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Dolfy A Pais@Adolphys Joseph Pais And ... vs Mrs. Lalitha Therasa Sequiera And Anr. on 30 June, 2005 cites

Banwari Lal vs Smt. Chando Devi (Through L.R.) And ... on 11 December, 1992

15. On the other hand, it is the case of the defendants 1 and 2 that there was an oral partition settling the properties at schedule A and B in the present suit in favour of defendants 1 and 2 since the father of the plaintiff denied the said oral partition, a suit was filed and after filing of the suit, the father of defendants 1 and 2 and the plaintiff agreed for settlement and compromise was entered into wherein a compromise decree has been passed and schedule A and B properties have been allotted to the share of defendants 1 and 2. The said decree is only a declaratory decree and was not fraudulent or collusive as averred by the plaintiff in her plaint and the same has been accepted and acted upon by the parties. The father of the plaintiff who was a party to the said proceedings has voluntarily entered into compromise did not challenge the said proceedings till the date of his death on 18.1.91 and he has acted upon the said decree and alienated some of the properties and executed a will during his life time and wherefore, the plaintiff is not entitled to challenge the decree in the present suit as the same is binding on her under the Indian Succession Act which governs the parties to the present suit as they are Christians Plaintiff is entitled to share of their father only in the estate left by him at the time of his death. The trial Court after considering the contention of the parties and the material on record, after a detail appreciation of the entire material on record in the proper perspective held that the only ground upon which the compromise decree was sought to be set aside was on the ground that it was collusive and fraudulent as the same was obtained for overcoming the provisions of the Act and the said contention has not been substantiated and wherefore in the absence of proof of fraud and collusion, the compromise decree could not be challenged by the plaintiff as the same had not been challenged by her father who is a party to the compromise decree till his death on 18.1.1991 and the material on record clearly shows that the father of the plaintiff was not aggrieved by the said compromise decree and he infact accepted the decree and acted upon the said compromise decree and the provisions of the Act were not applicable to the schedule properties as they are the properties with building and the material on record including the evidence of PW.1-the husband of the plaintiff itself show that even according to the opinion given by the Advocate he was informed that the provisions of the Act is not applicable to the site with building and wherefore the suit was liable to be dismissed. However, the first appellate Court has reversed the finding of the Trial Court and has proceeded to dismiss the suit. It is clear from the perusal of the judgment passed by the first appellate Court that has over looked the principles laid down by the Hon'ble Supreme Court to be born in mind by the first appellate Court while reversing the judgment of the trial court. The first appellate court has held that plaintiff has proved that compromise decree was entered into only to over come the provisions of the Act and wherefore it is collusive and fraudulent and once the decree is collusive and fraudulent, the same would not be binding on the plaintiff as it would be a nullity and wherefore the plaintiff is entitled to l/4th share in the schedule properties.
Supreme Court of India Cites 11 - Cited by 238 - N P Singh - Full Document

Santosh Hazari vs Purushottam Tiwari (Dead) By Lrs on 8 February, 2001

16. The scope of the power of the First Appellate Court and the principles to be born in mind by the First Appellate Court while reversing the judgment passed by the Trial Court are well settled and the same has been reiterated by three Judges bench of the Supreme Court in Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965 wherein it is clearly observed as follows:
Supreme Court of India Cites 15 - Cited by 1602 - R C Lahoti - Full Document

Sarju Pershad vs Raja Jwaleshwari Pratap Narain Singh ... on 14 November, 1950

The rule is-and it is nothing more than a rule of practice; that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh ). Secondly, while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the Trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first Appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present section 100 substituted in the Code. The first Appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the First Appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the First Appellate Court even on question of law unless such question of law be a substantial one".
Supreme Court of India Cites 2 - Cited by 217 - B K Mukherjea - Full Document

Bahu Bali Ramappa Padnad And Another vs Babu Alias Babu Rao S. Padnad And Others on 2 July, 1999

9. I have heard the Learned Counsel appearing for the parties on the above said substantial questions of law. The earned Senior Counsel-C.B. Srinivasan appearing for the appellants-defendants 1 and 2 in the suit submitted that the judgment and decree passed by the first appellate Court is perverse and arbitrary. The first appellate Court was not justified in holding that the suit for declaration that the compromise decree passed in O.S.No. 397/76 was null and void and that it was not binding on the plaintiffs. The Learned Counsel submitted that in view of the provisions of Order 23 Rule 3 A the suit itself was not maintainable for declaration that the decree passed in O.S.397/76 is null and void and the father of the plaintiff himself did not challenge the said compromise decree, he accepted the decree and has acted upon the same by executing the will and alienating the property and the material on record clearly shows that the plaintiff has failed to prove that the said decree was obtained by collusion and fraud to avoid rigor of provisions of the Act and the provisions of the Act was not applicable to the scheduel properties as they are not open vacant site and the material on record clearly shows that as rightly held by the Trial Court that the suit was not maintainable and could not be decreed. The learned Senior Counsel further submitted that the parties being Christians the plaintiff could not claim any right in the property of her father during his life time and she would get the property left behind by her father and the father of the plaintiff himself did not challenge the compromise decree which was passed in 1976 till his death on 18.1.1991 and wherefore the first appellate Court was not at all justified in decreeing the suit of the plaintiff and ought to have confirmed the judgment and decree passed by the trial court. He has relied upon the decision of this Court in Bahubali Ramappa Padnad and Anr. v. Babu & Babu Rao S. Padnad and Ors., 1999(5) KLJ 562 wherein it is held that compromise decree cannot be reopened at instance of party who was not party to the compromise and the suit is not maintainable to set aside the compromise in view of the provisions of Order 23 Rule 3-A CPC, He has also relied upon the decision of the Hon'ble Supreme Court in Kunju Keshavan v. M.M. Philip, in support of his contention.
Karnataka High Court Cites 6 - Cited by 9 - N S Veerabhadraiah - Full Document

Kunju Kesavan vs M. M. Philip I. C. S. And Ors on 8 May, 1963

9. I have heard the Learned Counsel appearing for the parties on the above said substantial questions of law. The earned Senior Counsel-C.B. Srinivasan appearing for the appellants-defendants 1 and 2 in the suit submitted that the judgment and decree passed by the first appellate Court is perverse and arbitrary. The first appellate Court was not justified in holding that the suit for declaration that the compromise decree passed in O.S.No. 397/76 was null and void and that it was not binding on the plaintiffs. The Learned Counsel submitted that in view of the provisions of Order 23 Rule 3 A the suit itself was not maintainable for declaration that the decree passed in O.S.397/76 is null and void and the father of the plaintiff himself did not challenge the said compromise decree, he accepted the decree and has acted upon the same by executing the will and alienating the property and the material on record clearly shows that the plaintiff has failed to prove that the said decree was obtained by collusion and fraud to avoid rigor of provisions of the Act and the provisions of the Act was not applicable to the scheduel properties as they are not open vacant site and the material on record clearly shows that as rightly held by the Trial Court that the suit was not maintainable and could not be decreed. The learned Senior Counsel further submitted that the parties being Christians the plaintiff could not claim any right in the property of her father during his life time and she would get the property left behind by her father and the father of the plaintiff himself did not challenge the compromise decree which was passed in 1976 till his death on 18.1.1991 and wherefore the first appellate Court was not at all justified in decreeing the suit of the plaintiff and ought to have confirmed the judgment and decree passed by the trial court. He has relied upon the decision of this Court in Bahubali Ramappa Padnad and Anr. v. Babu & Babu Rao S. Padnad and Ors., 1999(5) KLJ 562 wherein it is held that compromise decree cannot be reopened at instance of party who was not party to the compromise and the suit is not maintainable to set aside the compromise in view of the provisions of Order 23 Rule 3-A CPC, He has also relied upon the decision of the Hon'ble Supreme Court in Kunju Keshavan v. M.M. Philip, in support of his contention.
Supreme Court of India Cites 1 - Cited by 72 - M Hidayatullah - Full Document
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