IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 SA.No. 388 of 1997(D) --------------------- AS.40/1990 of SUB COURT, OTTAPPALAM OS.213/1987 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT(S): APPELLANTS 1,2,4&5 IN THE COURT BELOW AND DEFENDANTS ---------------------- 8,9,11 AND 12 IN OS. 213/87. 1. MADHAVI, AGED 69 YEARS, D/O. LATE PARANGODAN, RESIDING AT MUNDAMUKKA AMSOM, NADUNGHOTTUR DESOM, OTTAPPALAM TALUK. 2. KALYANI, AGED 63 YEARS, DO. DO. 3. DEVAYANI, AGED 59 YEARS, DO. DO. 4. SAVITHRI , AGED 57 YEARS DO. DO. BY ADV. SRI.K.RAMACHANDRAN SRI.KRISHNAKUMAR MANGOT RESPONDENT(S): (RESPONDENTS AND 3RD APPELLANT IN COURT BELOW AND -------------------------- PLAINTIFF, DEFENDANTS 2 TO 7, 13 TO 16 18 AND 19 AND DEFENDANT NO.10 IN THE MUNSIFF'S COURT. 1. RAJI, AGED 32, D/O. NADUVILATHETHIL KUNJUTTY, RESIDING AT MUNDAMUKKA AMSOM, NEDUNGOTTUR DESOM, IN OTTAPPALAM TALUK. 2. BHASKARAN, AGED 62 , S/O.NADUVILATHETHIL KRISHNAN, THALAKKANATH HOUSE P.O. THEKKEVILA, ERVIPURAM, QUILON. 3. BALAKRISHNAN, AGED 59, THALAKKANATH CO-OPERATIVE SOCIETY, MUDAKKAL, QUILON. 4. PRABHAKARAN, AGED 57, C/O. N.K.BALAKRISHNAN, THALAKKANATH CO-OPERATIVE SOCIETY, MUNDAKKAL, QUILON. tss SA. 388/1997 5. SAROJINI, AGED 69, VADAKKEVILA VILLAGE, AYATHIL CHERI, PANTHAPILLA VEEDU P.O., VADAKKEVILA, QUILON. 6. SARASWATHI, AGED 66, ERAVIPURAM VILLAGE, THEKKEVILA CHERIYIL, QUILON. 7. SAVITHRI, AGED 64, THEKKEVILA CHERI, THEKKAMBHAGATH, THEKKETHIL VEEDU, ERAVIPURAM , QUILON. 8. PURUSHOTHAMAN, AGED 45, MUNDAMUKKA AMSOM, MANJAKKAD DESOM, OTTAPPALAM TALUK. 9. SOUMINI, AGED 54, CHOORAKKODE, P.O.VALLAPUZHA, PALAGHAT DISTRICT. 10. BABY SOBHANA, AGED 49 YEARS, KALLEKKAD, PALAKKAD DISTRICT. 11. LAKSHMI, AGED 74, W/O. KUNJUKUTTY, MANJAKKAD, SHORANUR, OTTAPALAM TALUK. 12. UNNIKRISHNAN, AGED 63, S/O. LATE KUNJUTTY, MANJAKKAD, SHORANUR, OTTAPPALAM. *13. SUKUMARAN, AGED 53, S/O. DO. DO. *(DIED) RESPONDENTS 12, 19 AND 20 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 13TH RESPONDENT AS PER ORDER DTD. 9.10.01 VIDE MEMO CF. 4476/01 14. AMMU, W/O. LATE NADUVILATHETHIL NARAYANA SHARMA WAGED 71, MANJAKKAD, SHORANUR, OTTAPPALAM. 15. SADANANDAN, AGED 49, S/O. LATE NARAYANAN SHARMA, NADUVILATHETHIL, MANJAKKAD, SHORANUR,OTTAPALAM. 16. SIVANANDAN, AGED 53, S/O. DO. DO. 17. DAYANANDAN, AGED 46, S/O. DO. DO. 18. SATHYANANDAN, AGED 44, S/O. DO. DO. 19. DEVAKI, D/O. DECEASED AMMALU, AGED 79, CHAKKAMKULANGARA VEEDU, KARAKKAD, SHORANUR. tss S.A. NO.388/1997 20. RUGMINI, D/O. LATE AMMALU, AGED 64, KUNNATH HOUSE, PARUTHIPPRA, MUNDAMUKA AMSOM, OTTAPALAM TALUK. 21. JANAKI, AGED 67 YEARS, W/O. UNNIANKUTTY CHAMI, RETD., RLY. GANG MASTER, NILAMBUR. *ADDL. RESPONDENTS 22 TO 28 IMPLEADED 22. PADMAKSHI, W/O.K.P.RAMAN, NADUVILATHETHIL HOUSE, P.O. MANJAKKAD, SHORNUR -1. 23. RAJAGOPAL, S/O.SAROJINI, NADUVILATHETHIL HOUSE, P.O. MANJAKKAD, SHORANUR-1. 24. PADMAJA, W/O. SAROJINI, DO. DO. 25. GIRIJA, D/O. DO. DO. 26. GEETHA, D/O. DO. DO. 27. MONISHA, D/O. DO. DO. 28. APPA, S/O. DO. DO. SUPPLEMENTAL RESPONDENTS 22 TO 28 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 13TH RESPONDENT VIDE ORDER DTD. 10.6.2005 IN IA. 165/2005. *ADDL. R 29 IMPLEADED 29. HEMACHANDRAN, S/O. KALYANI, NADUVILATHETHIL HOUSE, PARIYAMTHADAM, SHORANUR ADDL. R29 IS IMPLEADED AS PER ORDER 27/06/2011 IN CMP.1869/01 BEING THE LEGAL HEIRS OF DECEASED 2ND APPELLANT. R1 BY ADV. SMT.M.R.MINI R22 BY ADV. SMT.P.K.BEENA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON 27/06/2011 DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.1010/1997 & IA. 2106/2004 IN SA. NO.388/1997 DISMISSED 27/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A.TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 388 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of June, 2011. JUDGMENT Defendants 8, 9, 11 and 12 in O.S. 213 of 1987 before the Munsiff's Court, Ottappalam, who suffered a preliminary decree for partition, which was confirmed in appeal are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Fortunately there is no dispute regarding the facts of the case. 3. The suit was laid challenging the decree in O.S. 103 of 1981 before the Sub Court, Ottapalam, which too was a suit for partition between the parties to this suit in which a preliminary decree was passed. The plaintiff's case is that at that time, she was a minor and she was represented by her mother as guardian. The allegation is that the guardian was negligent in the S.A.388/1997. 2 conduct of the case and that had resulted in passing of the ex-parte preliminary decree. Even though a petition was filed for setting aside the ex-parte decree, that was dismissed and C.M.A. filed from the said order was also dismissed. Pointing out that the negligence of the guardian to protect the interest of the plaintiff resulted in an ex-parte decree being passed against her, the present suit was laid for partition as well as for a declaration that the decree in O.S.103 of 1981 of Sub Court, Ottappalam is not valid and binding on the plaintiff. 4. Defendants 8 to 12 resisted the suit by pointing out that the suit itself is not maintainable since it is barred by res judicata by virtue of the decision in O.S. 103 of 1981. It is also contended that though the plaintiff was a minor at the time of institution of the earlier suit, she attained majority during the pendency of the suit. A preliminary decree was passed on 7.2.1983 while the plaintiff in the present suit became a major in 1982. Thereafter the plaintiff along with some of the defendants in the earlier suit S.A.388/1997. 3 had filed an application to set aside the ex-parte decree and that petition was dismissed. They had carried the matter in appeal before this court and that was also dismissed. The contention was that having chosen to accept the decree in the earlier suit by taking further proceedings in the matter, the plaintiff cannot now say that the earlier decree is not valid and binding. Apart from the above fact, it is also contended that the suit is barred by limitation. Contentions regarding the merits of the matter are also taken, which are not very relevant for the present purpose. On the basis of these contentions they prayed for a dismissal of the suit. 5. Issues were raised by the trial court. Evidence consists of the testimony of Exts.A1 to A7 from the side of the plaintiff and Exts.B1 to B8 marked from the side of the defendants. Neither side adduced any oral evidence. The trial court on the issue of maintainability found that the guardian was negligent and therefore the decree in O.S.103 of 1981 was not binding and set it aside. S.A.388/1997. 4 6. Defendants 8 to 12 carried the matter in appeal as A.S.40 of 1990 before the Sub Court, Ottappalam. It would appear that the lower appellate court was not very much impressed by the finding of the trial court that the decree in O.S. 103 of 1981 was bad for negligence, but on the other hand held that the plaintiff is entitled to the benefit of Section 14 of the Limitation Act and therefore the suit is maintainable and thereafter went on to hold that the decree in O.S.103 of 1981 is not binding on the plaintiff and confirmed the preliminary decree passed by the trial court. The above judgment and decree are assailed in this Second Appeal. 7. Notice is seen issued on the following questions of law: “a) Were the courts below justified in finding that the suit is not barred by limitation? b) Did not the courts below err in finding that the suit in a Munsiff Court challenging the decree of the Sub court is maintainable? S.A.388/1997. 5 c) Were the court below justified in finding that the mother of the plaintiff was grossly negligent and whether such a contention is available to the plaintiff in this suit? d) Did not the courts below err in not entering findings on many material points in controversy? e) Did not the courts below err in decreeing O.S.213/87?” 8. Sri. K. Ramachandran, learned counsel appearing for the appellants, pointed out that both the courts below have misdirected themselves both on facts and in law. Learned counsel went on to point out that the suit to set aside the decree must be deemed to have been one under Section 44 of the Indian Evidence Act and if that be so, it is absolutely necessary that the plaintiff establishes fraud or collusion. Even assuming that the provision may takes in gross negligence on the part of the guardian as one of the grounds to set aside the decree, in the case on hand there is absolutely no pleading or evidence in that regard. S.A.388/1997. 6 Apart from the above fact, learned counsel went on to point out that the plaintiff became a major in 1982 and going by Article 59 of the Limitation Act she gets three years from the date of attaining majority to assail the decree in O.S.103 of 1981, which was passed on 7.2.1983. The suit was filed only on 25.8.1987. Learned counsel went on to point out that in fact as against the preliminary ex-parte decree passed in O.S.103 of 1981, the plaintiff in the present suit along with others had filed I.A.450 of 1983 on 4.3.1983 to have the ex-parte decree set aside. The plaintiff was the fifth petitioner in the said petition. At the relevant time, she had already become a major. That petition was dismissed on 5.7.1983. The plaintiff did not stop there. She along with other persons had preferred C.M.A. before this court against the order in I.A.450 of 1983 on 7.9.1983 which was dismissed on 6.3.1987. Construing Sections 6, 7 and 8 of the Limitation Act and also applying Article 59 of the Limitation Act at any rate the plaintiff had knowledge about the preliminary ex-parte decree on 7.2.1983 and the suit S.A.388/1997. 7 should have been filed atleast three years from that date. Even taking a liberal view, at any rate, it ought to have been filed within three years from 5.7.1983, on which date I.A.450 of 1983 was dismissed. According to the learned counsel, the claim of the plaintiff in the present suit that she is entitled to exclude the period from 4.3.1983 till 25.8.1987, the period during which the I.A. and C.M.A. were pending cannot be countenanced. Apart from the above fact, learned counsel also pointed out that Section 14 of the Limitation Act has no application to the facts of the case. Learned counsel also went on to point out that it is significant to notice that the earlier decree, i.e., the preliminary decree in O.S.103 of 1981 was passed by the Sub Court and the present decree setting aside the earlier decree was passed by the Munsiff's Court, which is a subordinate court. According to learned counsel, that is not possible in law. On the basis of these contentions, it is contended that the decree passed by the lower courts are liable to be set aside. S.A.388/1997. 8 9. Sri. G.Sreekumar, learned counsel appearing for the contesting respondents on the other hand pointed out that Section 44 of the Indian Evidence Act is applicable to the facts of the case since it can be easily seen that the guardian was grossly negligent in conducting the earlier suit and that has prejudicially affected the rights of the plaintiff, who became major subsequently. It is contended that it is not as if that fraud and collusion alone can be the ground to set aside the decree since Section 44 is only permissive and not prohibitive. Grounds like gross negligence of the guardian and other such factors have been recognized in law as grounds providing for setting aside the decree apart from fraud and collusion. Learned counsel relied on the decision reported in Narayanan Namboodiripad v. Gopalan Nair (1960 K.L.T. 546) in support of his case and contended that section 44 of the Act confers substantive right and that cannot be defeated by procedural intricacies. He also relied on the decision reported in Hamza Haji v. State of Kerala S.A.388/1997. 9 (2006(3) K.L.T. 941). Pointing out that Section 14 calls for a liberal interpretation and it should be so construed so as to advance justice, learned counsel relied on the decision reported in J.Kumaradasan Nair v. Iric Sohan ((2009) 12 SCC 175). Learned counsel went on to point out that the plaintiff in the present case is entitled to exclude the period from 4.3.1983 when the I.A. for setting aside the preliminary decree in the earlier suit was filed and till the C.M.A. was finally disposed of on 6.3.1987. If that period is excluded, as per Section 14 of the Limitation Act, the suit would be well within time. Learned counsel asserted that the contention that the Munsiff's Court cannot set aside the decree in a case falling under Section 44 of the Indian Evidence Act is baseless. Any court, whether be inferior or superior, can set aside a decree, which is vitiated by fraud, since fraud vitiates all proceedings. 10. The issue that arises for consideration are (i) Whether the Munsiff's Court can set aside a decree of the Sub Court, which is a superior court? S.A.388/1997. 10 (ii) Is the decree in O.S.103 of 1981 vitiated by fraud, collusion or gross negligence? (iii) Is the suit barred by limitation? 11. It was very vehemently contended on behalf of the appellants that the Munsiff's court, where the present suit was filed, could not set aside a decree of the Subordinate court which passed the decree in O.S.103 of 1981, which is admittedly a superior court. 12. According to learned counsel, the hierarchy of the courts and judicial discipline demands that the judgment and decree of the higher court should be respected by the inferior court and there is no reason to accept the proposition that inferior court can set aside the decree of a superior court. 13. Though the argument may look attractive at the first blush, on a close scrutiny it appears to be without substance in view of the various aspects to which reference will be shortly made. S.A.388/1997. 11 14. One has to remember that the plea is one of fraud and collusion, which according to the plaintiff vitiates the decree passed in O.S.103 of 1981. As rightly pointed out by the learned counsel for the respondents, Section 44 does not confine itself to fraud and collusion and that provision has been extended to cases of gross negligence on the pat of the guardian resulting in a decree prejudicial to the interest of the minor. If once fraud, collusion or such other vitiating elements are alleged, then, one fails to understand how it could be said that an inferior court could not set aside the decree of a higher court. It is well settled that fraud vitiates all proceedings and benefit obtained under a fraudulent decree cannot be sustained or cannot be upheld. One may refer to the decision reported in Sarthakram Maiti v. Nundo Ram Maiti (11 CWN 579) wherein it was held as follows: “A court of inferior jurisdiction is competent to declare a decree of a superior court to be a S.A.388/1997. 12 nullity on the ground of fraud, if otherwise it has jurisdiction to entertain the suit.” In the decision reported in Ishar Das v. Salig Ram (59 IC 2)it was held as follows: “A suit to set aside an ex parte decree on the ground fraud may be brought in a court other than that by which the decree sought to be set aside was passed.” 15. In the decision reported in Arunachellam Chetty v. Sabapathy Chetty (1917 Vol.XLI IC 937) it was held as follows: “An inferior court has jurisdiction to set aside the decree of a superior court obtained by fraud, provided it is otherwise competent to try the suit. It matters not whether the impeached judgment has been pronounced by an inferior Tribunal or by the highest Court of judicature in the realm; in all cases it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud.” S.A.388/1997. 13 16. The Apex Court had occasion to consider the issue recently in a decision reported in Hamza Haji 's case (supra) wherein it was held as follows: “S.44 of the Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. It is always competent to any court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud. The jurisdiction of the court in trying a suit questioning the earlier decision as being vitiated by fraud, was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree-- by the first court or by the highest court--has to be treated as a nullity by S.A.388/1997. 14 every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” 17. In all the above decisions, the issue was considered at length and held that once it is shown that a decree is fraudulently or collusively obtained or it is vitiated due to any reason, then there is no prohibition on the inferior court to set aside the decree of a superior court. The principle appears to be that fraud vitiates every act and does not depend upon the hierarchy of courts from where a particular decree or judgment is vitiated by fraud is passed. In the light of the above decisions, the first contention has necessarily to fail. 18. The next contention that was very vehemently urged was that Section 44 of the Indian Evidence Act is not at all applicable to the facts of the case. It is contended that Section 44 applies only in case of fraud and collusion and does not apply in the case on hand, wherein only an S.A.388/1997. 15 allegation of negligence has been made. Learned counsel for the appellants went on to point out that even assuming that gross negligence can be established to have the decree set aside under Section 44 of the Indian Evidence Act, there is absolute want of pleadings and evidence in the case on hand to show that there has been gross negligence on the part of the guardian of the plaintiff in the present case in the former suit. 19. It will be first useful to refer to Section 44 of the Indian Evidence Act, which reads as follows: “44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.- Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 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.” 20. Section 44 contemplates two distinct situations. They are (1) when a judgment, order or decree is S.A.388/1997. 16 rendered by a court not competent to deliver it or (2) when the judgment, decree or order was obtained by fraud or collusion. It is by now well settled that once it is shown that a particular judgment, decree or order was obtained by fraud or collusion, then it is not valid and binding and can be ignored. So also in the case of a judgment and decree rendered by an incompetent court. Incompetency refers to inherent want of jurisdiction and not to a wrong decision rendered by a court which had the inherent jurisdiction to decide the matter. Even assuming that a court competent to hear and decide the suit decides it wrongly on a question of limitation or such other matters that does not make the decree a nullity. Though the word fraud has not been defined by the Indian Evidence Act, the definition contained in Contract Act has been accepted as one applicable to Section 44 of the Act. It includes all acts, omissions and concealments, which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injuries to another, or by which an undue and unconscientious S.A.388/1997. 17 advantage is taken by another. Two elements are necessary for establishing fraud, (1) deceit and (2) injury or loss to another person. It is usually said that fraud which falls for consideration under Section 44 must be extrinsic fraud. 21. As already noticed, the principles under Section 44 has been applied in cases of gross negligence, i.e. gross negligence of a guardian ad litem of a minor on account of which a decree is passed against the minor. It is well recognized that a collateral challenge is also possible and permissible on the ground of fraud or collusion. 22. It will be useful now to refer to the decisions relied on by either side in this regard. In the decision reported in Narayanan Nambooripad's case (supra) it was held as follows: “S.44 of the Evidence Act does not stand in the way of showing gross negligence to avoid a judgment. A substantive right cannot be defeated simply because gross negligence is not mentioned as one of the grounds of avoiding a judgment under S.44. The provision of S.44 is permissive S.A.388/1997. 18 and not prohibitive. If allows a party to avoid a judgment by proving fraud or collusion, but it does not destroy his substantive right which exists independently of the Evidence Act. it does not enumerate or exhaust the grounds upon which a decree or order may be attacked.” 23. In the decision reported in Gopalakrishnan v. Rajamma (2006(4) K.L.T. 377) it was held as follows: “In a suit to set aside a decree on the ground of fraud, it is open to the court to consider the question as to whether the claim of the plaintiff in the previous suit was true or false only if the plaintiff is able to show that there ws non-service of summons and the same is attributable to a fraud committed by the other party in the previous suit with the object of keeping the present plaintiff in ignorance of the suit and of preventing him from placing his case before the court. When the Court is asked to set aside a decree on the ground of fraud, the only issue for its decision is whether the decree was procured by fraud. For deciding that issue the court cannot sit in appeal over the impugned judgment or decree. An unsuccessful party also cannot be allowed to S.A.388/1997. 19 get round the rule of res judicata and prove that the judgment was wrong because the court came to a wrong conclusion on the evidence before it. For the purpose of S.44 of the Evidence Act an ex parte decree stands on the same footing as a decree in a defended suit. Mere non-service of summons does not constitute fraud. The decree will be set aside only if it is proved to have been obtained by fraudulent suppression of summons. In order to get rid of a former judgment it is not sufficient for a person to prove constructive fraud (not deliberate). He must prove actual positive fraud, a meditated or intentional contrivance to keep the parties and the court in ignorance of the real facts of the case and the obtaining of that judgment by such contrivance. A prior judgment cannot be upset on