A decree obtained by collusion can be challenged by a party to the suit under Section 44 of the Evidence Act, and oral transfer of immovable property worth more than Rs.100/- after 1955 is invalid under Section 2(d) of the Transfer of Property Act.

1. This is defendant s Second Appeal against whom suit for possession was dismissed by the trial Court but was decreed in appeal.

2. Kaula Singh, son of Bhan Singh, was the owner of the suit property. He died on 22nd Aug., 1972 leaving behind three daughters named Balbir Kaur, Jagir Kaur and Surjit Kaur. On the death of Kaula Singh, mutation of the suit land was. sanctioned in favour of the defendant-Nachhatar Singh on the basis of a decree dt. 26th April, 1972, suffered by Kaula Singh in favour of Nachhatar Singh. The plaintiffs, i.e. the two daughters Jagir Kaur and Surjit Kaur filed, on 4th Nov., 1972, the suit for possession of their 2/3rd share in the suit land left behind by their father Kaula Singh. It was alleged in the plaint that the defendants are asserting their rights on the suit land under a decree dt.26th April, 1972, which decree, according to them, was obtained by collusion and from a Court which was not competent to pass the same. It was alleged that the Sub-Judge 1st Class, Muktsar, who passed the said decree had no jurisdiction to entertain the suit as (a) the property in dispute was located in Tehsil Fazilka; (b) that to create fictitious jurisdiction of the Sub-Judge Muktsar, one plot which was not in existence and of which neither Kaula Singh nor defendants were owners or in possession, was fictitiously shown with the property in dispute to deceive the Court; (c) that the property in dispute was solely owned by Kaula Singh, and defendant No. 1 Nachhatar Singh had no share in it nor had he any share in the alleged plot. He was not in possession of the plot and there was no question of any family settlement; and (d) that after 1955 Kaula Singh could not orally or by collusive decree transfer the property as it violated the statutory provisions. Hence, the suit was filed for their 2/3rd share.

3. In the Written Statement, the defendants raised certain preliminary objections as to the plaintiffs rights to challenge the decree. According to the Written Statement, the suit as such was not maintainable unless the earlier decree was got cancelled. On merits it was pleaded that Kaula Singh during his lifetime, in view of the family settlement, had given land to the children of his daughter Smt. Balbir Kaur and had also given them the possession of the property. Nachhatar Singh was in lawful possession of the property because of the decree in his favour.

4. The trial Court found that the decree dt. 26th April, 1972 was passed by a Court of competent jurisdiction. It was further found that the question whether Kaula Singh had any plot of land situate in Muktsar cannot be re-opened as the Muktsar Court had accepted the existence of such a plot. It was further held that the plaintiffs are bound by the earlier decree and the present suit, therefore, was not competent in the presence of the earlier decree. The trial Court also observed that if the plaintiffs wanted to avoid the consequence of the earlier decree they must first get it set aside. Ultimately, with these findings, the suit was dismissed. In appeal, the learned Senior Sub-Judge with enhanced Appellate Powers reversed the said findings of the trial Court and came to the conclusion that a collusive decree was obtained earlier by Nachhatar Singh defendant against Kaula Singh and, therefore, the same was not binding on the plaintiffs. It was further found that immovable property of the value of more than Rs.100/-could not be transferred orally and since it had been transferred by way of the said decree it contravened the provisions of the Transfer of Property Act and, as such, the transfer is not valid in the eye of law. The contention raised on behalf of the defendants that the earlier decree operates as res judicata was repelled on the ground that Kaula Singh deceased had not transferred the property by way of family settlement and the decree dt. 26th April, 1972, is illegal and not binding on the plaintiffs. Consequently, the suit was decreed. Dissat