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TMI Blog2012 (5) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the plaintiff and accede to all the reliefs. It not only gives rise to a doubt but on a first look one can feel that there is some kind of foul play. However, the learned trial Judge who decreed the first suit on 27.11.1973 did not look at these aspects. When the second suit was filed in 1984 for title and the third suit was filed for possession thereafter, the courts below had routinely followed the principles relating to consent decree and did not dwell deep to find out how the fraud was manifestly writ large. It was too obvious to ignore. The courts below have gone by the concept that there was no adequate material to establish that there was fraud, though it was telltale. That apart, the foundation was the family arrangement. We have already held that it was not bona fide, but, unfortunately the courts as well as the High Court have held that it is a common phenomenon that the people in certain areas give their property to their close relations. We have already indicated that by giving the entire property and putting him in possession she would have been absolutely landless and would have been in penury. It is unimaginable that a person would divest herself of one s own pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Chandigarh in R.S.A. Nos. 2001 of 1988 and 2002 of 1988, is bound to collapse and founder. 2. To appreciate the controversy, it is incumbent to travel to the year 1973 as to how the original suit was instituted, proceeded and eventually decreed. For the said purpose it is necessary to note that one Dai Ram was the common ancestor. He had two sons, namely, Dinda and Rachna. Dinda had one son, namely, Roora and Rachna had one son, namely, Ram Chand. Badami was the widow of Roora and Bhali is the son of Ram Chand. Risali is the daughter of Roora and Badami. Bhali, respondent herein, instituted Civil Suit No. 1422 of 1973 on 24.11.1973 alleging that Badami was the owner of 1894/9549 share of the ancestral land and had received it at a prior arrangement. When she was in possession, there was a family settlement on 1.6.1972 and in that family settlement the defendant gave her whole share to the plaintiff-Bhali and the possession of the same was also handed over in pursuance of that settlement. As pleaded, the defendant-Badami agreed that he would get the revenue entries of the suit land corrected in favour of the plaintiff but the name of the defendant continued as owner in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties that the arrangement under the decree would be worked out only after the death of the appellant, i.e., Badami. Being of this view, the learned appellate Judge dismissed both the appeals. 6. Being aggrieved, Badami, the original defendant, preferred two Regular Second Appeals, namely, R.S.A. Nos. 2001 of 1988 and 2002 of 1988. During the pendency of the appeals, she expired and Risali, her daughter, was substituted by order dated 21.2.1992 in both the appeals. The learned single Judge who dealt with the appeals by the impugned judgment dated 1st September, 2006 referred to the issues framed by the learned trial Judge, the analysis made by the courts below and came to hold that original defendant No. 1 had failed to discharge the onus that the initial decree dated 27.11.1973 was obtained by fraud inasmuch as she had given a statement in court and put the thumb impression and that the conclusion drawn by the courts below were justified being based on facts and did not warrant any interference as no substantial question of law was involved. 7. We have heard learned counsel for the parties and perused the records. 8. To appreciate the controversy, it is appropriate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate court that such circumstance could not, by itself, prove the fraudulent nature of the decree. A fraud puts an end to everything. It is a settled position in law that such a decree is nothing, but a nullity. 11. From the aforesaid decision it becomes quite clear that this Court expressed a sense of surprise the way the suit in that case proceeded with and also expressed its anguish how the court passed a decree on the foundation of a plaint and a written statement that were filed on the same day. 12. It is seemly to note that the Code of Civil Procedure provides how the court trying the suit is required to deal with the matter. Order IV Rule 1 provides for suit to be commenced by plaint. Order V Rule 1(1) provides when the suit has been duly instituted, a summon may be issued to defendant to appear and answer the claim on a day to be therein specified. As per the proviso to Order V Rule 1 no summon need be issued if the defendant appears and admits the claim of the plaintiff. Order X deals with the examination of parties by the court. Rule 1 of Order X provides for ascertainment whether allegations in pleadings are admitted or denied. It stipulates that at the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents filed by them for the purpose of framing the issues which are to be decided in the suit. Thus, the question of having the first hearing of the suit prior to determining the points in controversy between the parties i.e. framing of issues does not arise. The words first day of hearing do not mean the day for the return of the summons or the returnable date, but the day on which the court applies its mind to the case which ordinarily would be at the time when either the issues are determined or evidence is taken. (Vide Ved Prakash Wadhwa v. Vishwa Mohan (1981) 3 SCC 667 : AIR 1982 SC 816 Sham Lal v. Atme Nand Jain Sabha (1987) 1 SCC 222 : AIR 1987 SC 197, Siraj Ahmad Siddiqui v. Prem Nath Kapoor (1993) 4 SCC 406 : AIR 1993 SC 2525 and Mangat Singh Trilochan Singh v. Satpal (2003) 8 SCC 357 : AIR 2003 SC 4300. After so stating, it has been further observed as follows: - From the above fact situation, it is evident that the suit was filed on 26-4-2003 and in response to the notice issued in that case, the appellant-defendant appeared on 29.4.2003 in person and filed his written statement. It was on the same day that his statement had been recorded by the court. We failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h profit to certain authorities of this Court. In Krishna Beharilal (dead) by his legal representatives v. Gulabchand and others AIR 1971 SC 1041 a compromise decree had come into existence, on the basis of a compromise deed which specifically stated that the properties given to one Pattobai were to be enjoyed by her as Malik Mustakil . This Court referred to certain decisions in the field and opined that the circumstances under which the compromise was entered into as well as the language used in the deed did not in any manner go to indicate that the estate given to Pattobai was anything other than an absolute estate. The High Court had treated the compromise decree to be illegal on the basis that a Hindu widow could not have enlarged her own rights by entering into a compromise in a suit. This Court observed that this was not a compromise entered into with third parties. It was a compromise entered into with the presumptive reversioners and in that case the issue would be totally different. Further, the question arose whether there could have been any family settlement. In that context, this Court held as follows:- 8 It may be noted that Lakshmichand and Ganeshilal who alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangements may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Sec. 17 (1) (b)?) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . From the aforesaid analysis it is clear as crystal that the judgment and decree passed in civil suit No. 1422 of 1973 on 27.11.1973 are fundamentally fraudulent. It is a case which depicts a picture that the delineation by the learned Judge was totally ephemeral. The judgement is vitiated by fraud. 19. Presently, we shall refer as to how this Court has dealt with concept of fraud. In S. B. Noronah v. Prem Kumari Khanna AIR 1980 SC 193 while dealing with the concept of estoppel and fraud a two-Judge Bench has stated that it is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law. Even so, a judgment obtained by fraud or collusion, even, it seems a judgment of the House of Lords, may be treated as a nullity . (See Halsbury s Laws of England, Vol. 16 Fourth Edition para 1553). The point is that the sanction granted under Section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion. 20. In S. P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others AIR 1994 SC 853 this court commenced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof. 25. It would not be an exaggeration but on the contrary an understatement if it is said that all facets of fraud get attracted to the case at hand. A rustic and illiterate woman is taken to court by a relation on the plea of creation of a lease deed and magically in a hurried manner the plaint is presented, written statement is drafted and filed, statement is recorded and a decree is passed within three days. On a perusal of the decree it is manifest that there is no reference of any kind of family arrangement and there is total non-application of mind. It only mentions there is consent in the written statement and hence, suit has to be decreed. Be it noted, it was a suit for permanent injunction. There was an allegation that the respondent was interfering with the possession of the plaintiff. What could have transpired that the defendant would go with the plaintiff and accede to all the reliefs. It not only gives rise to a doubt but on a first look one can feel that there is some kind of foul play. However, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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