Kerala High Court
Reghuvara Panicker vs Sarojam on 21 February, 2025
R.S.A.. No.333/2004 & batch :1:
2025:KER:15488
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
RSA NO. 333 OF 2004
AGAINST THE JUDGMENT & DECREE DATED 12.03.2004 IN AS NO.51 OF 2002
OF SUB COURT, NEYYATTINKARA ARISING OUT OF THE JUDGMENT & DECREE DATED
21.06.2002 IN OS NO.86 OF 2000 OF I ADDITIONAL MUNSIFF'S COURT,
NEYYATTINKARA
APPELLANTS/APPELLANTS/DEFENDANTS 2 TO 4:
1 SAROJAM
D/O.RETNASELVAM,FROM SANDHYA BHAVAN, KULAVUMTHALA,
KOTTUKAL DESOM, ANAVOOR VILLAGE, NOW RESIDING AT
KULAKKOTTUKONAM, MEKKUMKARA VEEDU, KOVILNADUMCODU
DESOM, ANAVOOR VILLAGE, NEYYATTINKARA TALUK.
2 CHRISTAL SANDYAMONY
D/O. SAROJAM, RESIDING AT -DO-.
3 SAJITHAMONY
D/O. SAROJAM, RESIDING AT -DO-.
BY ADVS.
SRI. S.VINOD BHAT
SMT. ANAGHA LAKSHMY RAMAN
RESPONDENT/S:
1 REGHUVARA PANICKER (DIED & LR'S RECORDED),
S/O.KRISHNA PANICKER, RESIDING AT
'SOORAJ',T.C.50/23(3),MANACAUD VILLAGE, THIRUVANANTHAPURAM.
2 SREEDEVI
D/O. SUDHARMA, RESIDING AT -DO-.
3 DURIYODHANAN
S/O. KOLAPPAN NADAR, FROM MEKKUKARA PURIYIDOM,
KULAKKOTTUKONAM, KOVILNADUMCODE DESOM, ANAVOOR VILLAGE,
NOW RESIDING AT AMBALAKKALA ROADARIKATHU PUTHEN VEEDU,
R.S.A.. No.333/2004 & batch :2:
2025:KER:15488
PULIYOORSALA DESOM, MANCODE P.O., VILAVANCODE TALUK,
KANYAKUMARI DISTRICT.
4 SUDHARMA, D/O. KAMALAMMA, MOOLAYAM VEEDU, PARUTHIPALLI
DESOM,, MANNOORKKARA VILLAGE, NEDUMANGAD.
ADDL. R5 & R6 IMPLEADED:
5 S.R.SURAJ,
S/O.RAGHUVARA PANICKER, RESIDING AT 'SOORAJ', T.C.50/23(3),
KALADY, KARAMANA P.O., MANACAUD VILLAGE,
THIRUVANANTHAPURAM.
6 S.R.ADITHYAN (MINOR AGED 16 YEARS),
RESIDING OPP. 'AMSET', NALANCHIRA P.O., THIRUVANANTHAPURAM,
REP. BY HIS NEXT FRIEND AND GUARDIAN, S.SREEDEVI, -DO- -DO-
(ADDL. R5 AND R6 IMPLEADED AND R2 & R4 RECORDED AS THE LRS OF
THE DECEASED FIRST RESPONDENT VIDE ORDER DATED 01.02.2008 IN
IA.NO.273/2008)
BY ADVS.
R4 BY SRI. I.J.AUGUSTINE
R2, R5 & R6 BY SRI. AYYAPPAN SANKAR
SRI. JOSE P. THOMAS
SMT. S.HRIDYA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
17.02.2025, ALONG WITH CROSS OBJECTION NO. 119 OF 2004 & ESA NO. 4
OF 2002, THE COURT ON 21.02.2025 DELIVERED THE FOLLOWING:
R.S.A.. No.333/2004 & batch :3:
2025:KER:15488
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
CO NO. 119 OF 2004
AGAINST THE JUDGMENT & DECREE DATED 12.03.2004 IN AS NO.51 OF 2002 OF SUB
COURT, NEYYATTINKARA ARISING OUT OF THE JUDGMENT & DECREE DATED
21.06.2002 IN OS NO.86 OF 2000 OF I ADDITIONAL MUNSIFF'S COURT,
NEYYATTINKARA
CROSS OBJECTORS/PETITIONERS/RESPONDENTS 1 AND 2/PLAINTIFFS 1 AND 2:
1 REGHUVARA PANICKER (DIED, LRs RECORDED AND IMPLEADED)
S/O. KRISHNA PANICKER, SOORAJ, T.C.50/23 (3), KALADY, KARAMANA P.O.,
MANACADU VILLAGE,, THIRUVANANTHAPURAM.
(DIED)
2 SREEDEVI, D/O. SUDHARMA, RESIDING AT SOORAJ,
t.c.50/23(3), KALADY, KARAMANA P.O., MANACADU VILLAGE,
THIRUVANANTHAPURAM.
ADDITINAL CROSS APPELLANTS 3 TO 5 IMPLEADED:
3. SUDHARMA, D/O. KAMALAMMA,
MOOLAYAM VEEDU, PARUTHIPALLI DESOM,
MANNOORKKARA VILLAGE, NEDUMANGAD.
4 S.R. SURAJ, S/O. RAGHUVARA PANICKER,
RESIDING AT 'SOORAJ', T.C.50/23(3), KALADY, KARAMANA P.O.,
MANACAUD VILLAGE, THIRUVANANTHAPURAM.
5 S.R. ADITHYAN (MINOR, AGED 16 YEARS), RESIDING OPP. AMSET
NALANCHIRA P.O., THIRUVANANTHAPURAM, REP. BY HIS NEXT FRIEND AND
GUARDIAN S. SREEDEVI, -DO- -DO-
( CROSS APPELLANT NO.2 IS RECORDED AND ADDITIONAL CROSS APPELLANT
NOS.3 TO 5 ARE IMPLEADED AS THE LR'S OF DECEASED FIRST APPELLANT
VIDE ORDER DATED 01.02.2008 IN I.A. NO. 273 OF 2008)
BY ADV SRI.VADAKARA V.V.N.MENON
R.S.A.. No.333/2004 & batch :4:
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RESPONDENTS/APPELLANTS/RESPONDENT NOS. 3 AND 4/APPELLANTS/DEFENDANTS 2
TO 4:
1 SAROJAM, D/O. RETNA SELVAM,
RESIDING AT KULAKKOTTU KONAM, MEKKUMKARA PURAYIDOM,
KOVILNEDUMGODU DESOM, ANAVOOR VILLAGE.
2 CHRISTAL SANDYAMONEY, D/O. SAROJAM
RESIDING AT -DO- -DO-.
3 SAJITHAMANY, D/O. SAROJAM
RESIDING AT -DO- -DO-.
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD
ON 17.02.2025, ALONG WITH R.S.A. No.333 of 2004 & ESA NO. 4 OF 2002, THE
COURT ON 21.02.2025 DELIVERED THE FOLLOWING:
R.S.A.. No.333/2004 & batch :5:
2025:KER:15488
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
ESA NO. 4 OF 2002
JUDGMENT DATED 17.12.2001 IN A.S. NO. 155 OF 2001 OF SUB COURT,
NEYYATTINKARA AGAINST THE ORDER DATED 09.10.2001 IN E.A. NO. 661 OF 2000
IN E.P.NO. 92/2000 IN O.S. NO. 1053/1996 OF THE IIND ADDITIONAL MUNSIFF'S
COURT, NEYYATTINKARA.
APPELLANTS/APPELLANTS/CLAIM PETITIONERS:
1 K. RAGHUVARA PANICKER (DIED)
SOORAJ, T.C.NO.50/23(3), KALADY,, KARAMANA P.O., MANACADU
VILLAGE,, THIRUVANANTHAPURAM.
2 S. SREE DEVI, D/O. SUDHARMA
RESIDING AT SOORAJ, T.C.NO.50/23 (3),, KALADY, KARAMANA P.O.,
MANACADU VILLAGE,, THIRUVANANTHAPURAM.
ADDL. APPELLANTS 3 & 4 IMPLEADED:
3 SURAJ S. R.
RESIDING AT SOORAJ, T.C.NO.50/23(3), KALADY,, KARAMANA P.O.,
MANACAUD VILLAGE,, THIRUVANANTHAPURAM.
4 ADITHYAN S. R.
MINOR AGED 16, RESIDING OPPOSITE AMSET, NALANCHIRA P.O.,
TRIVANDRUM, REPRESENTED BY HER NEXT FRIEND AND GUARDIAN
APPELLANT NO. 1, S. SREEDEVI.
(APPELLANT NO. 2 RECORDED AND ADDITIONAL APPELLANTS 3 AND 4
IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED APPELLANT
NO. 1 AS PER ORDER DATED 01.02.2008 IN I.A. NO. 153/2008.)
BY ADVS.
VADAKARA V.V.N.MENON
AYYAPPAN SANKAR
S.HRIDYA(K/279E/2001)
JOSE P. THOMAS(K/2826/2024)
R.S.A.. No.333/2004 & batch :6:
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RESPONDENTS/RESPONDENTS/COUNTER PETITIONERS (DECREE HOLDERS AND
JUDGMENT DEBTORS IN O.S. NO. 1053/96:
1 S. CHRISTAL SANDHYA
D/O. R. SAROJAM, KULAKKOTUKONAM MEKKUMKARA, PURAYIDAM,
AANAVOOR VILLAGE, NEYYATTINKARA TALUK, (FIRST DECREE HOLDER
IN O.S.NO.1053/96 WHO WAS, DECLARED MAJOR IN THE SUIT).
2 S. CHRISTAL SAJITHA D/O. R. SAROJAM
MINOR, AGED 17 YEARS, RESIDING AT, KULAKOTTUKONAM
MEKKUMKARA PURAYIDAM, AANAVOOR, VILLAGE, NEYYATTINKARA
TALUK, REPRESENTED BY HER GUARDIAN AND NEXT FRIEND, THE 3RD
RESPONDENT WHO IS HER MOTHER) SECOND DECREE HOLDER IN O.S
NO. 1053/96)
3 R. SAROJAM W/O. K. DURYODHANAN
RESIDING AT KULAKKOTTUKONAM MEKKUMKARA, PURAYIDAM,
AANAVOOR VILLAGE, NEYYATTINKARA TALUK.
4 K. SUDHARMA, MOOLAYAM VEEDU
PARUTHIPALLY, MANNOORKARA VILLAGE,, NEDUMANGADU TALUK.
5 K. DURYODHANAN KULAKKOTTUKONAM
MEKKUMKARA PURAYIDAM, AANAVOOR VILLAGE,, NEYYATTINKARA
TALUK.
BY ADVS.
R1 & R2 BY SRI.S.JAMES VINCENT
R4 BY SRI.I.J.AUGUSTINE
R3 BY SRI.R.GOPAN
R3 BY SRI.TERRY V.JAMES
R3 BY SRI. JAMES VINCENT
THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON
17.02.2025, ALONG WITH RSA NO. 333/2004 & CO.119/2004, THE COURT ON
21.02.2025 DELIVERED THE FOLLOWING:
R.S.A.. No.333/2004 & batch :7:
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'CR'
JOHNSON JOHN, J.
---------------------------------------------------------
R.S.A No. 333 of 2004, Cross Objection No. 119 of 2004
& E.S.A No. 4 of 2002
--------------------------------------------------------
Dated this the 21st day of February, 2025.
JUDGMENT
Defendants 2 to 4 in O.S. No. 86 of 2000 on the file of the First
Additional Munsiff's Court, Neyyattinkara, filed this Second Appeal
challenging the concurrent findings of the trial court and the First
Appellate Court setting aside the ex parte decree in O.S. No. 1053 of
1996 of the Additional Munsiff's Court, Neyyattinkara on the ground of
fraud and collusion.
2. Mr. Reghuvara Panicker and his daughter Sreedevi were the
plaintiffs in O.S. No. 86 of 2000 and they are respondents 1 and 2 in this
Second Appeal. The husband of the 1 st appellant and father of
appellants 2 and 3, Mr. Duriyodhanan was the 1 st defendant, and the 5th
defendant Sudharma in the said suit was the wife of Reghuvara
Panicker, the 1st respondent herein. The 3rd and 4th respondents in this
appeal were the 1st and 5th defendants in O.S. 86 of 2000.
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3. The earlier suit--O.S. No. 1053 of 1996, was filed by the 1 st
appellant herein representing her minor daughters against Sudharma,
wife of Reghuvara Panicker as 1st defendant and the 2nd defendant was
Duriyodanan, who was the husband of the plaintiff. In the said suit, it is
alleged that the 2nd defendant, Duriyodanan, executed sale deed No.
1756/94 dated 15.06.1994 in favour of the 1 st defendant Sudharma with
respect to 25 cents of property owned by his minor daughters without
the leave of the court and that the 2nd defendant is a drunkard and has
abandoned the plaintiffs and was leading a wayward life without taking
care of his minor children and that he is living separately in the State of
Tamil Nadu. It is also alleged that the parties are Hindus and therefore,
the sale deed executed by the father with respect to the property of the
minor children without obtaining leave of the court is void and the said
suit was decreed ex parte and thereby, the title of appellants 2 and 3
herein was declared over 25 cents of property by ignoring the sale deed
executed by their father, Mr. Duriyodhanan.
4. In execution of the ex parte decree in O.S. No. 1053 of 1996,
the appellants herein fraudulently shown the building in the adjacent 3
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cents and also obtained possession of the same on the strength of ex
parte decree and for realizing the mesne profits, they attached 1.80
acres lying adjacent and against the dismissal of the claim petition with
respect to 1.80 acres, A.S. No. 155 of 2001 was filed before the
Subordinate Judge's Court, Neyyattinkara and against the dismissal of
the Execution First Appeal, E.S.A No. 4 of 2002 was filed by respondents
1 and 2 herein.
5. As per common judgment dated 12.06.2015, this Court
dismissed E.S.A No. 4 of 2002 and Cross Objection No. 119 of 2004 and
allowed R.S.A No. 333 of 2004.
6. In S.L.P.(C) No. 20138 of 2015, the Honourable Supreme Court
set aside the judgment of this Court dated 12.06.2015 for the reason
that this Court failed to formulate substantial question of law in
accordance with Section 100 of the Code of Civil Procedure, 1908 and
the matter was remanded back to this Court for framing the substantial
question of law and fresh consideration.
7. Subsequent to the remand, this Court framed the following
substantial questions of law in R.S.A No. 333 of 2004:
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1. Since the plaintiffs in O.S No. 86 of 2000 are dispossessed of the
property in execution of the decree in O.S No. 1053 of 1996, whether a
separate suit to set aside the decree in O.S No. 1053 of 1996 is
maintainable in view of Order XXI Rule 99 of CPC.
2. Whether O.S No. 86 of 2000 is barred by Sections 3 and 4 of the
Benami Transactions (Prohibition) Act, 1988.
8. In E.S.A. No. 4 of 2002, the following substantial question of
law was framed:
Whether execution court is justified in rejecting the claim petition
on the ground that the decree holders were not parties in Exhibit A2
judgment and A3 decree.
Substantial questions of law in RSA 333 of 2000:
9. The learned counsel for the appellant argued that when parties
are aggrieved by the dispossession of property in execution of the
decree in O.S. No.1053 of 1996, a separate suit to set aside the said
decree is not maintainable in view of Order XXI Rule 99 of the Code of
Civil Procedure, 1908. But, the learned counsel for respondents 1 and 2
argued that in O.S. No.86 of 2000, they challenged the previous ex
parte decree in O.S. No.1053 of 1996 on the ground of fraud and
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collusion and therefore, it is necessary for the court concerned to go
behind the decree to record a finding as to whether the party who
obtained the previous decree committed any fraud or collusion.
10. For a proper analysis of the rival contentions, it is necessary
to appreciate the concurrent findings of the trial court and the First
Appellate Court. In the subsequent suit, O.S. No.86 of 2000, it is
specifically pleaded that the appellants herein procured the ex parte
decree in O.S. No.1053 of 1996 in collusion with Mr. Duriyodhanan and
taking undue advantage of the disruption of marital relationship between
Reghuvara Panicker and his wife Sudharma and with the knowledge that
Reghuvara Panciker purchased the property as per Exhibit A6 sale deed
dated 15.06.1994 in the name of his wife for the benefit of his only
daughter Sreedevi.
11. In O.S. No.86 of 2000, it is also pleaded that the plaintiffs in
the previous suit fraudulently described their religion as Hindus, when, in
fact, they are Christians and it was also falsely pleaded that
Duriyodhanan has abandoned Sarojam and children for more than a
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decade and that he is leading a wayward drunkard life far away in the
State of Tamil Nadu.
12. In the written statement filed by defendants 2 to 4, who are
the appellants herein, the averments in the plaint regarding the religion
of the parties is not specifically denied and it is only stated that the
religion of the parties is irrelevant to the subject matter in the said suit.
After analysing the school admission registers of defendants 3 and 4 and
Exhibit X1, baptism register, and the evidence of PW4, the parish priest
of the church concerned, the trial court recorded a finding that
defendants 2 to 4 were Christians at the time of filing the previous suit
and that they made a false averment in the plaint in O.S. No. 1053 of
1996 that they are Hindus. The said findings of the trial court is also
confirmed by the First Appellate Court. Based on Exhibit A16 series
voters list and Exhibit A19, ration card, and the averments in the plaint
in O.S. No. 1215 of 1988 and the judgment in the said case marked
respectively as Exhibits A20 and A21, the trial court recorded a finding
that Duriyodhanan, the husband of the first appellant herein and father
of the 2nd and 3rd appellants vigilantly prosecuted the said suit
representing the interest of his minor daughters and that the said suit
was with respect to the very same 25 cents of property covered by
Exhibit A6 sale deed.
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13. The trial court also found that the sale proceeds of Exhibit A6
sale deed was utilized for obtaining the properties as per Exhibits A7 and
A8 in favour of the minors and that Exhibits A2, A3, A7 and A8 would
show that the said properties are obtained by the 1 st defendant
Duriyodhanan in the name of his children. The First Appellate Court also
concurred with the said findings of the trial court.
14. The findings of the trial court shows that the first defendant,
Duriyodhanan, never deserted his wife and children and that his minor
children got substantial benefits by the sale as per Exhibit A6, as
evidenced by Exhibits A7 and A8 and the said fact is wilfully suppressed
by the plaintiffs in O.S. No. 1053 of 1996. The trial court also noted that
the 2nd defendant, Sarojam, who represented the minor plaintiff in the
previous suit, has chosen not to enter the witness box in the subsequent
suit, though, her evidence was crucial for deciding the issues in O.S. No.
86 of 2000. The First Appellate Court also concurred with the said
findings of the trial court.
15. The trial court analysed the evidence of DW1, the 3 rd
defendant, and found that she has no direct knowledge regarding the
transactions as per Exhibits A5, A6 and A12 between Reghuvara
Panicker, the 1st plaintiff and defendants 1 and 2, who are the parents of
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DW1, and it was in that circumstance an adverse inference was drawn
against the non examination of the 2 nd defendant who was well aware
about the transactions.
16. The learned counsel for the 1 st and 2nd respondents herein
argued that the First Appellate Court also meticulously analysed the
facts, pleadings and evidence while concurring with the findings of the
trial court regarding the fraud and collusion vitiating the decree in O.S.
No. 1053 of 1996. It is pointed out that the First Appellate Court
concurred with the finding of the trial court that the plaintiffs in the
previous suit, O.S. No. 1053 of 1996, made false averment regarding
the religion and pointed out that there is much difference in the relevant
legal provisions regarding the right to alienate the property by a natural
guardian as per the provisions of the Guardians and Wards Act, 1890
applicable to Christians and the Hindu Minority and Guardianship Act,
1956 applicable to Hindus. Section 8(2) of the Hindu Minority and
Guardianship Act, 1956 provides that the natural guardian shall not,
without the previous permission of the court, mortgage or charge or
transfer by sale, gift, exchange or otherwise, any part of the immovable
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property of the minor. Therefore, a natural guardian cannot transfer the
property of a Hindu Minor without the previous permission of the court.
17. The learned counsel for respondents 1 and 2 cited the Division
Bench decision of this Court in Jince Mary Johns v. K. P. Johny and
Another [2011 4 KHC 343] and Deepthi v. Paulose @ Paul and
Another [2014 (4) KHC 65] to point out that in the case of Christians,
there is no prohibition on the power of natural guardian to transfer
property of their minor children and that Sections 28, 29 and 30 of the
Guardians and Wards Act, 1890 are applicable only in respect of
testamentary guardian and court appointed guardian and therefore, the
false assertion of the religion in the previous suit was deliberately made
to defraud the court and in the absence of such a false averment, they
would not have succeeded in the suit, even if the defendants were ex
parte. It is also argued that the appellants obtained the ex part decree in
O.S. No. 1053 of 1996 on the strength of the false averment that
Duriyodhanan, the natural guardian, has abandoned the minors, acted
against their interest and that he is residing in Tamil Nadu.
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18. The learned counsel for respondents 1 and 2 argued that
there is concurrent findings that the parties are Christians and that there
is fraud and collusion in obtaining the decree in O.S. No. 1053 of 1996.
In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Others
[1999 KHC 1105], the Honourable Supreme Court held that concurrent
findings of fact howsoever erroneous cannot be disturbed in the Second
Appeal and in a case where from a given set of circumstances, two
inferences are possible, one drawn by the lower appellate court is
binding on the High Court in Second Appeal, and adopting any other
approach is not permissible.
19. A perusal of Exhibit A3 sale deed dated 27.04.1987 shows
that Duriyodhanan purchased two items of properties in the name of his
minor children and Exhibit A4 sale deed executed by Duriyodhanan on
10.03.1988 would show that he sold one item of property from Exhibit
A3 and Exhibits A2 and A9 would show that Duriyodhanan purchased
back the entire 28 cents of property originally owned by Duriyodhanan
and Sarojam which was earlier sold to Leela as per Exhibit A1. From
Exhibit A2, it can be seen that Duriyodhanan purchased 25 cents in the
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name of his minor children and Exhibit A9 shows that he purchased 3
cents in his name which was subsequently sold to one Bhai as per
Exhibit A10. Exhibit A11 sale deed executed by Bhai in favour of of
Sarojam on 29.07.1991 and Exhibit A12 sale deed executed by
Duriyodhanan and Sarojam on 30.06.1994 would show that the 1 st
appellant Sarojam was aware of the sale deeds executed by her husband
Duriyodhanan.
20. It is pertinent to note that Duriyodhanan executed Exhibit A6
on 15.06.1994 and it was subsequent to that on 30.06.1994,
Duriyodhanan and Sarojam together executed Exhibit A12 sale deed in
favor of Sudharma. The property as per Exhibit A6 is shown as the
eastern boundary of the property as per Exhibit A12 and it was in that
circumstance, respondents herein alleged collusion between defendants
21. The learned counsel for respondents 1 and 2 pointed out that
execution of Exhibit A12 sale deed jointly by Sarojam and Duriyodhanan
on 30.06.1994 would clearly show that the alleged strained relationship
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and the separate residence of Duriyodhanan in Tamil Nadu are false. It
is also pointed out that Duriyodhanan used the sale proceeds of Exhibit
A6 for obtaining valuable properties in the name of his minor children as
per Exhibits A7 and A8 and since Duriyodhanan used the sale
consideration of Exhibit A6 for purchasing the properties as per Exhibits
A7 and A8 in the name of his minor children, it can be seen that the
minors got substantial benefits by the sale as per Exhibit A6 and this
was wilfully suppressed in the plaint in O.S. No. 1053 of 1996.
22. In State of M.P. v. Narmada Bachao Andolan [(2011) 7
SCC 639, a three-Judge Bench of the Honourable Supreme Court
observed as follows:
"164. It is a settled proposition of law that a false statement
made in the court or in the pleadings, intentionally to mislead the court
and obtain a favourable order, amounts to criminal contempt, as it
tends to impede the administration of justice. It adversely affects the
interest of the public in the administration of justice. Every party is
under a legal obligation to make truthful statements before the court,
for the reason that causing an obstruction in the due course of justice
'undermines and obstructs the very flow of the unsoiled stream of
justice, which has to be kept clear and pure, and no one can be
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permitted to take liberties with it by soiling its purity'. ..."
23. In Union of India v. N. Murugesan [(2022) 2 SCC 25], the
Honourable Supreme Court, while holding that it will be inequitable and
unfair if a party is allowed to challenge a position by enjoying its fruits,
held thus:
"26. These phrases are borrowed from the Scots law. They would only
mean that no party can be allowed to accept and reject the same thing,
and thus one cannot blow hot and cold. The principle behind the
doctrine of election is inbuilt in the concept of approbate and
reprobate. Once again, it is a principle of equity coming under the
contours of common law. Therefore, he who knows that if he objects
to an instrument, he will not get the benefit he wants cannot be
allowed to do so while enjoying the fruits. One cannot take advantage
of one part while rejecting the rest. A person cannot be allowed to
have the benefit of an instrument while questioning the same. Such a
party either has to affirm or disaffirm the transaction. This principle
has to be applied with more vigour as a common law principle, if such
a party actually enjoys the one part fully and on near completion of
the said enjoyment, thereafter questions the other part. An element of
fair play is inbuilt in this principle. ..."
24. The learned counsel for respondents 1 and 2 herein argued
that the trial court and the First Appellate Court recorded a concurrent
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finding that the decree in O.S. No. 1053 of 1996 is obtained by fraud
and collusion after meticulously analysing the pleadings, evidence and
the legal principles in the light of the relevant provisions and precedents.
It is pointed out that the First Appellate Court also relied on the
judgment of the Honourable Supreme Court in S. P. Chengalvaraya
Naidu (dead) by L.Rs v. Jagannath (dead) by L.Rs. and others
[AIR 1994 SC 853] to set aside the decree obtained on playing fraud on
court and also relied on the judgment of the Honourable Supreme Court
in Sri Chandra Prabhuji Jain Temple and others v. Harikrishna
and another [AIR 1973 SC 2565] in support of the finding that attempt
to disown a sale deed without surrendering the benefits is also an
instance of fraud.
25. The learned counsel for respondents 1 and 2 argued that the
questions of law raised in this Second Appeal does not emerge from the
concurrent findings of the trial court and the First Appellate Court and in
the absence of pleadings and evidence in support of the same, it cannot
be entertained. The learned counsel for the appellants relied on the
decisions of the Honourable Supreme Court in Shreenath and another
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v. Rajesh and others [AIR 1998 SC 1827] and Prasantha Banerji v.
Pushpa Ashoke Chandani and others [AIR 2000 SC 3567 (2)] in
support of the contention that a separate suit is not maintainable and
the remedy was to approach the execution court. It is argued that in
view of order XXI Rule 99 CPC, a third party can also approach the
execution court against dispossession of property in execution of a
decree. But, the learned counsel for respondents 1 and 2 cited the
decision of the Honourable Supreme Court in Pradeep Mehra v.
Harijivan J. Jethwa (since deceased thr. Lrs.) [2023 KHC 6965],
wherein it was held that even though all questions relating to execution,
discharge and satisfaction of decree can be decided by the execution
court, the said questions are limited to the execution of the decree and
the executing court can never go behind the decree.
26. In Dhurandhar Prasad Singh v. Jai Prakash University
[(2001) 6 SCC 534], the Honourable Supreme Court held in paragraph
24 as follows:
"24. ... The validity or otherwise of a decree may be challenged by
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filing a properly constituted suit or taking any other remedy available
under law on the ground that the original defendant absented himself
from the proceeding of the suit after appearance as he had no longer
any interest in the subject of dispute or did not purposely take interest
in the proceeding or colluded with the adversary or any other ground
permissible under law.
27. In Sukumaran v. Gangadharan [1999 KHC 628], a Division
Bench of this Court held that a decree passed by a court having
jurisdiction, cannot be ignored or refused to be enforced by a court
called upon to execute that decree and the executing court is not
entitled to go behind the decree and consider whether on the materials
available, the decree could or could not have been passed by the court
which passed it. The cause of action and relief sought for in O.S. No. 86
of 2000 are beyond the powers of the execution court under Section 47
and Order XXI Rule 101 CPC and further in the absence of any express
bar in entertaining a suit challenging the decree in a previous suit on the
ground of fraud and collusion, the first substantial question of law is
answered against the appellants.
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28. The learned counsel for the appellants argued that O.S. No.
86 of 2000 is barred by Sections 3 and 4 of the Benami Transactions
(Prohibition) Act, 1988 ('Act, 1988' for short), inasmuch as the 1st
respondent herein claims that he purchased the property as per Exhibit
A6 in the name of his wife, who is the 4 th respondent herein, for the
benefit of the 2nd respondent who is his daughter, the said transaction is
not saved by Section 3(2) of the Act, 1988. It is pointed out that under
Section 3(2), property purchased by a husband in the name of his wife
or unmarried daughter is not hit by Section 3(1). But, the case put
forward by the 1st respondent herein is that he purchased the property
in the name of his wife for the benefit of his unmarried daughter and
such a transaction is not saved under Section 3(2) of the Act, 1988.
29. The learned counsel for respondents 1 and 2 cited the decision
of the Honourable Supreme Court in N. K. Mehra v. S. Mehra [1995
KHC 478], wherein the Honourable Supreme Court considered the
question whether the prohibition to file a suit or to take up a defence in
respect of a benami transaction imposed by Section 4 of the Act, 1988
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applies to a benami transaction of purchase of property by a person in
the name of his wife or unmarried daughter and held in paragraph 7 of
the said judgment as follows:
"7. Therefore, our answer to the question under consideration is that
neither the filing of a suit nor taking of a defence in respect of either the
present or past benami transaction involving the purchase of property by
a person in the name of his wife or unmarried daughter is prohibited
under sub-s.(1) and (2) of S.4 of the Act."
30. The learned counsel for respondents 1 and 2 also pointed out
that the appellants raised the said contention in the Second Appeal as a
substantial question of law without raising any such contention in the
pleadings and the said question was never raised before the trial court or
the First Appellate Court and therefore, in view of the decision of the
Honourable Supreme Court in N.K. Mehra (supra), the second
substantial question of law raised in the Second Appeal is answered
against the appellants.
31. The learned counsel for the appellants also argued that the
elements of fraud alleged were not sufficient to set aside the decree in
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O.S. No. 1053 of 1996 and the trial court and the appellate court has not
considered as to whether the minor who is baptized is to be treated as a
Christian, when she lived as a Hindu after attaining majority. But, in
view of the concurrent findings of fact by the trial court and the
appellate court that defendants 2 to 4 were Christians at the time of
filing the previous suit and that there is fraud and collusion on the part
of defendants 1 to 4 in instituting the previous suit, O.S. No. 1053 of
1996, this Court will not be justified in disturbing the said findings, even
if another view is possible on reappreciation of evidence. For the
aforesaid reasons, I find no merit in this Second Appeal and therefore,
the same is liable to be dismissed.
32. The learned counsel for respondents 1 and 2 represented that
the respondents are not pressing Cross Objection No. 119 of 2004 and
therefore, I find that the Cross Objection can be dismissed as not
pressed.
33. As noticed earlier, ESA No. 4 of 2002 arises out of the
rejection of a claim petition against the attachment of 1.80 acres of land
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for realizing the mesne profits allowed as per the decree in O.S. No.
1053 of 1996. The decree in O.S. No. 1053 of 1996 of the Additional
Munsiff's Court, Neyyattinkara is already set aside as per the decree in
O.S. No. 86 of 2000 and the same is confirmed by the First Appellate
Court and by this Court and therefore, without prejudice to the right of
the appellants in ESA No. 4 of 2002 under Section 144 of the Code of
Civil Procedure, 1908, I find that the proceedings in ESA No. 4 of 2002
can be closed.
In the result, RSA 333 of 2004 and Cross Objection No. 119 of
2004 are dismissed and ESA No. 4 of 2002 is closed. Interlocutory
applications, if any pending, shall stand closed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
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APPELLANTS' ANNEXURES:
ANNEXURE A1 NOTICE DATED 18.09.2012 ISSUED TO THE 1ST
APPELLANT (1ST RESPONDENT IN THE I.A.) BY KUNNATHUKAL GRAMA
PANCHAYAT WITH A LEGIBLE COPY.
/True Copy/
PS to Judge
rv
