' One-third of his property was mutated in the name of Mn. Hata, his widow, while the remaining two-third was mutated in the name of Anwar, Munawwar and Nazir Begum the progeny of Muhammad through Raj Bhari. Mst. Hata died in 1950 and on her death two-third of her property was mutated in the name of Anwar and Munawar while one-third in that of Nazir Begum and Bhag Bhari.
2. On 6th June, 1950 one Lal Khan, who claimed to be the maternal uncle of Anwar and Munawwar acting as their guardian ad litem, filed a Suit in the Court of the Sub-Judge Mandi Baha-ud-Din for a declaration that the parties were governed by Customary Law and that Mst. Hata had inherited that property under the said law only as a life estate. It was contended on the basis of this averment that the entire property, therefore, reverted to Anwar and Munawwar, the two male lineal descendants of Muhammad, to the exclusion of both daughters. The plaint was later on amended so as to allege that the property had devolved upon Mst. Hata in lieu of maintenance. The suit was decreed.
3. An appeal was filed against this decree by Mst. Bhag Bhari which was accepted by the District Judge to the extent that he modified the decree and held that Anwar and Munawwar were entitled to 130/1536 each out of one-third of the estate of Mst. Hata, Bhag Bhari and Nazir Begum to 65/1536 collectively and the rest of it devolved upon Nur Dad, brother of Mst. Hata.
4. Lal Khan, the alleged uncle and guardian of Munawwar and Anwar minors, did not file any appeal against it.
5. On attaining majority Muhammad Anwar on his own behalf as well as on behalf of his minor brother Munawar filed a suit which was registered on 5th January, 1956 in the Court of the Civil Judge Mandi Bahaud-Din. It was prayed that a declaration be granted to the effect that the plaintiffs were the only persons who were entitled to succeed to this one-third property of Muhammad deceased which had been mutated in favour of Mst. Hata on his death in lieu of maintenance and further that Mst. Bhag Bhari, Nazir Begum, Raj Bhari and Nur Dad defendants had no right whatsoever in it. An injunction by way of consequential relief restraining the defendants from in any manner interfering with the possession of the plaintiffs over that property or from partitioning it was also prayed for. This plaint was amended on 11th July, 1956. It was, inter alia, contended in the plaint that Lal Khan son of Sahib Khan, who had filed the previous suit on behalf of Anwar and Munawwar claiming to be their uncle was neither the brother of their father nor that of their mother, and far from guarding their interests he had colluded with the defendants by not bringing the entire evidence on the record. He had thereby damaged the cause of the plaintiff and that they were not bound by the decree because the same had been obtained by fraud.
6. This suit was contested by the defendants and the following two issues were framed by the learned Civil Judge.
(1) Whether the previous judgment was obtained by fraud ?
(2) Relief.
7. This suit was decreed on 19th December, 1956 and an appeal filed against it was dismissed on 15th July, 1957. Hence this second appeal.
8. Learned counsel for the appellant has contended before me that the allegations made in the plaint and proved in Court did not constitute the elements of fraud and the decree of the learned lower Court is, therefore, without any basis. Reliance was placed on the decision of the Calcutta High Court in Bisambar Biswa s v. Nilambar Murari and others. It was held in this case that :- "A person does a thing fraudulently if he does it with an intent to defraud. Two elements are necessary to constitute fraud, deceit that is to say, someone is deceived, and injury or loss to the same person. How could it be said that the consent decree was obtained by fraud ? None of the parties to the decree were decieved nor is it suggested that any deceit was practised on the Court." A fraudulent decree presupposes that a fraud has been practised on the Court or on one of the parties to the suit."
' The answer to question No, 43, given in William Sons' Customary Law, relied upon by the learned lower Court, runs as follows :- "Son or sons or their male lineal descendants have prior claim of inheritance to all others. But the sonless widow or widow gets equal shares with the son of sons till death or re-marriage. Though mutations are sanctioned accordingly yet such widows generally hold no actual possession of their share and are given its produce as maintenance. The female issues of such widow do not inherit any share but are entitled to maintenance only. No custom of giving a share is established though a share is often given by consent to childless widow."
In view of this custom, which was not brought to the notice of th Court in the previous suit, Munawwar and Anwar were deprived of thei rightful share in the estate of their father. It was the duty of Lal Khan to have done so and it cannot be expected that he just negligently omitted to do so, particularly when the entire suit was based on this proposition. When the appeal went against him be should normally be expected t have filed a second appeal against the appellate decree. He did not even do that. His conduct which resulted in the passage of that decree, can be attributed to nothing else but an intention to perpetrate a fraud on the Court and obtain from it a decree contrary to the Customary Law as well as to defraud Anwar and Munawwar of their rightful share of the estate of their father, and what else could be called collusion with the opposite party ? The ruling cited by the learned counsel for the appellant, therefore, supports the case of the respondents rather than his own.1
9. The dictum laid down by Martineau, J. In Bishen Singh and others v. Wasawa Singh and others is to the effect that :- "Further in order to obtain a reversal of the judgment given in the former case, it is not sufficient for the plaintiffs to prove constructive fraud, but they must prove actual positive fraud, a meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts of case, and the obtaining of that decree by that contrivance." was pressed into service. This cannot be held to be good law in view of the judgment of 'a Full Bench of this Court in Iftikhar Hussain Khan v. Beant Singh minor through his maternal uncle Prabh Dyal in which it was held that a minor can avoid a decree passed against him on the ground of gross negligence on the part of his guardian ad litem even if he has not succeeded in proving fraud or collusion on the part of such guardian.
10. Learned counsel for the appellant then contended that the cause of action for having the decree in the previous suit set aside was based on an entirely different set of facts from those which related to the determination of the inheritance of the appellant and both of them could not have been joined in the same suit.
1I. Apart from the fact that this plea cannot now be taken into consideration for the first time in second appeal in view of the provisions of Order H, rule 7 of the Code of Civil Procedure, the fact remains that the suit out of which the present appeal has arisen prayed only for a declaration in respect of the entitlement of the appellant and not for a declaration to the effect that the decree in the previous suit was based upon fraud. The latter question had to be decided as being a precondition for the former and could therefore in any case be granted. There is no force in this objection either.
12. The appeal is, therefore, dismissed with cost throughout. AIR. 1930 Cal. 263 AIR 1926 Lab. 171 AIR 1946 Lab. 233