1. This is a suit brought by the plaintiffs for a declaration that the decree obtained by defendant 1 against defendant 2 was a collusive decree on the ground that defendant 2 in order to defraud the plaintiff's passed a hollow sale deed to his brother in law defendant 1 of his share in the plaint lands and that subsequently in collusion with defendant 2, defendant 1 brought a suit against defendant 2 on this sale deed and obtained an ex parte decree.
2. The learned Subordinate Judge held that the plaintiffs were entitled to maintain the suit and that the decree in Suit No. 332 of 1924 was obtained by defendant 1 collusively with defendant 2 as alleged by the plaintiffs, and therefore gave a declaration that the decree was collusive.
3. Two appeals were filed against the decree, Appeal No. 99 by the plaintiffs urging that the lower Court ought not to have merely given the declaration but ought to have set aside the decree, and Appeal No. 101 by defendant 1 attacking the grant of the declaration. The learned District Judge held that the suit was not maintainable on two grounds: firstly, that the plaintiffs did not ask for setting aside the decree in the plaint and therefore could not sue for a declaration, and secondly, there was no evidence of collusion, and also relied upon the decision in the case of Ram Sarup v. Rukmin Kuar  7 All. 884 With regard to the application for amendment, Ex. 10, which was filed in appeal, the learned Judge was of opinion that it was a new case quite different from the case made before the Subordinate Judge, and that even if Article 91, Lira. Act, did not apply, Article 120 would be applicable to a suit to set aside the sale, and the amendment of the plaint would deprive the defendant of the defence of limitation. He therefore rejected the application for amendment, and dismissed the plaintiffs' suit.
4. On second appeal it is urged that the lower Court ought to have given the declaration even though the plaintiffs did not ask for consequential relief, and it is further urged that if the consequential relief was not asked for in the plaint, the plaint should be allowed to be amended by incorporating the relief with regard to the setting aside of the decree.
5. It appears that defendant 2 Somanna and his nephew Ramalingappa owned 11 lands including the three lands in suit. Ramalingappa brought a suit for partition against defendant 2 in the year 1919 for partition of his half-share. The present plaintiff was a transferee of eight of the lands other than the three lands in suit. In the decree for partition it was directed that the lands in possession of the present plaintiff should be allotted as far as possible to the share of defendant 2. Two days after the decree, i.e., on 3rd September 1921, defendant 2 sold one-half share in the remaining three lands to defendant I, and in the year 1924, defendant 1 brought Suit No. 332 against defendant 2 for partition of the lands in suit. The present plaintiffs made an-application that they should be joined as parties. Their application was not allowed and an ex-parte decree was obtained by defendant 1.
6. In Narayan v. Nathaji Durgaji  28 Bom. 201 it was held that the principle laid down in Pandurang Anandrav v. Bhaskar Shadashiv  11 B.H.C.R. 72 and Udaram Sitaram v. Ranu Panduji and Venku Panduji  11 B.H.C.R. 76 has settled the law governing decrees for partition. Prior purchasers or encumbrances are, as far as possible, entitled to priority but not as a matter of right. It is only an equity and the question how and where the equity should be invoked in aid of a party must depend upon equitable considerations which, again, must depend on the circumstances of each case.
7. Though the plaintiffs cannot be said to be entitled to any specific right in any property, much less in the three lands in suit, there is no doubt that the plaintiffs have an equity as against defendant 2 to have the lands allotted to his share in order that in the partition decree the1lands may be given, be the present plaintiffs as far as possible. It was not there fore open to defendant 2, two days after the decree, to pass a bogus sale deed infavour of defendant 1 in order to defeat the plaintiffs' equity, and if, as contended by the present plaintiffs, the sale deed in favour of defendant 1 was a hollow saledeed, the direct result of the transaction would be to defeat the equity in favour of the plaintiffs. Subsequently, after three years, defendant 1 obtained a decree against defendant 2 and got one half of the three lands. In that suit the present plaintiffs made an application to bemade parties, but that application was disallowed. The plaintiffs, therefore cannot enforce their equity in the execution proceedings of the partition decree unless they bring a 'suit to sot aside the subsequent decree 'obtained by defendant 1. If the sale by defendant 2 in favour of defendant 1 is for valuable consideration, the plaintiff's will be bound to fail on the merits. Put assuming thatthe transaction was a bogus sale, the plaintiffs as purchasers who had an equity in their favour recognized by the partition decree were entitled to sue for a declaration that the decree obtained by defendant 1 was collusive and should be set aside. The objection to the grant, of the declaration in the lower Court was that there was no prayer for setting aside the decree. The plaint appears to have been not properly drafted. There ought to have been not merely a prayer for a declaration, but a relief ought tohave been asked for setting aside the decree, for even if a declaration had been granted it would have been, of no use to the present plaintiffs in execution of the decree in the partition suit.
8. The question therefore now is whether the plaintiffs should be allowed to amend the plaint by incorporating the relief for setting aside the decree. Various cases have been cited in the argument, but it appears that owing to some mistake of the person drafting the plaint, the relief has not been asked for, and if the action of the plaintiff is bona fide, the amendment can be allowed under the ruling of the Privy Council in Charan Das v. Amir Khan A.I.R. 1921 P.C. 50 At p. 116 (of Cal) it is observed:
If this be so, all that happened was that theplaintiffs, through some clums y blundering attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit.
and it is further observed that under special circumstances the Court has power to allow the amendment of the plaint though as a general rule such power should not be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time. The plaintiffs asked for a declaration that the decree obtained by defendant 1 against defendant 2 was a collusive decree. The written statement of defendant 2, Ex. 10, para. 6 runs as follows:
Plaintiffs have no right whatever over the lands in suit and hence their suit to set aside the decree is not maintainable.
9. It appears that defendant 2 understood the plaint as asking a prayer not only for a declaration but also for setting aside the decree. After the declaration was given by the Subordinate Judge, the plaintiff filed appeal No. 99 in which they asked for setting aside the decree. In the lower appellate Court it appears that the amendment sought to be made in the plaint related to the relief to have the sale deed sot aside, and the learned Judge properly disallowed that amendment. In second appeal it is now urged that the only amendment that ought to be allowed would be by incorporating a relief in the plaint with regard to the setting aside of the decree. In Sheopujan Rai v. Kesho Prasad Singh : AIR1924Pat310 it was held that although an appellate Court will not ordinarily allow an amendment of the plaint whore the plaintiff has elected to go to trial upon the issue whether the frame of the suit is correct notwithstanding the objection of the defendant that the suit offended against Section 42, Specific Relief Act, yet, where the plaintiff has framed his suit bona fide, believing that consequential relief is not open to him, and that he is entitled only to declaration, the Court is justified in allowing an amendment of the plaint.
10. In the plaint an allegation was made that the decree was obtained by collusion. The learned Judge during the course of his judgment stated that there was no evidence to hold that the obtainment of the decree was collusive. According to the decision in Kondi v. Chunilal A.I.R. 1929 Bom. 1 the word 'collusion' when used in connexion with judicial proceedings means a secret agreement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose, or even in the wider sense of a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose. To the same effect are the observations in Field's Law of Evidence, Edn. 8, at p. 377. If the sale deed passed by defendant 2 in favour of defendant 1 was for valuable consideration, the plaintiffs' suit is bound to fail, if on the other hand the sale deed was a hollow sale deed, it would clearly follow that there was some understanding between defendant 1 and defendant 2 that the decree should be obtained in order to prejudice the equity of the present plaintiffs, I think therefore the under the peculiar circumstances of this case the amendment should be allowed even in second appeal.
11. I would therefore allow the plaintiffs to amend the plaint incorporating therein a prayer for setting aside the decree in suit No. 332 of 1921, and would therefore reverse the decree of the lower Court and send the case back to the Court in order to determine whether the decree obtained by defendant 1 against defendant 2 was obtained in collusion with defendant 2. In considering that question it will be open to the District Judge to consider whether the silo deed passed by defendant 2 in favour of defendant 1 on 3rd September 1921, two days after the partition decree, was a hollow transaction or was for consideration. If the learned District Judge comes to the conclusion that the document was for valuable consideration the plaintiffs' suit will have to be dismissed. If on the other hand, ho comes to the conclusion, on taking into consideration the document and the other circumstances in the case, that the sale deed was a hollow transaction, there would be adequate ground for inferring that the decree obtained by defendant 1 against defendant 2 wan a collusive decree.
12. I would therefore reverse the decree of the lower appellate Court and remand the case to the lower appellate Court for decision on the merits in the light of the remarks made in this judgment. The plaintiffs to pay the costs of defendant 1 incurred up to date.