within a short time after the partition. Hence, all the properties including the property No.29 which came to them under the partition referred to above were pooled together. Defendants 1 to 4 being young, energetic and healthy persons, put their self earnings, efforts and skill to improve the property No. 29 which was earlier only a vacant plot. They have put up a massive building out of their own funds. The above said reunion however did not last for a long time. Hence, 11 Thammiah and defendants 1 to 4 entered into an another registered partition deed dated 2.11.2000. The said partition deed discloses item No.4 of the suit schedule property was divided by metes and bounds. Though item No. 5 of the suit schedule property was given to Lakshmi d/o Thammaiah, she did not take the property under some grouse. Even that property was also included in the registered partition deed. There are no moveables either in cash or in any other form. Hence, division of the same does not arise. The above said facts clearly go to show none of the items of the suit schedule is now available for partition. Surya Kumar who was separated from the joint family is not entitled to reopen the case and the claim of the plaintiffs is misconceived, untenable, baseless and liable to be rejected. Partition effected in O.S. No. 96/69 has become conclusive, final and executable. All rights, title of the joint family was extinguished. Hence, the present suit filed by the plaintiff is not maintainable and it is hit by the principles of res judicata. A matter which has been decided finally cannot be 12 reopened and the same amounts to misuse of process of the Court. The suit is bad for non-joinder of necessary parties.
9. Defendant No.2 has filed a separate written statement supporting the stand of the defendants 1 and 3. All the allegations in the plaint except the relationship are disputed. It is his specific case that the suit properties were divided under the partition deed dated 2.9.2000. All the parties are enjoying the properties in accordance with the shares allotted to them. It has been duly registered. T. Chandrashekaraiah filed O.S. No. 96/1969 against his mother, father, brothers and sisters. A compromise was entered into in the said suit. The husband of the plaintiff was a party to the suit. Therefore, this suit for partition is not maintainable. They have invested huge sums of money for improving the property. Plaintiff has not invested any money. They have been exercising the ownership from 1987. They have been in exclusive possession of item No.4 of the suit schedule property. Even otherwise, they have perfected 13 their title by adverse possession. Suit is barred by principles of estoppel and res judicata. Therefore, he sought for dismissal of the suit.
10. Additional defendants 6 and 7 - daughters of Thammaiah also filed a written statement supporting the other defendants.
11. Thereafter, the plaintiffs filed a rejoinder. Plaintiffs contended that, the alleged partition in O.S. No. 96/1969 is a make believe, obtained by playing fraud on the Court. From the decree filed in the Court it appears the said suit is filed only to wriggle out of several suits and creditors. There was no actual division or partition of any properties. Surya Kumar was a minor. He was not aware of the said colluded suit filed to wriggle out of debtors. The properties have remained joint and they are enjoying the properties in joint. It is false that there was reunion of the members except Surya Kumar. Even on the date of death of Surya 14 Kumar, all the members were residing together and it was a joint family. They were not aware of the judgment and decree in O.S. No. 96/1969. The said judgment was obtained by collusion between the respondents 1 to 4 and others who were all parties to the said suit. It is not at all binding on them. The said compromise was not in the interest of Surya Kumar. There was no compliance of mandatory provisions of Order XXXII Rule 7 of CPC. Therefore, they sought for a decree as prayed for.
12. On the aforesaid pleadings, the trial Court framed as many as 11 issues which are as under: -
1. Whether the plaintiffs prove that item Nos.1 and 2 of the suit schedule properties are the ancestral properties?
2. Whether the plaintiffs further prove that the joint-tenancy rights was granted in respect of item No.3 of the suit schedule properties in favour of late Thammaiah as a katha?
3. Whether the plaintiffs further prove that item Nos.4 & 5 of the suit schedule 15 properties were acquired out of the joint/family nucleus?
4. Whether the plaintiffs further prove the existence of item No.6 of the suit schedule property with its acquisition?
5. Whether the defendant No.2 & 4 prove that the suit schedule properties came to be partitioned amongst late M. Thammaiah and his children including Surya Kumar-
husband of plaintiff No.1 and father of plaintiff No.2 and 3 way back in the year 1969-70 as contended in the written statement?
6. Whether they further prove that the suit item Nos.1 to 3 were allotted to the share of late M. Thammaiah and Thammaiah was owning the said property as an absolute owner?
7. Whether they further prove that late M. Thammaiah being the absolute owner of the suit item No.3, effected the sale of the said property in favour of defendant No.5 herein, way back in the year 1997 itself?
8. Whether they further prove that defendant Nos.1 to 4 as per the Order of late 16 Thammaiah, partitioned the suit schedule item Nos.1, 2, 4 and 5 between themselves in the year 2000?
9. Whether the plaintiffs are entitled to partition and separate possession of 1/5th share in the suit schedule properties?
10. Whether the plaintiffs are entitled to mesne profits?
11. What order or decree?
13. Subsequently, issue No. 8 was recasted as under: -
8. Whether the defendant No.4 proves that suit item No.1, 2, 4 & 5 came to be partitioned in the year 2000 as contended in para No.7 & 8 of the written statement?
14. Thereafter, 6 additional issues were framed as under: -
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1. Whether the defendants No.1 & 3 prove that there was a partition in the year 2000 in the suit item No.1, 4 & 5?
2. Whether the suit is maintainable in view of the earlier partition as contended in para No.6 of the written statement of the defendant No.1 and 2?3. Whether the defendants No.1 and 3
prove that suit is not maintainable in view of the res-judicata as contended in para No.8 of the written statement?
4. Whether the suit is bad for non-joinder of necessary parties as contended by the defendant No.1 and 3?
5. Whether suit is barred by limitation as contended by defendants No.1 & 3?
6. Whether the defendant No.2 proves that he became the owner by adverse possession to the item No.4 of the suit property?
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15. Plaintiffs in order to prove their case examined the first plaintiff as PW1 and also examined one witness by name Srinivasa-her brother in law as PW2, produced 22 documents which are marked as Exs.P1 to P22. On behalf of the defendants, fourth defendant-Chandrashekaraiah was examined as DW1; first defendant Gopalaiah was examined as DW2; third defendant-Venkatesh was examined as DW3. On their behalf 2 documents were marked as Exs. D1 and D2.
16. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that, all the plaint schedule properties are joint family properties and Joint family exists. There is no disruption of the joint family. Decree in O.S. No. 96/1969 is a collusive one. It is not acted upon. It is void. It also further held that the reunion set up by the defendants is not proved. When there was no partition as contended by the defendants and as reflected in the compromise decree, question of reunion also would not 19 arise. It further held that the second partition as per Ex.P22 which was effected on 2.11.2000 clearly demonstrates that the suit schedule properties are all joint family properties and plaintiffs being not parties to the said partition, it does not bind them to any extent whatsoever. The suit of the plaintiffs is not hit by doctrine of res judicata or estoppel. The suit is well in time. Defendants have not perfected their title by adverse possession. But, it held that the plaintiffs have failed to establish the existence of item No. 6 of the plaint schedule property and therefore it proceeded to grant a decree for partition and declaration that the plaintiffs are entitled to 1/7th share and directing partition by metes and bounds. Aggrieved by the said judgment and decree, the present appeal is filed by defendants 1, 3 and 4.
17. Sri M.S. Purushothama Rao, the learned counsel appearing for the appellants assailing the impugned judgment and decree contended that, in view of the compromise decree passed in O.S. No. 96/1969 on 20 13.9.1971 there is a severance of status of joint family. In fact, the status of the joint family came to an end in the year 1969 itself when the suit was filed. Therefore, no joint family exists on the date of the suit. In the said partition, 3 items of the property were allotted to the share of the husband of the first plaintiff. He was a minor on the date of partition represented by his father-natural guardian. He attained majority in the year1974. Till his death he did not choose to challenge the compromise decree. Therefore, the plaintiffs have no right to challenge the compromise decree. It is his further case that, subsequent to the said partition there was a reunion among the members of the joint family excluding Surya Kumar-the husband of the first plaintiff. It is after reunion, after contributing funds, item No.4 of the schedule property was developed, a massive construction was put up, let out to 30 tenants. It is fetching an income of Rs.70,000/-. Surya Kumar during his life time and after his death the plaintiffs have not moved their little finger either demanding a share in the property or asserting their title to 21 the same. Therefore, the suit filed by the plaintiffs is clearly barred by the law of limitation. That apart again by a registered partition deed dated 2.11.2000 the parties have again partitioned the properties. In pursuance of the said partition, mutation entries and katha, have been changed in their respective names. They are enjoying those properties exclusively and therefore the plaintiffs have no manner right, title or interest over any of the schedule properties. Therefore, he submits the suit is barred by the law of limitation. This suit filed for partition is bad because of earlier partition. In fact, in the plaint there is no whisper about the earlier partition. Under these circumstances, the trial Court committed a serious error in granting the decree for partition ignoring the earlier partition decree.
18. Per contra, the learned counsel appearing for the plaintiffs submitted the suit O.S. 96/1969 filed by Chandrashekaraiah is a collusive suit. The object of the suit is to ward off creditors and to save these properties for the 22 family. On the date of the suit and on the date of the compromise decree Surya Kumar was a minor. In the said compromise, three properties is said to have been given to Surya Kumar. One of the property is property No.11, new No.16, situated at Ulsoor. The said property was sold in a Court auction on 1.11.1970. The sale was confirmed on 4.6.1971 and on the day the compromise decree was executed on 13.9.1971 that was not a property which was available for partition at all. In so far as allotment of 20 guntas in Sy.No.104 is concerned, that was the subject matter of acquisition much prior to the date of the partition. Therefore, that property also was not available for partition. In so far as payment of Rs.4,455/- is concerned, if really the family owned Rs.40,000/- on the date of partition for being distributed among the members, they could have very well utilized the said fund to pay the creditors of the family. In fact because of execution petitions filed by the creditors seeking sale of the properties which in fact were all mortgaged to them, the present suit is filed to tide over the 23 threat. It is in these circumstances, the said partition is a collusive one, it was not acted upon, it was never intended to be acted upon, therefore it is void and it neither has the effect of disrupting the joint family status or effecting the partition of the joint family property. Therefore, as there was no partition all the members together cultivated item Nos. 1 to 3 of the plaint schedule properties. In so far as item No.4 is concerned, the property was developed and a massive construction is now put up. In fact, there is no evidence on record to show the so called reunion because there was no disruption at all. The partition deed dated Ex.P22 dated 2.11.2000 does not whisper about the reunion and it does not whisper about the earlier partition. On the contrary it says all the schedule properties are joint family properties acquired by purchase and therefore they are effecting the partition. In the said partition Surya Kumar was excluded as he was not alive on the said date and the plaintiffs are not included. Therefore, the said document shows that the schedule properties are joint family properties, there was no 24 partition, there was no reunion and the said properties were available for partition and therefore he submits the trial Court on a proper appreciation of the oral and documentary evidence on record rightly decreed the suit of the plaintiffs. No case for interference is made out.
19. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration in this appeal are as under: -
(i) Whether the compromise decree obtained in O.S. No. 96/69 is collusive, void, as held by the trial Court?
(ii) Whether there was any reunion as pleaded by defendants?
(iii) Whether Ex.P22-the second partition in any way deprive the plaintiffs of their legitimate share in the schedule property?
(iv) Whether the suit for partition is barred by the law of limitation?25
20. Point No.(i): A copy of the decree in O.S. No. 96/69 is produced and marked in the case as Ex.D1. That is the suit filed by T.Chandrasekharaiah-the fourth defendant in the suit against his father, mother, brothers and sisters. On the date of the suit, Surya Kumar and Saraswathi were minors and they were represented by natural father-Thammaiah. On the date of the suit they were all residing at No.29, Ramakrishna Mutt Road, Ulsoor, Bangalore-8-item No.4 of the plaint schedule property. They are arrayed as defendants 1 to 8. In addition to them the suit was filed against the creditors of the family. They are arrayed as defendants 9 to 22. The said decree discloses the suit filed is one for partition of the plaint schedule properties by metes and bounds and also for partitioning of the rents collected. The suit was not only for that purpose. The prayer column discloses the relief sought was a permanent injunction restraining defendants 9 and 10 from executing decree in O.S. No. 112/63 in Ex.124/67 on the file of the Munsiff, Civil Station, Bangalore. Further, a decree of 26 permanent injunction restraining the defendants 11 and 12 from executing the decree in O.S. No. 243/63 in Ex.No. 83/63 on the file of the Munsiff, Civil Station, Bangalore. Further, to restrain the defendants 13 and 14 from executing the decree in O.S. No. 480/64 in Ex.No. 254/66. Similarly, restraining the defendant No. 21 from executing the decree in O.S. No. 99/66 in Ex.No. 7/69 on the file of the I Addl. Civil Judge's Civil Station, Bangalore. Further, restraining defendant No.22 from executing the decree in O.S. No. 210/67 in Ex.No. 90/69 on the file of the I Additional Civil Judge, Bangalore, from taking possession of premises No.4, Appu Rao Lane, Ulsoor, Bangalore. Therefore, it is not a simple suit for partition among the joint family members. It was a suit filed to prevent execution of money decrees obtained against the joint family members and properties. The said suit which was filed in the year 1969 was not contested by anyone. On the contrary, the plaintiffs withdrew the suit as against defendants 9 to 22. Thereafter, the parties filed a compromise petition effecting partition of 27 all the plaint schedule properties. Clause 6 of the agreement states that, all the existing mortgage debt and other debts which have charge on the suit schedule properties should be paid by the 1st and 2nd defendants by selling their share. First and second defendant are the mother and the father. The properties allotted to the share of the father was the lands bearing Sy.Nos.146/1, 146/2, 149 and 127, located in Thammanna Doddi, i.,e., in other words agricultural lands which were are tenanted lands. The property which was allotted to the share of Uchithamma was Sy.No.104 which was the subject matter of acquisition on the date of the compromise petition. Suryakumar-the husband of the first plaintiff was a minor and the property which was allotted to his share is Sy.No.104 measuring 20 guntas which again is the subject matter of acquisition on the date of partition. House bearing Municipal Door No. (old) 11, New No. 16 which was sold in a public auction on 4.11.1970 to discharge a decree debt. The sale was confirmed on 4.6.1971. On the date the compromise was entered into on 28 13.2.1971, the said property ceased to be the joint family property and the auction purchaser was the owner and it is that property which was allotted to the share of Surya Kumar. Third item is the cash. Therefore, item Nos. 1 and 2-immovable properties which were allotted to the share of Surya Kumar did not exist and he got no right in the said property by virtue of the compromise. The third item being cash, Surya Kumar being minor represented by the father, the cash also did not go into the hands of Surya Kumar. Therefore, under the compromise Surya Kumar got nothing. This is understandable because this compromise petition was not intended to put an end to the joint family status or divide the joint family property, at all.
21. The object of that compromise petition is to ward off these debts from the threat of creditors as is clear from the recitals in the decree passed. That is the reason why after the decree it was not acted upon, no mutation entries or kathas were transferred in terms of the decree in the 29 name of any of the persons. On the contrary item No.4 of the property was developed by all of them. A massive construction was put up. 30 tenants were inducted and it is fetching a sum of Rs.30,000/- rent per month. Section 44 of the Indian Evidence Act, 1872 provides that, any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. When the defendants have set up this compromise decree to contend the suit for partition is not maintainable as all joint family properties have been partitioned, the plaintiffs have now pointed out the aforesaid unimpeachable facts to show that the decree is collusive in nature. As the plaintiffs were not parties, as the husband of the first plaintiff who is shown to be a party was a minor on the date of the decree, probably they were not aware of the proceedings. Once in the written statement it was set up, 30 promptly they have filed rejoinder pointing out these infirmities.
22. The Apex Court in the case of NAGUBAI AMMAL AND OTHERS vs B. SHAMA RAO AND OTHERS [AIR 1956 SC 593] pointing out the distinction between a collusive proceeding and a fraudulent proceeding has stated as under:-
"15. Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. "Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose".
(Wharton's Law Lexicon, 14th Edition, page
212).
In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the 31 object of confounding third parties. But when a proceeding is alleged to be fraudulent, -what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest....."
23. Therefore, what the plaintiff is contending is the decree is collusive in nature. It is obtained to protect the joint family properties from the hands of the creditors. When a suit came to be filed claiming a share in the joint family properties, the subsequent conduct of the defendants shows there was no contest. Further more, when the relief sought for in the suit is an order of injunction restraining the defendants-creditors 9 to 22 from executing the decrees in 32 the execution case a memo was filed giving up all of them. Then all the agricultural lands were allotted to the share of the father with an obligation to discharge all the mortgaged debts of the family. Thus properties allotted to the father's share were all tenanted properties. Subsequently, those tenanted lands have been granted in his favour by the order of the Land Tribunal. The said property cannot be sold by anyone as there is a prohibition of alienation under law. Therefore, it is clear the contest is unreal and the decree is obtained as a mask having the similitude of a judicial determination and worn by the parties with the object of confounding the creditors of the joint family. What is collusive is void ab initio. It is non est and a decree which is void need not be invalidated because it does not exist in the eye of law. Therefore, merely because Surya Kumar after attaining majority though lived for more than 20 years did not choose to challenge the said decree, it does not bind him to any extent whatsoever as it was a void decree. Similarly, after his death if the plaintiffs have not taken steps to get the 33 decree cancelled, their rights are in no way affected. Therefore, the trial Court on a proper appreciation of the evidence on record rightly held that the decree is collusive, no partition took place under the decree, there was no disruption of the join family and joint family property continues to exist. The said finding is based on legal evidence and does not suffer from any legal infirmity.
24. Point No.(ii): The defendants have pleaded specifically in the written statement filed by defendants 1 and 3 at para 6 that, within a short time of the partition there was a reunion and therefore all the joint family properties which were said to have been partitioned in the earlier partition were put back into the common hatch pot and they continued to be the joint family properties. But, in the reunion Surya Kumar is excluded. Admittedly, Surya Kumar was a minor on the date of partition. He attained majority 3 years thereafter. If within a short time, after partition, reunion has taken place, it has to be necessarily 34 during his minority. If the reunion has taken place within the minority, the question of excluding him in the said reunion would not arise. Except a bare statement in the written statement and repetition of that in the witness box, no material is placed on record to demonstrate the reunion. The case of reunion pleaded by the defendants has remained as a mere plea. If the earlier partition did not have the effect of disruption of the family and division of the properties this reunion has no meaning and therefore notwithstanding the partition decree the family continued to be joint, the properties continued to be joint. That is the reason why item No.4 of the schedule property was developed by all the members of the family. Similarly, there is evidence on record to show item Nos. 1 to 3 of the schedule properties which are agricultural tenanted lands continued to be cultivable by all the members of the joint family including Surya Kumar. Therefore, the subsequent conduct shows that the properties continued to be joint, family continued to be joint, family continued to reside in the very same family house and the 35 case of partition, the case of reunion pleaded is without any merit. In fact in Ex.P22, the partition deed, which has come into existence on 2.11.2000 there is no whisper of this reunion. In the sale deeds executed by father and sons there is no whisper of this reunion. Therefore, the trial Court was justified in holding that the case of reunion pleaded by the defendants lacks bona fide and is without any merit. Accordingly, we confirm the said finding.
25. Point No. (iii): Once it is held there was no earlier partition, there was no disruption of the joint family, there was no reunion, Ex.P22, the registered partition deed, categorically refers to the schedule properties as joint family properties and all the persons as the members of the joint family. On the date of Ex.P22, Surya Kumar was dead and therefore he could not have joined in the execution of the said document. But the properties which are the subject matter of that partition being the joint family properties he had a definite share and on his death his wife and children 36 were entitled to the share of Surya Kumar. When he is not a party to the document and the plaintiffs were not parties to the partition they are entitled to their legitimate shares in the partition, Ex.P22 neither binds the plaintiffs nor does it take away their share. On the contrary it confirms and establishes the case of the plaintiffs that all the properties are joint family properties, joint family continued to exist till 2.11.2000 and therefore as they have not been given the legitimate share, their suit for partition is well founded. That is what precisely the trial Court has held, it is based on legal evidence and therefore, we do not see any justification to interfere with the said finding.
26. Point No.(iv): It was contended that Surya Kumar went out of the family and living separately with his wife and children, he and his family members ceased to be joint family members. They having not lived with other members for last 20 years and they having been given their respective shares, when they did not choose to challenge 37 earlier partition nor did they demand a partition when item No.4 of the schedule property was developed the suit filed by them is clearly barred by the law of limitation. The law is well settled on the point. There is no limitation prescribed under law for a suit for partition. However, if a member of the joint family is ousted from the joint family properties and if such a person wants to file a suit for partition and claim possession, in view of Article 110 of the Limitation Act, the suit has to be filed within 12 years when the exclusion becomes known to the plaintiff. It is also equally well settled the plea raised in a suit for partition claiming adverse possession is totally different from such a plea raised in other suits. In a suit for partition there should be a specific plea of ouster, such a plea is conspicuously missing in the present suit. Even otherwise when once it is held joint family continues to exist, there is no division of properties belonging to the family, the right to file a suit for partition continues to exist as long as the property remains undivided and therefore the suit filed for partition is well within time, 38 not barred by law of limitation. The plea of adverse possession is without any substance nor it is established. In that view of the matter, we do not see any merit in this appeal. Accordingly, we pass the following order:-
Appeal is dismissed.
All pending applications are ordered to be filed.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE ckl/-