DHAPO Vs. BANSI LAL

JUDGEMENT

(1.) This is an appeal from a degree of the Subordinate Judge of Meerut, passed in favour of the plaintiff in a suit brought for recovery of certain zamindari property, and also of a sum of money. The facts briefly stated are as follows: The property in dispute belonged to one Ishk Lal, the father of the plaintiff, Musammat Dhapo. Ishk Lal died in the year 1881, leaving a widow, Musammat Sharna, surviving him, and also two daughters--one a married daughter Jai Dei, and the other the plaintiff, who was unmarried. Musammat Shama died on the 13 of March, 1886, and after her death the defendant, Kamji Lal, who was a brother of Ishk Lal, and Danlat Rani, who was a first cousin of Eamji Lal and father of the defendants Bansi Lal, Shitab Rai, Mul Chand, Tota Bam and Pirbhu Lal, took possession of the property in dispute. Shortly afterwards, in the year 1889, Jai Dei instituted a suit on behalf of herself and the plaintiff against Ramji Lal and Daulat Ram for recovery of the property. Jai Dei, who acted in the suit as next friend of the plaintiff, Musammat Dhapo, was herself a minor of the age of 15 years, and the plaintiff was younger than she. The subject-matter of the suit was referred to arbitration on the 12 of August, 1889, and on the 20 of June, 1890, an award was made which was confirmed by a decree of the 5 of July 1890. By the award the property of Ishk Lal, which was of the value of about Rs. 50,000, was divided between the litigant parties, two sums of Rs. 2,000 each bsing awarded to the plaintiff, a sum of Rs. 7,500 to Jai Dei, and the balance to Ramji Lal and Daulat Ram. Subsequently Daulat Ram died, and his sons, defendants in this suit, instituted a suit, No. 265 of 1894, against Ramji Lal for partition of the property of Ishk Lal which had been awarded to Daulat Ram by the arbitrators. The plaintiff, Musammat Dhapo, intervened in this suit under Section 32 of the Code of Civil Procedure, and contended that neither the plaintiffs nor anybody else had any title to any portion of the estate of Ishk Lal; that she, having been the only unmarried daughter of Ishk Lal at the time of his death, was entitled to the whole of his estate; that the proceedings taken by Jai Dei in the former suit were taken in collusion with Daulat Ram and Ramji Lal and were fraudulent. Whether or not the plaintiff was entitled to intervene in that suit under Section 32 of the Code of Civil Procedure is a question which it is Unnecessary for us now to determine. The Subordinate Judge entertained her objection and dismissed the suit on the 18 of November, 1895. On appeal the High Court set aside the decree on the ground that the decree of the 5 of July, 1890, could not be treated as a nullity, as it was treated by the Subordinate Judge, unless it was first set aside by a Court of competent jurisdiction. During the pendency of that appeal to the High Court, namely, on the 29 of May, 1896, Musammat Dhapo instituted the present suit against Musammat Jai Dei, Ramji Lal and the sons of Daulat Ram, who was then dead, for possession of the property of Ishk Lal which had been acquired by them under the award, alleging that the arbitration proceedings and the decree passed thereon were illegal and void as against her. On the 5 of May, 1898, she applied for liberty to amend her plaint by adding a prayer to have the award and the decree thereon set aside, and leave to do so was granted on the 20 of May, 1898, and the plaint was amended. The defence of the defendants is, first, that the claim is barred by the statute of limitation; secondly, a traverse of the alleged fraud; and, thirdly, that amongst Saraogis, the sect to which the parties belonged, daughters are excluded from inheriting their father's property. The plaintiff only attained majority on the 8 of December, 1893, and it is admitted that the suit was in time at the date of the presentation of the plaint. But the defendants case is that, so far as the plaintiff sought in her plaint to have the award and decree set aside, her claim is statute barred, inasmuoh as it was not raised until the 20 of May 1898. The Subordinate Judge decided the several issues in favour of the plaintiff, and hence the present appeal.

(2.) In the first place, it is contended on behalf of the defendants that the amendment of the plaint changed the character of the suit and ought not to have been allowed. Let us see if this is so. In her plaint as it originally stood the plaintiff alleged in the 5 paragraph that Jai Dei, Daulat Ram, and Ramji Lal filed a collusive arbitration agreement on the 12 of August 1889, and that Jai Dei agreed to the arbitration on her behalf. In the 11 paragraph she avers that the arbitration proceedings, the award and the decree thereon are all illegal, ineffectual and null und void against the plaintiff, as was held by the Subordinate Judge in the suit to which we have referred; but that in spite of this the defendants continue in possession of the property in suit without any right; and in the 12 paragraph she alleges that the possession of the property in dispute by the defendants was the result of joint collusive proceedings taken by them during the minority of the plaintiffs in order to deprive her of her right. Then in the prayer she asked, amongst other things, for possession of the property, and also for any other relief to which she may be justly entitled in the opinion of the Court. From this it appears that in the plaint as it originally stood, allegations of fraud and collusion on the part of the defendants were made in the most clear and distinct terms. Subsequently, however, as we have said, to the institution of this suit the decree of the High Court was passed in suit No. 265 of 1894, in which the learned Judges held that the decree of the 5 th of July, 1890, could not be treated as a nullity, and accordingly the plaintiff, it may be, ex abundanti cautela applied for and obtained liberty to amend the plaint, and inserted an express prayer that the arbitration award, dated the 20 of June, 1890, and the decree, dated the 5 of July 1890, passed thereon, might be set aside; and also in the body of the plaint in the 4 and 6 paragraphs statements to the effect that the suit instituted by Jai Dei on her own behalf and on behalf of the plaintiff was a fraudulent proceeding, and that the award and decree were fraudulent and should be set aside. It appears to us that the amendments made in the plaint in no way altered the character of the suit. The substantial relief sought by the plaintiff was the recovery of the property of her father Ishk Lal, and the facts set out in the plaint, if proved, coupled with the prayer for general relief, were quite sufficient to justify the Court in treating the award and decree as nullities, and giving the plaintiff the relief which she sought, notwithstanding that this relief was not asked for in express terms. The relief sought in respect of the award and decree was subservient or ancillary to the substantial relief prayed for, and it could not be said that a new case was sprung upon the defendants or that they were taken by surprise. It was, as we have said, held by a Bench of this Court in the suit in which the plaintiff intervened under Section 32 of the Civil P. C. that as the decree of the 5 of July, 1890, had not been set aside and was still a subsisting decree, she must have it set aside before she could have avoided the operation of it--Bansi Lal V/s. Ramji Lal (1898) I.L.R. 20 All. 370. In that case the provisions of Section 44 of the Indian Evidence Act were not brought to the notice of the learned Judges who decided it, as we have learnt on inquiry from one of them. "We do not find in the report of it any reference to this section. Section 44 runs as follows: "Any party to a suit or other proceeding may show that any judgment, or order, or decree which is relevant under Secs.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. In the present case we find the decree of the 5 of July, 1890, which was relevant under Section 40, set up and proved by the defendants, the parties adverse to the plaintiff, as an answer to the plaintiff's claim, and according to the clear and explicit language of Section 44, the plaintiff is entitled to show that the decree so relied upon was obtained by fraud or collusion. We are bound to consider the section according to the plain meaning of the language used, unless we can find in it or in any other part of the Act, anything that will either modify or qualify the language. This we have not been able to find, nor has our attention been called to any words in the section or in any other part of the Act, which modify or qualify the plain meaning of the language used. The authorities upon the question as to the powers of a Court to treat decrees which had been obtained by fraud as nullities are reviewed at some length in the judgment of a member of this Bench, which was delivered by him while sitting as Judge on the original side of the High Court at Calcutta in the case of Nistarini Dassi V/s. Nundo Lall Bose (1899) I.L.R. 26 Calc. 891. In the later case of Rajib Panda V/s. Lakhan Sendh Mahapatra (1899) I.L.R. 27 Calc. 11 the true meaning and effect of Section 44 of the Evidence Act were also considered. In that case the plaintiff, in a suit to recover possession of a tank as well as damages, adduced in evidence a petition of compromise and a decree obtained upon it in a previous suit between the same parties relating to the same tank, and the defendant stated that the decree was obtained by fraud, and therefore was not binding upon him. The Court of first instance held that the plea of fraud was not proved, but on appeal by the defendant to the District Judge the decree of the Court of first instance was set aside without coming to any definite finding on the question of fraud. Against this decision the plaintiff appealed to the High Court, when Stevens, J., reversed the decree of the District Judge, and restored that of the Munsif, on the ground that the case was concluded by the decree in the previous suit, and so long as that decree was not set aside, either by proceedings duly taken in that suit, or by separate suit brought for the purpose, it was not open to the defendant to challenge it in any subsequent suit in which it was used as evidence against him. Against this decision the defendant preferred an appeal under Clause XV of the Letters Patent, and it was held by Maclean, C.J. and Banerji, J., that under Section 44 of the Indian Evidence Act, the defendant was entitled to show that the decree was obtained by fraud, and the case was accordingly remanded. The section of the Indian Evidence Act relied upon, in our opinion, amply justify this decision, and we see no reason to dissent from it. Irrespective, therefore, of the amendments in the plaint by which the plaintiff sought in express terms that the award and decree might be set aside, we are of opinion that on her suit as originally framed she was entitled to ask the Court to treat the award and decree as nullities, in the event of her establishing by evidence that they wore procured by fraud or collusion. On this ground, therefore, the appeal fails.

(3.) It has been further contended on the part of the appellants that the claim to have the award and decree set aside is barred by limitation, inasmuch as the amendments were made after the claim to set aside the deed was time-barred. As we hold that the plaintiff was entitled to obtain from the Court the relief which she sought upon her claim as it originally stood, it becomes unnecessary to determine this point. Bat we may say that, unless the amendments were improperly allowed or ought not to have been allowed by reasons of their converting the original suit into a suit of another and inconsistent character, there is no substance in the argument. For these reasons we hold that the statute of limitation furnishes no answer to the plaintiff's suit.