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Issues: (i) Whether the Mohammad Patti lands were joint family property so as to make the partition suit defective for non-inclusion of those lands. (ii) Whether the plea of fraud in relation to the earlier compromise decree could be raised in the present collateral proceeding.
Issue (i): Whether the Mohammad Patti lands were joint family property so as to make the partition suit defective for non-inclusion of those lands.
Analysis: The lands in question had been purchased in 1931, at a time when the parties were still members of a joint Hindu family. A presumption in favour of joint family character can arise only where there is proof of sufficient nucleus and surplus income from which the acquisition could have been made. On the materials on record, there was no reliable evidence of the extent of the joint family property or its income in or about 1931, and the broad recital in the earlier plaint was not enough to establish such a nucleus. The evidence supporting acquisition from joint family funds was weak, while the evidence that the purchase money came from the wife of the plaintiff was found credible and supported by the sale deed of her inherited property.
Conclusion: The Mohammad Patti lands were not proved to be joint family property, and the partition suit was not bad for partial partition.
Issue (ii): Whether the plea of fraud in relation to the earlier compromise decree could be raised in the present collateral proceeding.
Analysis: A decree alleged to have been obtained by fraud may be impeached in a collateral proceeding under the Evidence Act. The limitation applicable to a substantive suit for setting aside a decree does not control the statutory right to show, in defence or otherwise, that the decree was obtained by fraud or collusion. On the facts, however, the alleged fraud was not established, because the compromise petition and the surrounding circumstances supported the finding that the parties knew its contents when they signed it.
Conclusion: The plea of fraud was legally maintainable in collateral proceedings, but it failed on facts.
Final Conclusion: The appeals failed in substance, the decree of partition as passed by the court below was affirmed, and the challenge to the omission of the Mohammad Patti lands was rejected.
Ratio Decidendi: A subsequent acquisition by a member of a joint Hindu family is not presumed to be joint family property unless a sufficient nucleus with surplus income is proved, and a decree obtained by fraud may be impeached in collateral proceedings under Section 44 of the Indian Evidence Act, 1872.
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