Plea of fraud after 16 years delay

Plea of fraud raised at the stage of execution of decree.

The assignment of agreement, which was basis of decree sought to be challenged claiming the signatures on the deed to bea forgery but no explanation offered for delay of 16 years in raising the question.

Kalyani executed an agreement for sale on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai. Second plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and the said Rajayyan assigned the agreement in favour of third plaintiff-Selvi on 10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court and when the second appeal was pending before the High Court, second plaintiff Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court – District Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and denying the right of third plaintiff-Selvi to pursue the final decree application.

The said Vasudevan Pillai alleged that he has never filed final decree application and that his signature was forged and he has not assigned his right either in favour of Rajayyan or in favour of third plaintiff-Selvi. Though the parties have advanced lengthy arguments on the said averments in the affidavit filed by Vasudevan Pillai; it is to be pointed out that the affidavit of Vasudevan Pillai is clearly an afterthought. In the final decree application I.A. No.120 of 1985, all the three plaintiffs have signed. In the final decree stage, the third plaintiff-Selvi got herself impleaded based on the assignment of right in her favour by Rajayyan who in turn got the assignment from the second plaintiff-Vasudevan Pillai. The third plaintiff-Selvi was pursuing the final decree application. Though the final decree application was pending before the trial court for more than sixteen years and thereafter in the First Appellate Court, Vasudevan Pillai has not raised any objection nor made any grievance against the third plaintiff-Selvi. Only when the second appeal was pending before the High Court, the second plaintiff-Vasudevan Pillai has chosen to file an affidavit before the court denying assignment of the right and raising plea of forgery.

In our view, the stand of Vasudevan Pillai is clearly an afterthought and no weight could be attached to the averments in the affidavit. We make it clear that after the matter is remitted to the trial court based on his affidavit, Vasudevan Pillai is not entitled to put forth any claim. We also make it clear that the locus of third plaintiff-Selvi to pursue the matter also shall not be called for question nor be challenged.

For the foregoing reasons, the impugned judgment of the High Court and the courts below are set aside and the appeal is allowed. The matter is remitted to the trial court for consideration of the application for final decree I.A. No.120 of 1985 in OS No. 1516 of 1969 afresh with the following directions:-

(i) The plaintiffs and the second defendant are at liberty to adduce oral and documentary evidence to substantiate their objections filed to the Commissioner’s Report;

(ii) The trial court to decide upon the correct survey numbers falling within the description of the suit properties and whether the said suit property within the stated boundaries tally with the properties mortgaged;

(iii) Tallying of boundaries of the properties with reference to documents, if necessary, by reference to revenue records.

(iv) Entitlement of the second defendant- Gopalakrishnan Nair as to Survey No.988 with reference to his documents and also the proceedings before the Executive Magistrate and further revision thereon; and Since parties are litigating the matter for more than five decades, we direct the trial court to expedite the hearing in the final decree proceedings and dispose the same in accordance with law.

[Source: Selvi vs. Gopalkrishnan Nair, decided by SC on May 15, 2018]

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