TMI Blog1956 (4) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... years was fixed for redemption. There was a lease back of the properties by the mortgagee to the mortgagors on 3-9-1918, and it was also for a period of three years. On 6-9-1918 the three brothers effected a partition under a deed, Exhibit K, which provided inter alia that they were to pay each a sum of ₹ 8 per mensem to their step-mother, Chellammal, for her maintenance, and that their step-sisters should be under their protection. On 6-6-1919 Chellammal presented a plaint in forma pauperis claiming maintenance and praying that it might be charged on the properties specified in the plaint. That was Miscellaneous Case No. 377 of 1918-19. At the same time, she also presented as the next friend of her minor daughters, Srikantamma and Devamma, two plaints in forma pauperis, Miscellaneous Cases Nos. 378 and 379 of 1918-19 claiming maintenance and marriage expenses for them, and praying that the amounts decreed might be charged on the schedule-mentioned properties. The properties which are involved in this suit are included in item 8 in schedule A annexed to all the three plaints. On 17-6-1920 permission to sue in forma pauperis was granted in all the three cases, and they were re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Madhavananda, Gururaja, son of Brabmananda who bad died, the Official Receiver and the purchasers of the mortgaged properties in execution of the maintenance decrees and the decree of Appalaraju. Devamma was the third defendant in this action. The plaint alleged that the mortgagors had failed to pay rent as provided in the lease deed dated 3-9-1918, and had suffered collusive decrees to be passed against them in the maintenance suits and other actions, and that properties had been sold fraudulently in execution of those decrees. On the basis of these allegations, the plaintiffs prayed for a decree for possession as against the purchasers including Devamma, and for a sum of ₹ 5,000 as damages. In the alternative, they prayed for a decree for sale of the mort- gaged properties for the amount due under the mortgage. The suit was contested, and issues raised as to whether the sales were collusive, and whether the plaintiffs were entitled to possession and damages, and alternatively, as to what amounts were payable under the mortgage and to what reliefs the plaintiffs were entitled. At the trial, the plaintiffs abandoned the relief as to possession and damages, and it accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on his death in 1938) his estate devolved on his widow, Nagubai, who is the first appellant. On 28-5-1939 she executed a trust deed settling a moiety of these properties on the Anjaneyaswami Temple at Karaikal, and the trustees of that institution are the other appellants in this appeal. In view of their obstruction, Krishna Rao instituted the suit out of which the present appeal arises, for a declaration of his title to the sites in question, and for an injunction restraining the defen- dants from interfering with his possession, or in the alternative, for a decree in ejectment if they were held to be in possession. The claim made in the plaint is a simple one. It is that the title of Chapman as purchaser in execution of the decree passed on the mortgage dated 1-9- 1918 prevailed against all titles created subsequent to that date, and that accordingly Dr. Nanjunda Rao and his successors acquired under the sale deed dated 30-1-1920 no title which could be set up as against that of the plaintiff. The defendants contested the suit on the ground, firstly, that as they were not impleaded as parties in the suit on the mortgage, O.S. No. 8 of 1933-34, their right of redemption remaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in execution thereof. On this question, as the plaint in O.S. No. 100 of 1919-20 praying for a charge was presented on 6-6-1919, the sale to Dr. Nanjunda Rao subsequent thereto on 30-1-1920 would prima facie fall within the mischief of section 52 of the Transfer of Property Act, and would be hit by the purchase by Devamma on 2-8-1928 in execution of the charge decree. Sri K. S. Krishnaswami Ayyangar, learned counsel for the appellants, did not press before us the contention urged by them in the courts below that when a plaint is presented in forma pauperis the lis commences only after it is admitted and registered as a suit, which was in this case on 17-6-1920, subsequent to the sale under Exhibit VI--a contention directly opposed to the plain language of the Explanation to section 52. And he also conceded and quite rightly, that when a suit is filed for maintenance and there is a prayer that it be charged on specified properties, it is a suit in which right to immovable property is directly in question, and the lis commences on the date of the plaint and not on the date of the decree, which creates the charge. But he contends that the decision of the courts below that the sale de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial went on thereafter for nearly three months, the defendants adduced their evidence, and the bearing was concluded on 2-6-1947. In the argument before the District Judge, far from objecting to the plea of lis pendens being permitted to be raised, the defendants argued the question on its merits, and sought a decision on the evidence that the proceedings were collusive in character, with a view to avoid the operation of section 52 of the Transfer of Property Act. We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them. It was argued for the appellants that as no plea of lis pendens was taken in the pleadings, the evidence bearing on that question could not be properly looked into, and that no decision could be given based on Exhibit J series that the sale dated 30-1-1920 was affected by lis; and reliance was placed on the observations of Lord Dunedin in Siddik Mahomed Shah v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with reference to the suit properties that the decree and sale in 0. S. No. 100 of 1919-20 were collusive, and that, in consequence, even if the initial onus of establishing this fact was on the defendants, that was shifted on to the plaintiff on proof of the abovementioned admissions, and as there was no evidence worth the name on his side to explain them, he must fail. We must now examine the several statements which are relied on by the appellants as admissions, ascertain what their true import is, and determine what weight should be attached to them. On 27-6-1932 Abdul Huq moved the insolvency court for a direction to the Official Receiver to take possession of the mortgaged properties, which were stated to be in the occupation of one Lokiah. This Lokiah, it has been already mentioned, is the husband of Srikantamma, the sister of Devamma, he having married her after the maintenance suits had been decreed and sometime prior to the court auction in 1928. In his petition, Abdul Huq alleged that Lokiah conducted proceedings in execution of the decree in O.S. No. 100 of 1919-20 in collusion with the insolvents and without notice to the Official Receiver, and purchased the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition are on the same lines as those made by Abdul Huq in his petition dated 27-6-1932, and they do not carry the matter any further. This petition was ordered, and on 30-8-1933 O.S. No. 3 of 1933-34 was instituted. In this suit, as already stated, the plaintiffs sought to recover possession of the properties on foot of the usufructuary mortgage, and ancillary to that relief, they claimed damages from the defendants who were in possession, on the ground that the execution proceedings under which they got into possession were collusive and fraudulent. Thus far, the allegations are a mere repetition of what bad been stated in the prior proceedings. But the plaint in the suit went further, and stated for the first time that the proceedings in O.S. No. 100 of 1919-20 and the decree passed therein were collusive. But these allegations were made only as the basis of the claim for damages for non-payment of rent under the lease deed dated 3-9-1918 and non-surrender of possession of the properties, and their true import is that the suit was fraudulent and intended to deprive the mortgagee of the rents and profits to which be was entitled. At the trial, as already stated, the relief for pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a party himself admits to be true may reasonably be presumed to be so , and on the decision in Rani Chandra Kunwar v. Chaudhri [1840] 6 M. W. 664, 669; 151 E.R. 579, 581. Narpat Singh: Rani Chandra Kunwar v. Rajah Makund Singh [1906-07] L.R. 34 I.A. 27.where this statement of the law was adopted. No exception can be taken to this proposition. But before it can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. It has been already pointed out that the tenor of the statements made by Abdul Huq, his legal representatives and the plaintiff was to suggest that the proceedings in 0. S. No. 100 of 1919-20 were fraudulent and not collusive in character. Those statements would not, in our opinion, be sufficient, without more, to sustain a finding that the proceedings were collusive. But assuming that they are sufficient to shift the burden on to the plaintiff of proving that the decree and sale in 0. S. No. 100 of 1919-20 were not collusive, the evidence adduced by him is, in our opinion, ample to discharge that burden. He has filed Exhibit J series, which give a complete picture of the proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken for realising the fruits of the decree. These are facts which are eloquent to show that the suit in O.S. No. 100 of 1919-20 and the sale on 2-8-1928 were not collusive. The plaintiff also went into the box, and stated in cross- examination that though when he filed 0. S. No. 92 of 1938- 39 he had thought that the proceedings were collusive, he now thought otherwise. Counsel for the appellants strongly criticised this evidence, and contended that in the absence of facts as to why he chanced his mind, the statement of the plaintiff that he now thought otherwise was worthless. But then, the plaintiff as also Abdul Huq and his legal representatives were utter strangers, and their statement about the collusive character of the proceedings, in O.S. No. 100 of 1919-20 could only be a matter of inference. If on the materials then before him the plaintiff could have thought that those proceedings were collusive, there is no reason why on the materials now before him he could not think otherwise. It was open to the defendants to have further crossexamined him about the materials which led him to change his opinion, but they chose not to pursue the matter. Both the courts below have, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he obtained any benefit under the decree on that basis. Counsel for the appellants sought to rely on the findings in Exhibit E, as establishing that the proceedings in O.S. No. 100 of 191920 were collusive. But as that judgment was not inter parties, the findings therein are inadmissible in this litigation, and, moreover, there having been an appeal against that judgment, the findings in Exhibit E lost their finality, and when the parties settled their claim by granting to Garudachar another property in substitution, they ceased to possess any force even inter parties. But it is argued by Sri Krishnaswami Ayyangar that as the proceedings in 0. S. No. 92 of 1938-39 are relied on as barring the plea that the decree and sale in 0. S. No. 100 of 1919-20 are not collusive, not on the ground of resjudicata or estoppel but on the principle that a person cannot both approbate and reprobate, it is immaterial that the present appellants were not parties thereto, and the decision in Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd (1921] 2 K B. 608.and in particular, the observations of Scrutton, L.J., at page 611 were quoted in support of this position. There, the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it . The plaintiff obtained no advantage against the appellants by pleading in 0. S. No. 92 of 1938-39 that the proceedings in 0. S. No. 100 of 1919-20 were collusive; nor did they acting on those pleadings acquire rights to the suit properties. Nor is there any question of election, because the only relief which the plaintiff claimed in 0. S. No. 92 of 1938-39 and which he now claims is that he is entitled to the suit properties. Only, the ground on which that relief is claimed is different and, it is true, inconsistent. But the principle of election does not forbid it, and there being no question of estoppel, the plea that the proceedings in 0. S. No. 100 of 1919-20 are not collusive is open to the plaintiff. 3.It was finally contended that the purchase by Devamma in execution of the decree in 0. S. No. 100 of 1919-20 was void and conferred no title on her, because the Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the sale deed dated 30-1-1920 is effective to convey the title to the properties to Dr. Nanjunda Rao, and that, at the same time, it was Keshava- nanda who must be deemed to possess that title. We are, therefore, unable to accede to the contention of the appellants that a transferor pendente lite must, for purposes of section 52, be treated as still retaining title to the properties. But assuming that Keshavananda had still some interest in the properties left even after he had sold them on 30-1-1920 and that it would vest in the Official Receiver on the making of the order of adjudication on 19-2-1926, what is its effect on the title of Devamma as purchaser in court auction in execution of her charge decree? It has been held by the Privy Council in Kala Chand Banerjee v. Jagannath Marwari [1927] L, R. 54 T.A. 190 that when in execution of a mortgage decree properties are sold without notice to the Official Receiver in whom the equity of redemption had vested prior to the sale, such sale would not be binding on him. But here, it is not the Official Receiver, who impeaches the sale as bad. In fact, he was a party to O.S. No. 8 of 1933-34 and would be bound by the sale in execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency or bankruptcy had been superseded or annulled, he could not have said that the foreclosure was not absolute against him . These observations directly cover the point now in controversy, and they embody a principle adopted in the law of this country as to the effect of a sale in execution of a decree passed in a defectively constituted mortgage suit. Such a sale, it has been held, does not affect the rights of redemption of persons interested in the equity of redemption, who have not been impleaded as parties to the action as they should have been under Order 34, Rule 1, Civil Procedure Code but that it is valid and effective as against parties to the action. This rule has been affirmed even when the person in whom the equity of redemption had vested is the Official Receiver, and he had not been made a party to the proceedings resulting in sale. Vide Inamullah Khan v. Shambhu Dayal A.I.R. 1931 All. 159and Subbaiah v. Ramasami Goundan I.L.R. [1954] Mad, 80.We should accordingly hold that even assuming that the equity of redemption in the suit properties vested in the Official Receiver on the adjudication of Keshavananda, his non-joinder in the execution proceedings did not rende ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
