K. V. Subramaniam vs Pattabi Bhagavathar and three others

V. S. Sirpurkar, J.

This civil revision petition has been filed by the original plaintiff, challenging the order passed by the trial Court, allowing the petition by the

defendants filed u/s 10 of CPC to stay the proceedings of the suit, O.S. No.353 of 1989 till the decision in A.S. No.40 of 1985 pending before

the High Court. A short resume of facts would not be out of place.

The plaintiff V. Saraswathy Animal and K.V. Subramaniam have filed the present suit, O.S. No.353 of 1989 for a declaration that the

Settlement Deed dated 28.4.1980 executed by the first plaintiff V. Saraswathy Ammal now deceased in favour of the defendants pertaining to the

suit property, Schedule A and B, is void, ab initio, legally invalid, and at any rate liable to be set aside. The second prayer is for a declaration that

the conduct of the defendants in bringing about the two decree in O.S. Nos.6043 of 1983 and O.S. No.6045 of 1983 pertaining to the suit

property are collusive and fraudulent and hence the decrees dated 1.12.1983 made in those suits are liable to be set aside. It is inter alia contended

in the suit that the first plaintiff V. Saraswathy Ammal and the second plaintiff K.V. Subramaniam were near relations, the second plaintiff being a

paternal cousin of the first plaintiff, that the two were living as one family sine childhood, that the second plaintiff was the only close and near

relation of the first plaintiff and that there were some misunderstanding between the first plaintiff and the family of the second plaintiff in the year

1978 because her mind was poisoned by some third parties particularly the defendants, who were complete strangers to the plaintiffs and were the

tenants of the first plaintiff. It is further contended that in April, 1980 when first plaintiff was seriously ill, she was admitted to a Nursing Home

called ''Raju Nursing Home'' by the defendants and she was not free both mentally and physically and she was under complete control and

domination of the defendants. Under such circumstances, though the first plaintiff had wished to meet the second plaintiff, he was not informed by

the defendants and they got a settlement deed executed in favour of themselves and for that purpose, the Sub-Registrar was brought to the Nursing

Home. The plaintiffs further averred that this settlement deed was purely as a result of fraud perpetrated upon the first plaintiff when she had no

thinking power probably by administering her some medicines which deprived her of her thinking capacity. The first plaintiff makes a further

reference to the Civil Suit, O.S. No.3775 of 1981 filed by K.V. Subramaniam, the second plaintiff herein as also to the further decrees which were

got passed fraudulently by the defendants in their favour confirming the binding nature of the said settlement, there being two suits, O.S. No.6043

of 1983 and O.S. No.6045 of 1983. The plaintiff further goes on to suggest that these decrees were also got fraudulently and collusively passed,

as the very advocate of Saraswathy-Ammal was conducting the proceedings in favour of the 1st defendant in the earlier suit, O.S. No.3775 of

1981 filed by K.V. Subramaniam.

In short, it is contended that the said Settlement Deed dated 28.4.1980 was as a result of fraud, collusion undue influence, coercion, and the

decrees were also passed as a result of the fraud played upon the Court as well as the first plaintiff.

It is this suit which was sought to be stayed by making an application u/s 10, C.P.C. In the said application, it was pointed out that the second

plaintiff K.V. Subramaniam had filed a suit, O.S. No.3775 of 1981. This was a suit for partition on the ground that the suit property was acquired

not alone by the first plaintiff Saraswathy Ammal but K.V. Subramaniam also had contributed 9/10th of the consideration. As such, he had 9/10th

share in the said suit property and as such he had sought a decree for partition. Initially, the first plaintiff Saraswathy Ammal was the only

defendant, however, later on the defendants came to be added as the party defendants, since it was revealed that Saraswathy Ammal had settled

the said property in favour of the defendants. The said settlement deed also was challenged as not binding on the plaintiff K.V. Subramaniam. It

was pointed out that the said suit was dismissed with a finding that K.V. Subramaniam had failed to prove that he had contributed 9/10th of the

consideration. The second finding in the suit was that the said settlement deed dated 28.4.1980 was binding against K.V. Subramaniam. It is

pointed out further that the said appeal against that judgment was still pending in the High Court. It was, therefore, contended that since the

question of validity of the settlement deed dated 28.4.1980 was pending in the appeal, which was from a suit earlier in point of time, the second

suit challenging the validity of the said settlement deed and pursuant decrees thereupon, could not go on and ought to be stayed. The issue falling

for consideration in the second suit was directly and substantially covered in the appeal and till such appeal was decided, the second suit could not

go on the principles in Section 10 of C.P.C. The trial court has allowed this application necessitating the present civil revision petition.

It was contended by the learned counsel appearing on behalf of the revision petitioner that the trial Court has chosen not to go into the pleadings

in the two suits nor has the trial Court bothered to look into the issues with the circumspection that was required of the trial Court. It was pointed

out that there was no common issue involved and though at the first blush the controversy appeared to be common revolving around the validity of

the settlement deed dated 28.4.1980, yet, the issues in the two litigations were essentially different and as such the second suit could not be stayed

u/s 10 of C.P.C.

The learned counsel appearing on behalf of the respondents herein i.e., defendants in the Original Suit supported the order contending that after

all there was a common question regarding the validity of the settlement deed dated 28.4.1980.

Considering the rival submissions, it will have to be seen, therefore, as to whether the issues in the two litigations are such which are directly and

substantially the same. The learned counsel for the petitioner pointed out that in the suit, O.S. No.3775 of 1981 which was filed by K.V.

Subramaniam, the only pleading regarding the said document dated 28.4.1980 was that the said settlement deed was not binding on the plaintiffs.

The learned counsel for the petitioner took me through the plaint. Initially, the present defendants were not parties to the plaint. It was only later on

that they came to be added as party defendants on account of realisation that Saraswathy Animal, the original first defendant in O.S. No.3775 of

1981 had executed a settlement deed on 28.4.1980 in favour of those defendants. Even in the amended plaint, the document was not attacked as

an outcome of fraud or undue influence or coercion nor were any allegations made that the defendants had got this document executed against the

will of Saraswathy Ammal and practising fraud upon her taking advantage of her ill-health. All that has been stated in that plaint is that since

Saraswathy Ammal did not own the property exclusively and wholly, she could not have created a settlement in favour of the defendants in respect

of the whole property and at any rate, such transactions was not binding upon the plaintiff. The learned counsel pointed out to me that in that suit,

the issue which was framed was whether the said settlement deed dated 28.4.1980 was binding against the plaintiff. Now considering the pleadings

in that suit, the scope of issue would be only to the extent of Saraswathy Animal''s exclusive ownership on the suit property, The question regarding

the validity of that document dated 28.4.1980 was completely outside the scope of that suit since there were no pleadings to that effect. In short, in

that suit all that was challenged was the authority of Saraswathy Ammal to create the document dated 28.4.1980 because of her not being the full

owner of the property. Indeed, the question was viewed only from this angle which is clear from the judgment passed in O.S. No.3775 of 1981. It

is an admitted position that now the appeal is pending before this Court against that judgment. It was pointed out by-the learned counsel appearing

for the revision petitioner that during the pendency of this suit, Saraswathy Ammal switched back to her kith the present petitioner and the plaintiff

in O.S. No.3775 of 1981, K.V. Subramaniam. The learned counsel was at pains to point out that it was because of this compromise that the

present suit came to be filed, as it was found that the whole document was as a result of the fraud played upon Saraswathy Ammal by the present

defendants taking advantage of her precarious health condition when she was an indoor patient in a Nursing Home. The learned counsel also was

at pains to point out that it was found that collusive decrees were got passed against Saraswathy Ammal by the present defendants in the two suits.

The learned counsel, therefore, explains that it was essential to get a declaration that the said document was non est because of the fraud, undue

influence, coercion which was practised upon Saraswathy Ammal by the defendants who were the beneficiaries in that document. It was on this

backdrop, the present suit, O.S. No.353 of 1989 came to be filed. The learned counsel pointed out except the present revision petitioner and the

plaintiff in O.S. No.3775 of 1981, there was no other legal representative left by Saraswathy Ammal when she ultimately died and, therefore, this

plaintiff would be perfectly justified in requesting a probe into the legality of the document dated 28.4.1980.

The contention appears to be absolutely correct. Considering the pleadings in the Original Suit No.3775 of 1981, the issue regarding the binding

nature of the document dated 28.4.1980 and considering the plea raised in the present suit, O.S. No.353 of 1989, it will have to be said that

though at the first blush, the matters appeared to be common regarding the validity of the document dated 28.4.1980, in fact the two suits involved

separate and distinct questions. While in the first suit the question was only regarding the authority of Saraswathy Ammal to create the settlement,

the second suit questions the very legality of that settlement. The entitlement to create a document would be one thing while its legality in law would

be quite another. That is the difference in the said suits.

The learned counsel for the respondents very strenuously contended that Saraswathy Ammal could not have filed the second suit as she had

made number of admissions regarding this very settlement deed in her written statement as also in the two suits which came to be filed by the

present defendants. Now, the question of the legality of the suit itself would be essentially decided when the suit is decided on merits. The present

is not the stage to go into that question. All that has to be seen is whether the order staying the second suit is correct or not. Unfortunately, the trial

Court has chosen to go on fringes and has allowed itself to be impressed by the mere form and not by the substance of the suit. For that matter, it

is doubtful whether the trial court has gone through the pleadings at all. The order is extremely sketchy and bereft of the necessary particulars. It is

obvious that the trial court has ignored the basic principles in Section 10 of C.P.C. A close scrutiny of the pleadings in both the suits and the issues

involved therein would have helped the trial court to come to the correct conclusion that the second suit could not be stayed as it could not be said

that the issues involved were directly and substantially the same. As has been pointed out above, they were not the same. The order, therefore, is

set aside. The application u/s 10 of C.P.C. is ordered to be dismissed. The revision is allowed, C.M.P. No.2864 of 1998 is dismissed. However,

under the circumstances of the case, there will be no order as to costs.