- Bookmark
- Share
- CaseIQ
Gurlingappa Shivappa Masali v. Sabu Ramappa Kore
Structured Summary of the Opinion
Factual and Procedural Background
This suit was brought by unnamed plaintiffs (names not provided in the opinion) seeking a declaration that a decree obtained by defendant 1 against defendant 2 was a collusive decree. The plaintiffs alleged that defendant 2, in order to defeat their equity under a partition decree, passed a hollow (bogus) sale deed in favour of his brother-in-law defendant 1 conveying one-half of his share in the three lands in dispute; defendant 1 then instituted Suit No. 332 of 1924 against defendant 2 on that sale deed and obtained an ex parte decree.
The Subordinate Judge found for the plaintiffs, holding that the decree in Suit No. 332 of 1924 was collusive and granted a declaration to that effect. Two appeals followed: Appeal No. 99 (by the plaintiffs) contended that the lower Court should not merely have given a declaration but should have set aside the decree; Appeal No. 101 (by defendant 1) attacked the grant of the declaration. The District Judge (lower appellate Court) dismissed the plaintiffs' suit and refused to allow an amendment sought in appeal (Ex. 10), primarily on the grounds that the plaintiffs had not asked in their plaint for setting aside the decree and that there was no evidence of collusion. The District Judge also relied on the decision in Ram Sarup v. Rukmin Kuar.
On second appeal (the present opinion), the plaintiffs argued that the lower Court ought to have given the declaration even though consequential relief had not been pleaded, and that the plaint should be permitted to be amended to include a prayer to set aside the decree.
Relevant background facts: defendant 2 (Somanna) and his nephew Ramalingappa owned eleven lands including the three lands in suit. Ramalingappa sued for partition in 1919; the present plaintiffs were transferees of eight of the lands (other than the three in suit). The partition decree directed that lands in the possession of the present plaintiffs should, as far as possible, be allotted to defendant 2's share. Two days after that decree (3 September 1921) defendant 2 sold a half-share in the three lands to defendant 1. In 1924 defendant 1 sued defendant 2 for partition (Suit No. 332); the present plaintiffs applied to be joined but the application was refused and an ex parte decree was obtained by defendant 1.
Legal Issues Presented
- Whether the decree obtained by defendant 1 against defendant 2 (Suit No. 332 of 1924) was collusive and therefore liable to be set aside.
- Whether the plaintiffs should be permitted to amend their plaint (even in second appeal) to incorporate a prayer for setting aside the decree when the plaint originally sought only a declaration.
- Whether a declaration alone (without consequential relief) is effective for the plaintiffs' purposes, or whether the absence of a specific prayer to set aside the decree rendered the suit non-maintainable.
Arguments of the Parties
Plaintiffs' Arguments
- The decree obtained by defendant 1 against defendant 2 was collusive because defendant 2 executed a hollow sale deed in favour of defendant 1 two days after the partition decree, intended to defeat the plaintiffs' equity under the partition decree.
- Even though the plaint did not expressly pray for setting aside the subsequent decree, the plaintiffs should be permitted to amend the plaint (the omission resulted from a drafting mistake) to include consequential relief to set aside the decree.
- They argued that the trial court should have given the declaration even if consequential relief had not initially been pleaded.
Defendant 1's Argument
- Defendant 1 appealed (Appeal No. 101) against the grant of the declaration by the Subordinate Judge. The opinion does not set out detailed points of defendant 1's submissions beyond the fact of that appeal.
Defendant 2's Argument / Written Statement
- In his written statement (Ex. 16, para. 6) defendant 2 asserted: “Plaintiffs have no right whatever over the lands in suit and hence their suit to set aside the decree is not maintainable.”
- The District Judge treated the case as one where the plaintiffs had not sought consequential relief in the plaint; the District Judge also found no evidence of collusion and relied on precedent (Ram Sarup v. Rukmin Kuar) and on limitation/pleading objections in refusing amendment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Sarup v. Rukmin Kuar | Not specified in text; cited by the District Judge in support of his decision. | The District Judge relied upon this decision in upholding non-maintainability / dismissing the plaintiffs' suit; the present Court noted that the District Judge had relied on it. |
| Narayan v. Nathaji Durgaji | Affirms the principles (from Pandurang Anandrav and Udaram Sitaram) governing partition decrees: prior purchasers/incumbrancers have an equity to priority but not a strict right; equitable considerations depend on circumstances. | The Court invoked this principle to hold that the plaintiffs had an equity against defendant 2 that the lands should be allotted so as to protect the plaintiffs' position in partition. |
| Pandurang Anandrav v. Bhaskar Shadashiv | One of the authorities forming the settled law on distribution/allocation in partition—prior purchasers/incumbrancers' equitable priority. | Cited (through Narayan) as part of the established law on partition and equities which informed the Court's view of the plaintiffs' position. |
| Udaram Sitaram v. Ranu Panduji and Venku Panduji | Also part of the body of authorities settling the law governing partition decrees and equitable priority of prior purchasers/incumbrancers. | Cited (through Narayan) to support the proposition that the plaintiffs possessed an equity recognised by the partition decree. |
| Charan Das v. Amir Khan (Privy Council) | Authority that courts may allow amendment of a plaint where the plaintiff, through a bona fide drafting mistake, asserted rights in a form not permitted by statute; special circumstances can justify amendment though generally amendment should not deprive a defendant of a right acquired by lapse of time. | The Court relied on this authority to permit the plaintiffs to amend the plaint to add a prayer for setting aside the decree, treating the omission as a bona fide drafting mistake. |
| Sheoptujan Rai v. Kesho Prasad Singh | Holds that an appellate court may allow an amendment where the plaintiff bona fide framed the suit believing a consequential relief was not open, and in such circumstances amendment is justified. | Used to support allowing the amendment of the plaint in the present case (even in second appeal) because the plaint was framed bona fide. |
| Kondi v. Chunlal | Provides the meaning of "collusion" in relation to judicial proceedings: a secret agreement to institute a suit to obtain a judicial decision for some sinister purpose, or a deceitful agreement to prejudice a third person. | The Court applied this definition to explain how, if the sale-deed was a hollow transaction, an inference of collusion between defendant 1 and defendant 2 would properly follow. |
| Field's Law of Evidence (Edn. 8) | Textual support for the meaning of "collusion" (secondary authority). | Quoted as corroborative authority for the definition and legal understanding of collusion used in the Court's analysis. |
Court's Reasoning and Analysis
The Court proceeded through the following analytical steps, relying only on the material set out in the opinion:
- Identification of the plaintiffs' position: the Court accepted that the plaintiffs, although not entitled to a specific proprietary right in the three lands, possessed an equity recognised by the earlier partition decree in that lands in their possession should as far as possible be allotted to defendant 2's share so that the plaintiffs' interest would be protected.
- Examination of the timing and nature of the sale: the sale by defendant 2 to defendant 1 occurred two days after the partition decree (3 September 1921). The Court held that it was not open to defendant 2 to execute a bogus sale immediately after the partition decree if the purpose was to defeat the plaintiffs' equity.
- Distinction between valid sale and hollow sale: the Court emphasized the factual nature of the inquiry — if the sale-deed to defendant 1 were for valuable consideration, the plaintiffs would fail on the merits; but if the sale were a hollow transaction, that would support an inference of a collusive understanding that the subsequent decree was obtained to prejudice the plaintiffs.
- Procedural defect in the plaint: the Court acknowledged that the plaint, as drafted, sought only a declaration and did not specifically pray for setting aside the decree. The Court observed that this omission was a drafting mistake and that a mere declaration, even if granted, would be ineffective for the plaintiffs' practical purposes in execution of the partition decree.
- Power to allow amendment: the Court considered authorities (including Charan Das v. Amir Khan and Sheoptujan Rai v. Kesho Prasad Singh) which permit amendment in special circumstances where a plaintiff bona fide framed the relief incorrectly. The Court noted that, in the written statement, defendant 2 appeared to have understood the plaint as seeking setting aside the decree (Ex. 16, para. 6), and that the plaintiffs had attempted to seek the consequential relief in appeal (Appeal No. 99).
- Rejection of the lower appellate Court's refusal to allow amendment: while the District Judge considered the proposed amendment as constituting a new case (and invoked limitation/pleading objections), the present Court concluded that under the peculiar facts — a bona fide drafting omission and the equitable nature of the plaintiffs' claim — the amendment should be permitted even in second appeal.
- Remedial direction and triable issue on facts: the Court allowed the amendment, reversed the decree of the lower appellate Court, and remanded the matter for the District Judge to determine on the merits whether the sale deed of 3 September 1921 was a hollow transaction or for valuable consideration. The Court explained the consequences of each possible factual finding: if for valuable consideration, the plaintiffs' suit must fail; if hollow, that would justify inferring collusion and permitting appropriate relief.
Holding and Implications
Core Ruling: The Court reversed the decree of the lower appellate Court, allowed the plaintiffs to amend their plaint to incorporate a prayer for setting aside the decree in Suit No. 332 of 1924, and remanded the case to the lower Court for decision on the merits as to whether the decree was obtained in collusion.
Direct implications for the parties:
- The plaintiffs are permitted to amend the plaint to seek the consequential relief of setting aside the decree obtained by defendant 1 against defendant 2.
- The case is remanded to the District Judge to determine whether the sale-deed of 3 September 1921 was supported by valuable consideration or was a hollow transaction; if the sale was bona fide and for consideration, the plaintiffs' suit will be dismissed on merits; if it was hollow, the decree obtained by defendant 1 may be regarded as collusive and be set aside.
- The plaintiffs were ordered to pay the costs of defendant 1 incurred up to date.
The opinion does not announce a novel legal principle or broader precedent beyond applying established authorities on amendment and the concept of collusion; rather, it applies existing precedent (notably Charan Das and Sheoptujan Rai) to the specific facts and procedural posture (including second appeal) of this case.
Disposition: Decree reversed; case remanded for determination of whether the decree in Suit No. 332 of 1924 was obtained in collusion. Plaintiffs to pay costs of defendant 1 to date.
1. This is a suit brought by ??? plaintiffs for a declaration that the decree obtained by defendant 1 against defendant 2 was a collusive decree on the round that defendant 2 in order to ??? the plaintiffs passed a hollow ale deed to his brother-in-law defendant of his share in the plaint lands and that subsequently in collusion with defendant 2, defendant 1 brought a suit against defendant 2 on this sale deed and obtained an ex parte decree.
2. The learned Subordinate Judge held that the plaintiffs were entitled to maintain the suit and that the decree in Suit No. 332 of 1924 was obtained by defendant 1 collusively with defendant 2 as alleged by the plaintiffs, and therefore have a declaration that the decree was inclusive.
3. Two appeals were filed against the decree, Appeal No. 99 by the plaintiffs ??? that the lower Court ought not to Lave merely given the declaration but ??? to have net aside the decree, and Appeal No. 101 by defendant 1 attacking he grant of the declaration. The learned district Judge held that the suit was not ??? on two grounds: firstly, that he plaintiffs did not ask for setting aside he decree in the plaint and therefore could not sue for a declaration, and secondly, there was no evidence of collusion, and also relied upon the decision in he case of Ram Sarup v. Rukmin Kuar (1). With regard to the application for amendment, Ex. 10, which was filed in appeal, the learned Judge was of opinion but it was a new case quite different ??? the case made before the Subordinate Judge, and that even if Article 91, Lim. Act, did not apply, Article 120 would ??? applicable to a suit to set aside the lie, and the amendment of the plaint could deprive the defendant of the defence of limitation. He therefore rejected the application for amendment, and dismissed the plaintiffs' suit. On second appeal it is urged that the lower Court ought to have given the declaration even though the plaintiffs did not ask for consequential relief, and it is further urged that if the consequential relief was not asked for in the plaint, the plaint should be allowed to be amended by incorporating the relief with Regard to the setting aside of the decree.
4. It appears that defendant 2 Somanna and his nephew Ramalingappa owned 11 lands including the three lands in suit. Ramalingappa brought a suit for partition against defendant 2 in the year 1919 for partition of his half-share. The present plaintiff was a transferee of eight of the lands other than the three lands in suit. In the decree for partition it was directed that the lands in possession of the present plaintiff should be allotted as far as possible to the share of defendant 2. Two days after the decree, i.e, on 3rd September 1921, defendant 2 sold one-half share in the remaining three lands-to defendant 1, and in the year 1924, defendant 1 brought Suit No. 332 against defendant 2 for partition of the lands in suit. The present plaintiffs made an-application that they should be joined as parties. Their application was not allowed and an ex-parte decree was obtained by defendant 1.
5. In Narayan v. Nathaji Durgaji (2) it was held that the principle laid down in Pandurang Anandrav v. Bhaskar Shadashiv (3) and Udaram Sitaram v. Ranu Panduji and Venku Panduji (4) has settled the law governing decrees for, partition. Prior purchasers or incumbrancers are, as far as possible, entitled to priority but not as a matter of right. It is only an equity and the question how and where the equity should be invoked in aid of a party must depend upon equitable considerations which, again, must depend on the circumstances of each case.
6. Though the plaintiffs cannot be said to be entitled to any specific right in any property, much less in the three lands in suit, there is no doubt that the plaintiffs have an equity as against defendant 2 to have the lands allotted to his share in order that in the partition decree the lands may be given to the present plaintiffs as far as possible. It was not therefore open to defendant 2, two days after the decree, to pass a bogus sale deed in favour of defendant 1 in order to defeat the plaintiffs' equity, and if, as contended by the present plaintiffs, the sale deed in favour of defendant 1 was a hollow sale deed, the direct result of the transaction would be to defeat the equity in favour of the plaintiffs. Subsequently, after three years, defendant 1 obtained a decree against defendant 2 and got one-half of the three lands. In that suit the present plaintiffs made an application to be made parties, but that application was ??? disallowed. The plaintiffs, therefore cannot enforce their equity in the execution proceedings of the partition decree unless they bring a?suit to set aside the subsequent decree obtained by defendant 1. If the sale by defendant 2 in favour of defendant 1 is for valuable consideration, the plaintiffs will be bound to fail on the merits. But assuming that the transaction was a bogus sale, the plaintiffs as purchasers who had an equity in their favour recognized by the partition decree were entitled to sue for a declaration that the decree obtained by defendant 1 was collusive and should the set aside. The objection to the grant of the declaration in the lower Court was that there was no prayer for setting aside the decree. The plaint appears to have been not properly drafted. There ought to have been not merely a prayer for a declaration, but a relief ought to have been asked for for setting aside the decree, for even if a declaration had been granted it would have been of no use to the present plaintiffs in execution of the decree in the partition suit.
7. The question therefore now is whether the plaintiffs should be allowed to amend the plaint by incorporating the relief for setting aside the decree. Various cases have been cited in the argument, but it appears that owing to some mistake of the person drafting the plaint, the relief has not been asked for, and if the action of the plaintiff is bona fide, the amendment can be allowed under the ruling of the Privy Council in Charan Das v. Amir Khan (5). At p. 116 (of 48 Cal.) it is observed:
“If this be so, all that happened was that the plaintiffs, through some clumsy blundering at tempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit.”
8. And it is further observed that under special circumstances the Court has power to allow the amendment of the plaint though as a general rule suet power should not be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time. The plaintiffs asked for a declaration that the decree obtained by defendant 1 against defendant 2 was a collusive decree. The written statement of defendant 2, Ex. 16, para. 6 runs as follows:
“Plaintiffs have no right whatever over the lands in suit and hence their suit to set aside the decree is not maintainable.”
9. It appears that defendant 2 understood the plaint as asking a prayer not only for a declaration but also for setting aside the decree. After the declaration was given by the Subordinate Judge, the plaintiff filed appeal No. 99 in which the asked for setting aside the decree. In the lower appellate Court it appears that the amendment sought to be made in the plaint related to the relief to have that sale-deed set aside, and the learned Judge properly disallowed that amendment. In second appeal it is now urged that the only amendment that ought to be allowed would be by incorporating a relief in the plaint with regard to the setting aside of the decree. In Sheoptujan Rai v. Kesho Prasad Singh (6) it was held that although an appellate Court will not ordinarily allow an amendment ??? the plaint where the plaintiff has elected to go to trial upon the issue whether the frame of the suit is correct notwithstanding the objection of the defendant that he suit offended against Section 42 of the Specific Relief Act, yet, where the plaintiff he framed his suit bona fide, believing the consequential relief is not open to ??? and that he is entitled only to declaration, the Court is justified in allowing a amendment of the plaint. In the plaint an allegation was made that the decree was obtained by collision. The learned Judge during to course of his judgment stated that the was no evidence to hold that the obtainment of the decree was collusive. According to the decision in Kondi v. Chunlal (7) the word “collusion” when used in connexion with judicial proceedings means a secret agreement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose, or even in the wider sense of a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose. To the same effect are the observations in Field's Law of Evidence, Edn. 8, at p. 377. If the sale-deed passed by defendant 2 in favour of defendant 1 was for valuable consideration, the plaintiffs' suit is bound to fail. If on the other hand the sale deed was a hollow sale deed, it would clearly follow that there was some understanding between defendant 1 and defendant 2 that the decree should be obtained in order to prejudice the equity of the present plaintiffs. I think therefore that under the peculiar circumstances of this case the amendment should be allowed even in second appeal.
10. I would therefore allow the plaintiffs to amend the plaint incorporating therein a prayer for setting aside the decree in suit No. 332 of 1924, and would therefore reverse the decree of the lower Court and send the case back to the Court in order to determine whether the decree obtained by defendant 1 against defendant 2 was obtained in collusion with defendant 2. In considering that question it will be open to the District Judge to consider whether the sale deed passed by defendant 2 in favour of defendant 1 on 3rd September 1921, two days after the partition decree, was a hollow transaction or was for consideration. If the learned District Judge comes to the conclusion that the document was for valuable consideration the plaintiffs' suit will have to be dismissed. If on the other hand, he comes to the conclusion, on taking into consideration the document and the other circumstances in the case, that the sale-deed was a hollow transaction, there would be adequate ground for inferring that the decree obtained by defendant 1 against defendant 2 was a collusive decree.
11. I would therefore reverse the decree of the lower appellate Court and remand the case to the lower appellate Court for decision on the merits in the light of the remarks made in this judgment. The plaintiffs to pay the costs of defendant 1 incurred up to date.
V.B/R.K
12. Decree reversed: Case remanded.
Alert