Case: Nagubai Ammal &amp; Others Vs. B. Shama Rao &amp; Others

1. This appeal arises out of a suit instituted by one Krishna Rao, since deceased, and now represented by his son and heir, the respondent herein, for a declaration of his title to certain building sites situate in Bangalore in the State of Mysore, and for consequential reliefs. These properties belonged to one Munuswami, who died leaving him surviving his third wife Chellammal, three sons by his predeceased wives, Keshvananda, Madhavananda and Brahmananda, and three minor daughters, Shankaramma Srikantamma and1-9-1918 the three brothers executed a usufructuary mortgage for Rs. 16,000 in favour of one Abdul Huq over a bungalow and vacant sites including the properties concerned in this litigation. A period of three years was fixed for redemption. There was a case 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, Ex. K, which provided inter alia that they were to pay each of sum of Rs. 8 per, mensem of their step mother Chellammal, for her maintenance, and that their stepsisters, should be under their protection.On 6-6-1919 Challammal presented a plaint in forma pauperis claiming maintenance and praying that it might be charged on the properties specified in the plaint. That was Misc. Case No. 377 ofAt the same time, she also presented as the next friend of her minor daughters, Srikantamma and Devamma, two plaints in forma pauperis, Misc. 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 three17-6-1920 permission to sue in forma pauperis was granted in all three cases, and they were registered as Suits Nos. 98 to 100 of 1919-20. We are concerned in this appeal with only one of them, the suit of Devamma which was Misc. Case No. 379 of 1918-19 subsequently registered as Suit No. 100 of 1919-20.3. The suit were contested, and deceased after trial onThe decree in O. S. No. 100 of 1919-20 directed the defendants each to pay to the plaintiff a sum of Rs. 6 per mensem for maintenance until her marriage and Rs. 1,500 for marriage expenses, and the payment of the amount was made a first charge on the properties. In execution of this decree, the properties with which are now concerned, were sold on 2-8-1928 and purchased by Devamma, the decree-holder. A sale certificate was issued to her on 21-11-1930 (Ex.were also taken in execution of the decrees obtained by Chellammal and Srikantamma and of one Appalaraju, and all the properties comprised in the mortgage were sold and purchased by third parties. It must be mentioned that all the three-brothers were adjudicated insolvents on their own application, Brahmananda by an order dated 23-3-1923 in Insolvency Case No. 7 of 1921-22 and Keshvananda and Madhavananda by an order dated 19-2-1926 in Insolvency Case No. 4 of 1925-26. It also appears from the evidence of D. W. 5 that at about this time all of them left the place.4. While these proceedings, were going on, Abdul Huq the mortgagee, filed onO. S. No. 27 of 1921-22 against Keshvananda and his two brothers for recovery of arrears of rent due by them under the lease deed and obtained a decree on 21-10-1921 but was unable to realise anything in execution thereof, and the execution petition was finally dismissed on 22-1-1926. He then filed a second suit against the mortgagors, O. S. No. 86 of 1931-32 for arrears of rent for a period subsequent to that covered by the decree in O. S. No. 27 of 1921-22 and for possession of the properties on the basis of the lease dated 3-9-1918, and obtained a decree on 22-3-1932 but was unable to get possession as the properties were in the occupation of third parties under claims ofHaq died on 20-3-1933, and thereafter his legal representatives filed on 30-8-1933 O. S. No. 8 of 1933-34 to enforce their rights under the mortgage deed datedAmong the defendants who were implemented in this suit were the mortgagors Keshavanand and Madhavananda, Gururaja, son of Brahmannanda who had died the official Receiver and the purchasers of the mortgaged properties in execution of the main tenance decrees and the decree of Appalaraju. Devamma was the third defendant in thisplaint 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 action, and that properties had been sold fraudulently in execution of those decree. 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 Rs. 5,000 as damages. In the alternative, they prayed for a decree for sale of the mortgaged properties for the amount due under the mortgage.5. 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 accordingly became unnecessary to go into the question as to the collusive character of the maintenance decrees and the execution26-9-1935 a decree was passed determining the amount payable to the plaintiffs on redemption, providing for payment thereof off or before 26-1-1936, and in default, directing the sale of the properties. In execution of this decree, the properties were sold in court-auction sometime in 1936, and purchased by one Champman, and possession was taken by him through court on 18-2-1937. On 25-1-1938, Saldhana, who was the agent of Champaman, and became his executor on his death, sold the building sites now in dispute and forming part of the properties purchased in court auction, to Krishna Rao, the plaintiff in the presentKrishna Rao attempted to take possession of the sites, he was obstructed by one Garudachar, claiming title under a sale deed dated 1-12-1932 executed by one Lokiah, the husband of Srikantamma sister of Devamma and he accordingly filed O. S. No. 92 of 1938-39 in the Court of the Subordinate Judge, Bangalore for establishing his title to the suit properties and for an injunction restraining Garudachar from interfering with hissuit was decreed on 23-7-1940, and the matter having been taken in appeal to the High Court by Garudachar, the parties entered into a compromise, and a decree, Ex. E. 1 was passed in terms thereof onUnder this decree, the title of the plaintiff to the suit properties was recognised. After obtaining this decree, Krishna Rao started building on the sites, when he met with fresh obstruction, this time from the appellants who set up that they were in possession under a claim of title.6. Under the partition deed entered into by the mortgagors on 6-9-1918 (Exhibit K), Keshvananda was allotted two plots. Nos. 3 and 4 to the west of East Lal Bagh Road in the plan Ex. G. These are the very plots, which form the subject matter of the present suit. On 30-1-1920 Keshvananda conveyed these properties to Dr. Nanjunda Rao under a deed of sale Ex. VI. There was on the same date a sale by Brahmananda of plots Nos. 1 and 2 to Dr. Nanjunda Rao, but those properties are not involved in thisthe death of Dr. Nanjunda Rao, his sons partitioned the properties, and in the division the suit properties fell to the share of one Raghunatha Rao, and 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 thisview 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 defendants 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 thedefendants 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 remained unaffected by the decree passed therein or the sale in execution thereof; and secondly, that the suit was barred by limitation, because the plaintiff was not in possession within 12 years of the suit, and also because the defendant had acquired title to the suit properties by adverse possession for over 20 years.7. The District Judge of Bangalore, who tried the suit, held that the title of Dr. Nanjunda Rao to the suit properties under the sale deed dated 30-1-1920 was, under S. 52, T. P. Act, subject to the result of the maintenance suit of Devamma (O. S. No. 100 of 1919-20) and was in consequence extinguished by the purchase by her in execution of the charge decree in that suit. On the question of limitation, the learned Judge held that the plaintiff had established possession of the properties within 12 years of the suit, and that the defendants had failed to establish title by adversethe result, he granted a decree in favour of the plaintiff for possession of the suit properties. The defendants appealed to the High Court, Mysore and by their judgment dated 8-3-1951 the learned Judges agreed with the District Judge that by reason of S. 52, T. P. Act the title of Dr. Nanjunda Rao based on the deed dated 30-1-1920 came to an end when Devamma purchased the properties in execution of her maintenance decree, and dismissed the appeal, but granted a certificate under Art. 133(1) of the Constitution, and that is how the appeal comes before us.

Reasoning:
If it is, it is not in dispute that it becomes avoided by the purchase by Devamma on 2-8-1928. If it is not, it is equally indisputable that the appellants as purchasers of the equity of redemption from Keshvananda have a right to redeem the mortgage dated 1-9-1918, and not having been impleaded in O. S. No. 8 of 1933-34 are not bound either by the decree passed therein or by the sale in execution thereof.9. 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 S. 52 T. P. Act, and would be hit by the purchase by Devamma on 2-8-1928 in execution of the charge decree.1. We see no substance in the contention that the plea of lis pendents is not open to the plaintiff on the ground that it had not been raised in the pleadings. It is true that neither the plaint nor the reply statement of the plaintiff contains any averment that the sale is affected by the rule of lis pendens. Nor is there any issue specifically directed to thatif the plaintiff meant by the above allegations to raise the plea of lis pendens, he has not expressed himself with sufficient clearness for the defendants to know his mind and if the matter had rested there, there would be much to be said in favour of the appellants contention. But it does not restare 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 totrue scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relatingapart from that, the statements of the plaintiff in his plaint in O. S. No. 92 of 1938-39 considered purely as admissions, do not carry the matter beyond the point to which the statements made by Abdul Huq and his legal representatives in the prior proceedings takethe present case, there is no question of estoppel, as the title of Dr. Nanjunda Rao arose under a purchase which was long prior to the admissions made in 1932 and in the subsequenthas 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 O. 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.19. But assuming that they are sufficient to shift the burden on to the plaintiff of proving that the decree and sale in O. 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 gave a complete picture of the proceedings in O. S. No. 100 ofthe partition deed, Ex K, it will be remembered, the brothers agreed to pay a monthly maintenance of Rs. 8 each to their step-mother, Chellammal. This, however, was not charged on the family properties. With reference to their stepsisters, Srikantamma and Devamma, the provision was simply that the brothers should protect them. It will also be remembered that under the partition Keshavananda and Brahmananda each got two vacant sites in full quit of theirappears from Ex J-10, para 2, that the two brothers were contemplating the disposal of their plots, in which case the claim of Chellammal and the stepsisters to maintenance would be defeated. It became accordingly necessary for them to safeguard their rights, and for that purpose, to file suits for maintenance and claim a charge therefor on the family properties. That the apprehensions of Chellammal were will-founded is established by the fact that the two brothers entered into agreements for the sale of their vacant sites to Dr. Nanjunda Rao on 20-10-1919, and sale deeds were actually executed pursuant thereto on 30-1-1920. There cannot be any doubt, therefore, that the suits were bonawas open to the defendants to have further cross-examined him about the materials, which led him to change his opinion, but they chose not to pursue the matter. Bot the courts below have, on a careful consideration of the record, come to the conclusion that the proceedings in O. S. No. 100 of 1919-20 were not collusive, and we do not see sufficient grounds for disturbing that finding, which must beis difficult to say on these facts that the allegation of the plaintiff that the proceedings in O. S. No. 100 of 1919-20 were collusive was either the foundation of his claim, or that he obtained any benefit under the decree on thatas that judgment was no inter parties, the findings therein are inadmissible in this litigation, and, moreover, there having been an appeal against that judgment, the findings in Ex 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 interis immaterial that the present appellants were not partiesis clear from the above observations that the maxim that a person cannot approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are partiesplaintiff obtained no advantage against the appellants by pleading in O. S. No. 92 of 1938-39 that the proceedings in O. 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 they only relief which the plaintiff claimed in O. 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 O. S. No. 100 of 1919-20 are not collusive is open to theobvious answer to this contention is that the properties which were sold on 2-8-1928 did not vest in the Official Receiver on the making of the order of adjudication on 19-2-1926, as they had been transferred by the mortgagor, long prior to the presentation of Insolvency Case No. 4 of 1925-26 under the very sale deed dated 30-1-1920, which forms the root of the appellants, title.That sale was no doubt pendente lite, but the effect of S. 52 is not to wipe it out altogether but to subordinate it on the rights based on the decree in thebetween the parties to the transaction, however, it was perfectly valid, and operated to vest the title of the transferor in the transferee. Under S. 28 (2) of the Insolvency Act, what vests in the Official Receiver is only the property of the insolvent, and as the suit properties had ceased to be his properties by reason of the sale deed dated 30-1-1920, they did not vest in the Official Receiver, and the sale held on 2-8-1928 is not liable to be attacked on the ground that he had not been impleaded as a partycontention gives no effect to the words "so as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the partieswill be inconsistent to hold that 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 Keshavananda 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 S. 52, be treated as still retaining title to theobservations 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 O. 34, R. 1, Civil P. C. 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 has vested is the Official Receiver, and he had not been made a party to the proceedings resulting inshould 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 nonjoinder in the execution proceedings did not render the purchase by Devamma a nullity, and that under the sale she acquired a good and impeccable title, subject to any right which the Official Receiver might elect to exercise, and it is not open to attack by the transferee pendente lite under the deed dated 30-1-1920 and his representatives, the present appellants.In the result, we agree with the courts below that the title of the appellants has been extinguished under S. 52, T. P. Act, by the court sale dated 2-8-1928.27. It must be mentioned that the appellants also pleaded that the suit was barred by limitation under Art. 142 on the ground that the plaintiff and his predecessors had not been in possession within 12 years of the suit, and that further the defendant had acquired title by adverse possession commencing from 1920. The learned District Judge, found on both the issues in favour of the plaintiff, and though the correctness of these findings was attacked in the grounds of appeal to the High Court, there is no discussion of the question in the judgment of the learned Judges, and we must take it that the point has been abandoned by theaccordingly declined to hear them on this question. We may add that the question of limitation cannot really arise on the facts of this case, inasmuch as the possession which is claimed to be adverse is stated to have commenced in 1920, and it is well settled that such possession cannot affect the right of a prior mortgagee to bring the properties, to sale, and adverse possession against the purchaser under that sale cannot commence prior to the date of that sale, and the present suit was instituted on 8-1-1945 within 12 years of the sale, which took place inthey were so or not is essentially a question of fact, and both the courts before have concurred in answering it in the negative. It is contended for the appellants that this finding is the result of an error into which the learned Judges of the High Court fell as to the incidence of burden of proof; and it should not therefore be accepted.