H MUNI REDDY v. K N MUNIYAPPA REDDY

dated 19.07.1972. Munivenkatappa challenged those revenue entries in R.A.No.70/93-94 before the Assistant Commissioner. The said appeal was allowed on 22.08.1984. Further under the registered deed dated 14.07.1993 Munivenkatappa revoked the bequeath made by him in favour of the present respondent - 5 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR under the Will dated 19.07.1972 and bequeathed the entire 2 acres 14 guntas in Sy.No.200/2 in favour of the appellant.

#7. On

25.06.1994, respondent No.1 O.S.No.3582/1994 against K.N.Obala Reddy and his brother in law Munivenkatappa before the City Civil Court, Bengaluru Rural District, Bengaluru for partition and separate possession of his alleged share in the plaint schedule ‘A’ to ‘D’ properties namely land bearing Survey No.200/2, Sy.No.129/3 and Sy.No. 3 which are stated above. The said suit was transferred to the Court of Principal Civil Judge (Senior Division), Bangalore Rural District, Bangalore renumbered as O.S.No.214/1994.

#8. Further respondent No.1 filed O.S.No.329/1996 against the present appellant and K.N.Obala Reddy seeking declaration that the Will dated 14.07.1993 executed by Munivenkatappa in favour of present appellant is null and void. Subject matter of the said suits were again land bearing Survey No.200/2 measuring 1 acre, Survey No.129/3 measuring 4 ¾ guntas, Survey No.3 measuring 23 guntas and site bearing Khaneshmari No.51, Khata No.135.

#9. Those two suits were contested by the present appellant and K.N.Obala Reddy. Pending the said suit - 6 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR Munivenkatappa died. His LRs were not brought on record. In O.S.No.214/1994, respondent No.1 contended that those properties were ancestral joint family properties and he has share in them, whereas defendants therein denied the same and contended that already partition was effected in 1972 and those properties belonged to Munivenkatappa and his wife Muniarasamma. As they were issueless they adopted the present appellant. It was further contended Munivenkatappa has executed registered Will dated 24.07.1972 in favour of the present appellant and respondent No.1 bequeathing those properties.

#10. The Principal Civil Judge (Senior Division), Bengaluru Rural District, Bengaluru consolidated O.S.No.214/1994 and O.S.No.329/1996 and recorded common evidence in those cases. The said Court on hearing the parties on 19.01.2000 dismissed those suits of the present respondent No.1. In those cases the Court held that land bearing Survey No.200/2 measuring 2 acres 14 guntas originally belonged to one Venkatachala Iyenger. Geddekanna Muniya @ Muniyappa purchased the said properties under registered sale deed dated

12.07.1913. He inturn sold the said lands to Munivenkatappa - 7 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR and Muniarasamma under registered sale deed dated

06.05.1932. Though the sale deed was in their favour, khata of the properties stood in the name of Nanjappa Reddy, biological father of K.N.Obala Reddy and respondent No.1. After death of Nanjappa Reddy, khata continued in the name of K.N.Obala Reddy. But owner Munivenkatappa was in possession and enjoyment of the properties by paying taxes. The Court also accepted the contention that the land bearing Survey No.129/3 was exclusive property of Munivenkatappa. Munivenkatappa and his wife Muniarasamma had adopted the present appellant under registered adoption deed dated 10.05.1965. The Court also accepted the contention of the defendant in the aforesaid suit that Munivenkatappa was absolute owner of Survey No.200/2 measuring 2 acres 14 guntas and Survey No.129/3 measuring 9 ½ guntas. He executed registered Will dated

24.07.1972 bequeathing 1 acre 14 guntas in Survey No.200/2, 9 ½ guntas in Survey No.129/3 along with other properties in favour of the present appellant and bequeathing 1 acre in Survey No.200/2 in favour of respondent No.1.

#11. The Court also accepted the contention that respondent No.1 on the basis of forged statement allegedly - 8 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR given by Munivenkatappa, got his name entered in Survey No.200/2, therefore Munivenkatappa was forced R.A.No.70/1993 before Assistant Commissioner, Bengaluru Sub-Division for cancellation of the said khata and ultimately succeeded in that. Further having regard to such conduct of respondent No.1, Munivenkatappa under registered document dated 14.07.1993 revoked the Will made in favour of respondent No.1 and bequeathed that property also to the present appellant. The Court also accepted the contention of the defendants therein that the suit was barred by limitation.

#12. Challenging the said judgment and decree, respondent No.1 preferred R.F.A.No.408/2000 R.F.A.No.370/2000. This Court on hearing the parties in those appeals by judgment dated 06.04.2009 dismissed those appeals on merits.

#13. Such being the things, respondent Nos.1 to 4 suppressing the proceedings in O.S.No.214/1994 and O.S.No.329/1996 purportedly entered into a partition under registered partition deed dated 04.08.2003 including the properties which were the subject matter of the said suits. Based on such partition deed, respondent Nos.2 to 4 filed - 9 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR O.S.No.1103/2009 against respondent No.1 on 03.09.2009 seeking declaration of their title under registered partition deed dated 04.08.2003 and for permanent injunction. In those proceedings, neither respondent No.1 nor respondent Nos.2 to 4 disclosed the earlier proceedings in O.S.No.214/1994 and O.S.No.329/1996 and pendency of R.F.A.No.408/2000 and R.F.A.No.370/2000. The said appeals came to be dismissed on

06.04.2009. But still respondent Nos.1 to 4 proceeded in O.S.No.1103/2009. In those proceedings respondent No.1 admitted the alleged partition deed dated 04.08.2003. But the only contention of respondent No.1 was that respondent Nos.2 to 4 have obtained said partition deed under mistake and that does not bind him. The suit came to be decreed on 30.08.2011.

#14. Subject matter of the suit were set out in schedule A to D of the plaint. Out of the said properties, this appeal is concerned with land bearing Survey No.200/2 measuring 1 acre 14 guntas which was plaint schedule A item No.2 property, Survey No.129/3 measuring 9 ½ guntas which was plaint schedule A item No.3 property. Respondent Nos.2 to 4 did not even implead the appellant as party in O.S.No.1103/2009 though he had interest in the aforesaid properties. Therefore, - 10 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR challenging the judgment and decree in O.S.No.1103/2009, appellant has preferred the above appeal. It is also material to against judgment decree O.S.No.1103/2009, respondent No.1 herein preferred R.F.A.No.1986/2011 which came to be dismissed on

23.11.2011.

#15. Sri C.M.Nagabhushana, learned Counsel for the appellant submitted that respondent Nos.1 to 4 in collusion with each other to subvert the judgment and decree in O.S.No.214/1994 connected with O.S.No.329/1996 have played apparent fraud on the Courts in securing the judgment in O.S.No.1103/2009 and R.F.A.No.1986/2011 which is nothing short of contempt of Court and glaring abuse of the process of the Court. Therefore same shall be seriously dealt with. He submits that fraud vitiates everything and if fraud is found, the Court can set aside its opinion and order in appeal.

#16. In support of his submissions, he relies on the following judgments: (i) S.P.Chengalvaraya Naidu v. Jagannath1 (ii) State of A.P. v. T.Suryachandra Rao2

06.08.2012 dismissed R.F.A.No.1986/2011.

#25. This Court while answering the contention of respondent No.1 herein, who was the appellant R.F.A.No.408/2000 and R.F.A.No.370/2000, in para 9 of the said judgment with regard to Survey No.200/2 rejected the contention that same was still joint family property and that still he was entitled to 10 guntas in the land. Similarly in paras 10 & 11 of the said judgment his contention with regard to Survey No.129/3 and Survey No.3 being joint family properties and his claim for share in those properties were rejected.

#26. In para 12 of the judgment, it was held that land bearing Survey No.200/2 measuring 2 acres 14 guntas belonged to Munivenkatappa and his wife Muniarasamma and - 18 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR upheld the contention that the present appellant was adopted son of Munivenkatappa and Muniarasamma and except 1 acre of land in Survey No.200/2, rest of the properties were bequeathed in favour of the present appellant. It was further held that Munivenkatappa was the absolute owner of the properties and the present appellant acquired title to those properties being an adopted son and by virtue of bequest made by Munivenkatappa. Despite those findings attaining finality, suppressing the said proceedings and pending proceedings, without leave of the Court, respondent Nos.1 to 4 entered into registered partition deed dated 04.08.2003. Further based on such document, suppressing the earlier judgments in O.S.No.214/1994 c/w O.S.No.329/1996, respondent No.1 to 4 in collusion with each other have played fraud on the Court in obtaining judgment in O.S.No.1103/2009 and R.F.A.No.1986/2011.

#27. It is painful that apart from the parties, even the Counsel who represents respondent No.2 in the present case conducted the case in an unprofessional manner. He himself representing present respondent Nos.2 to 4 as plaintiffs has filed O.S.No.1103/2009 against respondent No.1 (defendant). - 19 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR But pending the said suit he filed vakalat for the present respondent No.1 (who was his adversary in O.S.No.1103/2009) in the proceedings before the Assistant Commissioner, South Sub Division, Bangalore in K.SC/ST/(P)(A).No.15/2011-12 and filed appeal on his behalf. Again in R.F.A.No.1986/2011 he represents present respondent Nos.2 to 4 who were the adversaries of the present respondent No.1 in the said appeal which is totally unethical.

#28. The present appeal is preferred mainly on the ground that the proceedings in O.S.No.1103/2009 were collusive one to subvert the judgments in O.S.No.214/1994 c/w O.S.No.329/1996 and the appeals arising out of the same. Consequently, the proceedings in O.S.No.1103/2009 and the appeal arising out of the same i.e. R.F.A.No.1986/2011 were fraudulent one and those judgments were obtained by playing fraud on the Court. Thus they are liable to be set aside.

#29. To explore how fraud was played on the Court, it is necessary to look into the dates and events narrated below in the tabular form:

25.06.1994 Filing of OS No.214/1994 (Original OS No.3582/1994)

18.04.1996 Filing of OS No.329/1996 19.01.2000 DD of OS No.214/1994 C/w OS No.329/1996 - 20 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR

22.05.2000 Filing of RFA No.370/2000 23.05.2000 Filing of RFA No.408/2000 04.08.2003 Registered Partition Deed 06.04.2009 DD of RFA Nos.408/2000 & 370/2000 03.09.2009 Filing of OS No.1103/2009- Declaration of title under partition deed dated 04.08.2003 and Permanent Injunction 30.08.2011 DD of O.S No.1103/2009 23.11.2011 Filing of RFA No.1986/2011 (Against OS No.1103/2009)

06.08.2012 DD of RFA No.1986/2011 – dismissal 11.10.2012 RFA No.1762/2012 (Present appeal filed) 11.10.2012 IA 4/2012 by appellant under order 41 Rule 27 04.03.2015 IA 1/2015 under Order 41 Rule 27- by respondent No.1- relevancy of documents not stated on affidavit

#30. The above discussed evidence respondent Nos.1 to 4 have no scope at all to say that they were not aware of the proceedings in O.S.No.214/1994 c/w O.S.No.326/1996 and the appeals arising out of the same, since present respondent No.3 deposed before the trial Court as Power of Attorney Holder of present respondent No.1 in those proceedings. Thus the judgment in O.S.No.1103/2009 and R.F.A.No.1986/2011 were outcome of the fraud played by respondent Nos.1 to 4 and their Counsel on the trial Court as well as this Court for the purpose of subverting the earlier judgments of the competent Court in O.S.No.214/1994 c/w O.S.No.326/1996 and the appeals arising out of the same. Thereby they have attempted to interfere with the course of justice which is nothing short of criminal contempt of Court as - 21 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR per Section 2(c)(ii)(iii) of the Contempt of Courts Act, 1971 and clear abuse of process of the Court. Such acts of unscrupulous litigants and others involved should be dealt with firm hands, otherwise the same pollutes the judicial dispensation system.

#31. The judgment in Mary Pushpam’s case referred to supra was relied by learned Counsel for respondent No.2 to contend that, when a decision of a Coordinate Bench of the same High Court is brought to the notice of the bench, it is to be respected and is binding, subject to right of the bench of such co-equal quorum to take a different view and refer the question to a larger bench. In saying so learned Counsel for respondent No.2 wants to adopt double standard, one for himself and another for the appellant. Respondent Nos.1 to 4 and their counsel were aware of the judgment dated

06.04.2009 in R.F.A.No.408/2000 and R.F.A.No.370/2000. But they do not say why this enlightenment of judicial discipline did not strike them while filing and inviting the judgment in O.S.No.1103/2009 suppressing judgment O.S.No.214/1994 c/w O.S.No.329/1996 and the pendency of the appeals against the said judgment. There is no explanation as to why they suppressed in R.F.A.No.1986/2011 about the - 22 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR judgment dated 06.04.2009 in RFA Nos.370 and 408 of 2000. They did not follow the said judicial discipline while conducting RFA No.1986/2011. One who seeks fairness and equity should be fair and equitable to his adversaries also. Moreover the Hon’ble Supreme Court in para 25 of its judgment in Yashoda’s case referred to supra referring to several other judgments held as follows: “25. Again in the case of A.V. Papayya Sastry and Others v. State of A.P. and Others (2007) 4 SCC 221 , this Court observed thus: “21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed: “Fraud avoids all judicial acts, ecclesiastical or temporal.”

#22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order—by the first court or by the final court—has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.

#23. In the leading case of Lazarus Estates Ltd. v. Beasley [(1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502 (CA)] Lord Denning observed : (All ER p. 345 C) “No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.”

#24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an - 23 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

#25. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).

#26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of “finality of litigation” cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.” (Emphasis supplied)

#32. Reading of the above paragraph shows that the judgment/decree/order obtained by fraud from the first Court or final Court has to be treated as nullity by any Court superior or inferior leave alone the coordinate bench. The said judgment is aptly applicable to the facts of the present case. Therefore the contention that in view of judgment in R.F.A.No.1986/2011 this appeal cannot be considered is unsustainable.

#33. In all other judgments relied on by learned Counsel for the appellant it was held that fraud vitiates even a solemn act, fraud and justice neither dwell together. It was further held that the act of fraud on Court is always viewed seriously. In this case also, the proceedings in O.S.No.1103/2009 and - 24 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR R.F.A.No.1986/2011 are the trickery played on the Court by respondent Nos.1 to 4 suppressing the material facts and playing fraud on the Court to overreach or subvert the judgments in O.S.No.214/1994 c/w O.S.No.329/1996 and R.F.A.No.408/2000 and R.F.A.No.370/2000. In view of the aforesaid facts, circumstances and legal position, the judgment in O.S.No.1103/2009 and consequential proceedings R.F.A.No.1986/2011 have no legs to stand.

#34. Further this Court by order dated 05.02.2018 on hearing both side has granted leave to the appellant to prefer this appeal. Respondents have not challenged the said order and that has attained finality. On that ground also the contention that allowing this appeal is not permitted in view of the judgment in R.F.A.No.1986/2011 deserves no merit. Hence, the judgments in O.S.No.1103/2009 are obtained by playing fraud even in the Courts. Once if it is held that the judgment in O.S.No.1103/2009 is null, the judgment in R.F.A.No.1986/2011 does not sustain. By such unscrupulous acts, respondent Nos.1 to 4 have dragged the appellant to the Courts for over 31 years. Therefore, the case warrants - 25 - NC: 2025:KHC:18408-DB RFA No. 1762/2012 HC-KAR imposition of heavy costs and stringent action to bring such unscrupulous litigants to book. Hence the following: ORDER I.A.No.4/2012 is allowed. I.A.No.1/2015 is rejected. The appeal is allowed on payment of costs of Rs.1,00,000/- payable by respondent Nos.1 to 4 to the appellant within four weeks from the date of receipt of copy of this judgment. The impugned judgment and decree in O.S.No.1103/2009 passed by the Fast Track Court-IV, Bengaluru Rural District, Bengaluru and the judgment in R.F.A.No.1986/2011 are hereby declared as null and void and consequently set aside. The suit in O.S.No.1103/2009 is dismissed with costs. Place this matter before Hon’ble the Chief Justice for initiating contempt proceedings against respondents. Communicate copy of this judgment to the Karnataka State Bar Council. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (K. V. ARAVIND) JUDGE KSR List No.: 1 Sl No.: 1