Shri Saeeduddin vs Shri Karimuddin & Ors.
2011 Latest Caselaw 428 Del

R-16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 20.01.2011
                  Judgment Delivered on: 25.01.2011

+            R.S.A.No.228/2003 & CM No.792/2003

SHRI SAEEDUDDIN                    ...........Appellant
             Through:          Mr.Amarjit Singh, Advocates

                   Versus

SHRI KARIMUDDIN & ORS.      ..........Respondents
             Through: Mr.R.K.Shukla, Advocates for
                       respondents no.7 to 15.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. The present appeal has impugned the judgment and decree

dated 25.9.2003 which had endorsed the finding of the trial judge

dated 08.2.2000 whereby the suit of the plaintiff Saeeduddin

seeking partition and rendition of accounts qua his 1/3rd share in

the property bearing No.141, Khureji Khas, Delhi had been

dismissed.

2. Plaintiff had filed the aforenoted suit. His contention was

that Karimmuddin and Allauddin, defendants no.1 and 2 had

purchased the suit property i.e. the property bearing No.141,

Municipal No.105, constructed on land measuring 266 sq. yards

from Smt. Khimiya widow of Abdul Gani. This purchase was made

for a consideration of `71,000/- o 10.5.1982. Defendants no.1 and

2 later on transferred 1/3rd of their share in the suit property in

favour of the plaintiff on a consideration of `23,700/-. Symbolic

possession of his 1/3rd share has also been given to the plaintiff on

10.9.1984. Plaintiff was thus the co-owner of 1/3rd share in the said

property along with defendants no.1 and 2. Defendants no.3 to 6

were the tenants in the suit property; they had attorned themselves

to defendants no.1 and 2 and had been paying rent to them.

Defendants no.7 to 15 had been impleaded as parties in terms of

the orders of the High Court dated 02.02.1984 passed in Civil

Revision No.328/1993. They were claiming right in this property

on the basis of a forged will dated 08.5.1983 purported to have

been executed by Khimiya pursuant to which a collusive decree

had been passed on 27.8.1984. It is contended that the defendants

no.7 to 15 are not in possession of the suit property. Plaintiff had

requested defendants no.1 and 2 to partition his share of the suit

property but they had not acceded to his request. Present suit was

accordingly filed.

3. In written statement filed by defendants no.1 and 2, they

denied that they had executed any document in favour of the

plaintiff; ownership of the plaintiff was specifically denied; they

denied that they had received any amount in lieu of any transfer of

share in favour of the plaintiff. They did not deny the fact that they

were collecting rent from defendants no.3 to 6 under the authority

of their wives who were the co-owners of the suit property.

4. Defendants no.3 & 6 had denied that they had attorned to

defendants no.1 and 2 as their landlords or that they had paid any

rent to them. Defendants no.4 and 5 admitted their tenancy with

Khimiya as also the fact that they were paying rent to defendants

no.1 and 2. Possession of the plaintiff was denied.

5. Defendants no.7 to 15 filed a joint written statement. Their

case was that they are the owners of 1/2 portion of the suit

property i.e. of 1/2 of 266 sq. yards which had belonged to

Salamuddin who was their father; half portion was in the share of

Smt. Khimiya. It was stated that defendants no.7 to 10 had

inherited this half share of Khimiya on the basis of her will dated

08.5.1983. The remaining half portion had been inherited by

defendants no.11 to 15 by way of succession after the death of

Salamuddin. Their case was that in the proceeding titled as RCA

No.21/1983 Salamuddin Vs. Khimiya the aforenoted defendants

had been brought on record as the only legal representatives of

Smt.Khimiya on the basis of her will dated 08.5.1983. An

application of the present defendants i.e. defendants no.1 and 2

namely Karimuddin and Allauddin under Order 22 Rule 10 of the

Code of Civil Procedure (hereinafter referred to as „the Code‟) had

been dismissed on 14.11.1983. Defendant no.7 to 15 now claimed

ownership of the suit property on the basis of the decree dated

27.8.1984 which had conferred rights upon defendants no.7 to 10

in terms of the will of Khimiya dated 08.5.1983. Suit was liable to

be dismissed.

6. The following six issues framed by the trial judge.

1. Whether this court has no pecuniary jurisdiction to entertain the suit? OPD

2. Whether the suit is bad for want of proper court fee? OPD

3. Whether the plaintiff is entitled to partition in respect of the suit property and one third share thereof? OPP

4. Whether the plaintiff is entitled to rendition of account to the extent of one third share? OPP

5. Whether the plaintiff is entitled to the recovery of interest pendentelite till the date of the recovery at the rate of 18%? OPP

7. Plaintiff had examined himself as PW-1. He had proved

general power of attorney (GPA), agreement to sell, affidavit and

receipt (Ex.PW-1/1 to Ex.PW-1/4) purported to have been executed

in his favour by defendants no.1 and 2. PW-2 had identified the

signatures on the aforenoted documents. The attesting witness to

the GPA was examined as PW-4. Defendants also examined five

witnesses in defence. Defendants no.1 and 2 denied that they had

executed any document in favour of the plaintiff; it was not

disputed that defendant no.1 had purchased this property from

Khimiya on 10.5.1982. DW-2 had proved Ex.DW-2/P-1 i.e. the

document of title executed by Khimiya in favour of defendants no.1

and 2. DW-7/1 Hakimuddin had deposed that the property was

originally owned by Khimiya and Salamuddin. Salamuddin had

filed a suit against Khimiya; this was a suit for declaration and

injunction. The judgment Ex.P-1 of this suit was delivered on

21.8.1982. Suit of Salamuddin had been dismissed. Appeal was

filed against the said judgment. During the pendency of the appeal

Khimiya expired on 21.5.1983. Defendants no.7 to 10 were

substantiated as legal representative of Khimiya on the basis of her

will dated 08.5.1983. Vide compromise decree Ex.DW-7/1A on the

compromise application Ex. DW-7/1B the matter was settled

between Salamuddin and the legal representatives of Khimiya.

This compromise decree Ex.DW-7/1A has evidenced that

Salamuddin became the absolute owner of property No.141,

Khureji Khas, Delhi.

8. The contention of the plaintiff that the decree Ex.DW-7/1A

dated 27.8.1984 was not binding upon the plaintiff was repelled.

This finding of the trial judge is contained in para 33 and reads as

follows:

"Ld. Counsel for the plaintiff had argued that the decree Ex.DW-7/1A is not binding on the plaintiff. I have given my thoughtful consideration to this submissions and I have formed opinion that plaintiff is bound by the judgment. It has been proved on record that defts. No.1 &2 had moved an application in RCA No.21/83 to be substituted as respondent in place of Smt.Khimiya who expired on 21.5.83 during the pendency of the appeal. Their application was based on the agreement to sell executed by Smt. Khimiya in their favour Defendant No.7 to 10 also made similar application on the basis of the Will dt.8.5.83, after considering both the applications ld. ADJ, Delhi vide its order dt.14.11.83 Ex.PW-7/1-C rejected the application of defts. No.1 &2 on the ground that the agreement to sell and GPA does not transfer the interest and the property in their favour and the application of the defendants No.7 to 10 was allowed. Admittedly the defts. No.1 &2 did not prefer any appeal, revision etc. against the said order in the higher courts. Therefore, so far as the right claimed on the basis of the GPA and agreement to sell in favour of defts. No.1 &2 is concerned, the same has become final by a judicial pronouncement. Counsel for the plaintiff argued that the plaintiff is not bound by the said order as he was not a party in that suit. It is the case of the plaintiff that he has purchased one third share from defts. No.1 and 2. Therefore, he is on the same footing as defts. No.1 and 2. He has also stepped in the shoes of defts. No.1 & 2. Since the judicial pronouncement qua defts. No.1 and 2 is final, the same is binding on plaintiff as well."

Trial judge held that the plaintiff not being a owner or co-

owner in the suit property suit was dismissed.

9. This finding of the trial judge was affirmed by the first

appellate Court. This contention was again raised before the

appellate Court which had also dismissed this argument of the

appellant. Relevant discussion emanates from para 9 to 11 of the

impugned judgment; they read as follows:

"9 Appellant challenges the claim of respondent No. 7 to 15 to the suit property based on judgment exbt.DW-7/1A and compromise exbt. DW-1/7B by contending that aforesaid compromise and judgment is based upon collusion and fraud and the trial court has erred in relying upon aforesaid documents to hold that respondents No. 7 to 15 are the owners of the suit premises. It is contended that in the alleged compromise, half of

the suit property was to fall in the share of respondents in RCA No. 21/83 who are the sons of the appellant therein and remaining half was to come to the share of the appellant therein but in the judgment Exbt. DW-7/1A, appellant therein has been declared to be owner of the entire suit property. To rebut this, it is pointed that in the compromise application exbt. DW-7/1B, it is clearly stated that municipal No. 106 would come to the share of Salamuddin and municipal No. 105 would come to the share of respondents No. 7 to 15. According to the appellant, judgment exbt. DW-7/1A is not binding upon the appellant because appellant was not a party to the judgment. It is pointed out by the appellant that municipal numbers 105 & 106 as stated in the compromise application do not find mention in the judgment exbt. PX-1 relied upon by the appellant and these municipal numbers are neither pleaded nor given in the evidence in the case culminating in judgment exbt.PW-1.

10. Appellant has placed reliance upon judgment reported in AIR 1994 Supreme Court 853, wherein, it was held that when decree is vitiated by fraud, the guilty party is liable to be thrown out at any stage. I am in respectful agreement with the above- state legal position. Section 44 of the Indian Evidence Act, 1872 provides that fraud or collusion in obtaining judgment has to be proved. Trial Court has rightly concluded that in earlier litigation in RCA No. 21/83, the present respondents No. 1 & 2 had filed an application for being substituted as legal representative of Smt. Khimiya but said application was dismissed in aforesaid appeal vide order exbt. DW-7/1C and respondents No. 1 & 2 had not challenged order exbt. DW-7/1C and the same has attained finality. Appellant has stepped into the shoes of respondents No. 1 & 2 as he claims to have purchased 1/3 portion of the suit property from respondents no. 1 & 2. Therefore, I do not find any substance in the contention of the appellant regarding judgment exbt.DW- 7/1A based upon compromise exbt. DW-7/1B not binding on the appellant because at no point of time, the appellant had challenged aforesaid compromise and judgment on the ground of being vitiated by fraud, although certified copies of compromise applicationexbt.DW-7/1B and judgment dated exbt. DW-7/1A passed in RCA no. 21/83 were placed on record of the suit file on 22.09.97. In my considered opinion, unless a declaration is sought by the appellant of the judgment exbt. DW-7/1A being vitiated by fraud is sought by the appellant, he cannot be permitted to orally challenge judgment exbt. DW-7/1A in these proceedings without laying any foundation of without leading any evidence to prove the alleged fraud.

11 In view of what is observed above, I hold that issue No. III has been rightly decided in favour of respondents No. 7 to 15 by the trial court. As a consequence, the consequential findings of the trial court on issues No. IV & V of the trial court are upheld."

10. This is a second appeal. It was admitted and the following

substantial question of law was formulated on 18.10.2010; it reads

as follows:

"Whether the judgment and decree dated 27.08.1984 in RCA No. 21/1983 titled as "Sh. Salamuddin Vs. Smt. Khimiya" was obtained by fraud and if so, its effect on the present proceedings?"

It is on this question alone that arguments have been

addressed. Learned counsel for the appellant has challenged this

compromise decree dated 27.8.1984 which had been passed in the

RCA No.21/1983 in the case titled Salamuddin Vs. Khimiya. It is

submitted that a decree obtained by fraud is nonest and not

binding on any Court. A separate suit does not necessarily have to

he filed to address this question of fraud. Fraud vitiates the entire

proceedings. For this proposition reliance has been placed upon

2007 SCC 543 Gram Panchayat of Village Naulakha Vs. Ujagar

Singh [ 2010] SCCR 405 Santosh Vs. Jagat Ram 2007 RLR 210

A.V. Papayya Sastry Vs. Government of A.P.. It is contended that

Court has inherent power under Section 44 of the Evidence Act to

set aside an order obtained by fraud. It is not binding from the

lower to highest Court.

This is an undisputed preposition. There is no quarrel to it.

It is contended that documents of transfer which included

general power of attorney, receipt and will do not necessarily have

to be registered; they are effective documents of transfer. In the

instant case defendants no.1 and 2 had executed the said

documents Ex.PW-1/1 to Ex. PW-1/4 in his favour. To support this

proposition reliance has been placed upon 1977 RLR 487 Harbans

Singh Vs. Shanti Devi, 1999 RLR 20 Kuldip Singh Vs. Surinder

Singh, as also 1986 RLR (Note) 89 H.L.Malhotra Vs. Nanak Jai

Singhani.

Learned counsel for the appellant has also placed reliance

upon the provisions of Section 17 of the Indian Registration Act. It

is pointed out that the compromise decree dated 27.8.1984 which

is the subject matter of the challenge before this Court even

otherwise requires a compulsory registration as it had effected

transfer of immovable property from one person to other; being

more in value than Rs.100/- it was hit by the bar of Section 17 of

the Resigation Act. To support this submission reliance has been

placed upon 2005(2) Civ.C.R.605 (pat.) Dilip Gupta &Anr.

Vs.Debashish Palit & Ors., 2008 RLR 4004(SC) K.Raghunandan Vs.

Ali Hussain Sabi.

11. Arguments have been countered. It is pointed out that the

submission made before this Court and the substantial question of

law as aforenoted have already been answered by the courts

below. Attention has been drawn to para 33 of the trial court and

paras 9 to 11 of the impugned judgment. Both the aforenoted

paras have already been quoted hereinabove. The submission is

that the question of fraud does not arise; the title of the plaintiff

has been denied from the very inception; defendants no.1 and 2

through whom the plaintiff is claiming have been held not to be co-

owners in the suit property; the plaintiff cannot get a better title

than that of his transferor. Counsel for the respondents has

placed reliance upon the judgment reported in AIR 2003 Delhi 120

G. Ram Vs. Delhi Development Authority ; as also the judgment

reported in AIR 1982 Cal. 222 Surjya Kumar Das Vs. Maya Dutta to

support the submission that a compromise decree passed in a suit

does not require any registration.

12. Record has been perused. The substantial question of law as

aforenoted by this Court has to be answered. This question

borders on the averment and the argument as to whether the

decree dated 27.8.1994 (Ex.DW-7/1A) had been obtained by fraud.

To answer this query, it is necessary to trace out the proceedings

not only between the plaintiff and defendant no.1 and 2 but also

the subsequently added defendants especially defendants no.7 to

15 who had been ordered to be impleaded under the orders of the

High Court. Case of the plaintiff is founded on his purchase of 1/3rd

share in the suit property from defendants no.1 and 2. The fact is

that both defendants no.1 and 2 have denied that they had

executed any document in favour of the plaintiff; they had

categorically denied the execution of Ex.PW-1/1 to Ex.PW-1/4,

plaintiff could not have got a better right than that of defendants

no.1 and 2. To recapitulate, the defendant no.1 Karimuddin and

defendant no.2 Allauddin were the sons of Saeuddin. The said

defendants had moved an application in RCA No.21/1983 to be

substituted in the place of Khimiya who had died on 21.5.1983;

they were claiming title on the basis of the agreement to sell

executed by Khimiya in their favour. Defendants no.7 to 10 had

also made a similar application to be substituted in place of

Khimiya on the basis and strength of the will dated 08.5.1983.

Vide order dated 14.1.1983 Ex.PW-7/1C the application of

defendants no.1 and 2 had been dismissed. Defendants no.7 to 10

had been substituted in place of Khimiya. No appeal or revision

had been filed against the said order by defendants no.1 and 2.

Rights of defendants no.1 and 2 had been extinguished on that

date. The plaintiff being a transferee and claiming only through

defendants no.1 and 2 could have claimed a better title than that

available to defendants no.1 and 2. Their rights having been

extinguished when there were not substituted as legal

representatives of Khimiya, no right accrued in favour of the

plaintiff. The first appellate court had also correctly noted that the

plaintiff was aware of this decree dated 27.8.1984 on 22.9.1997; he

did not take any proceeding qua this issue. There was no averment

to this effect in his plaint either; he had made efforts to amend his

plaint and certain additions were made in his amended plaint, yet

this aspect nowhere found mention. It was never averred by the

plaintiff that the decree dated 27.8.1984 had been obtained by

fraud; this was neither the contention in the pleadings nor in his

deposition on oath. Even in his examination-in-chief, on the role of

defendants no.7 to 15 he had deposed that they have no right, title

on interest in the suit property as they have already sold their

share. It was neither contended and nor deposed that the decree

of 27.8.1984 had been obtained in collusion or by way of fraud.

13. The judgments relied upon by the learned counsel for the

appellant would not apply in the instant scenario. Although in the

case of Gram Pranchayat (supra) the Supreme Court had held that

if a party pleads fraud and contends that the earlier judgment had

been obtained by collusion or fraud; it would not be necessary to

file an independent suit for declaration about this collusive nature;

this judgment would apply only if there was an averment to the

said effect. As already noted nowhere has it been pleaded by the

plaintiff that the decree dated 27.8.1984 had been obtained by

fraud.

14. The question of the registration of this document i.e. the

decree dated 27.8.1984 also does not arise. The compromise

application Ex.DW-7/1B on the basis of which the compromise deed

Ex. DW-7/1A was passed was essentially a family arrangement.

The respondents were the legal representatives of Khimiya and as

per the averments made in Ex.DW-7/1B, the appellant is the

brother-in-law (husband‟s brother) of Khimiya. Section 17(2)(vi) of

the Indian Registration Act clearly indicates that no question of

registration arises in respect of a decree or order made on a

compromise which is the subject matter of the suit proceedings

which was so in the instant case.

15. There is no merit in the appeal. The appeal as also the

application is dismissed.

INDERMEET KAUR, J.

JANUARY 25, 2011 nandan