Civil Appeal No 19 of 1954
Appeal from the judgment and decree dated April 8 1949 of the Patna High Court in Appeal from Original Decree No 116 of 1947 arising out of the judgment and decree dated the February 28 1947 of the Sub Judge at Begusarai in Title Suit No 1414 of 194445
L K Jha and B K Sinha for the appellant
G section Pathak B Sen B K Saran and R C Prasad for respondent No 1 section D Sekhri for respondents Nos 3 and 4 1959
September 7
The Judgment of the Court was delivered by DAS GUPTA J
Though a member of questions some of fact and some of law were originally raised in this suit for pre emption the main question for consideration in this appeal from the judgment of the 665 High Court of Patna reversing the decree for preemption granted by the Trial Court the Subordinate Judge of Monghyr is the question on which the High Court based its decision of reversal
That question is whether the ceremonies essential for exercising the right of pre emption were properly performed
Issue No 9 in which this question was raised is in these words  Did the plaintiff perform the ceremonies of Talab E Mowasibat and Talab E Ishtashad as required by law  The plaintiff Radha Prasad Singh brought this suit for pre emption in respect of 5 items of property described in Schedule B of the plaint which along with certain other properties were sold by the Defendant 2nd Party Mst
Jogeshwari Kumari alias Jageshwari Kumari widow of Babu Ganga Prasad Singh deceased and daughter of Babu Narsingh Prasad Singh by a deed executed on November 18 1943 at Moghra and registered on November 23 1943 at Monghyr
The Trial Court held that the plaintiff had failed to prove that he was a co sharer in respect of Item 2 of Schedule B As regards the other 4 Items of properties he held that the plaintiff was a co sharer and as already indicated he gave the plaintiff a decree for pre emption in respect of these 4 Items
The sale deed is in favour of the defendant first party Gajadhar Singh
It is no longer disputed however that Gajadhar Singh was a mere Benamidar and the real purchaser by this deed was Babu Lakshmi Prasad Singh his son Satya Narayan Singh and others
A dispute was raised as to whether 4 annas 5 gandas odd share of Mauza Majhaul Kilan Shri Ram was sold or the entire 8 annas odd share of the vendor was sold
It has been held by both the Courts below that the plaintiff s original case that the 4 annas 5 gandas odd share of Majhaul Kilan Shri Ram was sold is not correct and that really 8 annas odd share the entire interest of the vendor in this property was sold by the deed but that after the registration of the sale deed it was tampered with and by an act of forgery the 666 8 annas odd share was altered fraudulently to 4 annas 5 gandas
It was after the defendant s pleading in the written statement that 8 annas odd gandas of this Mauza was sold and not 4 annas odd gandas as mentioned in Schedule B that the plaintiff prayed for and obtained an amendment of the plaint by which an alternative prayer for pre emption in respect of 8 annas odd share of this Mauza was made
But for this amendment it is obvious the prayer for pre emption could not be granted as being only for a partial pre emption once it has been found that 8 annas odd gandas were sold and not 4 annas odd gandas
One question which was therefore raised whether the amendment was rightly granted by the Trial Court
The question that the suit as brought was for partial pre emption was also raised from another aspect viz that though the sale of this Mauza Majhaul Kilan Shri Ram was of all villages Asli Mai Dakhili ie original with dependencies there is no prayer for pre emption in this suit in respect of Dakhili villages
As already indicated however the main question in controversy was whether the essential ceremonies required in law ie Talab E Mowasibat and Talab E Ishtashad were performed in accordance with law
A regards this the plaintiff s case is that he came to know of this sale by his co sharer Jogeshwari for the first time on January 2 1944 at about 11 am when Jadunath Singh a resident of Majhaul informed him of this and that he at once completed the formality of Talab E Mowasibat in the presence of some persons and that shortly after this he went to the properties of Tauzis 1130 4201 and 1136 and also Mauza Bugurgabad and performed Talab E Ishtashad that he went then to the residence of the purchaser Gajadhar Singh at Matihani on January 3 1944 and again performed the Talab E Ishtashad  and that very day he started for the residence of the vendor and performed the Talab E Ishtashad there on January 4 1944
The defence was that the story of any such ceremonies having been performed is wholly untrue and that in fact the plaintiff had knowledge of the sale 667 from long before January 2 1944 he having been a rival bidder for the purchase of those very properties
A detailed story of a proclamation by beat of drums of the proposed sale by Bindeshwary and the plaintiff s attempt to secure the property at the sale was set out by the defendant in the written statement and was sought to be proved by his witnesses
The Trial Court disbelieved the defendant s story on this point
He also rejected the defence allegation that the plaintiff was himself responsible for the forgery that was committed in respect of the deed of sale by altering the statement of the share in Majhaul Kilan Shri Ram that was sold from 8 annas odd gandas to 4 annas odd gondas
On these findings he held the plaintiff s suit was not barred by estoppel
Proceeding then to the consideration of the question whether the plaintiff came to know of the sale in favour of the first defendant for the first time on January 2 1944 from Jadunath as alleged the learned Judge has accepted the evidence given by the plaintiff and Jadunath on this point and held that the plaintiff s case that he received information for the first time on that day was true
He also accepted the evidence of the plaintiff as regards the requisite ceremonies having been duly performed
The very important question that arose for the decision of the Court was whether the plaintiff s story that he came to know of the sale for the first time from Jadunath on January 2 1944 is true
The Trial Court held that it was true
On this point the High Court came to a contrary conclusion
The learned judges of the High Court were of opinion that the evidence of witness Jadunath was wholly unacceptable and that the plaintiff s evidence that he came to know of the alleged sale on January 2 1944 could not be accepted
After pointing out that the whole basis of the plaintiffs claim that he performed the ceremonies of Talab E Mowashibat and Talab E Ishtashad was without substance they examined the evidence as regards the performance of the ceremonies and held that this evidence was also not acceptable 668 The question in dispute before us is thus a pure question of fact viz whether the plaintiff came to know of the sale for the first time on January 2 1944 and thereupon performed the ceremonies of Talab E Mowasibat and Talab E Ishtashad
The main contention raised by Mr Jha who appeared in support of the appeal is that in considering this question of fact the High Court approached the question from a wrong point altogether and was not justified in reversing the judgment of the Trial Court on that point
The question as to what should be the right approach for a Court of Appeal in deciding a question of fact already decided in one way by the Judge in the Court of the first instance has often engaged the attention of the courts though the views expressed have not been uniform
Emphasis has been laid in some cases on the importance of the Court of Appeal deciding for itself the question of fact when the appeal is on facts though remembering that it should not lightly do so not having had the advantage which the Trial Judge had of seeing the witnesses
 More emphasis has been laid in other cases on the importance of not reversing the Trial Judge s findings of fact without compelling reasons
All the Courts in all the cases have stressed the rule which the courts of appeal should observe for themselves that a Judge sitting on appeal not having had the opportunity of seeing and hearing the witnesses should think twice and more than twice before reversing the findings of fact arrived at by the Trial Court who has had that opportunity
To say that however is not to say that the Court of Appeal will never reverse a finding of fact of the Trial Court
In Shunmugaroya Mudaliar vs Manikka Uudaliar 1 Lord Collins pointed out that It is always difficult for judges who have not seen and heard the witnesses to refuse to adopt the conclusions of fact of those who have but that difficulty is greatly aggravated where the Judge who heard them has formed the opinion not only that their inferences are unsound on the balance 1 1909 LR 36 IA 185
669 of probability against their story but they are not witnesses of truth
 In the same judgment Lord Collins referred approvingly to the judgment delivered by Lindley Master of the Rolls in the Court of Appeal in the case of Coghlan vs Cumberland 1 which set out the limitations of the rule   even where the appeal turns on a question of fact the Court of appeal has to bear in mind that its duty is to rehear the case and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit
The Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong
When as often happens much turns on the relative credibility of witnesses who have been examined and cross examined before the Judge the Court is sensible of the great advantage he has had in seeing and hearing them
It is often very difficult  to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another and that question turns on manner and demeanour the Court of Appeal always is and must be guided by the impression made on the Judge who saw the witnesses
But there may obviously be other circumstances quite apart from manner and demeanour Which may shew whether a statement is credible or notand these circumstances may warrant the Courtin differing from the Judge even on a question offact turning on the credibility of witnesses whom the Court has not seen
 Almost the same view was expressed by Lord Thankerton in Watt or Thomas vs Thomas 2    I Where a question of the fact has been tried by a Judge without a jury and there is no question if misdirection of himself by the Judge an appellate 11898 1 Ch 704
2 1947 I All ER 582
85 670 court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the Trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge s conclusions
The appellate Court may take the view that without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence
The appellate Court either because the reasons given by the Trial Judge are not satisfactory or because it unmistakably so appears from the evidence may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses and the matter will then become at large for the appellate court
It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case and it may be the individiual case in question
 These observations were cited with approval by Lord Reid in Bonmax vs Austin Motor Co Ltd 1
See also the observations of Mokerjee J in Laljee Mahomed vs Girlder 2
This question of the proper approach of the Court of Appeal to decisions on questions of fact arrived at by the Trial Court was considered by this Court in Sarju Pershad vs Raja Jwaleshwari Pratap Narain Singh3
Mukherjea J while delivering the judgment of the Court observed  In such cases the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and observing the manner in which they deposed in Court
This certainly does not mean that when an appeal lies on facts the appellate court is not competent to reverse a finding of fact arrived at by the trial judge
The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of 1 1955 I All ER 326
2 Cal
3 1950SCR781784
671 the witnesses then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies the appellate court should not interfere with the finding of the trial Judge on a question of fact
 The position in law in our opinion is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the Trial Judge s conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court
But this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a Trial Judge even on the question of credibility if such question depends on a fair consideration of matters on record
When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the Trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the Trial Judge is wrong the Appeal Court should have no hesitation in reversing the findings of the Trial Judge on such questions
Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the Trial Judge and is free to reverse the findings if it thinks that the inference made by the Trial Judge is not justified
Turning now to the instant case we find that the Trial Judge having seen and heard Jadunath and the plaintiff believed their evidence on the point of information being given to plaintiff by Jadunath about the 672 sale on January 2 1944 at about II am
It does not however appear that the learned Trial Judge arrived at his conclusion on the basis of the demeanour of these witnesses having created a favourable impression on his mind as to their credibility
In scrutinising the evidence of the plaintiff and of Jadunath it must be borne in mind that the case of the plaintiff is that on January 2 1944 certain information having been received by him he performed the formalities
There is no case that the formalities were performed on any other date
Therefore if the story of the communication of information on January 2 1944 is not established then the whole case of the plaintiff must fail
Jadunath s evidence on this point was  On 2 1 44 I told Radha Babu at his house in Manjhaul that Maghrawalli Jugeshwari Kumari had sold away her Milkiat to Gajadhar Rai of Matihani this was about 11 am Radha was startled to hear this and standing up said Jo jo jaidad Babu Gajadhar Singh hath then says Maghrawalli Mussammat Jageshwari Kumari ne jo jo jaidad Babu Gajadhar Singh ka liath becha hai uske kharidne ka haq mere
Ham Kharida Ham Kharida Ham Kharida
Talab Mowashibat karte hain
Babu Jagdamba Prasad aur Babu Narayan Prasad gabah rahie
I came to know from a man of Chitral I kos from Matihani that gajadhar had a marriageable grandson
Mention should be made in this connection also of the evidence of Jagdambi Prasad On 2 1 44 I had been to plaintiff s house at 10 30 am
Babu Narayan Prasad Singh a pleader of Samastilpur was at plaintiff s house at the time 
Jadunath Singh told Radha Prasad that Musanimat Jagesliwari Kumari of Maghra had sold away her property in Manjhaul to Gajadhar Singh of Matihani
As soon as Jadunath Singh said this Radha Prasad Singh was startled stood up and said I have a right to purchase this property
I have purchased I have purchased I have purchased
673 You Jagdamba Prasad Singh you Narayan Prasad Singh and you Jadunath Singh bear witness to this fact
He uttered these words thrice In deciding the question whether the information from Jadunath was the first information received by the plaintiff the Trial Judge had necessarily to consider whether the story that Jadunath came to know of the sale and brought this information on to the plaintiff on January 2 1944 at about 11 am was true or not
In arriving at a decision on the point it was necessary for him to consider the probabilities of the story of Jadunath having gone to Gajadhar s house in search of a bridegroom and that there Gajadhar Singh informed him of the sale and then of the probability of the story that he would be taking upon himself the task of going to the plaintiffs house immediately on return to his village to convey this information the probability of the story as to how the plaintiff reacted to the account and also the question of discrepancy
It does not appear that the learned Trial Judge took any of these matters into consideration
All that he says about Jadunath s credibility is that his evidence had been criticised on the ground that he was one of plaintiff s witnesses in the previous suit brought by him against Satya Narain Singh s ancestors and that is in his opinion was not a valid ground for discarding the evidence of Jadunath Singh
We agree with the learned Judge that the mere fact that Jadunath was one of the plaintiff s witnesses in the previous suit brought by him against Satya Narain Singh s ancestors about 33 years ago would not by itself be a valid reason for discarding his testimony
The fact that this was not a valid reason for discarding his testimony does not however absolve the Court of the duty of testing the witness s testimony on the touch stone of probability
The learned judges of the High Court applied that touch stone and came to the conclusion that Jadunath was not a witness of truth
It is clearly a case where the words used by Lord Thankerton that the Trial Judge had not taken proper advantage of his having seen and heard the witnesses and the matter would become at large for the appellate 674 court should apply
Here was a witness who could not be considered to be wholly independent
For on his own showing he took the trouble of going to plaintiff s house after what may be taken to be an arduous country in an unsuccessful search for a bridegroom to inform the plaintiff of a matter in which he himself had no interest a witness who had figured though many years ago in a pre emption suit brought by the same person
These facts made close scrutiny of the witness s account necessary before the Judge could say just by looking at him that he was a witness of truth
That scrutiny is conspicuous by its absence
Taking his evidence as a whole we find that his story that after coming to know of the sale in question he went to the house of Gajadhar the first defendant at village Matihani to make enquiries about a marriage proposal in respect of his daughter with his grandson and that it was in that connection that Gajadhar spoke to him about his purchase
But it is curious that in his examination in chief this witness came straight to his account of coming to the plaintiff s house on January 2 1944 and informing him about the sale by Jogeshwari of her Milkiat to Gajadhar without saying a word as to his visit to Gajadhar s house to the purpose of his visit and the manner in which Gajadhar gave him the information or even the detailed nature of the information
It was in cross examination that he disclosed that he went to Gajadhar s house for barthuari
It is in vain that we look into his evidence whether in examination in chief or in cross examination for the exact information given by Gajadhar
It has to be remembered in this connection that it is no longer disputed that Gajadhar himself had no interest in these properties and was a mere Benamidar
Even if Gajadhar s own account that he was completely in the dark about these transactions be left out of account it was necessary for the Court to consider how far it was probable that Gajadhar would put on Jadunath a false story of purchase by himself of properties
It was urged that this Gajadhar did with a view to raise the Tilak which he could thus obtain
675 Jadunath himself has not said anything about the negotiations about Tilak but one Mahabir Ray has said that when he was going to the fields Gajadhar called him and there lie heard Gajadhar demanding a higher Tilak stating that he had recently purchased properties at Majhaul from Mussammat
Jadunath himself does not mention having seen this Mahabir at Gajadhar s house
Jadunath claims to have gone to his house with a servant
Mahabir has not mentioned the presence of this servant
The question whether a man like Mahabir who was a total stranger to the plaintiff would be called by Gajadhar to hear such talks also requires the serious consideration of the Court
The Trial Judge does not appear to have given the slightest consideration to this aspect of the matter
The learned judges of the High Court thought that there was no reason that Gajadhar would go out of his way to convey the information to Jadunath that he had purchased the Milkiat of Jogeshwari the defendant No 2
It is difficult not to agree to this estimate of probability
Even more important was the question of probability as regards the story of the plaintiff s reaction when the information is said to have been given to him
Both Jadunath and Jagdambi say that the plaintiff was startled on getting information of the sale and at once uttered the words which have been set out already of the Talab E Mowsibat
What would a man of ordinary prudence not to speak of the man of property and with experience of previous litigation like the plaintiff would do under such circumstances  There cannot be any two opinions on this question
He may consider it unwise to ask his informant any further question before making the first Talab ie Talab E Mowasibat
Once that was completed he would ply his informant with questions as to where he got this information what the information exactly was what properties had been sold what the consideration was and other connected questions
In this case according to the evidence of Jadunath no such questions were asked by the plaintiff
In his examination in chief Jadunath says 676  He plaintiff asked his syce to bring his tandom
He told Jagdamba Babu that he would go to make talab e isthashad and asked him to accompany him
While they were boarding the tandom Jai Prakash Narayan came that way
Radha Babu asked him also to accompany him
The same night Radha Babu met us at my house at 8 pm
He asked me where I had obtained the information about the sale
 From this evidence it is clear that though Jadunath was at the place until the Tandom bad been brought and the plaintiff and Jagdamba got into the Tandom and Jai Prakash Narayan also arrived no question was put by the plaintiff to Jadunath in this behalf
It has to be noted that the plaintiff went to Jadunath s house the same night at 8 pm and the only question which was asked was Where he had obtained the information about the sale and nothing was asked about what properties had been sold or for how much had they been sold
In cross examination Jadunath made the further statement in these words  When I broke the news Radha Prasad did not ask me where I had received the information or who had purchased the properties what properties had been purchased or what the consideration was
 Such conduct on the part of Jadunath is incredible and any Judge of facts with experience of normal human conduct could have no hesitation in coming to the conclusion that things could not have happened in the way Jadunath has described
Mr Jha the learned Counsel for the appellant urged that it would be unfair to base any conclusion on the supposed improbability or unnaturalness of such silence on the part of the plaintiff without having given him an opportunity to explain why be acted in this peculiar manner
It has to be noticed however that Jadunath had been examined and cross examined on January 9 1947 and when the plaintiff was put in the Witness Box on the following day ie January 10 1947 the lawyer who examined him had before him the fact that Jadunath s evidence had brought out this strange silence on the part of the plaintiff after he had been informed of the 677 sale
It was his duty to obtain from Radha Prasad an explanation of such conduct
But he put no questions to Radha Prasad about this
The obvious reason is that Radha Prasad had no explanation to offer and the lawyer knowing this kept quiet
It appears to us that the learned judges of the High Court of Patna were right in attaching great importance to this conduct of the plaintiff and were justified when they thought that this was an improbable story and rejected in disagreement with the Trial Judge Jadunath s evidence altogether
Mention has to be made of another circumstance which was noticed in the High Court judgment
That is as regards the exact information which is said to have been given by Jadunath
Jadunath s own account in the examination in chief is that he told Radha Babu at his house in Majhaul that Maghrawalli Jugeshwari Kumari had sold away her Milkiat to Gajadhar Rai of Motihani
In his cross examination he first said   The information I gave was in these terms Maghrawali Musammat apni Jaidad Babu Gajadhar Singh Motihani wale ke chan bech dia and then correcting himself said  Babu Gajadhar Singh ne kaha ki Maghrawali Musammat ki jaidad kharid kia
 It is not possible for anybody to remember exactly the words used by himself many years ago and it is reasonable to say that there was no substantial difference between the account given by him of this matter in his examination in chief and in cross examination
It is interesting to remember however that in paragraph 4 of the plaint it was stated that the information that Jadunath gave was  That the defendants 2nd and 3rd parties had sold the properties entered in Schedule B of this plaint along with other properties to the defendant 1st party under a registered deed of sale
 According to Jadunath s evidence he does not appear to have mentioned the defendant 3rd parties as the sellers nor gave any details to show that the properties 86 678 entered in Schedule B were covered by the sale nor that there was a registered deed of sale
Turning to the evidence on the plaintiff and Jagdamba as regards the information said to have been given by Jadunath we find that Jagdamba says  Jadunath Singh told Radha Prasad that Musammat Jogeshwari Kumari of Maghra had sold away her property in Majhaul to Gajadhar Singh of Motihani
 According to the plaintiff himself the information which Jadunath gave was that Gajadhar Singh had purchased the Majhaul properties from the Maghrawali Musammat
An examination of Schedule B shows that while the first 3 items were properties in Mauza Majhaul the 4th item is a property in Buzurgabad while the 5th item is a property in Mauza Dundit
There appears to be no reason to think that these properties 4 and 5 could be even loosely be considered to be properties in Majhaul or Majhaul Properties
Commenting on Jagdamba s evidence on this point Mr Justice Sinha who delivered the leading judgment stated   Plaintiff s witness No 2 has stated that Jadunath told the plaintiff that the second defendant had sold her property in Majhaul to the first defendant
If that is so it is a little difficult to under
stand how they went to Bugurgabad or to the other items of property to perform the ceremonies if they ever did so
 It is strange that there should be such discrepancy between the evidence of Jadunath himself and the plaintiff and Jagdamba as to what actually was said
But if Jagdamba s account such as is supported by the plaintiff himself is true then there is no acceptable explanation as to why the plaintiff could think of going to Bugurgabad at all as he and his witnesses say he did
It was the duty of the Trial Judge to take into account these several considerations in testing the credibility of the account given by Jadunath the plaintiff and Jagdambi that Jadunath informed the plaintiff on January 2 1944 about the sale
He did not do so The learned judges of the High Court as a 679 Court of Appeal were in duty bound to consider these questions before accepting the decision of the learned Trial Judge
The criticism that the approach of the learned judges of the High Court was wrong is therefore wholly without foundation
The learned judges of the High Court rightly took these matters into consideration and the decision they arrived at on these considerations that the Trial Judge s assessment of the evidence was wrong and that Jadunath was not a witness of truth and that the account given by the plaintiff that the information was conveyed to him by Jadunath on January 2 1944 should not be accepted is clearly right
Once this decision is reached it is unnecessary to consider the further question whether any ceremonies were performed at all on 2nd 3rd or 4th January 1944 as stated by the plaintiff and his witnesses
Even if they were they would be of no assistance to the plaintiff as the plaintiff had failed to show that it was on January 2 1944 that he received the information about the same
It is unnecessary for us therefore to decide the further question that appears to have been raised viz that even if the evidence as regards the performance of the two Talabs i e Talab E Mowashibat and Talab E Ishtashad is accepted at its face value the requirements of the law have not been fulfilled
The High Court held that the plaintiff had failed to prove that the words used by him at the time of the making of the second demand of Talab E Ishtashad were sufficient to draw the attention of the witnesses to the specific properties in respect of which he was demanding his right of pre emption
We express no opinion whether this view of the learned judges of the High Court is correct or not
We also express no opinion on the two other questions viz whether the Trial Court acted in accordance with law in granting leave to the plaintiff to amend his plaint so as to include the alternative prayer for pre emption in respect of 8 annas odd share of Tauza No 1130 instead of 4 annas odd share as originally claimed and also whether the suit was bound
to fail because there was 680 no prayer for pre emption for the Dakhili villages of Tauza No 1130
In our opinion the plaintiff having failed to prove that the information of the sale was conveyed
to him by Jadunath on January 2 1944 the suit was rightly dismissed by the High Court
This appeal is therefore also dismissed with costs


Summary:
On May 91 1935 one V obtained a decree against R and later assigned the same in favour of his mother M M made an application for an order recognizing her as the assignee and for 617 execution which was disposed of on September 27 1937
In 1939 V was adjudicated an insolvent on the ground that the assignment was a fraudulent preference
Thereafter M made a second application for execution which was disposed of on September 30 1940
The Official Receiver who had been appointed receiver in insolvency applied under section 54 of the Provincial Insolvency Act and on April 9 1943 obtained an order annulling the assignment
On September 27 1943 the Receiver applied for execution of the decree relying upon the applications made by M to save limitation under article 182 Limitation Act
The judgment debtor objected that the execution application was time barred because in view of the orders in the insolvency proceedings M was not entitled to the decree on the dates she applied for execution and her applications were incompetent and could not save limitation
The judgment debtor contended that i the order of annulment related back to the date of assignment and consequently M had never been entitled to the decree ii the order of adjudication had the effect itself of annulling the assignment and vesting the decree in the receiver from the date of presentation of the application for adjudication and iii the receiver was not entitled to take advantage of the applications made by M as he was not claiming through her but against her
Held per curiam that the application for execution made by the receiver was within time as the previous applications made by M were competent and saved the limitation
The assignment in favour of M stood till it was annulled and till then M had the right to execute the decree
Even if the annulment related back to the date of assignment it did not make illegal the exercise of the rights under the assignment made prior to the annulment
Sub sections 2 and 7 Of section 28 of the Provincial Insolvency Act which provided that upon adjudication all the assets of the insolvent vested in the receiver with effect from the date of the application for adjudication could not have the effect of vesting the decree in the receiver
The order of adjudication though it was based on the ground that the assignment was a fraudulent preference amounting to an act of insolvency did not itself annul the assignment and the assignment stood till it was annulled by an order under section 54
As such M was competent to execute the decree and the applications made by her were in accordance with law and could be relied upon by the receiver to save the limitation for the application made by him
The fact that the receiver did not claim through M did not disentitle him from taking advantage of the applications made by M Article 182 Limitation Act merely required the application for execution of a decree to be made within three years of the final order on a previous application made in accordance with law for the execution of the same decree
Mahomed Siddique Yousuf vs Official Assignee of Calcutta 1943 LR 70 IA 93 Ex Parte Learoyd 1878 10 Ch D 3 distinguished
618 Subba Rao J
The order of adjudication did not by its own force divest the title of M and vest it in the Official Receiver
An assignment made before the filing of the application for adjudication was binding on the Official Receiver until it was annulled under sections 53 54 or 54 A of the Act
Mahomed Siddique Yousuf vs Official Assignee of Calcutta 1943 LR 70 IA 93 and Ex parte Learoyd 1878 10 Ch
D 3 distinguished
Official Receiver Guntur vs Narra Gopala Krishnayya ILR and D G Sahasrabudhe vs Kala Chand Deochand i A transfer by a debtor before insolvency with a view to give fraudulent preference conveyed a valid title to the transferee 2 such a transfer was voidable against the Official Receiver in circumstances mentioned in section 54 of the Act 3 when the transfer was annulled the property vested in the Official Receiver who could administer it in the interest of the creditors  and 4 even after annulment the transfer stood as between the transferor and the transferee and the transferee was entitled to the balance of the sale proceeds remaining after satisfying the creditors
Official Receiver Coimbatore vs Palaniswami Chetti Mad 75o Amir Hasan vs Saiyid Hasan All 900 and Rukhmanbai vs Govindram ILR  relied on