GANGABAI Vs. HANSADAS

JUDGEMENT

(1.) THE only question in this case is as to the applicability of the principle laid down in Dad v. Lal A.I.R. 1925 Lah. 24. In that case two brothers had effected sales of the land. The minor son of one of the vendors brought declaratory suits contesting the alienation. Both the 'lower Courts held that the suits were collusive and were brought at the instance of the vendors who had been financing the litigation. The appellate Court-that of the District Judge-unlike the first Court, held that there had been no necessity for the alienations and remanded the case for a decision on the question of improvements. Meanwhile, on second appeal by Defendant 1 to the High Court, Martineau and Moti Sagar, JJ., held that as the minor in each of the suits was merely a figure-head and the real plaintiff was the alienor himself who had caused the suit to be instituted for the purpose of undoing his own act, no declaratory decree could be granted.

(2.) THE Judge of the first court in this case gave a definite finding that the present litigation had been started by the second defendant through the instrumentality of the plaintiff; that the whole suit was collusive and that the Defendant No. 2 was at the back of the litigation; and found also that even copies of Exhibits like P. 2 had been applied for by Defendant 2 and not by plaintiff and that important documents produced by plaintiff must have come from Defendant 2's possession. Even in Court, Defendant 2 had bean instructing the pleader of the plaintiff : (cf. note on the deposition of Atmaram, D. W. 2). From these facts the first Court drew a highly justifiable inference of collusion between plaintiff and Defendant 2 and held that the suit, in effect, was one by Defendant 2 for undoing the results, of his own action. The Judge of the lower appellate Court reversed the judgment of the Subordinate Judge on the sole ground that as the present plaintiff was a major, he could not be said to be a mere figure-head and, in his opinion, there was no reason why he should be deprived of his right to obtain the declaration he desired merely because Defendant 2 was "helping" him in the suit.

(3.) THE judgment and decree of the lower appellate Court are accordingly reversed and the plaintiff's suit is dismissed. The plaintiff must bear the defendant appellant's costs in all three Courts, while Defendant 2 will bear his own costs throughout.