LODHA, J. - (1.) -
(2.) THE respondent Dilkhushlal filed a suit for recovery of Rs. 8537 against Onkarasingh, father of the plaintiffs in the present case, Shivesingh & Balpat Singh on the basis of 'rukka' dated 7. 8. 1954 That suit was registered as Civil Suit No. 73 of 1951 in the court of Additional Civil Judge, Udaipur. Onkarsingh filed his written statement on 6. 5. 57 and resisted the plaintiff's suit on a number of grounds. A copy of this written statement has been placed on record, and marked Ex. 2. He denied the execution of the 'rukka' and in the alternative pleaded that Dilkhushlal who had been his Kamdar some time back may have obtained his signature on the 'rukka' by fraud. He pleaded that in any case the 'rukka' was without consideration. He also pleaded the bar of limitation as well as challenged the maintainability of the suit on the basis of the 'rukka' on the ground that the 'rukka' amounted to only an acknowledgement which could not be made the basis of the suit. Learned Additional Civil Judge framed issues on the points of dispute raised by the parties in their pleadings THE case was fixed for the plaintiff's evidence on 18. 4. 1958 on which date Onkarsingh's another son Jalam Singh to whom the general power of attorney had been given by Onkarsingh contacted Shri Inderlal Govil, counsel for Onkarsingh in that case and told the latter that he may cease pleadings for Onkarsingh and allow a decree to be passed against him. Shri Govil, however, did not agree. On the next date in the case, that is, 22-4 1958 Jalam Singh made application in the Court withdrawing the authority of Shri Govil and his associate Shri Pande to act and plead on behalf of Onkar Singh. A copy of this application has been placed on the record and marked Ex. 5. Shri Govil also filed an application on the same day explaining the situation in which he was placed and sought the guidance of the court whether he should continue to appear for Onkarsingh or should withdraw from the case. A copy of Shri Govil's application has also been placed on the record, and marked Ex. 4. THE learned Additional Civil Judge, however, refused to pass any order on the application of Shri Govil and merely placed the application on the file. THE general power of attorney duly registered in favour of Jalamsingh by Onkarsingh was also produced by Jalamsingh and ordered to be placed on the record. THEreafter the plaintiff examined himself as his witness and then closed his evidence. Jalamsingh then appeared in evidence on behalf of the defendant. He admitted the plaintiff's claim and stated that the suit amount was due from the defendant. Having examined himself, Jalamsingh as general power of attorney holder of the defendant, closed the defendant's evidence. In view of the admission of the plaintiff's claim by Jalam Singh the suit of Dilkhushlal was decreed as prayed, by the learned Additional Civil Judge the same day, that is, 22. 4. 1958. In execution of the decree thus obtained by Dilkhushlal against Onkarsingh certain immoveable property belonging to Onkarsingh was attached on 9. 8. 1958. The present plaintiffs Shive Singh and Dalpat Singh thereupon filed the present suit in the Court of Civil Judge, Udaipur on 24. 11. 1953 impleading Onkarsingh, their father, an well as Dilkhushlal as defendants in the case and challenged the validity of the decree for Rs. 8537/- obtained by Dilkhushlal against Onkar Singh on 22-4-1953 on the ground of fraud and collusion between Dilkhushlal on the one hand and Onkarsingh and Jalamsingh on the other. Their case is that their father Onkarsingh was not favourably disposed towards them. There were differences between the father and the two sons regarding division of ancestral property for which the plaintiffs had filed a suit for partition against Onkar Singh on 4. 5. 1957. It was also alleged that it was on account of the strained relations between the plaintiffs and Onkarsingh that inspite of Dilkhushlal's claim being untrue and unfounded and inspite of legal advice to the contrary Onkar Singh suffered a decree for the aforesaid amount in order to jeorpardise the interests of the plaintiffs in the ancestral property out of shear malice and spite. In this connection it was also stated in the plaint that Jalam Singh, another son of Onkar Singh, who admittedly went in adoption outside the family committed fraud in collusion with Dilkhushlal, in order to defeat the plaintiffs' claim to the ancestral property in the hands of Onkarsingh. The plaint was subsequently amended and one more ground was added, namely, that Onkar Singh had been suffering from paralysis for seven to eight years before the filing of the suit against him by Dilkhushlal and his condition went on deteriorating so much so that during the days when the decree was passed against him, he was not in a sound state of mind, nor could speak nor could hear and had completely lost his understanding faculty. Jalam Singh taking advantage of Onkarsingh's disability both mental and physical perpetrated fraud on the Court by admitting false claim and allowed the impugned decree to be passed against Onkar Singh. Since there was an allegation of Onkar Singh being mentally infirm the Court after holding necessary enquiry into the matter and having found the allegation in this respect correct, appointed a Court-guardian for Onkar Singh who filed a written statement on his behalf and substantially supported the plaintiffs' claim. Dilkhushlal, however, denied all the allegations of fraud and collusion alleged in the plaint, and pleaded that the decree obtained by him was just, legal and proper and was not liable to be set aside. Onkar Singh died during the pendency of the suit. After recording the evidence produced by the parties, the learned Additional Civil Judge, Udaipur by his judgement dated 21-861 decreed the plaintiffs' suit and declared that the decree passed in favour Dilkhushlal on 22 4-1953 in suit No. 23 of 1953 by the Court of Additional Civil Judge, Udaipur was null and void. Aggrieved by the judgment and decree of the trial court Dilkhushlal filed appeal in the Court of District Judge, Udaipur, who set aside the judgment and decree by the trial court and dismissed the plaintiffs' suit. In these circumstances the plaintiffs have filed a second appeal to this Court from the judgment and decree by the District Judge, Udaipur. One of the applicant's Shive Singh died during the pendency of the appeal and is now represented by his legal representatives Smt. Hire Kanwar and others. , The only point canvassed before me by the learned counsel for the appellants is that from all the circumstances brought on the record it has been fully established that the impugned decree was obtained by Dilkhushlal by fraud and collusion with Jalamsingh, the general power of attorney holder of Onkar Singh. It may be relevant here to state that the plea raised on behalf of the plaintiffs that Onkarsingh was not in a sound state of mind at or about the time the decree was passed against him has not been pressed. I would, therefore, not address myself to this aspect of the plaintiffs' case and would proceed on the assumption that the finding arrived at by the learned District Judge that Onkar Singh was not mentally infirm on or about the date of the impugned decree is correct. At this stage it would also be relevant to point out that although the plaintiff* had specifically alleged in the plaint that Onkarsingh was also a party to the fraud in allowing a false claim against him to be decreed the learned counsel for the appellants did not rely on this ground in the course of his arguments and confined himself to the plaintiffs' contention that the fraud was perpetrated by Jalamsingh in collusion with Dilkhushlal. In this connection the learned counsel has assailed the finding of the learned District Judge to the effect that there is not an iota of evidence to prove that Jalamsingh had at any time colluded with the defendant. He submitted that by the very nature of allegation it is impossible to have direct evidence of collusion between Dilkhushlal and Jalamsingh but the circumstances placed on the record taken in conjunction with each other clearly establish the plaintiffs' plea of fraud and collusion. The circumstances which emerge from the evidence led by the parties are these - (i) A Criminal complaint under sec. 324, I. P. C. was lodged against Jalamsingh by the plaintiffs which resulted in Jalamsingh's conviction under sec. 324, I. P. C. on 17 4. 1958 and only 4 days after this conviction he gave the statement in the Civil suit against Onkarsingh and admitted Dilkhushlal's claim outright. (ii) There is no evidence on the record to show that Onkarsingh had given any instructions to Jalamsingh to appear in his evidence and admit the plaintiffs claim; (iii) That even though Mr. Govil, Advocate for Onkar Singh advised Jalamsingh that Onkar Singh had a good case and there were fair chances of the dismissal of Dilkhushlal's suit, even then Jalamsingh not only withdrew the Vakalatnama given by Onkarsingh in favour of Shri Govil, but admitted Dilkhushlal's claim instead of contesting it. (iv) That in the morning of 18 4. 1958 Kanhyalal Kamdar of Onkarsingh approached Shri Govil and instructed him to cross-examine Dilkhushlal's witnesses on certain points. But soon after Jalam Singh went to Shri Govil and told him that Dilkhushlal's claim may be allowed to be decreed as the burden of the same would fall on the plaintiffs. (v) That Dilkhushlal had been a Kamdar of Onkarsingh in the past; (vi) That in the course of trial he did not examine any other witness in support of his case and contented himself by giving his own statement. (vii) That every conceivable defence both of fact and law had been taken by Onkarsingh in his written statement and without any reason or rhyme all those defences were given up and Jalam Singh unhesitatingly admitted the plaintiffs' claim by appearing in the defendant's evidence. From the aforesaid circumstances the learned counsel for the appellants wants me to infer that there was collusion between Dilkhushlal and Jalamsingh and both of them conspired to get Dilkhushlal's false claim decreed. It may not be out of place to mention here that no particulars of fraud have been pleaded in the plaint. It has been alleged that the claim was false and the suit document which was the basis of the suit was forged. It was also suggested that Onkarsingh was not happy with the plaintiffs and about a year before the passing of the decree litigation had already started between Onkarsingh and the plaintiffs for partition of the property. This is a suggestion as to the spite and malice of Onkarsingh himself which has however now been given up. The allegation that the plaintiffs' claim was false or that the document was forged or that the decree was otherwise erroneous, in my opinion, cannot be entertained in a suit for avoiding the decree. The plaintiffs can succeed in avoiding the decree and nullifying its effect only if they succeed in proving that it was obtained by fraud or collusion as fraud vitiates the most solemn transactions. The destruction of a decree no doubt can be obtained on the ground of fraud and/or collusion. Fraud has been defined in sec. 17 of the Indian Contract Act thus - "17. "fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deprive another party thereto or his agent, or to induce him to enter into the contract - (1) the suggestion as a fact, of that which is not true by one who does not believe it to be true ; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. The circumstances narrated above undoubtedly create a suspicion on account of ill-will or malice that Jalamsingh bore to the plaintiffs, did not care to defend the suit on behalf of Onkarsingh. But it cannot be said that any fraud was perpetrated on the Court. The plaintiff in that case Dilkhushlal examined himself in his evidence, and supported his case in full. On behalf of the defendant Jalamsingh appeared as his witness and admitted the execution of the suit document and also the fact that the amount on the basis of the suit document was due from the defendant. From the mere fact that Jalamsingh admitted the plaintiff's claim in his statement as a witness it cannot be said that there was any active concealment of a fact by Jalamsingh having knowledge or belief of that fact, nor can it be said necessarily that his statement is false, or that he stated what he did not believe to be true. At best his conduct raises a suspicion that he did not care to substantiate the defence taken in the written statement. But that cannot necessarily lead to the conclusion that there was an element of fraud in his giving the statement which he did. It can be argued with some plausibility as it has actually been done that all sorts of pleas were raised in the written statement, namely, that the signature purporting to be of Onkarsingh on the suit document was not that of Onkarsingh or in the alternative Dilkhushlal might have obtained Onkarsingh's signature on the suit document by deceit and that in any case the document was without consideration or in the alternative the consideration must have been received by Jalamsingh that the suit was based on acknowledgement and that in any case it was barred by limitation. The possibility cannot be excluded that the relations between the plaintiffs and Onkarsingh having got strained as has been suggested by the plaintiffs themselves in the plaint Onkarsingh as well as his general power of attorney Jalamsingh may have thought of giving up all these defences and make clean breast of the whole thing in view of the extreme old age of Onkarsingh and the hostile attitude of his sons, the plaintiffs, towards him. Nothing can be said with certainty on this score, but on the basis of the circumstances narrated above fraud cannot be said to have been established so as to nullify the impugned decree. Assuming that Jalam Singh did not act fairly and out of ill will for the plaintiffs he did not defend the suit and allowed the decree to be passed in the manner he did, that fact by itself, in my opinion, would not be sufficient to strike down the decree as one obtained by fraud. Apart from that Jalamsingh's statement recorded in that case has not been produced nor any effort has been made to show that any list of witnesses had been filed on behalf of Onkarsingh with a view to examine them in order to substantiate the defence taken by Onkarsingh in his written statement, but Jalamsingh deliberately did not examine any witness in defence except himself. Learned counsel for the appellants, however, urged that even if the plea of fraud is not substantiated the plaintiffs are entitled to succeed as the collusion between Dilkhushlal and Jalamsingh has been proved. He has urged that it is very difficult to prove collusion by direct evidence and from the circumstances brought on the record the only reasonable conclusion is that there was collusion between Dilkhushlal and Jalamsingh.
(3.) COLLUSION has not been defined anywhere but it is now well established that collusion is a deceitful agreement or contract between two or more persons to do some act in order to prejudice a third person or for some improper purpose. It is undoubtedly a secret arrangement for which it is indeed difficult to get direct evidence. The charge of collusion, though easy to make, it is difficult to substantiate it. It is conceded that there is no direct evidence to prove collusion between Dilkhushlal and Jalamsingh. What then are those circumstances which taken together may lead to the conclusion that there was collusion between Dilkhushlal and Jalamsingh for obtaining the impugned decree by improper means? Learned counsel submitted that Dilkhushlal did not examine his evidence in full because there had been a pre-concert between him and Jalamsingh that his claim would be admitted. It is also pointed out that Dilkhushlal had deposed in his statement that Onkarsingh wanted to pay the suit money but had raised contest in the written statement out of sheer fun I am, however, unable to accede to this contention. The defence raised by Onkarsingh regarding the execution of the suit document was rather shaky and Dilkhushlal must have come to know on 22. 4. 1958 by the application moved by Jalamsingh and Shri Govil that the defendant was not going to put up any serious defence in the course of his evidence, and, therefore, he might have thought it fit to close his evidence after examining himself. On a careful consideration of the statement of Dilkhushlal as well as of the circumstances narrated by the learned counsel as detailed above, I find it difficult to hold that there was any agreement between Dilkhushlal and Jalamsingh to manage to obtain a decree to the prejudice of the plaintiffs and to harm their interests. At this juncture I also cannot help observing that the plaintiffs have taken rather inconsistent pleas in the plaint which go to show that they were not clear about their stand. At one place, they threw the blame for the decree on Onkarsingh himself on the ground that he was out to harm the plaintiffs on account of his strained relations with them. In the same breath they have shifted the blame altogether on the head of Jalamsingh by alleging that Onkarsingh was mentally unsound and Jalamsingh played fraud by taking undue advantage of Onkarsingh's illness both physical and mental and it is only the third fact of the plaintiffs' case, namely, that fraud was perpetrated on the Court by Jalamsingh in collusion with Dilkhushlal. I have reproduced these three inconsistent pleas taken by the plaintiffs in the plaint only to illustrate that the plaintiffs themselves were not sure of the grounds on which they wanted to avoid the decree when they filed the suit. That, however, does not stand in their way, and if they had succeeded in substantiating the plea of fraud and/or collusion they have been entitled to get the relief. But in my opinion they have failed in their attempt to do so. The net result of the foregoing discussion is that I do not see any subs-tantial grounds for interfering with the judgment and decree of the learned District Judge, Udaipur dated 24 8. 1963 and hereby dismiss the appeal, but in the circumstances of the case, I leave the parties to bear their own costs. .;