Smt. Lakshmi Bai (Dead) Vs Jagadish H.S. Since Dead by

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN NATURE OF CERTIORARI QUASHING THE ORDER PASSED BY THE LOK-ADALATH DATED 04.07.2011 AS PER ANNEXURE-G AND ETC.

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THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 02.07.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

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CAV ORDER

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Accepting the reasons stated in support of IA1/2025, the order dated 16-01-2025 dismissing the above petition for non-prosecution on account of non-appearance of the petitioners’ counsel is recalled, since the Petitioners’ counsel is present and has addressed his arguments.

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NC: 2025:KHC:25025 WP No. 10147 of 2016

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HC-KAR

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The Petitioners are before this Court seeking for the following reliefs:

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i. Issue a writ in nature of certiorari quashing the order passed by the Lok Adalath dated 04.07.2011 as per Annexure-G.

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ii. Issue such other direction or order in the circumstances of the case in the interest of justice.

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The petitioners namely Smt.Lakshmi Bai, wife of Sri.H.R.Shet Rama Rao, who had two children, namely Smt.Bharati and Sri.Jagadish.H.S. The minor children of said Jagadish.H.S had filed a suit in O.S. No. 426 of 2004 against Jagadish.H.S as Defendant No. 1, Lakshmi Bai as Defendant No. 2 and Bharthi as Defendant No. 3 seeking for a judgment and decree for partition and separate possession of the plaintiffs’ 8/18 share in the plaint scheduled property by metes and bounds.

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The said suit vide judgment and decree dated 21.10.2008 came to be decreed by placing the defendants exparte on account of their non-

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appearance despite service of notice. FDP proceeding in FDP No. 35 of 2011 having been filed, the respondents therein, that is, Jagadish.H.S, Lakshmi Bai and Bharthi had entered appearance and an application under Order 32 Rule 7 of the Code of Civil Procedure was filed along with the certificate of counsel for the petitioners therein. The said application came to be allowed and the matter was placed before the Lok Adalat. Before the Lok adalat, the minor petitioners therein were represented by their mother and natural guardian, as also the counsel. The respondents No.1 to 3 therein were represented by a single counsel. The compromise petition having been admitted, genuineness of the compromise being accepted by the conciliators, the FDP proceedings were allowed in terms of compromise petition and a final decree was directed to be drawn. It is this compromise which is under challenge before this court by way of the present writ

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petition since the compromise was entered into before the Lok-adalat.

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Submission of Sri.H.H.Shetty, learned counsel for the Petitioners is that,

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5.1. The decree in OS No. 426 of 2004 could not have been passed since the plaintiffs therein did not have any right in the properties. In this regard, he relies upon the decision of the Hon’ble Apex Court in Kiran Singh and others

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-v- Chaman Paswan and others¹ to contend that there being a defect in jurisdiction, no decree could have been passed and such a decree is a nullity.

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5.2. He has also relied upon the decision of the Hon’ble Apex Court in Uttam -v- Saubhag Singh and others² , to contend that a grandson would not have any right in the property of the grandfather and no such right

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1 AIR 1954 SC 340

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2 (2016)4 SCC 68

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could be claimed in the lifetime of the father. Thus, he submits that the suit itself was misconceived, not maintainable, as such by relying upon the decision in Kiran Singh's case supra, he submits that the decree passed in OS No.426/2004 is without any jurisdiction.

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5.3. His further submission is that Lakshmi Bai and Bharati were defrauded by Jagadish.H.S, who took undue advantage of their love and affection, the petitioners not being aware of the earlier decree, said Jagadish.H.S had persuaded the petitioners to sign the vakalat and file the compromise petition in the FDP proceedings. The compromise in the FDP proceedings being fraudulent, he relies upon the decision of this Court in Smt.Padmavati since deceased by

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her LRs -v- Tirumalarao and others³ , more particularly para 4(e) & (f) thereof which are reproduced hereunder for easy reference:

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3 (2021)3 KCCR 2322

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(e) A perusal of the papers makes it irresistible to reproduce what the Apex Court of the country in Krishan Yadav Vs. State of Haryana (1994)4 SCC 165 stated, at para 16:

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“16. Having regard to all the above, the irresistible conclusion is "fraud has reached its crescendo". Deeds as foul as these are inconceivable much less could be perpetrated. We are reminded of the words of Shakespeare:

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"Thus much of this, will make Black, white; foul, fair; wrong, right; Base, noble; Ha, you gods! why this?" (Timon of Athens, Act IV, Sc. 3)”

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The Hon’ble Supreme Court in S.P.Chengalvaraya Naidu Vs. Jagananth (1994) 1 SCC 1 observed as to what should: happen to the Court Orders obtained by fraud; at para 1, it stated.

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"Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.”

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The facts of this petition make it a classic case of fraud of first order for the invocation of the law declared in the above decision.

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(f) There is yet another aspect which needs to be a bit deliberated upon; the first respondent did not aver in the plaint that the petitioner Padmavati was dead & gone; nor did he claim that her whereabouts were not

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known to those who naturally would have heard of them; the provisions of Sections 107 & 108 read with Section 114 of the Indian Evidence Act, 1872, deal with presumption of death of a person; Section 107 provides that if a person is shown to have been alive within thirty years of the date on which the question presumption of his being alive and the burden of proving the contrary lies on the asserter; Section 108 is in the nature of a proviso to Section 107 and it provides that when a person is continuously absent for seven years or more and not heard by the near & dear who would naturally have heard of him had he been alive, that person may be presumed to have died, unless the contrary is shown by the contender;

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5.4. On the basis of the decision in Padmavati's

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case, he submits that fraud having been played by Jagadish.H.S, the compromise recorded by Lok-adalat is required to be set aside.

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Having heard the learned counsel for the petitioner, the short question that arises for consideration is,

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“Whether the compromise petition filed in the FDP proceedings needs to be set aside

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in these proceedings?”.

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HC-KAR

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As referred to supra, what has been challenged is the compromise entered into in the FDP proceedings, which had been filed in pursuance of a preliminary decree in O.S. 462/2024. The said preliminary decree having been passed on 21.10.2008, FDP proceedings in FDP No. 35/2011 were filed in the year 2011 and a compromise was entered into on 4.07.2011 on the appearance of the respondents.

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The defendants relinquished their rights over certain of the properties in favour of the plaintiffs. The second defendant that is Lakshmi Bai was entitled to reside in Item No.2 of plaint schedule property during her lifetime and the properties were put into exclusive possession of the respective parties. This compromise has been entered into in furtherance of the decree passed in O.S. No.464/2004. Though an allegation has been made that Sri.Jagadish.H.S. has exercised undue influence on the petitioners, apart from this vague argument, there is nothing which

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has been placed on record. The present writ petition having been filed on 22.02.2016, nearly five years after the compromise, and after the death of Jagadish.H.S., there being no allegations made during the lifetime of Jagadish.H.S. and or no action has been taken against the counsel who appeared for them though allegations have been made during the course of argument that the counsel has not been engaged by the petitioners.

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The fact remains that the decree in OS No.426 of 2004 has not been challenged. The same having attained finality to the knowledge of the petitioners even when the above petition had been filed in the year 2016 has not been challenged till now and the period of limitation has long expired. What is challenged is the compromise entered into in Final Decree Proceedings in furtherance preliminary decree in OS No.426 of 2004 which has attained finality. In that view of the matter, I am of the considered

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opinion that the allegations which have been made by the petitioners cannot be countenanced at this stage when the decree in OS No. 426 of 2004 has attained finality.

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The decision in Uttam’s case could have been made use of by the petitioner only if the decree in OS No. 426/2004 had been challenged, so also the decision in Kiran Singh's case. As afore indicated, the preliminary decree having attained finality not having been challenged, the decision in Uttam’s case and Kiran Singh's case would not be applicable to the present facts. In so far as Padamvati’s case is concerned the facts herein are different, there is no dispute as regards the petitioners having signed the compromise petition. They having signed the Compromise Petition having appeared before the Lok- Adalat, have been identified by the respective counsels, despite having signed and executed the Compromise in the year 2011, the challenge by way

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of the above writ petition has been made only in the year 2016, after the expiry of Sri.Jagadish H.S. by making allegations against him. No allegation has been made against him during his lifetime. The Petitioners being fully knowledgeable about the contents of the Compromise, their contention that they have been defrauded by Jagadish.H.S cannot be countenanced either in law or on facts.

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In view of the above, I answer the point raised by holding that the compromise entered before the Lokadalat in the present matter does not require any interference.

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No grounds being made out, the petition stands dismissed .

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Sd/(SURAJ GOVINDARAJ) JUDGE

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LN List No.: 1 Sl No.: 77

Smt. Lakshmi Bai (Dead) v. Jagadish H.S. Since Dead by

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Smt. Lakshmi Bai (Dead) v. Jagadish H.S. Since Dead by

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