The main legal point established in the judgment is that for a suit to set aside a decree based on fraud and collusion, the necessary averments and evidence must be provided. Additionally, the suit must be filed within the prescribed limitation period.

( 1 ) THIS appeal is preferred by defendents 1 to 4 against the Judgment and decree dated 4th October 1976 passed by the learned IIIrd Additional Civil judge, Mysore, in 0 S. No. 127 of 1973. The trial Court has passed the decree in the following terms : in the result and for the foregoing reasons the suit is decreed with costs and it is declared that the decree in o S. No. 28/5253 was obtained by collusion. There shall be a Preliminary decree for partition of the suit properties. The partition of the immoveable properties assessed to land revenue shall be made under this decree by the deputy Commissioner or his gazetted subordinate duly authorised in that regard under Section 54 C. P C. The partition of moveables shall be effected by a Commissioner appointed in that regard. The profits due to the plaintiffs shall be ascertained in a separate enquiry under Or. 18 Rl. 18 C. P. C. Draw up a preliminary decree accordingly.

( 2 ) RESPONDENTS 1 to 4 are plaintiffs 1 to 4 and respondents 5 and 6 are defendants 5 and 6. Appellants 1 to 4 are defendants 1 to 4. In this Judgment, the parties will be referred to with reference to the position assigned to them in the trial Court.

( 3 ) THE suit was filed on 9-8-1973 for a declaration that the preliminary and the final decree passed in O. S. No. 28/52-53 on the file of the District Judge, mysore, were a nullity in as much as same were tainted with fraud and collusion. They also sought for a decree for partition and separate possession of their 1/4th share in the suit schedule properties by dividing them by metes and bounds with enquiry into future mesne profits.

( 4 ) THE trial court on the basis of the pleadings of the parties framed the following issues : (1) Whether the preliminary and final decree in 0 S. No. 28/52-53 on the file of District Judge, Mysore, are vitiated by fraud and collusion and are a nullity ? (2) Whether the plaintiffs are still members of the joint family as alleged by them ? (3) Whether the suit is barred by time ? (4) Whether the suit is properly valued and court fee paid is correct ? (5) Whether the plaintiffs are entitled for partition and separate possession of the shares ? (6) Whether the plaintiffs are entitled to mesne profits from the date of suit till delivery of possession of their shares ? (7) To what relief ? the Trial court has answered Issues nos 1,2, 4, 5 and 6 in the affirmative and issue No 3 in the negative Consequently, it has passed the decree in the aforesaid terms.

( 5 ) HAVING regard to the contentions urged on both sides the following points arise for consideration : (1) Whether the plaint contains the necessary averments of fraud and collusion ? (2) Whether the trial Court is justified in holding that the averments of fraud and collusion are established ? (3) Whether the suit is in time ? (4) Whether the decree passed by the trial Court is sustainable in law?

( 6 ) POINTS 1 to 3 : Points 1 to 3 can conveniently be considered together. The case of the plaintiffs is that they are the sons of Defendant No. 6 and defendant no 1 is their uncle. Defendants 2 and 3 are the sisters of defendants 1, 5 and 6 and daughters of defendant-4. Defendant-4 is the mother of defendants 1 to 3, 5 and 6 The suit schedule properties were the joint Hindu family properties. The further case of the plaintiffs is that m. Siddalinga Setty, who was the husband of defendant-4 and the father of defendants 1 to 3, 5 and 6 died on 21-10-1946 leaving behind the suit schedule properties. Defendants 5 and 6 were wasting the suit schedule properties as defendant-6 was given to bad habits such as drinking and gambling ; that defendants 1 to 4 taking the advantage of the conduct of defendants 5 and 6 obtained a decree in 0 S No. 28/52-53 for partition and separate possession of their shares in the suit schedule properties for a larger extent of share than what they were entitled to ; that they were not entitled to more than half share in the suit schedule properties