1. This appeal arises out of a suit for setting aside the decree passed on 4th Mehar 1317F., and for partition of the matruka property of late Syed Shah Abdul Rahim among his heirs in specified shares according to Mohammedan Law, which has been dismissed by the Darul Khaza Court on 24-9-1351F on the ground that such a suit was not maintainable in law. This appeal has been heard by the Division Bench of the erstwhile Hyderabad High Court and has now been referred to the under Section 8 of the Hyderabad High Court Act on account of difference of opinion between the learned Judges.
2. Briefly stated the facts are: that Syed Shah Abdul Rahim the Sajjada of the Darga 'Sayyed Shah Nuruddin Saheb' situated at Nampalli, thed on 21st Aban 1314F, leaving him surviving four sons and two daughters am follows: (1) Syed Shah Ahdul Har, defendant No. 1, (2) the late Khammarunnisa Begum, mother of plaintiffs 4 and 5, (3) the late Badihunnisa Begum, mother of plaintiff No. 3, (4) the late Syed Shah Nuruddin, father of plaintiffs 2 and 3, (5) Abdul Razak, defendant No. 2 and (6) Gbouse Mohiuddin, plaintiff No. 1.
Defendant No. 1 being the eldest of the family became tho Sajjada and was in sola management of the property left by the deceased. About 3 years after the demise of the propositus, it appears arbitration was started with regard to the distribution of the matruka property and an award was paused on 26th Sherwar 1317F.
This award was made the rule of the Court under a decree of the Darul Khaza Court dated 4th Mehar 1317F., passed against defendant No. 1. According to this decree, out of the estimated entire matruka property of Rs. 2,28,650/- property worth Rs. 45-790-14-0 fell to the share of defendant No. 1 and the remainder to the other sons and daughters according to their shares.
There was some further immoveable property marked as Exs. B-1 to B-10 which was not brought in hotehpot for distribution among the heirs but was set apart to meet the expenses of the darga and was kept in exclusive possession of defendant No. 1, the other heirs having disclaimed all rights to the same.
This decree passed by the Darul Khaza Court was put into execution so far as the moveable property was concerned as they were already in possession of their shares in immoveable property. The parties since then had been enjoying their respective shares according to the said decree.
After a lapse of about 33 years, the plaintiffs brought this suit for cancellation of this decree. Their long silence has been attributed to the fact that they could not come to know about the fraud practised on them by defendant No. 1 till 7th Mehar 1347P when defendant No. 1 in a proceeding relating to the resumption of the said property as wakf property wrote to the Director, Ecclesiastical Deparment that this property was not the wakf property but constituted his exclusive property which fell to his share in the partition effected under the Darul Khaza Court decree of 1317F.
This letter, it is said, has disillusioned the plaintiffs who came to know of the fraud played on the arbitrators and on the Court in the partition proceedings. Their contention is that defendant No. 1 fraudulently managed to exclude the properties covered by Exs. B-1 to B-10 from the subject matter of arbitration on the false cretext that they were meant and reserved for the expenses of the darga and that this fraud was brought to light only when he claimed his exclusive title on the ground that they fell to his share as matruka property.
3. Their further contention is that at the time of the demise of Syed Shah Abdul Rahi, all his sons but for defendant No. 1 and one daughter Khanrunnisa Begum were minors and were under the care and protection of defendant No. 1. Being the eldest, according to the traditions of the family, all his brothers and sisters looked upon him with awe and reverence and submitted to his behests.
Defendant No. 1 taking undue advantage of his position made a farce of a reference and got all the written statements on behalf of the minors prepared by himself to he filed before the arbitrators and managed to get an award passed as he liked and similarly got a suit filed and got a decree passed in terms of the award against himself. In all these proceedings some of the minors were shown as sui fun's and Syed Nuruddin himself a minor was mad* to act as a guardian of another minor, plaintiff No. 1.
The whole proceedings in fact were manoeuvred by him with intent to take a portion much larger than his due share and his brothers and sisters were in fact made only his mouthpiece. It is therefore contended that a decree thus obtained cannot be held to stand in their way to realise their due share in the matruka of the deceased; and certainly a decree passed during the minority of the plaintiff without any proper representation is a nullity and also being a product of fraud should be set aside.
4. Defendant No. 1 in his written statement denied all the allegations and averred that the plaintiffs were fully aware of all facts, that the arbitration proceedings were started under their agreement of reference, that the interests of the minors were safeguarded fully, that the arbitrators satisfied themselves on the merits of the claim according to law and that a decree was passed at the instance of the plaintiffs in terms of the award.
As the defendant was the sajjada and had to perform the ceremonies connected with the darga the property covered by Exs. B-1 to B-10 was given over to him with the consent of the plaintiffs and the plaintiffs relinquished their rights therein for all times to come. He further raised a plea of limitation.
5. On these pleadings several issues were raised. It was argued before the trial Court that assuming that the facts averred in the plaint are true, since they do not constitute fraud in law the decree cannot be set aside. This argument found favour with the Court below which dismissed the suit of the plaintiffs with costs.
The learned Judge came to the conclusion that the right set up by defendant No. 1 on 7th Mehar 1347F in response to the claim of the Government that it was wakf property, by no stretch of imagination, can constitute or be evidence or fraud of the defendant so that a decree obtained several years ago and acted upon by the parties be set at naught.
As regards the second contention, it was held that if the interests of the minors were not safeguarded, the remedy was against the guardian and the decree passed cannot he set aside on the ground of negligence of the guardian. A further ground shown for the dismissal of the suit was that the long silence of the plaintiffs, at any rate, was a clear indication of their acquiescence.
6. The only point raised in this appeal is that as issue No. 5 was a mixed question of law and fact, no finding could be given without affording an opportunity to the plaintiffs to lead evidence in support of the allegations made by them in their plaint. Issue No. 5 as settled involves a mixed question of law and fact. Its first portion represents the factual aspect on which the parties differ. The second portion relates to the relief that is nought to be granted.
No doubt, the grant of relief claimed i.e., cancellation of the decree, is discretionary with the Court; albeit it is judicial discretion and the Court has therefore to take into account not merely the apparent broad probabilities or improbabilities of the plea advanced but also actual and positive proof adduced and equitable considerations that should govern the grant of relief.
Matters of fraud deserve strict vigilence of the Courts for fraud as stated by De Grey C. J. in Rex. v. Dutches of Kingstone (1776) 20 How. St. Tr. 357 at p. 544 is an 'intrinsic collateral act which vitiates the most solemn proceedings of the Courts of justice' and Lord Coke says 'it avoids all judicial acts, ecclesiastical and temporal'. The Courts of law should zealously safeguard the rights of the parties against fraudulent dealings.
Every Court has therefore an inherent power and authority to enquire into fraudulent abuses of its own process. Section 44 of the Evidence Act provides for impeaching not only the judgments between the parties but also judgments regarding public matters and judgments in rem on ground or traud. A decree whether it is of an inferior Court or of a superior Court, whether it be a consent decree or ex parte decree or a decree passed after contest, can be always impeached on the ground ot fraud.
If the party impeaching it is a third person, he can treat the fraudulent decree as a nullity; but of course a person who is a party to it can do so only if he comes within time. That is the only important limitation. It is however significant that the period of limitation starts from the date of knowledge and the length of time that has preceded the same is of little consequence. No doubt many a long years have oassed away in this case before the fraud has been brought to light. But that does not mean that the claim of the plaintiffs becomes disentitled to judicical scrutiny and equitable relief.
Lapse of time may sometimes raise a presumption of acquiescence. It may even strengthen the presumption in law that the transaction is legal and honest but the length of time can be evidence of acquiescence only if there is knowledge of the facts or of his right because a man cannot acquiesce in what he does not know. Thus if the right was unknown to the person by reason of fraud, length of time or any act done by him in ignorance of his right cannot be a bar for subsequent enforcement of his right.
Thus though lapse of time coupled with the nature of the acts done during the interval may raise some probabilities or improbabilities in relation to the contention of fraud, yet it is the cumulative effect of all the circumstances that may be relied, on by the parties and proved to the satisfaction oli the Court, that should weigh with the Court to! come to a decision one way or the other. Therefore mere lapse of time or mere nature of the acts done by a party cannot be, as the Court below seems to be inclined to believe, a conclusive proof of absence of fraud as to outweigh all the possible evidence that the other party may bring on record.
7. In the instant case, several circumstances have been alleged by the plaintiffs. It is common ground that apart from the property which formed the subject matter of the decree in 1317F, there was vast property of the deceased and this was left out of partition as it was reserved for the expenses of Khankha of which the defendant was the sajjada. This property according to the description given by the arbitrators at page 90 of the printed book consists of 36 malgis, four bungalows mentioned in the plan 'vaw' and houses, graveyard and garden belonging to Khankha and Dargah Sherif.
At page 95, it is pointed out that the plaintiffs have relinquished their rights in the property shown as belonging to Khankhah and have clearly stated that they have no right nor would they have any in future in relation to the same. Thus, in view of the proceedings it is plain that the plaintiffs disclaimed their rights not because they wanted to benefit the defendant or give a preferential share to him but because it was represented to them that the property belonged to or was reserved for the expenses of the Darga which the defendant as Saijada shall have to incur.
In other words, the property was dedicated to Khankha and was not intended to constitute self-acquisition or the property that fell to the share of the defendant. At least that is the position as can be gathered from the award and the decree. But the contention of the defendant seems to be different. He claims it as his own property having fallen to his share in the administration of his father's estate.
That that is so is evident from the letter to the Ecclesiastical Department which is alleged to be the instrument that has acquainted the plaintiffs with the fraud. That is also what can be gathered from the written statement. The contention of the plaintiffs seems to be that the defendant would not have been allowed to remain in possession and they would not have renounced their claims had it not been shown to be the darga property.
In other words, the defendant got an undue advantage or a benefit of an unconscionable bargalo by his misrepresentation or by a statement which he did not know or believe to be correct and was made with a view to gain an undue advantage by defrauding others and which became plain as such when he wrote a letter to the Ecclesiastical Department in 1347F.
The plaintiffs allege that it was a fraud on the arbitrators and on the Court as well and that it was rendered feasible as the plaintiffs were minors and were under the domineering influence of the defendant, who was at the bottom of all the proceedings which were to all intents and purposes a mere farce and were manoeuvred to his advantage. It is also alleged that these proceedings are a nullity even because the minors were not properly represented.
In this regard, they also depend upon a 'Siah' wherein the propositus, Syed Shah Abdul Rahim, had shown the a'ge of Syed Nuruddin (who was appointed as guardian of plaintiff No. 1 in Darulkhaza proceedings) as only twelve vears on 21st Bahaman 1313F. They contend therefore that it is open to them to reopen the partition on the ground of fraud seeking at the same time the remedy ot setting aside the decree which would otherwise operate as res judacata. Thus it is evident that the plaintiffs seek relief from the effects of fraud to which unknowingly they were hitherto subjected.
8. Of course, fraud cannot be a mere matter of presumption. On the contrary, the presumption will always be in favour of innocence and not of guilt. Even in doubtful cases, the Court will not lean to the conclusion of fraud. The evidence in support of fraud therefore must be strong and direct to warrant the conclusion of fraud actual and positive. Circumstantial evidence there can be, but if fraud is to be inferred therefrom, such circumstances must only be compatible with the only hypothesis of fraud.
In this state of law, how far the plaintiffs can establish their claim and the fact that they came to know of the fraud only recently as alleged, entirely depends upon the evidence that they may adduce; but certainly the evidence they want to adduce cannot be shut out on the ground of long delay, their prima facie stale demand or its seeming improbability in view of the nature of their acts or the transfers effected by the defendant. Even the fact of the plaintiffs' renunciation of their claims as discussed above is not conclusive against their allegation or demand. Fraud may be infinite in variety; but there can be no mistake as to its nature and meaning. Section 17 of the Contract Act seeks to define its meaning and having regard to the same I am not prepared to hold that the allegations of the plaintiffs as stated above, if proved do not constitute fraud.
9. It was incumbent therefore on the Court below to give an opportunity to adduce evidence before it could come to a conclusion one way or the other. That apart the observations of the Court in relation to the representation of a minor by a minor to the effect that the minor has got a remedy against his guardian seems to ignore the fact that this is again an off-shoot of fraud according to the contention of the plaintiffs. In my opinion, the order of the Court below must be set aside.
I therefore allow this appeal, set aside the decree passed by the trial Judge and remand the case with the direction that in view of the long duration of the case, it may be taken up for day to day hearing and disposed of as expeditiously as possible. The parties are directed to be present be fore the First Judge, City Civil Court on 18-4-1957, who will now dispose of the case according to law. The costs of this appeal will abide the result of the case. The appellants will be entitled to a refund of the court-fee paid by them in this appeal. A certificate will issue accordingly.