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2014 Supreme(AP) 493
HIGH COURT OF ANDHRA PRADESH
M.S. RAMACHANDRA RAO, J.
M. Gurumoorthy & Others
Versus
C. Kamalamma & Others
A.S.M.P. No. 1898 of 2012 & A.S. No. 371 of 1999
Decided On: 22-04-2014
For the Appellant:V.L.N.G.K. Murthy, Advocate.
For the Respondent:R1, C. Subba Rao, R4, C.V. Mohan Reddy, learned senior counsel for T. Balaji, R5, C.S.K.V. Ramana Murthy, R6, N. Srihari, R7 to R10, P.V. Vidya Sagar, Advocates.
One of important ingredients for application of the principle of lis pendens is that the suit should be non-collusive in character.
Headnote:(A) Evidence Act, 1872-Section 44-Fraud-Under Section 44, a party can, in a collateral proceeding in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party against him was passed by a Court without jurisdiction or was obtained by fraud or collusion and it is not necessary to bring an independent suit for setting it aside---In order to contend in a later suit or proceeding that an earlier judgment was obtained by collusion, as a condition precedent it is not necessary to file an independent suit for a declaration as to its collusive nature or seek setting aside of such collusive decree.
(B) Transfer of Property Act, 1882-Section 52-Lis Pendens-One of important ingredients for application of the principle of lis pendens is that the suit should be non-collusive in character. But then the further question is whether the element of collusiveness must be present necessarily at the inception of the suit or subsequently arise, it begins to operate resulting in a decree obtained either by compromise or otherwise, though the institution of the suit at the inception was honestly done---As the doctrine of lis pendens being essentially a doctrine of equity, and fraud and collusion, being antithesis of equity, cannot be encouraged by Courts nor any decrees obtained by fraud or collusion can defeat the rights of the alienees of immovable property.
Result-Appeal allowed.
1. This appeal is filed under Section 96 of C.P.C. challenging the judgment and decree dt.31-08-1998 in O.S.No.6 of 1996 of the III Additional District Judge Chittoor at Tirupati.
THE PURCHASE BY APPELLANTS
2. The appellants are plaintiffs in the suit. Under a registered sale deed Ex.A-1 dt.13-10-1981, the 1st plaintiff purchased from Defendant Nos.2 to 5 and their mother Valliamma, w/o. Velayudham Chenga Reddy, the plaint schedule property in the name of his minor sons, the plaintiff Nos.2 and 3. The plaint schedule property is an extent of Ac.0-55 cents of dry land out of a total extent of Ac.3-96 cent in Sy.Nos.7/1C and 7/1B of Akkarampalli village, Chandragiri Taluk of Chittoor District.
3. THE BACKGROUND FACTS
4. The above property originally belonged to the said Chengareddy. Valliamma is his wife. They had 2 sons by name Govinda Reddy (2nd defendant) and Varamuni Reddy and 2 daughters by name Pedda Munemma and Munirathnamma (6th defendant). Chenga Reddy died prior to 1965. Varamuni Reddy died in the year 1973 leaving behind his wife Munilakshmamma (3rd defendant) and 2 sons Prasada Reddy (4th defendant) and Sekhar Reddy (5th defendant). Govinda Reddy also died pending suit in 1993. Lakshmamma (7th defendant) is his wife and defendant Nos.8 to 13 are his children. Pedda Munemma also died after 1998 and the 1st defendant is her daughter.
5. An extent of Ac.13-41 cents in Sy.No.7/1 cents was held under a joint patta No.4 by Chenga Reddy and 3 others. The said joint patta was split up under the provisions of A.P. Splitting-up of Joint Pattas Act, 1965 under Ex.A-3 dt.05-01-1970. As a consequence, an extent of Ac.1-50 cents in Sy.No.7/1B and another extent of Ac.1-50 cents in Sy.No.7/1C was allotted to Chenga Reddy. However, after Survey and Settlement, the said extent was found to be Ac.1-98 cents in Sy.No.7/1B and Ac.1-98 cents in Sy.No.7/1C, in all Ac.3-96 cents.
6. Under Ex.A-2 registered partition deed dt.11-04-1979, there was a partition between Valliamma, 2nd defendant and the 3rd defendant representing her minor sons, the 4th and 5th defendants. In the said partition, it was recited that the extent of Ac.3-96 cents was the ancestral property (Pitrarjitam). Under the said partition, an extent of Ac.1-12 cents each was allotted to Valliamma, 2nd defendant and to the legal heirs of Varamuni Reddy (Defendant Nos.3 to 5).
7. As stated supra, the plaintiffs had purchased under registered sale deed Ex.A-1 dt.13-10-1981 the plaint schedule property from Valliamma and Defendant Nos.2 to 5. This sale deed made a specific reference to the registered partition deed Ex.A-2 dt.11-04-1979 mentioned supra. The sale deed also recited that the property is ancestral property (pitrarjitam) and contained a recital of delivery of possession of the property to the plaintiffs.
THE SUIT O.S.161 OF 1979 BY PEDDA MUNEMMA
8. Unknown to the plaintiffs, by the date of Ex.A1, Pedda Munemma, the elder daughter of Chenga Reddy had already filed a suit O.S.No.161 of 1979 before the Principal Subordinate Judge, Tirupati against Valliamma, 2nd defendant, 6th defendant and Defendant Nos.3 to 5 arraying them as defendant Nos.1 to 6 seeking partition of the extent of Ac.3-96 cents of land in Sy.Nos.7/1C and 7/1B of Akkarampalli village and some other house properties.
9. Although the said suit was filed and was pending by the date of execution of Ex.A-1, it is not disputed that the plaintiffs were not informed about the filing of the said suit. Thus, the purchase by plaintiffs was “lis pendens”.
THE PLAINT IN O.S.161 OF 1979
10. In O.S.No.161 of 1979, Pedda Munemma , the plaintiff therein asserted that the extent of Ac.3-96 cents is the self-acquired property of Chenga Reddy and asserted that on his death, as his legal heir, she would get 1/5th share in the above property.
THE WRITTEN STATEMENT IN O.S.161 OF 1979
11. GovindaReddy, who was 2nd defendant therein, filed a written statement denying that the properties were self-acquired properties o
