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1998 Supreme(Mad) 310
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
E. Venugopal
Versus
Moongiliamman Thirukoil, etc.
C.R.P. No. 1761 of 1994 & (Tr.) A.S. No. 161 of 1997
Decided On :Decided On : 27-02-1998
For the Petitioner:S.C. Shah, V.S. Subramanian, Advocates.
For the Respondent:R2 - V. Thiruvengadachari, Advocate.
A decree obtained by fraud or collusion can be set aside, but the party seeking to set aside the decree must prove the fraud or collusion and must have a right or interest in the property that is affected by the decree.
Headnote:
HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS ACT, 1959 - SECTION 78 - SUIT FOR DECLARATION OF TITLE AND POSSESSION - DECREE OBTAINED BY FRAUD AND COLLUSION - INTERPRETATION OF LEGAL PROVISIONS - APPLICATION OF PRINCIPLES - RELEVANCE OF AUDIT REPORT - MEANING OF COLLUSION AND FRAUD - CONCLUSIVENESS OF PRIOR JUDGMENT - JURISDICTION TO IMPUGN DECREE FOR FRAUD - GROUNDS FOR SETTING ASIDE DECREE - OBSTRUCTION PETITION - EXECUTION OF DECREE - DIRECTIONS TO EXECUTING COURT.
Fact of the Case:
Plaintiff-Temple filed a suit for declaration of title and possession over a property, claiming that the decree obtained in an earlier suit was fraudulent and collusive. The defendant contended that the property belonged to his wife, who had obtained a decree in the earlier suit after a contested trial, and that the Temple had no right over it.
Finding of the Court:
The court found that the Temple failed to prove its title to the property and that the alleged collusion between the defendant and his wife in the earlier suit was not established. It also held that the defendant's wife was the owner of the property and that her right had devolved on the defendants.
Issues: 1. Whether the plaintiff-appellant is successful enough in impeaching the decree in O.S. 588 of 1997 as collusive and fraudulent? 2. Whether the plaintiff has got title to the property? 3. Whether the findings entered by the court below are liable to be interfered with in this Appeal? 4. Relief and costs?
Ratio Decidendi: 1. The court held that the plaintiff failed to establish its title to the property as it did not produce any title deed in its favor and relied only on certain circumstances. The antecedent title deeds were not filed by the defendants, but the evidence showed that the property belonged to the defendant's wife's father and later to her husband. The plaintiff's claim from 1949, when the management was taken over by the Board, was not supported by any evidence. 2. The court found that the plaintiff's argument based on an Audit Report, which showed that the Temple was receiving rent from the property, could not be accepted as evidence of ownership or possession, especially considering that the Audit Report was from 1958, long after the defendant's wife had instituted a suit claiming title to the property. 3. The court held that the plaintiff's contention that the decree in the earlier suit was obtained by fraud and collusion was not supported by evidence. It explained the legal definitions of collusion and fraud and found that the plaintiff's allegations did not fall within those definitions. The court also noted that the Temple did not raise any objection when the defendant's wife was conducting the earlier suit and that it did not provide any evidence to show that it had a right over the property. 4. The court concluded that the plaintiff's suit was dismissed with costs and that the defendant's Revision Petition was allowed with costs, directing the executing Court to give possession of the property to the decree-holder within a week.
Final Decision: The court dismissed the plaintiff's suit and allowed the defendant's Revision Petition, directing the executing Court to give possession of the property to the decree-holder within a week.
1. Plaintiff in O.S. No. 4450 of 1982, on the file of 13th Judge, City Civil Court, Madras, is the appellant. Decree-holder (landlord) in R.C.P. No. 2034 of 1978, on the file of XI Judge, Court of Small Causes, Madras, is the revision petitioner.
2. Disposal of the Appeal will conclude the Revision also, since the same question arises for consideration in both matters.
3. Reference to parties in this judgment will be according to their rank in the suit.
4. O.S. No. 4450 of 1982 is the suit filed by plaintiff-Temple through its Fit Person for a declaration that the plaintiff is the true owner of the property described in the plaint schedule and that defendants 1 and 2 have no legal title in the same; for a declaration that the decree obtained in O.S.
588 of 1957 is fraudulent and not binding on the plaintiff; and for costs of suit.
5. The materiel averments in the plaint may be summarised thus: —
Moongiliamman Thirukoil situated at Old No. 290 and new No. 21, Wall tax Road, Madras-3, is a Temple under the Management of the Hindu Religious and Charitable Endowment Board through its Fit Person and Executive Officer. It is said that the Temple, which was an endowed one, came under the management of the Endowment Board on 27.6.1949. At the time of taking over the Temple, one K. Subbaiah Achari was appointed as Trustee and he has been functioning as such in respect of the management of the affairs of the said Temple. It also owned and possessed Old No. 290 and New No. 121, Wall tax Road, Madras-3, and the income of which was utilised for the benefit of the Temple. There were two Archakas for performing the daily religious duties of the Temple. It is said that Subbiah Achari died, and enquiries revealed that the previous Trustees were Sumarapuri Achari and Annamalai Achari. At the time when the Temple was admitted to the Hindu Religious and Charitable Endowment Board, the Trustee who was functioning on behalf of the Temple was Subbiah Achari, and he was allowed to continue as Trustee. The reason for filing the suit is said to be an inspection made by the Board though the Fit person. It is said that the first defendant-Venugopal, styling himself as owner of the property, had been collecting rents from the 3rd defendant, K. Gopinathan. On further inspection, it was found that one Unnamatai Ammal, purporting to be the wife of Sumarapuri Achari filed a suit on the file of City Civil Court, Madras, making Subbiah Achari as first defendant, the Temple as second defendant and the Endowment Board as their defendant, claiming title and possession over the property. Unnamalai Ammal, who was plaintiff in that case, is the widow of Sumarapuri Achari. Sumarapuri Achari died in 1915. First defendant herein is Unnamalais husbands sisters son. It is further said that the Temple being under the management of the Endowment Board and its Trustees from 1949, a suit was instituted by Unnamalai Ammal in collusion with Subbiah Achari. A decree was obtained in that case against Subbiah Achari and the Temple. The decree obtained by Unnamalai Ammal is fraudulent and collusive, and the same is non est in law. ‘Kumbabhishekam’ was conducted in the Temple and there has been proceedings by Endowment Board as early as 26.10.1949 where it could be seen that the schedule property is recorded as the property belonging to the Temple. It is further said that the decree has not been executed. Another suit was also filed as O.S. No. 652 of 1982 by the third defendant against the present first defendant and others for injunction. From that suit, the Temple came to know that the present first defendant and his wife Sakunthala Ammal are claiming right over the property and, therefore, notice was issued, for which a reply was given by Sakunthala Ammal on 27.2.1982, refuting the claim of the Temple. It is said that the decree that was obtained against the Temple is fraudulent and out of collusion and, therefore, the same is not binding, and the same has cast a cloud
