SHRINIWAS SARJERAO SHOLAPURKAR Vs. NARAYANRAO NAVLOJIRAO NIMBALKAR

JUDGEMENT

(1.) The plaintiff filed this suit asking for a declaration that the decree passed by the Trial Court in Suit No. 270 of 1908, and confirmed by the District Court in Appeal No. 179 of 1910, was null and void a sit had been obtained as a result of fraud. The Trial Court dismissed the suit. The, lower Appellate Court allowed the appeal and passed a decree for the plaintiff. The appeal in this Court was summarily dismissed but was admitted under the Letters Patent and we have now heard the arguments. The facts would appear at first sight somewhat, complicated, but for the purposes of our judgment they can be set out very shortly. One Balvantrao died many years ago leaving a widow Gopikabai. She alienated various portions of her husband's property. Then she adopted or purported to adopt one Venkatesh. Gopikabai and Venkatesh both died in 1901. Venkatesh died leaving a son called Balvant. There a ter Shriniwas, the reversionary heir of the husband of Gopikabai, brought a number of suits against her alienees alleging that the adoption of Venkatesh was invalid and, therefore, he was entitled to succeed as reversioner, Shriri- was succeeded in a number of suits, but in one suit, which went to the High Court it was held that the adoption was valid. At that time Suit No. 270. of 1908, which had been filed by Shriniwas, in which the present plaintiff was the second defendant had been allowed in both the lower Courts, and an appeal had been filed to the High Court. When the decision of the High Court in the other suit, that the adoption was good, became known to the present plaintiff he withdrew his appeal in the High Court for and applied to the District Court for review. That failed. Then he filed this suit to. set aside the decree on the ground of fraud. Wei find it extremely difficult to extract from the plaint what was the fraud alleged, but at page 17 of the paper-book, it is very well summed up by the learned Judge at line 51: "Shortly put, the fraud consists of the facts that defendant No. 1 won over, by premises or bribes, Balaji Ramchandra, the guardian of Balvant, and made him suppress the evidence as to the factum and validity of the adoption of Balvant's father, the evidence being in his possession, and it being his duty to produce it before the Court, and also made him depose that the adopted Son was an orphan at the date of the adoption and thus got a fraudulent decree first in Belgaum, Suit No. 213 of 1906, declaring his right to succeed to the property of Balvant as a reversioner as against the son of the adopted son, and that, on the strength of that decree, he established his right as a reversioner in the Suit No. 270 of 1908 also." After giving full consideration to the question of fraud the learned Judge came to the conclusion that, even if the plaintiff proved all he set out to prove, it did not amount to fraud which would entitle the Court to set aside the decree which was passed in Suit No. 270 of 1908.

(2.) In appeal the learned Judge said: "If we restrict ourselves to the case alone from beginning to end it is not possible to infer fraud or ascribe fraud, because the Court has to decide a case on its own merits. The Court has to preserve stave decisis. The aggrieved party must set right matters according to law. If it does not then what a Court decides (since the Court has to decide rightly or wrongly) stands good for ever. All these facts are visible in the case. Therefore, it is not easy to interfere." So far the learned Judge was perfectly correct. Then he went on to consider the question whether there had been collusion between Shriniwas and Balvant. He inferred from the results of the arbitration which took place between Shriniwas and Balvant after the High Court decision that there was a conspiracy in fact between Shriniwas and Balvant to defeat the rights of the alienees by suppressing the evidence which would prove the adoption of Venkatesh, with the ntent on, after the adoption had been declared invalid, to divide properties recovered from the alienees. All that may very well have been the case. But it is quite possible, on the other hand, that as a result of the High Court decision, which went against the decs ton of the lower Courts, both in that case and in the other suits, Shriniwas and Balvant thought it better to settle the matter by dividing the properties between them without going to a higher Court. It seems to us difficult for the Court to necessarily (Sic)nirr from that arbitration that, as a matter of fact, there was collusion between Shriniwas was and Balvant in the previous suits. But even supposing that Shriniwas had induced Balvant to suppress evidence regarding the adoption or to give evidence in his favour on the question whether Venkatesh was an orphan or not when he was adopted, that would not amount to fraud which would justify the Court insetting aside the decree in Suit No. 270 of 1908. The plaintiff's remedy was, if he was dissatisfied with the decree in the Court below, to appeal to the High Court and it was certainly unfortunate that, instead of prose outing his appeal, he endeavoured to get the lower Appellate Court to review its previous decision. But it is quite possible that the decision of the High Court, if the question of adoption had been considered in another suit by other Judges, might not have been followed, and it is still impossible for us to say whether as a matter of fact the adoption of Venkatesh is valid. Therefore, though we would be bound by the decision of the High Court that in that particular case the adoption was proved still it would be open to other parties in any other case to prove on the evidence led in that case that the adoption was not valid. as the matter would not be res judicata. However, at the most all that the present plaintiff can suggest is tha Balwant was induced by Shriniwas to be extremely negligent in supporting the defence that the alienations were good against the plaintiff. The alienees, on the other hand, bad taken a title from a widow and it was for them to support their title by showing that the alienation by the widow would last beyond her lifetime or in the alternative could not be defeated by the reversioners whose claim as such could not arise owing to Balvant's adopt on and it would be gong against established principles to accede to the respondent's argument that the Court would be justified n re-opening the proceedings on the suggestions which have been made in this case that there was collusion between Shriniwas and Balvant. We doubt whether we are justified in holding that then was such collusion. The Trial Court was not satisfied and it seems to us that the Appellate Judge placed far too much reliance on the arbitration proceedings as leading to an irresistible inference that they were the last stage of the fraud which had been carried on for some years between Shriniwas and Balvant. Even putting the plaintiff's case at its very highest he may have shown that the wrong evidence was given in that suit and that if the right evidence had been given he would have succeeded. But no case has been cited to us where it has been held that it could be a sufficient ground for setting aside the decision of a Court on the ground of fraud.

(3.) We think, therefore that the appeal must be allowed and the decision of the Trial Court restored with costs throughout.