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Jiwan Singh v. Kuar Reoti Singh
Concise Analytical Summary of the Opinion
Factual and Procedural Background
This appeal arises from a suit seeking a declaration that an ex parte decree in Suit No. 11 of 1922 (Raja Jiwan Singh v. Kunwar Tara Singh and others) passed by the revenue Court on 3 February 1923 was vitiated by fraud and that all proceedings consequent upon that decree were void and not binding on the plaintiffs.
Facts relevant to the dispute (as stated in the opinion):
- There is a small estate known as Eka Raj in Mainpuri held by the defendant-appellant Raja Jiwan Singh as Raja and Gaddi Nashin.
- The plaintiffs and several defendants are junior members descended from a common ancestor and historically received maintenance (cash or property) from the Raj; specifically a hamlet called Nagla Rajpur (about 658 acres) was given for maintenance and registered originally in the khewat, later entered in the jamabandi; the occupants paid Rs. 590 as rent.
- In 1922 Raja Jiwan Singh sued Har Govind Singh (father of the plaintiffs) and others for arrears of rent; the defendants did not contest and an ex parte decree was passed on 3 February 1923.
- Decretal non-payment led to proceedings under Section 59 of the Agra Tenancy Act, culminating in ejectment and formal possession obtained by the decree-holder on 31 December 1923.
- The plaintiffs challenged the decree and execution proceedings on grounds of fraud.
At trial the court framed multiple issues (eight in total, three material issues were identified), the trial court dismissed the plaintiffs' suit, the lower appellate court reversed and declared the rent decree and subsequent ejectment proceedings ineffectual and not binding on the plaintiffs, and the defendant appealed to the present court (second appeal).
Legal Issues Presented
- Was the decree in Suit No. 11 of 1922 obtained by defendant 1 (Raja Jiwan Singh) by fraud?
- Were the proceedings under Section 59 of the Agra Tenancy Act taken after the date of the decree fraudulent?
- Are the plaintiffs (or their father) dead and, if so, do they have the right to maintain the suit?
Arguments of the Parties
Plaintiffs' Arguments
- The ex parte decree and execution were procured by fraud: Raja Jiwan Singh "had conceded the real and alleged fraudulent facts" in the rent suit and had taken steps to conceal the true situation.
- Although the rent suit named Har Govind Singh, he had been dead at the date of institution (plaintiffs allege), yet Raja Jiwan Singh sued him as if alive and impleaded him as insane and placed under the guardianship of Mt. Parbati Kuar (the plaintiffs contend the true wife was Mt. Jaidevi Kuar).
- Summons were served fictitiously, fraudulently and clandestinely, and the fraud continued through execution of the ex parte decree under Section 59 (Act 2 of 1901).
- The plaintiffs produced evidence (oral testimony and attempts to challenge the production of a man in Court) to show Har Govind had died earlier and was not insane; they alleged the production of a man in Court and a photograph were part of a contrived attempt to sustain the ex parte decree.
Defendant (Raja Jiwan Singh)'s Arguments
- Raja Jiwan Singh denied that Har Govind Singh was dead at the date of the rent suit and asserted that Har Govind was a lunatic; thus the ex parte decree and execution were valid and not vitiated by fraud.
- The written statement was signed and verified by Tilak Singh, the Raja's General Attorney, and contained denials regarding Har Govind's death and sanity.
- Tilak Singh later gave oral statements indicating uncertainty about Har Govind's whereabouts but asserted he had found Har Govind at Hathras and produced a man and a photograph in Court as proof; the trial court accepted that man as Har Govind and found him insane.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ganga Narain Gupta v. Tiluk Ram | Affirms the established rule of pleading that, when fraud is alleged, particulars of the fraud must be set out; general allegations of fraud are insufficient. | The court applied this rule to evaluate whether the plaintiffs had sufficiently particularised the charge of fraud. The court concluded that—contrary to the defendant's objection—fraud had been pleaded with sufficient detail in this case. |
Court's Reasoning and Analysis
The court proceeded by addressing the required standard for setting aside a decree on the ground of fraud and then by assessing the evidentiary record made at trial and on appeal.
- Standard for pleading fraud: The court reiterated the settled principle (citing Ganga Narain Gupta v. Tiluk Ram) that when fraud is alleged the plaintiff must particularise the circumstances that constitute the fraud; mere general allegations are insufficient. The court therefore first examined whether the plaintiffs had met this pleading standard.
- Comparison of pleadings and evidence: The plaintiffs specifically alleged that Raja Jiwan Singh had sued Har Govind though he was dead, had falsely represented Har Govind as insane and placed him under guardianship of a wrongly named wife, and had procured summons and executed the decree by fictitious and clandestine means (including improper use of Section 59, Act 2 of 1901). On this basis the court found the plaintiffs' pleading of fraud detailed and sufficient to satisfy the requirement of particularity.
- Evaluation of trial-court findings: The trial court had accepted evidence that a man produced in court was Har Govind and found him insane, relying largely on two facts—identity with a photograph and identification by a witness Pitambar. The appellate court, however, was not satisfied with the provenance of that man (Tilak Singh’s account of finding him in Hathras was opaque and the intermediary arhatia was unnamed and unproduced). The appellate court also discounted Pitambar's identification because Pitambar was not a resident of the village where Har Govind had lived and had not seen him for 10–11 years; at best Pitambar could say the photograph resembled how Har Govind appeared a decade earlier.
- Application of presumptions under Section 108, Evidence Act: The opinion notes Section 108 (presumption of death where a person has not been heard of for seven years) and explains its limited operation: it gives rise only to a presumption as to the fact of death (that the person is dead at the date of suit) and does not establish the precise time of death. The court held that, although Har Govind had not been heard of for about 10–11 years (which could trigger the presumption he was dead by the date of the rent suit), there was no material before the appellate court to establish the exact time of death; therefore the appellate court was not justified in holding that Har Govind was dead specifically in 1922 when the rent suit was instituted. To that extent the appellate finding was erroneous and set aside.
- Fraud in procurement and execution of decree: Despite the appellate court's mistaken conclusion as to the exact date of death, the present court found that the lower appellate court had sufficient material to conclude that the ex parte decree and the subsequent ejectment proceedings were vitiated by fraud. The court identified a pattern of conduct by the defendant-appellant—from institution of the suit through execution—that was adverse to the plaintiffs' interests, noting the defendant's use of unclear procedures (and possibly fabricated evidence) and the unreliability of key identifications relied upon by the trial court.
- Assessment of witness credibility and evidentiary weight: The court criticised reliance on certain testimony (notably Pitambar), pointed out inconsistencies in Tilak Singh’s statements, and observed that the written statement was not signed by the Raja himself but by his general attorney, indicating limitations in the defendant's case. The court judged that the trial court had given undue weight to the identification of the man produced in Court and the photograph, whereas the appellate court more reasonably appraised those items at lower value.
- Conclusion from analysis: Balancing these factors the court concluded that, although a particular finding of death in 1922 was not supportable, the overarching finding that the ex parte decree and the ejectment proceedings were vitiated by fraud was supported by the record. Given that finding of fraud in the procurement and execution of the decree, the defendant-appellant's second appeal could not succeed.
Holding and Implications
Holding:
The court's final disposition was to dismiss the appeal (the second appeal) with costs.
Immediate implications (direct effect on the parties):
- The lower appellate court's substantive conclusion that the rent decree and the subsequent ejectment proceedings were vitiated by fraud stands as the operative determination endorsed by this court (subject to the limited correction noted below concerning the date of death).
- As a practical consequence (as ordered by the lower appellate court and accepted by this court), the parties who were dispossessed are to be restored to the position they occupied prior to the passing of the rent decree; the defendant (Raja Jiwan Singh) may, if advised, revive the rent proceedings and properly represent Har Govind Singh in them.
- The appellate court's specific finding that Har Govind died in 1922 was reversed: the present court held there was no sufficient material to fix the actual time of death to 1922, noting Section 108 of the Evidence Act only raises a presumption of death as of the date of suit where a person has not been heard of for seven years, and does not establish the precise time of death.
Broader implications:
The opinion does not purport to lay down any novel principle of law or a new precedent beyond applying established rules on pleading fraud and the limited scope of the presumption under Section 108 of the Evidence Act. The decision focuses on the facts of the case and the application of settled legal principles to those facts; no broader precedent was announced in the opinion.
Decision: Appeal dismissed.
Sen, J.:— The suit, which has given rise to this second appeal, was for a declaration that an ex parte decree in suit No. 11 of 1922 in re, Raja Jiwan Singh, plaintiff v. Kunwar Tara Singh, defendants passed by the revenue Court on 3rd February 1923 was vitiated by fraud and that the entire proceedings consequent upon the said decree were void, ineffectual and not binding upon the plaintiffs.
2. There is a small estate in the district of Mainpuri known as Eka Raj which is held by the defendant appellant as Raja and Gaddi Nashin. The plaintiffs and defendants 1, 2 and 3 and the husbands of defendants 4 and 5 are descended from a common ancestor. Raja Jiwan Singh, a defendant 1, who is the appellant in this Court is the accredited head of the family. The junior members of the family received from generation to generation either some cash allowance or some property for their maintenance. In pursuance of this custom the plaintiffs and their father Kunwar Har Govind Singh and defendants 2 and 3 and the husband of defendant 4 had received from the Raj a hamlet called Nagla Rajpur for their maintenance. The names of the maintenance holders were originally entered in the khewat but in recent years their names have been removed from the khewat and have been entered in the jamabandi and they have been paying Rs. 590 as rent for the land in Nagla Rajpur which is in their occupation. The area of this land is about 658 acres.
3. In 1922, Raja Jiwan Singh instituted a suit against Har Govind Singh, father of the plaintiffs, Kunwar Tara Singh, Kunwar Sheobaran Sihgh and Mt. Bhawani Kuar for arrears of rent. The defendants did not contest the suit and an ex parte decree was passed on 3rd February 1923. The judgment-debtors having failed to pay the decretal amount, proceedings were initiated under Section 59 of the Agra Tenancy Act with the result that they were ejected from the holding and the decree-holder obtained formal possession on 31st December 1923. The plaintiffs impugned the decree and the execution proceedings in pursuance of the decree on the ground of fraud. The defendant pleaded that the plaint was bad because the particulars of fraud had not been clearly set out.
4. Where a suit is instituted to set aside a decree on the ground of fraud, it is obligatory and imperative on the plaintiff to prove that the decree was obtained by fraud practised upon the Court. General allegations of fraud are insufficient and the plaintiff must particularise the facts upon which fraud is founded. In Ganga Narain Gupta v. Tiluk Ram (1) it was held by the Judicial Committee that when fraud is charged against the defendant, it is an acknowledged rule of pleading that the plaintiff must set forth the particulars of the fraud which he alleges, and that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. Where the fall particulars of fraud have not been set out in the pleadings it will be most unreasonable to expect the defendants to meet the charge of fraud.
5. The plaintiff seeks to avoid the ex-parte decree upon the ground that Raja Jiwan Singh in the suit for arrears of rent “had conceded the real and alleged fraudulent facts.” They develop this part of the case by going into details to the rent suit was directed not against the plaintiffs but against their father Har Govind Singh and defendants 2 to 4. The plaintiffs alleged that although Har Govind was dead on the date of the institution of the rent suit, Raja Jiwan Singh had sued him as a person alive. He was impleaded as a person insane and was placed under the guardianship of Mt. Parbati Kuar, his wife. The name of Har Govind Singh's wife was not Parbati Kuar but was Mt. Jaidevi Kuar. Raja Jiwan Singh as a member of the family was fully aware of these facts. He got the summons to be served “fictitiously, fraudulently and clandestinely” and continued the fraud in the execution of the ex parte decree under S. 59, Act 2 of 1901. We are of opinion that fraud has been set out in detail and with sufficiency and the defendant's contention to the contrary is of no force.
6. The sole contesting defendant was Raja Jiwan Singh. He denied that the plaintiffs' father was dead at the date of the suit. He maintained that the plaintiffs' father was a lunatic and that the decree passed ex parte against him and the proceedings in execution thereof which culminated is the ejectment of the judgment-debtors were validly obtained and were not vitiated by fraud.
7. The Court of first instance struck no less than eight issues, only three of which are material for the purpose of this appeal:
“(1) Was the decree in suit No. 11 of 1922 obtained by defendant 1 by fraud (2) Were the proceeding under Section 59. Agra Tenancy Act taken after the date of the decree aforesaid fraudulent?….(8) In the further of the plaintiffs dead and have they no right to maintain the suit.”
8. The trial Court susbtained the defence and dismissed the plaintiffs' suit.
9. It may be noted that the written statement was not signed or verified by Raja Jiwan Singh, defendant 1. It is signed and verified by one Tilak Singh, General Attorney of the Raja. The written statement stops short with the denial that Har Govind Singh was dead at the date of the rent suit. He also traverses the statement that Har Govind Singh was never insane. It does not appear be have been a substantive part of the defendant's case that Har Govind Singh was still alive or that he was alive and was the victim of insanity in the year 1922 when the rant suit was instituted against him.
10. Tilak Singh made a statement in Court under O. 10, R. 1 of the CPC, on 13th February 1925, in which he says:
“Har Govind has been made for a long time. He is alive. I do not know where he is. He has not been heard of foe 1½ or 2 years. Before that he used to live in Shyamur, a Nagla of Eka. The plaintiffs' mother is alive. Her name is Mt. Parbati Kunwir.”
11. Of the two plaintiffs, Raoti Singh who is adult was examined by the Court, and he stated that his fathar Har Govind Singh had died at Hardwar about 10 or 11 years ago, that his father was never bad and that the plaintiffs or their mother did not gab any information of the decree for arrears of rent and the subsequent ejectment.
12. The plaintiffs closed their evidence on 16th August 1926. On 17th August 1926, Tilak Singh stated in the course of his deposition in Court that he had alighted upon Har Govind Singh, at Hathras on 8th August 1926 and had got him photographed. A photograph was shown to Kuar Reoti Singh, plaintiff and he denied that it was the photograph of his father Har Govind Singh. The photograph was shown to one Pitamber, a witness for the plaintiffs who is resident of Hamoth or Arnoth, a village in the district of Aligarh. The witness identified this photograph to be that of Har Govind Singh. On 24th August 1926 a man was actually introduced in Court as Har Govind Singh, father of the plaintiffs. Some attempt was made to procure the attendance of the plaintiffs in Court with a view to asertain from them if this man who was produced on 24th August 1926, was really their father. The plaintiffs did not turn up. The Court of first instance, came to the conclusion that the man who was introduced in Court was really the plaintiff's father. It further came to the conclusion that he was insane. The finding of the trial Court was mainly influenced by two facts: (1) That the man produced in Court was identical with the man in the photograph and (2) that Pitambar who was witness for the plaintiffs had identified the man in the photograph as plaintiffs' father. The lower appellate Court accepted the evidence adduced by the plaintiffs and came to the following conclusions: (1) That Har Govind had disappeared from his village Nagla Shyampur 10 or 11 years before suit (2): that it must be presumed in law that he was dead; (3) that it must be presumed that be was not alive in 1922 when the rant suit was instituted against him (4); that he was not insane; (5) that on tin date of the institution of the rent suit he was not residing in mouza Shyampur Nagla nor was he under the guardianship of his wife and (6) that the rent decree and the ejectment proceedings were vitiated by fraud. The lower appellate Court therefore reversed the decree of the trial Court and passed the following order:
“The rent dacree, according to my finding, is in effect the as against Har Govind Singh or the present plaintiffs. On a declaration being made to that effect the result will be that the parties to the rent case will be restored to a position which they originally occupied prior to the pissing of the rent decree. On the rent decree and the subsequent proceeding taken on its basis being declared ineffectual, defendant 1 will have to restore the property to the plaintiffs. He may, if advised, revive the proceedings of the rent case and properly represent Har govind Singh in it and fight it out. The result is that I allow the appeal, set aside the order of the Court below and declare that the rent decree pissed and the proceedings of ejectment taken against Har Govind Singh in ineffectual and not binding upon the plaintiffs.”
13. The lower appellate Court was not at all satisfied that the man produced before the Court was the real Har Govind Singh. How Tilak Singh discovered this man in Hathras on or ahout 8th August 1926 is somewhat mysterions. His explanation is that he learnt of Har Govind Singh from an arhatia of Sanwant Khera Tilak Singh is unable to give the name of this arhatia. The arhatia did not accompany Tilak Singh in his search for Har Govind Singh. The arhatia has not been produced as a witness in the case. It is not unlikely that this arhatia is a figment of the imagination of Tilak Singh and does not exist in flesh. Considerable emphasis was laid by the trial Court upon the evidence of Pitambar. It ought to be remembered that Pitambar is not a resident of Nagla Shyampur where Har Govind Singh originally resided. It ought also to be borne in mind that Pitamber is not a member of the family of Har Govind Singh. He is the purohit and pundit of Har Sukh Singh, father-in-law of Har Govind Singh. For 10 or 11 years since Har Govind Singh's disappearance he had never seen Har Govind Singh. If any value is to be attached to the statement of this witness, it is no more than this that the man in the photograph is like Har Govind Singh as he was 10 or 11 years before the suit. It is remarkable that this 10 or 11 years' time had made no ravage upon Har Govind Singi and had trated him with remarkable tenderness. We are clearly of opinion that no importance could be attached to the statement of Pitamber and the lower appellate Court has appraised the said statement at its true value.
14. The finding of the Court below is that Har Govind Singh has not been heard of for the last 10 or 11 years. This finding may give rise to a presumption of law about his being dead and it may affect the question of onus. Section 108 of the Evidence Act, provides that when the question is whether a man is alive or dead, and it is proved thar he has not been heard of for 7 years by those who would naturally have heard of him if he has been alive, the burden of proving that he is alive is shifted to the person who affirms ib. The presumption raisad by this section is confine 1 to the factum of death and not to the exact time when death may have occurred. Where a party affirms that a certain person died on or before a particular date, that fact has to be established by positive evidence. Har Govind Singh not having been heard of by the members of his family who would naturally have heard of him if he had been alive for a period of more than seven years, a presumption arises that Har Govind Singh is dead ab the date of the suit but no presumption arises that Har Govind Singh was dead in the year 1922. There being no materials before the lower appellate Court to support a finding as be the actual time of the death of Har Govind Singh, the said Court was not justified in holding that Har Govind Singh was dead in 1922 when the rent suit was instituted against him. To this extent the finding of the lower appellate Court is erroneous and ought to be set aside.
15. The lower appellate Court had before it sufficient materials for coming be the conclusion that the ex parte decree for rent and the subsequent ejectment proceedings were vitiated by fraud. Har Givind Singh had been away from Nigla Shyampur for a long number of years before the institution of the rent suit. He was nevar insane. If living, he would be sui juris and could not be placed under the guardianship of his wife. From its inception right up to its finish the procedure adopted by the defendant-appellant does not redound be his credit and was bound be seriously prejudice the interest of the plaintiff-respondents in the property in dispute. We are of opinion that, in view of the finding of the lower appellate Court on the question of fraud, this appeal is bound to fail. We accordingly dismiss it with costs.
V.B/R.K
16. Appeal dismissed.
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