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Nachhattar Singh v. Smt. Jagir Kaur And Others
Factual and Procedural Background
The opinion arises from a second appeal by the defendant (Nachhatar Singh) against a decree in a suit for possession. Kaula Singh, who was owner of the suit property, died on 22 August 1972 leaving three daughters — Balbir Kaur, Jagir Kaur and Surjit Kaur. After his death, mutation of the suit land was sanctioned in favour of the defendant on the basis of a decree dated 26 April 1972 (in a suit between Nachhatar Singh and Kaula Singh).
On 4 November 1972 two daughters (Jagir Kaur and Surjit Kaur) filed a suit seeking possession of their two-thirds share in the suit land, alleging that the earlier decree of 26 April 1972 was obtained by collusion and from a court which was not competent to pass it. The plaintiffs pleaded that (inter alia) the earlier decree involved a fictitious plot to create jurisdiction, that the suit property was solely owned by Kaula Singh, and that oral transfers after 1955 contravened statutory provisions.
In the written statement defendants raised preliminary objections, contending the plaintiffs could not challenge the decree unless it was first set aside; on merits they relied on the earlier decree and pleaded family settlement and prior possession in favour of Nachhatar Singh.
The trial court dismissed the plaintiffs' suit, holding the earlier decree valid and binding (res judicata) and that the plaintiffs must first get that decree set aside. On appeal, the lower appellate court (learned Senior Sub-Judge with enhanced appellate powers) reversed the trial court, holding the earlier decree to be collusive and illegal and that the decree could not confer valid title because the transfer contravened the Transfer of Property Act; consequently the appeal succeeded and the suit was decreed in favour of the plaintiffs. Dissatisfied, the defendants filed this second appeal.
The appellate record reproduced the earlier decree (dated 26 April 1972) which stated that the defendant in that suit admitted the plaintiff’s claim and the suit was decreed as prayed for, parties bearing their own costs.
Legal Issues Presented
- Whether the decree dated 26 April 1972 (in favour of Nachhatar Singh against Kaula Singh) could be challenged in the present suit by the plaintiffs who are parties affected by that decree.
- If such a challenge is permissible, on what grounds (e.g., fraud, collusion, incompetency of the court) may the earlier decree be impeached in a collateral proceeding.
- Whether any valid title or ownership in favour of defendant Nachhatar Singh passed by reason of the earlier decree — specifically whether a decree transferring immovable property can confer valid title in circumstances where an oral transfer would contravene the Transfer of Property Act and registration provisions.
Arguments of the Parties
Defendant-Appellant's Arguments
- The decree of 26 April 1972 could only be challenged under Section 44 of the Indian Evidence Act and, the defendant contended, only by a third party and not by a party to the suit in which the decree was obtained.
- The defendants relied on several authorities (noted in the record) to support the contention that a party cannot challenge such a decree except in the manner and by persons permitted by law.
- On merits, defendants pleaded that Nachhatar Singh was in lawful possession and that the earlier decree (and alleged family settlement) established his title and ownership.
Plaintiffs' (Respondent) Arguments
- The plaintiffs alleged that the earlier decree was obtained by collusion and from a court not competent to try the matter (jurisdictional objections), including that a non-existent/fictitious plot was used to confer jurisdiction on the Muktsar court.
- They contended that after 1955 the Transfer of Property Act applied to the territory and immovable property of value more than Rs. 100 could not be transferred orally; hence a decree effecting such a transfer would contravene the Transfer of Property Act and would not pass valid title.
- The plaintiffs asserted their right to challenge the earlier decree as not binding on them as it did not pass valid title and was procured by collusion/fraud.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mt. Parbati v. Gajraj Singh, AIR 1937 All 28 | Interpreting Section 44 of the Indian Evidence Act: if collusion is proved between parties to a previous suit, the earlier judgment relevant under Section 40 cannot act as a bar. | The court relied on this authority to show that Section 44 permits a judgment to be impeached for collusion even when the challenge is by a party to the later proceeding; it undermines the appellant's contention that only third parties may challenge. |
| Shripadgouda Venkangouda Aparanji (Original Plaintiff) v. Govindgouda Narayangouda Aparanji (Original Defendant), AIR 1941 Bom 72 | The authority was cited by appellant in support of limitations on who may challenge a decree (context: Section 44 and related doctrines). | The court observed that the authorities relied upon by the appellant (including this case) do not support the appellant's contention and are distinguishable on facts; it did not accept them as dispositive for the appellant's position. |
| Parameswearn Nair v. Aiyappan Pillai, AIR 1959 Kerala 206 | Cited in relation to the scope of challenge to prior judgments and the operation of Section 44. | The court held that this authority, like others relied upon by the appellant, does not support the restrictive view urged by the appellant and is distinguishable on facts. |
| Laxmi Narain Gododia v. Mohd. Shafi Bari, AIR 1949 East Punj 141 | Held that Section 44 is the only provision under which a judgment/order/decree sought to be proved to establish res judicata can be avoided. | The court cited this case for the proposition that Section 44 is the relevant provision enabling avoidance of a prior judgment as res judicata when collusion or fraud is alleged. |
| Tribeni Mishra v. Rampujan Mishra, AIR 1970 Patna 43 | Held that the right under Section 44 is independent and not fettered by limitation; a decree can be challenged collaterally on ground of fraud without a suit to set it aside. | The court relied on this authority to support the view that Section 44 allows a party to impeach a prior decree on grounds of fraud/collusion in a collateral proceeding, irrespective of time limits or need for a separate suit to set aside the decree. |
Court's Reasoning and Analysis
The court proceeded in two principal stages: first, it determined the legal permissibility of the plaintiffs (who are affected by the earlier decree) impeaching that decree in the present suit; second, it examined whether the plaintiffs had proved collusion/fraud or otherwise established that no valid title passed to the defendant by reason of the earlier decree.
On the first stage, the court analysed Section 44 of the Indian Evidence Act together with Sections 40–42. It observed that:
- Section 40 makes previous judgments relevant to bar a second suit or trial (res judicata).
- Section 44 expressly permits any party to a suit or proceeding to show that a judgment, order or decree relevant under Sections 40–42 was delivered by a court not competent to deliver it or was obtained by fraud or collusion.
- Sections 41 and 42 address relevance for third parties; but Section 44 itself allows impeachment on ground of incompetency, fraud or collusion by a party where the earlier judgment is relevant under Section 40. Thus the contention that a party to the earlier suit cannot challenge the decree under Section 44 was rejected.
- The court reviewed the authorities cited by the appellant and concluded that they did not establish the restrictive proposition urged; on the contrary, authorities like Laxmi Narain Gododia and Tribeni Mishra supported the availability of Section 44 to impeach a decree on grounds of fraud/collusion, even collaterally and irrespective of limitation.
On the second stage (application to facts), the court examined the pleaded grounds and the record:
- The lower appellate court had found collusion and held that the decree contravened the Transfer of Property Act because immovable property of value over Rs. 100 could not be transferred orally after the Act became applicable; a transfer effected by decree in such circumstances would contravene the Act and not pass valid title.
- The court examined the earlier suit's plaint (filed 1 March 1972) and record material: the earlier plaint alleged a family partition “about four years back” and that the defendant therein promised to get entries made in revenue records but refused — but separate evidence (mutation, partition entries) indicated partition between Kaula Singh and his brother Karnail Singh in December 1968, undermining the assertion of an earlier family settlement in favour of the present defendant.
- Mutation based on the decree (Ex. P3) appears to be the first time the plaintiff in the earlier suit was made owner in revenue records; there was no deed or prior transfer to establish title before that decree. In the absence of any prior transfer or a registered instrument under Section 17 of the Indian Registration Act, the decree alone could not effect a valid transfer of title in contravention of the Transfer of Property Act.
- Therefore, even assuming collusion were not established, the decree could not operate to pass title to Nachhatar Singh because it violated statutory requirements; accordingly, the earlier decree did not operate as res judicata to bar the plaintiffs' claim to their two-thirds share.
Summarily, the court agreed with the lower appellate court’s conclusion that the decree dated 26 April 1972 was illegal inasmuch as it purported to operate as a transfer contrary to the Transfer of Property Act and that the plaintiffs could therefore avoid the decree on that basis and on the findings as to collusion.
Holding and Implications
Holding: APPEAL DISMISSED.
Implications:
- The decree dated 26 April 1972 in favour of Nachhatar Singh cannot be treated as an effective transfer of title that binds the plaintiffs; the lower appellate court's decree in favour of the plaintiffs (decreeing their suit) stands.
- The court held that Section 44 of the Indian Evidence Act permits a party to impeach a prior judgment on grounds of incompetency, fraud or collusion when that judgment is relevant under Section 40; prior authorities cited by the appellant were held not to support a contrary restrictive rule.
- The practical effect for the parties: the defendant's second appeal fails and is dismissed with no order as to costs; cross-objections were disposed of accordingly.
- No broader or novel precedent beyond the court's application of existing authorities and statutory provisions was announced; the decision operates to affirm the lower appellate court's ruling on these facts rather than to lay down a new principle of law.
Disposition in the opinion: "Appeal dismissed."
J.V Gupta, J.:— This is defendant's Second Appeal against whom suit for possession was dismissed by the trial court but was decreed in appeal.
2. Kaula Singh, son of Bhan Singh, was the owner of the suit property. He died on 22nd August, 1972 leaving behind three daughters named Balbir Kaur, Jagir Kaur and Surjit Kaur. On the death of Kaula Singh, mutation of the suit land was sanctioned in favour of the defendant-Nachhatar Singh on the basis of a decree dated 26th April, 1972, suffered by Kaula Singh in favour of Nachhatar Singh. The plaintiffs, i.e, the two daughters Jagir Kaur and Surjit Kaur filed, on 4th November, 1972, the suit for possession of their ⅔rd share in the suit land left behind by their father Kaula Singh. It was alleged in the plaint that the defendants are asserting their rights on the suit land under a decree dated 26th April, 1972, Which-decree, according to them, was obtained by collusion and from a court which was not competent to pass the same. It was alleged that the Sub-Judge 1st Class, Muktsar, who passed the said decree had no jurisdiction to entertain the suit as (a) the property in dispute was located in Tehsil Fazilka; (b) that to create fictitious jurisidiction of the Sub-Judge Muktsar, one plot which was not in existence and of which neither Kaula Singh nor defendants were owners or in possession, was fictitiously shown with the property in dispute to deceive the Court; (c) that the property in dispute was solely owned by Kaula Singh, and defendant No. 1 Nachhatar Singh had no share in it nor had he any share in the alleged plot. He was not in possession of the plot and there was no question of any family settlement; and (d) that after 1955 Kaula Singh could not orally or by collusive decree transfer the property as it violated the statutory provisions. Hence, the suit was filed for their ⅔rd share.
3. In the written statement, the defendants raised certain preliminary objections as to the plaintiffs' rights to challenge the decree. According to the written statement, the suit as such was not maintainable unless the earlier decree was got cancelled. On merits it was pleaded that Kaula Singh during his life-time, in view of the family settlement, had given land to the children of his daughter Smt. Balbir Kaur and had also given them the possession of the property. Nachhatar Singh was in lawful possession of the property because of the decree in his favour.
4. The trial court found that the decree dated 26th April, 1972 was passed by a court of competent jurisdiction. It was further found that the question whether Kaula Singh had any plot of land situate in Muktsar cannot be re-opened as the Muktsar Court had accepted the existence of such a plot. It was further held that the plaintiffs are bound by the earlier decree and the present suit, therefore, was not competent in the presence of the earlier decree. The trial court also observed that if the plaintiffs wanted to avoid the consequence of the earlier decree they must first get it set aside. Ultimately, with these findings, the suit was dismissed. In appeal, the learned Senior Sub-Judge with Enhanced Appellate Powers reversed the said findings of the trial court and came to the conclusion that a collusive decree was obtained earlier by Nachhatar Singh defendant against Kaula Singh and, therefore, the same was not binding on the plaintiffs. It was further found that immovable property of the value of more than Rs. 100/- could not be transferred orally and since it had been transferred by way of the said decree it contravened the provisions of the Transfer of Property Act and, as such, the transfer is not valid in the eye of law. The contention raised on behalf of the defendants that the earlier decree operates as res-judicata was repelled on the ground that Kaula Singh deceased had not transferred the property by way of family settlement and the decree dated 26th April, 1972, is illegal and not binding on the plaintiffs. Consequently, the suit was decreed. Dissatisfied with the same, the defendants have filed this Second Appeal here.
5. It is surprising that the copy of the decree dated 26th April, 1972 was not produced on the record. It appears that the whole file of the earlier suit was there before the trial court and the parties proceeded with the assumption that such a decree exists. Moreover, the lower appellate court has reproduced the said decree in para 10 of its judgment which is to the following effect:—
“This is a suit filed by Nachhatar Singh plaintiff against Kaula Singh defendant for the declaration that the plaintiff is owner in possession of land measuring 144 Kanals 7 Marlas and one plot as described in the heading of the plaint by reason of family arrangement. The defendant has appeared and filed written statement admitting the claim of the plaintiff. His statement was recorded wherein he admitted the claim of the plaintiff. The parties seem to have compromised. In view of the admission of the claim of the plaintiff by the defendant, the suit of the plaintiff is decreed as prayed for in the plaint leaving the parties to bear their own costs.”
6. The main controversy between the parties in this appeal is as to whether the said decree obtained by Nachhatar Singh against Kaula Singh could be challenged in the present suit by the plaintiffs or not and if so on what grounds the said decree could be challenged and whether any valid title has passed to defendant Nachhatar Singh on the basis of the said decree.
7. The learned counsel for the defendant-appellant vehemently contended that the decree could only be challenged under section 44 of the Indian Evidence Act and that too by a third party and not by a party to the suit in which the said decree was passed. In support of this contention he referred to Mt. Parbati v. Gajraj Singh . AIR 1937 All 28., Shripadgouda Venkangouda Aparanji…(Original Plaintiff), v. Govindgouda Narayangouda Aparanji…(Original Defendant), .* . AIR 1941 Bom 72., Parameswearn Nair v. Aiyappan Pillai . AIR 1959 Kerala 206. and Laxmi Narain Gododia v. Mohd. Shafi Bari . AIR 1949 East Punj 141.. On this question I do not find any merit in the contention raised on behalf of the appellant. section 44 of the Indian Evidence Act reads as follows:—
“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 Sections 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.”
8. Reading section 40 with section 44, it is evident that under section 40, the previous judgments are relevant to bar a second suit or trial. In other words, the earlier judgment operates as res-judicata. That will only be ordinarily between the same parties, and if that is so then the said judgment being relevant u/s 40 could be challenged if it was proved by the adverse party that the same was delivered by a court not competent to deliver it or was obtained by fraud or collusion. It is only u/s 41 and 42 of the Act when the judgment is relevant that even a third party can show that the same was delivered by a court not competent to deliver it or that it was obtained by a fraud or collusion. Even the judgments relied on by the learned counsel for the appellant do not support this contention. In Laxmi Narain Gododia's case (supra) it was held that section 44 is the only provision of law under which a judgment or an order or a decree which is sought to be proved with a view to establish the plea of res-judicata can be avoided. Similarly, in Tribeni Mishra v. Rampujan Mishra . AIR 1970 Patna 43. it was held that the right as given by section 44 Indian Evidence Act, has not been feterred by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or a decree etc., set aside by bringing a regular suit for the purpose. A decree or an order can be challenged on ground of fraud in a collateral proceeding without any suit for setting aside the decree irrespective of the time when the judgment was delivered or the order or the decree was passed. Similarly, in Mt. Parbait's case (supra) it was held that the meaning of section 44 of the Evidence Act is that if collusion is proved between the parties to a previous suit then the judgment in that suit which is relevant u/s 40 cannot act as a bar. Thus, the contention that no decree could be challenged by a party to the suit subsequently on the basis of fraud or collusion cannot be accepted as such. The authorities relied on by the learned counsel for the appellant do not lay down such a law and, in any case, the same are distinguishable on facts.
9. The second question that arises is as to whether the plaintiffs have been able to prove any collusion or fraud as to avoid the previous decree. The allegations made in the plaint to challenge the said decree have already been reproduced earlier. The collusion, if any, pleaded there in is that after the year 1955 when the Transfer of Property Act was made applicable to the territory of Punjab State, no oral transfer could be made of the immovable property worth more than Rs. 100/-. In this respect, the finding of the learned lower appellate court is in the following terms:—
“Moreover, it is quite settled law and there is no dispute that immovable property of the value of more than Rs. 100/- cannot be transferred orally, and, in my opinion, if it has been transferred by way of decree, it contravenes the provisions of Transfer of Property Act and, as such, transfer is not valid in the eye of law”.
10. To challenge this finding of the lower appellate court, the learned counsel for the appellant referred to section 2 (d) of the Transfer of Property Act which reads thus:—
“2. In the territories to which this Act extends for the time being the enactments specified in the schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect—
(a)XXX
(b)XXX
(c)XXX
(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law, or by, or in execution of, a decree or order of a Court of competent jurisdiction………”
11. I am afraid the said provision does not help the defendant-appellant to contend that since the suit property was transferred by a decree it was exempt from the provisions of the Transfer of Property Act. A copy of the plaint in the earlier suit filed on 1st March, 1972 (Ex.D3) is on the record. According to the allegations therein, the plaintiffs, i.e, the present defendant-appellant about four years back got the suit land in family partition along with the plot and was also made the owner thereof and possession was also given to him but the defendant therein promised to get the necessary entries made in the revenue record but later on refused to do so and he started claiming himself to be the owner. There is a mutation of partition between Kaula Singh and his brother Karnail Singh (Ex P5) showing that partition had taken place between the two brothers on 9th December, 1968. Thus, the question of family settlement four years prior to the filing of that suit could not arise. In any case, mutation on the basis of that decree was sanctioned vide Ex. P3 and it was for the first time by virtue of that mutation that the plaintiff was made the owner of the suit land. It is, therefore, evident that there was no transfer earlier as such in favour of the plaintiff making him owner of the suit property nor was there any deed executed in this behalf. In the absence of any transfer as such the plaintiff could not get the declaration of his being the owner of the suit, land on the strength of the decree unless it was duly registered as provided u/s 17 of the Indian Registration Act. In that situation, the said decree violated the provisions of the Transfer of Property Act and the defendant Nachhatar Singh could not claim himself to be the owner of the suit land on the basis of that decree alone even if it be assumed that there was no collusion or fraud as such alleged or proved by the plaintiff. That being so, the plaintiffs could avoid that decree as to operate as res-judicata against them because no title passed to the defendant Nachhatar Singh on the basis of that decree alone. Therefore, the finding of the lower appellate court in this behalf has to be maintained. The argument that the transfer was based on a family arrangement was never proved, either in the earlier suit or in the present suit, and except the oral evidence there was no documentary evidence produced by the defendants in this behalf. Even the lower Appellate Court found that Kaula Singh deceased had not transferred the property by way of family settlement and the decree dated 26th April, 1972 is illegal and, thus, not binding on the plaintiff.
12. In these circumstances, the appeal fails and is dismissed with no order as to costs. Cross objections are also disposed of accordingly.
R.M.S
Appeal dismissed.
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