Karnataka High Court
K.S. Mariyappa vs K.T. Siddalinga Setty on 18 February, 1988
Equivalent citations: ILR1989KAR425, 1989(1)KARLJ150
JUDGMENT K.A. Swami, J.
1. This appeal is preferred by defendants 1 to 4 against the Judgment and Decree dated 4th October 1976 passed by the learned III Additional Civil Judge, Mysore, in O.S. No. 127 of 1973. The trial Court has passed the decree in the following terms:
"In the result and for the foregoing reasons the suit is decreed with costs and it is declared that the decree in 0.S. No. 28/52-53 was obtained by collusion. There shall be a Preliminary decree for partition of the suit properties. The partition of the immoveable properties assessed to land revenue shall be made under this decree by the Deputy Commissioner or his Gazetted subordinate duly authorised in that regard under Section 54 C.P.C. The partition of moveables shall be effected by a Commissioner appointed in that regard. The profits due to the plaintiffs shall be ascertained in a separate enquiry under Order 18 Rule 18 C.P.C. Draw up a preliminary decree accordingly."
2. Respondents 1 to 4 are plaintiffs 1 to 4 and respondents 5 and 6 are defendants 5 and 6. Appellants 1 to 4 are defendants 1 to 4. In this Judgment, the parties will be referred to with reference to the position assigned to them in the trial Court.
3. The suit was filed on 9-8-1973 for a declaration that the preliminary and the final decree passed in O.S. No. 28/52-53 on the file of the District Judge, Mysore, were a nullity in as much as the same were tainted with fraud and collusion. They also sought for a decree for partition and separate possession of their 1/4th share in the suit schedule properties by dividing them by metes and bounds with enquiry into future mesne profits.
4. The trial Court on the basis of the pleadings of the parties framed the following issues:
(1) Whether the preliminary and final decree in O.S. 28/52-53 on the file of District Judge, Mysore, are vitiated by fraud and collusion and are a nullity?
(2) Whether the plaintiffs are still Members of the joint family as alleged by them?
(3) Whether the suit is barred by time?
(4) Whether the suit is property valued and Court fee paid is correct?
(5) Whether the plaintiffs are entitled for partition and separate possession of the shares?
(6) Whether the plaintiffs are entitled to mesne profits from the date of suit till delivery of possession of their shares?
(7) To what relief?
The trial Court has answered issues Nos. 1, 2, 4, 5 and 6 in the affirmative and issue No. 3 in the negative. Consequently, it has passed the decree in the aforesaid terms.
5. Having regard to the contentions urged on both sides the following points arise for consideration:
(1) Whether the plaint contains the necessary averments of fraud and collusion?
(2) Whether the trial Court is justified in holding that the averments of fraud and collusion are establish?
(3) Whether the suit is in time?
(4) Whether the decree passed by the trial Court is sustainable in law?
6. Points 1 to 3: Points 1 to 3 can conveniently be considered together. The case of the plaintiffs is that they are the sons of defendant No. 6 and defendant No. 1 is their uncle. Defendant 2 and 3 are the sisters of defendants 1, 5 and 6 and daughters of defen-dant-4. Defendant-4 is the mother of defendants 1 to 3, 5 and 6. The suit schedule properties were the joint Hindu family properties. The further case of the plaintiffs is that M. Siddalinga Setty, who was the husband of defendant-4 and the father of defendants 1 to 3, 5 and 6 died on 21-10-1946, leaving behind the suit schedule properties. Defendants 5 and 6 were wasting the suit schedule properties as defendant-6 was given to bad habits such as drinking and gambling; that defendants 1 to 4 taking the advantage of the conduct of defendants 5 and 6 obtained a decree in O.S. No. 28/52-53 for partition and separate possession of their shares in the suit schedule properties for a larger extent of share than what they were entitled to; that they were not entitled to more than half share in the suit schedule properties. Therefore the plaintiffs prayed for a declaration that the preliminary and the final decrees passed in O.S. No. 28/ 52-53 were a nullity as they were obtained by fraud and collusion. Hence they prayed for reopening of the partition and awarding 1/4th share to them.
7. Defendants 1 to 4 filed a common written statement. They denied the plaint allegations and contended that there was no fraud or collusion; that 5/9th share awarded to them was in accordance with law; that the Preliminary Decree was passed on 18-2-1954 and thereafter there was a final decree proceeding; that pursuant to the preliminary decree the suit schedule properties were divided and they were put in actual possession on 3-2-1955; that the final decree was ultimately drawn up on 22-6-1956 and since then they have been in possession and enjoyment of the same. That the suit was barred by time.
8. In support of their case, the plaintiffs examined the 1st plaintiff as P.W.4 and three other witnesses as P.Ws. 1 to 3 and produced certain documents. On behalf of the defendants, 4th defendant was examined as D.W.1 and defendants 5 and 6 remained absent and unrepresented.
9. In Paragraph III, the plaintiffs have averred thus:
"The defendants acting in collusion among themselves have neglected the plaintiff."
In Paragraph V they have further averred thus:
"The defendants 1 to 4 filed a suit in O.S. 28/ 52-53 on the file of the District Judge, Mysore, against the defendants 5 and 6 for partition and possession which was indeed a collusive suit. The 6th defendant has prejudiced to the rights of the plaintiffs by colluding with the other defendants and this has caused serious injury and irreparable loss to the plaintiffs. In fact, there is deliberate fraud made by the defendants 1 to A, in their suit as they have stated that they are entitled to 5/9th share while they were really entitled to only a half share. Even to this patent fraud the defendants 5 and 6 have not objected and thus fraud and collusion played by them as prima facie clear."
Again in Paragraph VI they have further averred as follows:
"The first defendant met the plaintiffs on the 15th ultimo and demanded them to co-operate for change of khata of some of the properties mentioned in the schedule. In fact, the 1st defendant posed himself to help the plaintiffs financially in case they should co-operate for change of khata. At that juncture the plaintiffs were set on enquiry about the previous proceedings mentioned supra. The plaintiffs thereupon understood the ulterior motives of the defendants, made enquiries and they were able to know how the defendants have colluded themselves and practised fraud as stated above. So there is no bar of limitation to this suit."
Rule 4 of Order V! of the Code of Civil Procedure requires that in all cases in which the party pleading relies on any fraud particulars (with dates and items if necessary) shall be stated in the pleading. Therefore, it is necessary for the party pleading if it relies upon any fraud and/or collusion to give necessary particulars of fraud practised with date/s. The particulars pleaded must be such as to give the nature of fraud and the manner in which it was practised so as to enable the opposite party to know the case it is required to meet. The aforesaid averments in the plaint regarding fraud and collusion do not contain averment giving particulars of fraud and collusion in the plaint. The averment that the plaintiffs and the defendants in the previous suit colluded and defrauded the plaintiffs in the present suit in the absence of material particulars does not amount to a plea of fraud and collusion. Thus, in the absence of necessary particulars pleaded by the plaintiffs regarding fraud and collusion, it is not possible to hold that the plaint contains necessary averments as to fraud and collusion. Such a bald and general allegation without material particulars in the light of Rule 4 of Order 6 of the Code of Civil Procedure cannot be held to be sufficient to lead to an issue. Mere general allegation that an act or the deed is vitiated by fraud and collusion is no plea of fraud and collusion. Material particulars such as when and how and who and in what manner and for what purpose the fraud was practised and who colluded with whom and in what manner and with what object or purpose etc., must be averred. Therefore we are of the view that the plaint does not contain necessary averments of fraud and collusion. (See: SUBHASHCHANDRA v. GANGA PRASAD , AFSARA v. SALEMAN and VARAVASYA SANSKRIT VISHWAVIDYALAYA v. RAJKISHORE .
10. In the instant case, there was a suit bearing O.S. No. 28 of 52-53 filed by defendants 1 to 4 herein against defendants 5 and 6 herein who were defendants 1 and 2 respectively in that suit for partition and separate possession of their shares. The evidence on record reveals that defendant-5 herein was the 1st defendant in that suit, and was represented by a Counsel. Written Statement was also filed on his behalf. Defendant No. 2 in that suit, who is the father of the plaintiffs and he is Defendant No. 6 in the present suit, remained absent and was placed exparte. The suit was adjourned many times. On certain dates time was granted at the instance of defendant-1 for reporting settlement. Ultimately learned Counsel for defendant-1 in that suit reported no instructions. Defendant No. 1 was placed exparte. Ultimately the suit was decreed on 18-2-1954, in terms of the prayer made in the plaint and a preliminary decree was also passed. Thereafter final decree proceedings went on for a considerable length of time and ultimately the final decree was passed on 22-6-1956. Evidence in this case also discloses that pursuant to their respective shares. The present plaintiffs 2 to 4 were not born either on the date of passing of the preliminary or the final decree. First plaintiff alone was born on the date the previous suit was filed. The present suit as already pointed out was filed on 9-8-1973 and the age of the first plaintiff had been given as 25 years as on that date. In his evidence P.W.4 has stated that he came to know of this fact on 15th July 1973 when he was introduced to the first defendant by one Ananthaiah. Very strangely learned trial Judge has accepted this evidence. Defendant No. 1 is no other than the uncle of the first plaintiff. There was no question of introducing the first plaintiff to first defendant as he was not a stranger. It is further deposed by the first plaintiff that on so being introduced to the 1st Defendant, he came to know that the decree was obtained by fraud and collusion. It is very difficult to believe this assertion of P.W.4. By that time nearly 17 years had elapsed from the date of the final decree. The parties had been in possession and enjoyment of their respective shares. First plaintiff had attained majority about seven years prior to the date of filing of the suit. That being the position, the case of the plaintiffs that they came to know of fraud and collusion only on 15th July 1973 cannot at all be accepted. There is no other evidence. The evidence of Ananthaiah (P.W.3) is only to the effect that he was plaintiff No. 1 about 3 years back at K.R. Nagar Bus Stand. Defendant No. 1 was talking to the first plaintiff. It might be about 10 or 10-30 p.m. First defendant introduced plaintiff No. 1 to him. On the contrary as per the evidence of P.W.4 (1st plaintiff) P.W.3 - Ananthaiah introduced the 1st plaintiff - P.W.4 to the 1st Defendant. In paragraph 4 of his deposition P.W.4 - 1st Plaintiff has stated thus:
"I came to know of the above proceedings of the Court about 3 years back, at K.R. Nagar Bus Stand from the first defendant after one Ananthaiah (who is P.W.3) introduced me to first defendant. Later P.W.3 Ananthaiah did not remain with us during my talk with Defendant No. 1. The defendant No. 1 asked me to sign some papers for purpose of transfer of katha of property in favour of defendants 1 to 4 stating that there has been a decree. Till then I was not aware of the above Court proceeding and so also my younger brothers. I refused to sign those papers stating that I will have to make enquiries before doing so. He offered to help us monetarily in the event I signed those papers. But I did not sign them. Later I made enquiries in this regard and came to know about the previous proceedings. The witness adds after the Counsel referred to fraud then I came to know of the fraud played by my father."
Thus the evidence of P.W.4 conflicts with the evidence of P.W.3 in as much as P.W.4 says that he was introduced by P.W.3 to the 1st Defendant whereas P.W.3 says that he was introduced by first defendant to first plaintiff. Everything had been completed in the year 1956 when the final decree was drawn up pursuant to the partition by metes and bounds effected in accordance with the preliminary decree passed in O.S.No.28/52-53 on 18-2-1954. There is nothing in the evidence of D.W.1 (Defendant No. 4) which can be held to support and establish the case of fraud or collusion. On the contrary her evidence is to the effect that because defendants 5 and 6 were wasting the properties in as much as, they took away the amount of Rs. 30,000/-received from the L.I.C. and also other sums recovered and a cash of Rs. 12,000/- and debt amounts recovered amounting in Rs. 15,000/- defendants 1 to 4 filed a suit for partition. The fact that defendants 5 and 6 were wasting the properties is proved by the case of the plaintiffs themselves. That being so there was every justification for filing a suit for partition and it was not a case of collusion or fraud between defendants 1 to 4 on the one hand and defendants 5 and 6 on the other. Apart from this, there is no other evidence which is worth referring on this point. Therefore we are of the view that in the absence of a proper plea as to fraud and collusion, the trial Court should not have without the necessary particulars of fraud and collusion pleaded by the plaintiffs, embarked upon the determine the 1st issue. We are also of the view that the evidence on record on the issue of fraud and collusion is scanty, inadequate and it does establish that the preliminary and the final decrees were obtained in O.S. 28/52-53 on the file of the District Judge, Mysore, by fraud and collusion. Hence, the trial Court is not justified in holding that the averments of fraud and collusion are established.
11. In view of the aforesaid conclusions reached by us, the point as to whether the suit is in time does not really assume importance because in the absence of fraud and collusion the suit to set aside the preliminary and final decrees passed in O.S. 28/52-53 ought to have been filed within three years, whereas the suit has been filed on 9-8-1973 after a lapse of 19 years 5 months and 21 days from the date of the preliminary decree and 17 years 1 month and 17 days from the date of the final decree. Therefore, the suit is hopelessly barred by time.
12. Even assuming that the preliminary and final decrees were obtained by fraud and collusion the same ought to have been filed within three years from the date of knowledge of the fraud and collusion. In the instant case, the plaintiffs have pleaded that they discovered on 15-7-1973 that the preliminary and final decrees were obtained by fraud and collusion. Though the suit is styled as the one for a declaration that the preliminary and final decrees passed in O.S. No. 28/ 52-53 on the file of the District Judge, Mysore were nullity because they were tainted with fraud and collusion; but such a relief if granted, in effect results in setting aside the preliminary and final decrees. In fact, without getting the preliminary and final decrees set aside or cancelled, the plaintiffs are not entitled to re-opening of the partition because their father (present defendant-6) was a party to the preliminary and final decrees passed in the previous suit. Therefore, the plaintiffs in the normal course are bound by the decree passed in the previous suit. Therefore, it is Article 59, Part IV, Schedule I of the Limitation Act, 1963 (hereinafter referred to as 'the Act') regarding suits, decrees and instruments, is attracted. The said Article reads thus:
"To cancel or set aside an instru- Three ment or decree or for the rescis- Years
sion of a contract When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him."
This Article has to be read with Section 17 of the Act for the purpose of determining the commencement of limitation under Article 59 of the Act in a case where the relief for cancellation or setting aside the decree or instrument is based on fraud or mistake. According to Section 17 of the Act where, in the case of any suit or application for which period of limitation is prescribed by the Act and the suit or application is based upon the fraud of the defendant or respondent or his agent;....the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud....or could, with reasonable diligence, have discovered it...... Therefore, the limitation under Article 59 of the Act does not begin to run in a case where the cancellation or setting aside a decree or instrument is sought on the ground of fraud until the plaintiff has discovered the fraud or could have discovered it with reasonable diligence, which entitles him to have the instrument or decree cancelled or set aside. In JANKI KUNWAR v. AJIT SINGH ILR 15 Calcutta 58 the Privy Council was called upon to consider the application of Article 91 of the Act (XV of 1877) Article 59 of the Act. In that case, the Courts below had applied period of 12 years on the ground that the suit essentially a suit for possession of immovable property and as such it fell within the twelve years limitation. The Privy Council pointed out that the Courts below were clearly wrong, inasmuch as, it was not a suit for possession of the immovable property, in the sense to which the limitation of 12 years was applicable. The Privy Council further held "the immovable property could not have been recovered until the deed of sale had been set aside, and it was necessary to bring a suit to set aside the deed upon payment of what had been advanced, namely, Rs. 1,25,000/-. Therefore, there has been on the part of the lower Courts a mis-apprehension of the law of limitation in this case. Their Lordships are clearly of opinion that the suit fails within Article 91 of the Act XV of 1877, and is therefore barred." Similarly, in the case Of HASAN ALI AND ANR. v. NAZO AND ANR ILR 11 Allahabad 456. it was held that cancellation of a deed was a substantial and necessary incident of the claim, therefore the suit fell under Article 91 of the Act (XV of 1877). That was a case in which a Muhammadan executed a deed of gift of his property under which the possession was taken by the donee. The donor during his life time did not take any step to have the deed set aside. A suit was brought by the heir of the donor claiming a share in the donor's estate by right of inheritance, and to have the gift declared as null and void on the ground that it was procured from the donor by fraud and undue influence. It was held that during the life time of the donor the plaintiff had no reversionary or vested interest in the estate gifted; that a mere possibility of inheritance would not take away the right to gift, therefore the donor when he executed the gift deed had full disposing power over his property and the right which would have been accrued to the plaintiff at the death of the donor came to be affected by the donor's act of dispossession and as such the heir of the donor could claim the property only on setting aside the deed of gift and that he could not over-come the bar of limitation as provided under Article 91 of the Limitation Act (XV of 1877) by choosing to call the suit one for possession of immovable property. This being the legal position, the suit ought to have been filed within three years from the date of discovery of the fraud and collusion. In the instant case, plain-tiff-1 became major on 9-7-1966 as he has described himself as 25 years old on 9-8-1973 when the suit was filed. The other plaintiffs were not even born when the final decree was passed. Therefore, they have no right to reopen the partition. The case of the plaintiffs that the 1st plaintiff became aware of the alleged fraud and collusion only on 15-7-1973 has already been rejected. It is relevant to notice that the father of the plaintiffs filed an application for setting aside the decree. That application was dismissed. Thereafter, a Civil Revision Pet it ion was filed before the High Court. That was also dismissed. Under these circumstances, it shall have to be held that the plaintiff No. 1 had come to know about the division of properties pursuant to the preliminary decree passed in the previous suit and the fraud or collusion, if any, between the plaintiffs and the defendants in the previous suit in obtaining a decree for partition. As such the suit ought to have been filed within three years from the date the 1st plaintiff attained the majority. Thus we are of the view that the suit is hopelessly barred by time.
13. The main basis for the plea of fraud and collusion is that larger share was allotted to defendants 1 to 4 herein, who were the plaintiffs in the previous suit for partition, than the one to which they were entitled to. According to the case of the plaintiffs, defendants 1 to 4 were entitled to 1/4th share, whereas they had been awarded 5/9th share which was more than half. There was no contest by defendants 5 and 6 either at the stage of preliminary decree proceedings or at the stage of final decree proceedings. Plaintiff-1 also after he attained majority did not raise his little finger against it. The parties have been in possession and enjoyment of the properties in question. Further the allotment of shares in the partition is governed by several circumstances. In the case of VEERA-BHADRAPPA AND ORS. v. LINGAPPA AND ORS AIR 1963 Mysore 5. the Division Bench of this Court has observed thus:
"At the same time we are not prepared to say that an allotment bona fide made in the course of a partition by common consent of the coparceners is open to attack unless the shares are absolutely equal or strictly in accordance with those settled by the law. Although the Hindu Law declares the extent of the shares allottable to the several coparceners taking part in the partition, it does not totally prohibit the parties from coming to a different arrangement which according to them is just and equitable in the circumstances of the family at the time of the partition . It is well to remember that a partition of family property under the Hindu Law is not a mere division or distribution of properties or a mere enforcement of what may be strictly described as legal rights.
The nature of the rights in respect of joint family property, its management and its enjoyment by the several Members of the family are such that it cannot possibly be equated to situations appropriate to the English Law ideas of joint tenancy or tenancy in common nor is the position of joint family manager one completely assimilated to English law ideas of trusteeship, agency or mere managership."
14. In view of the fact that there were two unmarried daughters, the allotment of larger share to defendants 1 to 4 might be due to the fact that there were two unmarried daughters. As such, at this distance of time, in the absence of clear pleadings and proof as to fraud and collusion, it is not possible to hold that the allotment of larger share to defendants 1 to 4 herein in the previous suit was as a result of fraud and collusion. For the reasons stated above, points 1 to 3 are answered in the negative.
15. Point No. 4:- In view of the findings recorded on points 1 to 3, the decree of the trial Court cannot at all be sustained. Hence, point No. 4 is answered in the negative.
16. For the reasons stated above, the appeal is allowed. The Judgment and decree of the trial Court are set aside. The suit is dismissed. However, in the facts and circumstances of the case, there will be no order as to costs in this appeal.