Damodar Prasad and others vs Ram Sarup Kumar

Das, J.—On the 29th January, 1912, the defendants first party, who are the appellants before us, instituted a suit being Suit No. 55 of 1912, for recovery of Rs. 4,065 as against one Bisheshar, who is the defendant 2nd party, and also against Ramsarup, the plaintiff respondent. On the 9th May 1912, the defendants first party obtained a decree for the sum claimed by them as against Bisheshar and Ramsarup. On the 10th August 1918, the present suit was instituted by Ramsarup for declaration that the decree obtained by the defendants first party in Suit No. 55 of 1912, was fraudulent and that it was not binding on them. The learned Subordinate Judge has come to the conclusion that the decree was a fraudulent one and he has accordingly set aside that decree and restored that suit to its file. On the facts found by the learned Subordinate Judge the order passed by him was far too favourable to defendants first party, for, if the decree obtained by them was a fraudulent decree, they were not entitled to have the suit re-heard as against Ramsarup and Bisheshar.

The circumstances in connection with Suit No. 55 of 1912, are these: One Saudagar died leaving two sons Sheodhari and Ramsarup and a widow Bhojlo Kuar. On the 14th July, 1907, Sheodhari look a (sic) lease from the defendants first party of 49 bighas of land in Sikandarpur. It is the common case that at the time when he took this lease Sheodhari was the kurta and manager of the joint family. Between January to August 1910, Sheodhari borrowed several sums of money from the defendants first party on chittis. On the 27th January, 1911, Sheodhari executed in favour of the defendants first party what purported to be a mortgage bond for Rs. 5,000. It is undisputed that he purported to execute the document for himself and as guardian of Ramsarup. The document showed that there was due to the defendants first party Rs. 1,900 on the chittis and Rs. 2,100 as rent in respect of the lease. These debts were discharged by the execution of the mortgage bond and the bond on the face of it shows that Sheodhari took a cash advance of Rs. 998-14-0. But Sheodhari died soon after the execution of the bond and it is not denied that this sum of Rs. 998-14-0 was not paid to Sheodhari, although it also appears that Rs. 64 was paid to him. The mortgage bond could not he registered owing to the death of Sheodhari, and, as I have said, on the 29th January, 1912, the defendants first party brought a money suit for recovery of Rs. 4,065 as against Bisheshar, the son of Sheodhari, and Ramsarup, the brother of Sheodhari.

The learned Subordinate Judge has examined the evidence which has been recorded in this case with a view to find out whether there was sufficient evidence of legal necessity for the loan which was taken by Sheodhari and Ramsarup. He came to the conclusion that the defendants first party failed to prove that there was any legal necessity for the debt incurred by Sheodhari on behalf of the joint family. He also came to the conclusion that summons was not served upon Ramsarup. He thought that there was collusion between Bisheshar, the son of Sheodhari, and the defendants first party and he came to the conclusion that the decree was wholly inoperative so far as Ramsarup was concerned.

In my opinion, the learned Subordinate Judge should not have considered the evidence recorded in the case before him in order to enable him to come to the conclusion that there was no evidence to support the decree in Suit No. 55 of 1912. As has been pointed out the test as to whether a suit lies to set aside a decree is whether there was fraud practised in relation to the proceedings in Court by which the defendant in the original suit was prevented from placing his case before the Court. It is quite true if the Court comes to the conclusion that summons was not in fact served upon the defendant, he is at liberty to examine the evidence with a view to find out whether there was any foundation for the previous suit. But that is only for the purpose of enabling him to decide whether the failure to serve summons was accidental or deliberate. Now, in this case the learned Subordinate Judge threw the entire onus upon the defendants first party. It is quite true that in the suit in which the defendants first party were the plaintiffs, namely, Suit No 55 of 1912, it was necessary for them to establish that there was legal necessity for the debt incurred by Sheodhari as the karta of the joint family; but the Subordinate Judge in Suit No. 55 of 1912 gave the defendants first party a decree as against Bisheshar and Ramsarup. That decree operates as res judicata between the parties. No doubt it is open to Ramsarup in this suit to show that the decree obtained by the defendants first party in Suit No. 55 of 1912 was a fraudulent decree. In order to establish that there was fraud in relation to the proceedings of the suit Ramsarup would have to show, if he could, that there was no foundation for the suit at all; but then the onus was upon Ramsarup to show that there was no foundation for that suit. There is no onus upon the defendant first party to establish the validity of the decree obtained by them. Now, this course was not adopted by the learned Subordinate Judge. He examined the evidence in the case with a view to find out whether the defendants first party in this case have established that there was legal necessity in respect of the debt incurred by Sheodhari. In my opinion, the procedure adopted by the learned Subordinate Judge is wholly erroneous. It was for Ramsarup, the plaintiff in this action, to show that there was no foundation for Suit No. 55 of 1912. It was, therefore, for Ramsarup to establish that there was no legal necessity for the debt incurred by Sheodhari as the karta of the joint family.

The foundation of the judgment of the learned Subordinate Judge is that there was collusion between Bisheshar and Ramsarup. In order 10 see whether this finding is a legal finding it is necessary to examine the evidence on the record. Now, summons wag undoubtedly served upon the defendants in the suit. Exhibit (F) is the report of the peon, Mahbub Hassain, relating to the service of summons and the report shows that as Bisheshad declined to take the summons and as Ramsarup was a minor he "hung up two of the summons with a copy of plaint on the house covered with tiles facing east."

Apart from the general evidence given by Bhojlo Kuer, the guardian of Ramsarup the plaintiffs have not examined either the peon or the identifier or any person connected in any way with the service of summons to show that the statements in the report of the peon are untrue. We must assume, until the contrary is proved, that the summons was in fact nerved in the mode stated in the report of the peon, and, it was necessary for the plaintiffs to prove that the statements made in the report are untrue. It was, in my opinion, absolutely necessary for them to call either the peon or the identifier or any of the witnesses mentioned in the report of the peon. The evidence of Bhojlo Kuer is wholly unconvincing and for my part I can place no reliance upon it.

But there are materials in the record which, to my mind, show conclusively that Bhojlo Kuer was aware of the suit itself. On the 6th March, 1912, Bhojlo Kuer entered appearance as the guardian of Ramsarup through a pleader named Hito Roy. She is alleged to have given vakalatnama to Hito Roy to conduct the defence on behalf of Ramsarup. Now, there is no dispute that a vakalatnama was in fact given to the pleader, but it is suggested by the plaintiff that the vakalatnama was given by Bisheshar without the knowledge or the authority of Bhojlo Kuer. The learned Subordinate Judge has found that the vakalatnama was given,

on her behalf without her knowledge by Bisheshar

and as the learned Subordinate Judge also came to the conclusion that the plaintiffs mother Musamnat Bhojlo Kuer, is a literate lady, he found as a fact that the vakalatnama was filed fraudulently by Bisheshar in the case Now, I accept the finding of the learned Judge that the vakalatnama was given to the pleader by Bisheshar on his behalf and on behalf of Musammat Bhojlo Kuer. But I am not prepared to accept his finding that because Musammat Bhojlo Kuer is a literate lady and because the vakalatnama was given by Bisheshar and not by Musammat Bhojlo Kuer that there was collusion between Bisheshar and the defendants first party. There is nothing else in the judgment of the learned Subordinate Judge from which it can be inferred that there wag collusion between the defendants first party and Bisheshar. The learned Subordinate Judge says:-

This one fact alone goes to show that the vakalatnama was filed fraudulently by defendants second party. We have evidence in this suit that defendants second party and defendants first party are in collusion with each other.

Now, in my opinion, where a case of fraud is attempted to be made out and the evidence adduced in the case is equally consistent with the allegations of the plaintiff as with the denial of the defendants, a case of fraud is not established. Now, what was the object of Bisheshar, who, it must be remembered, was a defendant in Suit No. 55 of 1912, to collude with the plaintiff in that action? The learned Subordinate Judge has found that at the Hate of the execution of the bond the family was joint. We have examined the evidence very carefully and in our view the evidence does not establish that there was a separation at any time between either Sheodhari or Ramsarup or between Bisheshar and Ramsarup. The case of the plaintiff on the question of separation has been entirely disbelieved by the learned Subordinate Judge. The case of the defendant is not, as the learned Subordinate Judge has erroneously supposed, that there was a separation between Bisheshar and Ramsarup at any time. It is quite true that one of the witnesses on behalf of the defendants says that they were messing separately for the last two years, but the witness himself explained that he does not suggest that the joint family properties have in any way been separated. Now, if that be so, and if the plaintiff''s evidence as to separation is wholly disbelieved, then a case of separation has not been established between the parties. That being so, it must be assumed that Bisheshar and Ramsarup were joint not only at the time of the execution of the bond but also at, the time of the institution of Suit No 55 of 1912. Now, what reason prompted Bisheshar to collude with the plaintiffs in Suit No. 55 of 1912. If there was no motive at all to induce him to enter into a conspiracy with the defendants first party, who were the plaintiffs in that action, then in my opinion, a case of fraud ought not to be found against him. He was a defendant to that action, so was Ramsarup. Now, the case of the plaintiff in this action is that there was no legal necessity in respect of the debt incurred by Sheodhari. If there was no legal necessity for the loan then it was obviously to the advantage of Bisheshar to put forward Ramsarup to (sic) the point that there was no legal necessity for the loan. If it was established in that action that there was no legal necessity for the loan incurred by Sheodhari then obviously the plaintiffs in that action could not get any decree either against Ramsarup or against Bisheshar. Now, the positive case of the plaintiff in this action is that there was no legal necessity in respect of the loan incurred by Sheodhari. Now, if Bisheshar was aware of the fact that there was no legal necessity, then, as I say, it was to his advantage to put forward Ramsarup to put forward the plea that there was no legal necessity. If on the other hand, there was legal necessity for the loan, then obviously there was no defence to the suit at all. In either case it would be to the advantage of Bisheshar to have Ramsarup to actively defend the action brought by the defendants first party. In my opinion, there was absolutely no motive for Bisheshar to collude in the matter with the defendants first party, and if there was no motive at all, the act of Bisheshar in giving the vakalatnama on his behalf and on behalf of musammat Bhejlo is explainable on the hypothesis that there was no fraud on his part. After all Musammat Bhojlo Kuer was a pardanashin lady. The duty of defending the suit would fall entirely upon Bisheshar. It was purely a formal matter for him to go to Bhojlo Kuer and to get the vakalatnama signed by her. No doubt it was improper on the part of Bishesher not to get the signature of Bhojlo Kuer on the vakalatnama but the fact that Bisheshar was guilty of impropriety does not lead to the conclusion that he was colluding with the plaintiffs in that action. As I have said before, where the facts established, are equally consistent with the allegation of the plaintiff as with the denial of the defendant, a case of fraud will not be found by the Court. In my opinion, the evidence does not establish that Bisheshar in any way colluded with the defendants first party. There are in the record of the suit no less than two petitions ostensibly filed both on behalf of Bisheshar and no behalf of Ramsarup. It is impossible to find a case of fraud against the defendants first party without coming to the conclusion that Bisheshar was a party to that fraud, because both the petitions show that Bisheshar as well as Ramsarup were applying for time on the ground that there was a talk of settlement between the parties going on. Now, as I have said before, if there was no reason at all for thinking that Bisheshar would collude with the defendants first party in the matter, there is no reason at all for finding a case of fraud as against Bisheshar and, as I have also said before, it is impossible to find a case of fraud as against defendant first party without finding a case of fraud as against Bisheshar. In my opinion, the evidence does not establish that Bisheshar in any way colluded with the defendants first party in Suit No 55 of 1912. The summons was properly served on the minor. It is not suggested in the pleadings of the suit that, the procedure laid down in Order XXXII was not complied with. The evidence shows that Bisheshar certainly entered appearance not only on his own behalf but also on behalf of the minor defendant and there is in my opinion, no ground whatever for suggesting that the decree obtained in Suit No. 55 of 1912 was a fraudulent decree. I would accordingly allow the appeal, set aside the judgment and decree passed by the Court below and dismiss the plaintiff''s suit with, costs in both the courts.

Bucknill, J.

I agree.