LODHA, J. - (1.) -
(2.) THIS is a defendant's second appeal. The respondent plaintiffs Nanooram and Smt. Gulab Bai, adoptive son and widow respectively of deceased Ramsukh filed the suit out of which this appeal arises in the Court of Civil Judge, Chittorgarh on 4 8-1961 alleging that the appellant Mathuralal had obtained a consent decree against Ramsukh on 14-12-1959 from the Court of Civil Judge, Chittorgarh for Rs. 1071/11 by practising fraud on Ramsukh. It was further alleged that as a matter of fact no debt was due to the appellant from Ramsukh and that Ramsukh was also insane at the time the decree was obtained against him. Ramsukh died in 1960 A. D without making any payment towards the aforesaid decree Mathuralal, therefore, levied execution of the decree against Nanooram and got attached an ancestral house of the respondent Nanooram, situated at Chittorgarh. Nanooram and his adoptive mother, therefore, instituted the present suit praying for granting a declaration in their favour that the decree for Rs. 1071/11 obtained by Mathuralal against Ramsukh in Civil Suit No. 134 of 1959 on 14. 12. 1959 was null and void and that the house under attachment was not "liable to be sold in execution of that decree. The suit was resisted by Mathuralal, who pleaded that he had obtained a decree against Ramsukh for a valid debt due from the latter and that he was entitled to execute the decree by sale of the house in question. After recording the evidence produced by the parties the learned Civil Judge, Chittorgarh dismissed the plaintiffs' suit. He found that Ramsukh was not insane and that the plaintiffs had failed to prove that the defendant had obtained the decree against Ramsukh by practising any fraud. He also came to the conclusion that the plaintiffs had not succeeded in proving that there was no debt due from Ramsukh for which he had obtained the impugned decree against Ramsukh. In this view of the matter he came to the conclusion that the house in question which the plaintiffs had inherited from Ramsukh was liable to be sold in execution of the decree obtained against Ramsukh. Dissatisfied with the judgment and decree of the trial court the plaintiffs filed appeal in the Court of District Judge, Partabgarh, who by his judgment dated 21-10-1963 allowed the appeal, set aside the judgment and decree by the trial court and decreed the plaintiffs' suit by granting a declaration in their favour that decree passed against Ramsukh in Civil Suit No. 134 of 1959 was not binding on the plaintiffs, and further that the property in question be released from attachment. Consequently, the defendant Mathuralal has come in second appeal to this Court. Learned counsel for the appellant has urged that even learned District Judge has nowhere found that the impugned decree was obtained against Ramsukh by practising any fraud, nor is there any evidence to show that the decree had been obtained by the appellant in collusion with Ramsukh and consequently the finding of the lower court that the decree which the respondents had obtained was a collusive decree is erroneous and must be set aside. He has also urged that it was not open to the plaintiff to challenge the validity of the decree obtained by the defendant against Ramsukh on the ground that the debt was non-existent. The only ground on which, according to the learned counsel for the appellant, the plaintiffs could avoid the impugned decree was either to show that it was obtained by fraud or collusion or to prove that the debt in respect of which the decree had been obtained was tainted with immorality. Lastly, he has contended that it was not open to the lower court to go behind the decree and hold that the decree was passed for a non-existent debt. In this connection he has assailed the finding of the lower court that the decree debt was non existent on the ground that the learned District Judge ignored certain important evidence and glaring circumstances, and also failed to consider the reasons given by the trial court for not believing the plaintiffs' case. The circumstances which have led the learned District Judge to come to the conclusion that the impugned decree was a collusion one are these: - (i) The suit in which the impugned decree was obtained was filed by the appellant against Ramsukh on 9-12-59 and summons to the defendant was issued for the first for hearing on 18th Oct. , 59. However, the summons was issued on 14-12-1959, served on Ramsukh the same day and Ramsukh appeared in court the same day and filed a written statement (Ex. 3) admitting the plaintiffs' claim and suffered a decree against him on this admission the same day. (ii) That the plaintiff No. 1 Nanooram was the adopted son of Ramsukh, and there may have been differences between the father and the son. (iii) That the case set up by Mathuralal in the suit filed by him against Ram Sukh was that Motilal was the original debtor and by novation of contract between Mathuralal and Ramsukh, Motilal was discharged and Ramsukh took upon himself liability to pay the debt due from Motilal. However, Motilal appeared as a witness in the present suit as P. W. 7 and deposed that nothing was due from him to Mathuralal, and that he had never asked Ramsukh to pay any amount to Mathuralal on his behalf, and consequently the plaintiff has succeeded in proving the non-existence of the debt for which the defendant Mathuralal obtained decree against Ramsukh. Before examining the correctness of the finding arrived at by the learned District Judge it is necessary to point out what is meant by the term "collusion"? Collusion is 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. In judical proceedings the term "collusion" is used to signify a secret agreement between two persons that one should institute a suit against the other in order to obtain the decision by a judicial Tribunal, for some sinister purpose. It may be of two kinds : (i) when the facts put forward as the foundation of the judgment of the Court do not exist; and (ii) when they exist, but have been corruptly preco-ncerted for the express purpose of obtaining the judgment: (Wharton's Law Lexicon ). If collusion is proved, the plaintiffs, who were not parties to that suit are undoubtedly entitled to get the impugned decree declared ineffective against them even though a party to a collusive decree cannot escape its consequences. The learned District Judge has himself observed that the fact that Ramsukh was served with notice of the suit on 14. 12. 1959 and on that very day he filed a written statement admitting the claim is not sufficient to show that Mathuralal's claim was fictitious and, in my opinion, he is correct. Ramsukh was a resident of Bassi and was an old man. The possibility that he wanted to admit the claim and finish the suit on the very day the summons was served upon him at Chittorgarh cannot be ruled out, and from this fact alone no inference of collusion between him and Mathuralal can be drawn. Another circumstance that Nanooram was the adopted son of Ramsukh is wholly insufficient for holding that Ramsukh wanted to jeopardise the interest of his adoptive son in the ancestral property by suffering a decree without there being any debt due from him. In this connection reference may be made to the statement of P. W. 1 Nanooram who has stated that but for suffering this decree Ram Sukh had done no other act to harm him. He has also not pointed out any such act on the part of Ramsukh which may lead to the inference that he had fallen out with his adoptive father. On the other hand the circumstance that his adoptive mother Smt. Gulab Bai widow of Ramsukh has joined in the present suit as a co-plaintiff negatives the suggestion made by Nanooram that he was not on cordial terms with his adoptive father Ramsukh. The observation of the learned District Judge that there may have been differences between Ramsukh and his adoptive son the plaintiff Nanooram does not appear to be well founded. It, therefore, remains to consider the only circumstance found by the learned District Judge that there was no debt due from Motilal and consequently the question of Ramsukh's accepting liability for such a debt did not arise. The lower court in this connection has relied upon Bhagatram vs. Ajudhia Parkash (l) in which the learned Judges arrived at the following conclusions: - (1) On the principles of Hindu Law, on which the pious duty of the sons to discharge the personal debts of their father is based, the sons are not precluded from challenging the [existence of the debt, when they are called upon to discharge the same and there is no warrant for justification for the proposition that the decree against the father by itself creates a debt which they are bound to discharge. (2) The balance of the judicial opinion is definitely in favour of conceding such a right to the sons. When sons are called upon to discharge a decree passed against their father on the basis of an alleged personal debt of his, they are entitled to show that the debt aforesaid was non-existing, fictitious or illusory. The mere fact that the father had suffered a decree being passed against himself cannot be a ground for denying the sons this right. (3) Father while defending a suit filed against him by a creditor for recovery of a debt, not incurred by him for the benefit of the family, does not represent his sons, not even qua the plea of non-existence of the debt, which may or may not be raised by him, and the sons are not bound by the decree in respect of this plea under the principles embodied in explanation VI to Sec. 11 of the Civil Procedure Code. (4) This right to challenge the existence of the debt, if conceded to the sons, does not work any hardship on the creditor because he can, by impleading the sons in the suit brought against the father, have the matter adjudicated upon in the presence of the sons. " Learned counsel for the appellants challenged the correctness of the aforesaid conclusions though in all fairness he also placed before me the relevant observations of their Lordships of the Supreme Court in Faqir Chand vs. Harnam Kaur (2) - "the son has no right to interfere with the execution of the decree or with the sale of the property in execution proceedings, unless he can show that the debt for which the property is sold is either non-existent or is tainted with immorality or illegality. " Learned counsel for the appellants has argued that on an examination of the facts and contentions in the Supreme Court case referred to above, it would be apparent that the controversy in that case did not turn on the question whether the debt of the father on which the decree was passed, did in fact exist? For the reasons which I shall shortly state there is no need to express any opinion on the question whether the existence of a operative and conclusive decree against the father is not an impediment to the enquiry into the question as to whether the precedent debt was in existence or supported by consideration? I, therefore, refrain from going into that question, as I am of opinion that this second appeal must succeed because of the conclusion that I have come to that in fact there as in existence a debt of the father which the son Nanooram was bound to discharge, and the plaintiffs' plea that there was no debt in existence has to be negatived on merits.
(3.) THE only evidence relied upon by the learned District Judge for coming to the conclusion that there was no debt in existence for which the defendant had obtained the impugned decree against Ramsukh is the statement of PW. 7 Motilal. This witness has no doubt stated that nothing was due from him to the defendant Mathuralal, and, therefore, the question of Ramsukh taking the liability on his behalf to pay any amount to Mathuralal did not arise. THE trial court did not accept the statement of Motilal for two reasons, namely, that Motilal as admitted by himself was a close relation of the plaintiff Nanooram, inasmuch as Nanooram happened to be the brother-in-law of Motilal's brother-in-law, and further it suited Motilal to deny the existence of the debt due from him to Mathuralal lest he would have thereby exposed himself to the liability of paying the amount under the decree to Ramsukh. Along with those reasons the learned trial court also said that in these circumstances the lone statement of Motilal cannot be believed. THE learned District Judge, however, did not deal with the reasons given by the trial court for not believing Motilal and observed that as against this testimony of Motilal there was the solitary statement of Mathuralal, who deposed that a sum of Rs 850/11/- was originally due from Motilal on account of the price of wheat supplied by him to Motilal, and that Ramsukh took upon himself to pay this amount, and consequently Motilal was discharged from the liability. THE learned District Judge has not believed Mathuralal because Mathuralal did not produce any books of account to show that he had sold grain worth Rs. 850/11/- to Motilal. However, while making this observation the learned District Judge ignored that part of the statement of Mathuralal wherein he has stated that he did not maintain any books of account. THEre is no evidence on the record that Mathuralal used to maintain any books of account. In these circumstances, the learned District Judge was not justified in drawing an adverse inference against Mathuralal for not producing his books of account. It is also important to bear in mind that the burden of proving nonexistence of the debt which had merged in a decree at any rate lay heavily on the plaintiffs apart from the question whether an attempt to impugn the decree on the ground of non existence of debt in such circumstances can be countenanced THE learned District Judge has also ignored the written statement Ex 3 filed by Ramsukh in that suit wherein he had admitted the claim of Mathuralal against him Thus on the one hand we have the lone statement of Motilal whereas on the other we have the decree debt, supported by the evidence of the defendant Mathuralal and Ram-sukh's own admission contained in the written statement Ex 3. At this stage I would also point out at the risk of repetition that the plaintiff has failed to put forth any circumstance to show that Ramsukh was ill-disposed towards his adoptive son Nanooram and wanted to harm him. THE learned District Judge has not looked at the case from the correct angle of burden of proof lest he may not have fallen into the error which he did. THEre is yet another circumstance against the plaintiffs. If Ramsukh was really determined to suffer a decree in collusion with Mathuralal, why should he have brought into picture a third person Motilal? He could have very well executed the document in favour of Mathuralal on the basis of a personal debt instead of saying that he had taken the liability of Motilal's debt. Learned counsel for the respondent frankly conceded that he was not in a position to give any explanation on this point, In view of the aforesaid discussion, I have come to the conclusion that the finding of the learned District Judge that the plaintiff's have succeeded in proving nonexistence of the decree debt stands vitiated on account of omission on his part to consider material evidence and circumstances on the record and on account of his examining the case from a wrong angle regarding burden of proof. For the reasons mentioned above, I am further of the opinion that the plaintiffs have not succeeded in proving that the debt for which the impugned decree had been obtained by Mathuralal against Ramsukh was non-existent. In view of the aforesaid findings, I allow this appeal, set aside the judgment and decree of the learned District Judge, Partabgarh dated 21. 10. 1963 and restore those of the learned Civil Judge Chittorgarh dated 2. 2. 1963 and dismiss the plaintiffs' suit with costs of the trial court. Costs of this court as well as of the first appeal will, however, be easy. . ;