Case ID: 434

Judgment:
Civil Appeal No. 216 of 1953. On appeal from the judgment and decree dated the 8th March	 1951 of the Mysore High Court in Regular Appeal No. 123 of 1947 48 arising out of the decree dated the 23rd June 1947 of the Court of District Judge	 Bangalore in Original Suit No. 84 of 1945 46. K. section Krishnaswami Iyengar and M. section K. Sastri for the appellants. R. Ganapathy Iyer and K. R. Krishnaswamy for the respondent No. 1. 1956. April 26. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. 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	 Keshavananda	 454 Madhavananda and Brabmananda	 and three minor daughters	 Shankaramma	 Srikantamma and Devamma. On 1 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 in cluding the properties concerned in this litigation. A period of three 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 Rs. 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 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 Miscellaneous Case No. 379 of 1918 19	 subsequently registered as Suit No. 100 of 1919 20. The suits were contested	 and decreed after trial on 12 12 1921. The decree in 0. section 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 455 properties with which we 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 (Exhibit J 5). Proceedings 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 Keshavananda 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. While these proceedings were going on	 Abdul Huq	 the mortgagee	 filed on 16 8 1921	 O.S. No. 27 of 192122 against Keshavananda 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 of right. Abdul Huq 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 dated 1 9 1918. Among the defendants who were impleaded in this suit were the mortgagors Keshavananda and 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 456 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 Rs. 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 accordingly became unnecessary to go into the question as to the collusive character of the maintenance decrees and the execution sales. On 26 9 1935 a decree was passed determining the amount payable to the plaintiffs on redemption	 providing for payment thereof on or before 26th January 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 Chapman	 and possession was taken by him through court on 18 2 1937. On 25 1 1938	 Saldhana	 who was the agent of Chapman	 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 present action. When Krishna 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 be 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 his possession. The 457 suit 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	 Exhibit E 1	 was passed in terms thereof on 18 9 1942. Under 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. Under the partition deed entered into by the mortgagors on 6 9 1918 (Exhibit K)	 Keshavananda was allotted two plots	 Nos. 3 and 4 to the west of East Lal Bagh Road in the plan	 Exhibit G. These are the very plots	 which form the subject matter of the present suit. On 30 1 1920 Keshavananda con veyed these properties to Dr. Nanjunda Rao under a deed of sale	 Exhibit 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 this litigation. On the 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 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 458 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 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 defendants had acquired title to the suit properties by adverse possession for over 20 years. 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 section 52 of the Transfer of Property 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 ques tion 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 adverse possession. In the 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 section 52 of the Transfer of Property Act	 the title of Dr. Nanjunda Rao based on the deed dated 30 1 1920 came to an end when Devamma purchased the proper ties in execution of her maintenance decree	 and dismissed the appeal	 but granted a certificate under article 133(1) of the Constitution	 and that is how the appeal comes before us. Notwithstanding the tangle of legal proceedings extending over 30 years	 which forms the background of the present litigation	 the single and sole question that arises for decision in this suit is whether the sale deed dated 30 1 1920 under which the appellants claim is subject to the result of the sale dated 2 8 1928 in execution of the decree in O.S. No.100 of 459 1919 20 by reason of the rule of lis pendens enacted in section 52 of the Transfer of Property Act. 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 Keshavananda 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. 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. section 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 deed dated 30 1 1920 is hit by section 52 is bad on the following three grounds: (1) The question of lis pendens was not raised in the pleadings	 and is not open to the plaintiff. (2 The suit for maintenance	 O.S. No. 100 of 1919 20 and the sale in execution of the decree passed therein are all collusive	 and section 52 has accordingly no application. (3) The purchase by Devamma in execution of the decree in O.S. No. 160 of 1919 20 on 2 8 1928 is void and inoperative	 as the Official Receiver in whom 60 460 the estate of Keshavananda had vested on 19 2 1926 was not a party to the sale proceedings. The e contentions must now be considered. We see no substance in the contention that the plea of lis pendens 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 tile plaintiff contains any averment that the sale is affected by the rule of lis pendens. Nor is there any issue specifically directed to that question. It is argued for the respondent that the allegations in para 4 of the plaint and in. para 5 of the reply statement that Dr. Nanjunda Rao being a transferee subsequent to the mortgage could claim no right "inconsistent with or superstar to those of the mortgagee and the auction purchaser" are sufficiently wide to embrace this question	 and reference was made to issue No. 3 which is general in character. Even if 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 appellant 's contention. But it does not rest there. The question of lis pendens was raised by the plaintiff at the very commencement of the trial on 8 3 1947 when he went into the witness box and filed in his examination in chief Exhibit J series	 relating to the maintenance suits	 the decrees passed therein and the proceedings in execution thereof	 including the purchase by Devamma. This evidence is relevant only with reference to the plea of lis pendens	 and it is significant that no objection was raised by the defendants to its reception. Nay	 more. On 13 3 1947 they cross examined the plaintiff on the collusive character of the proceedings in Exhibit J series	 and filed documents in proof of it	 The 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 461 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 vs Mt. Saran and others(1) that "no amount of evidence can be looked into upon a plea which was never put forward". The true 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 bad 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	tbough no specific issue has been framed thereon	 and adduce evidence relating thereto. The rule applicable to this class of cases is that laid down in Rani Chandra Kunwar vs Chaudhri Narpat Singh: Rani Chandra Kunwar vs Rajah Makund Singh(2). There	 the defendants put forward at the time of trial a contention that the plaintiff had been given away in adoption	 and was in consequence not entitled to inherit. No such plea was taken in the written statement; nor was any issue framed thereon. Before the Privy Council	 the contention was raised on behalf of the plaintiff that in view of the pleadings	 the question of adoption was not open to the defendants. It was (1) A.I.R. 1930 P.C. 57. (2) [1906 07] L.R. 34 I A. 27. 462 held by Lord Atkinson overruling this objection that as both the parties had gone to trial on the question of adoption	 and as the plaintiff had not been taken by surprise	 the plea as to adoption was open to the defendants	 and indeed	 the defendants succeeded on that very issue. This objection must accordingly be overruled. 2.It is next contended that section 52 of the Transfer of Property Act does not operate to extinguish the title of Dr. Nanjunda Rao and his successors under the sale dated 30 1 1920	 because the proceedings which resulted in the decree in 0. section No. 100 of 1919 20 and the sale in execution thereof on 2 8 1928 were all collusive. Whether they were so or not is essentially a question of fact	 and both the courts below 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. The argument is that Abdul Huq	 his legal representatives and the plaintiff himself bad admitted again and again in judicial proceedings taken with reference to the suit properties that the decree and sale in 0. section 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 463 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 properties in court auction on 2 8 1928 on behalf of the decree holder. The decree itself was not attacked as collusive	 and as for the sale dated 2 8 1928 it was distinctly alleged in para 3 of the petition that the purchase by Lokiah was for the benefit of Devamma. The substance of the complaint of Abdul Huq was that the execution proceedings and the sales were fraudulent	 and intended to defeat his rights to the rents and profits from the properties. In other words	 the ground of attack on the sale dated 2 8 1928 was not that it was unreal and collusive	 but that it was real but fraudulent. Now	 there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. "Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose". (Wharton 's Law Lexicon	 14th Edition	 page 212). In such a proceeding	 the claim put forward is fictitious	 the contest over it is unreal	 and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent	 what is meant is that the claim made therein is untrue	 but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the court. Such a proceeding is started with a view to injure the opponent	 and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham	 in a fraudulent suit it is real and earnest. The allegations in the petition of Abdul Huq set out above show that the suit itself was not attacked as collusive	 but that the execution 464 proceedings were impeached as fraudulent. It should be mentioned that on this petition the District Judge passed an order on 30 6 1932 directing the Official Receiver to take the necessary steps and report. But nothing came out of this. We next come to a petition filed after the death of Abdul Huq by his legal representatives asking for permission of the insolvency court to institute a suit on the mortgage dated 1 9 1918 impleading the Official Receiver as party. The allegations made in the petition 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 possession and damages was given up	 the question as to the collusive character of the sale was abandoned	 and a decree for sale was passed. These proceedings are open to the same comment as was made on the petition of Abdul Huq	 and do not assist the defendants. It remains to deal with a proceeding to which the present plaintiff was a party. It will be remembered that after his purchase be was obstructed in his 465 possession by one Garudachar	 and he had to file O.S. No. 92 of 1938 39 to establish his title against him. In his plaint in that suit he stated	 obviously adopting what Abdul Huq and his legal representatives had previously alleged	 that the decree in O.S. No. 100 of 1919 20 and the execution sale on 2 8 1928 were collusive. On behalf of the appellants	 a contention is urged that as the plaintiff obtained a decree in O.S. No. 92 of 1938 39 on the strength of the above allegations	 it is not open to him in these proceedings to go back on them	 and plead the contrary. That is a contention which will be presently considered. But apart 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 take us. The question then is	 what is the effect to be given to these statements? An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence	 the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue	 SO long as the person to whom it was made has not acted upon it to his detriment	 when it might become conclusive by way of estoppel. In the 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 subsequent years. It is argued for the appellants that these admissions at the least shifted the burden on to the plaintiff of proving that the proceedings were not collusive	 and that as he gave no evidence worth the name that these statements were made under a mistake or for a purpose and were	 in fact	 not true	 full effect must be given to them. Reliance was placed on the well known observations of Baron Park in Slatterie vs Pooley(1) that "what a party himself admits to be true may reasonably be presumed to be so"	 and on the decision in Rani Chandra Kunwar vs Chaudhri (1) ; 	 669; ; 	 581. 466 Narpat Singh: Rani Chandra Kunwar vs Rajah Makund Singh(1)	 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. section 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. section 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 proceedings in 0. section No. 100 of 1919 20. Under the partition deed	 Exhibit 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 step sisters	 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 their shares. It appears from Exhibit J 10	 paragraph 2	 that the two brothers were contemplating the disposal of their plots	 in which case the claim of Chellammal and the step sisters 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 well 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 (1) [1906 07] L.R. 34 I.A. 27. 467 pursuant thereto on 30 1 1920. There cannot be any doubt	 therefore	 that the suits were bona fide. This conclusion is further reinforced when regard is had to the conduct of the litigation. Two of the brothers contested the suit. It underwent several adjournments	 and was heard finally in December 1921. At the trial	 a number of witnesses were examined on either side	 and the judgment	 Exhibit J 6	 shows that the contest centred round the quantum of maintenance payable to the plaintiffs	 and it was keen	 even bitter. When at last the plaintiffs obtained decrees	 they had no easy time of it in realising the fruits thereof. The troubles of a creditor	 it has been said	 begin after he obtains a decree	 and so it was with the plaintiffs. Exhibit J 4 shows that Devamma had to file several applications for execution	 before she could finally bring the properties to sale and in view of the heavy encumbrances to which they were subject	 she had herself to purchase them on 2 8 1928. The sale was confirmed on 21 11 1930	 and the sale certificate	 Exhibit J 5	 was issued	 and she got into possession. To sum up	 the claim on which the suit was laid was true and honest; it was hotly contested by the defendants	 and prolonged proceedings in execution had to be taken 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. section 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 468 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 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 be affirmed. We shall now deal with the contention of the appellants that in view of what happened in O.S. No. 92 of 1938 39 it is not open to the plaintiff to plead in these proceedings that the decree and sale in O.S. No. 100 of 1919 20 are not collusive. It is argued that in his plaint in O.S. No. 92 of 1938 39 the plaintiff alleged that the proceedings in O.S	 No. 100 of 1919 20 were collusive	 adduced evidence in proof of these allegations	 persuaded the court to give a finding to that effect	 and obtained a decree on the basis of that finding	 and he cannot therefore be permitted in this litigation to change his front and plead that the pro ceedings in O.S. No. 100 of 1919 20 are not collusive and succeed on it. This bar arises	 it is argued	 on the principle that a person cannot both approbate and reprobate. Now	 the facts relating to the litigation in O.S. No. 92 of 1938 39 are that Garudachar set up title to the suit properties under a purchase dated 1 12 1932 from Lokiah	 and it was the truth and validity of this sale that was really in question in that suit. Lokiah purchased these and other properties in execution of the money decree of one Appalaraju	 and therefore his title cannot prevail as against that of Devamma under the purchase under the charge decree on 2 8 1928. In his plaint in O.S. No. 92 of 1938 39	 the plaintiff attacked the purchases of both Devamma and of Lokiah as fraudulent and collusive. But	 in fact	 as Garudachar did not claim any title under Devamma	 there was no need to attack the purchase by her on 2 8 1928. The suit was contested	 469 and in the judgment that was given	 Exhibit E	 the title of the plaintiff was upheld and a decree granted in his favour. There was an appeal against the decree by Garudachar	 R.A. No. 101 of 1940 41	 and that was disposed of on a compromise by the parties	 under which the title of the plaintiff to the suit properties was affirmed and Garudachar was granted some other vacant sites in satisfaction of his claim. It is 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 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. section No. 92 of 1938 39 are relied on as barring the plea that the decree and sale in 0. section 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. vs Hull and Netherlands Steamship Company Ltd.(1)	 and in particular	 the observations of Scrutton	 L.J.	 at page 611 were quoted in support of this position. There	 the facts were that an agent delivered goods to the customer contrary to the instructions of the principal	 who thereafter filed a suit against the purchaser for price of goods and obtained a decree. Not having obtained satisfaction	 the principal next filed a suit against the agent for damages on the ground of negligence and (1) (1921] 2 K B. 608. 470 breach of duty. It was held that such an action was barred. The ground of the decision is that when on the same facts	 a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it	 it is not open to him thereafter to go back on his election and claim the alternative relief. The principle was thus stated by Bankes	 L. J.: "Having elected to treat the delivery to him as an authorised delivery they cannot treat the same act as a misdelivery. To do so would be to approbate and reprobate the same act". The observations of Scrutton	 L. J. on which the appellants rely are as follows: "A plaintiff is not permitted to 'approbate and reprobate '. The phrase is apparently borrowed from the Scotch law	 where it is used to express the principle embodied in our doctrine of election namely	 that no party can accept and reject the same instrument: Ker vs Wauchope(1): Douglas Menzies vs Umphelby(2). The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage	 to which he could only be entitled on the footing that it is valid	 and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction". It is 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 parties thereto. The law is thus stated in Halsbury 's Laws of England	 Volume XIII	 page 454	 para 512: "On the principle that a person may not approbate and reprobate	 a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais	 and may conveniently be referred to here. Thus a party cannot	 after taking advantage under an order (e.g. payment of costs)	 (1) 	 21. (2) 	 232	 471 be heard 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. section No. 92 of 1938 39 that the proceedings in 0. section 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. section 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. section 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. section No. 100 of 1919 20 was void and conferred no title on her	 because the Official Receiver in whom the estate of Keshavananda	 the mortgagor	 had vested on his adjudication as insolvent on 19 2 1926 had not been made a party to those proceedings	 and that	 in conse quence	 the title of Dr. Nanjunda Rao and his successors under the sale deed dated 30 1 1920 continued to subsist	 notwithstanding the court auction sale on 2 8 1928. The obvious 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 section 52 is not to wipe it out altogether but to subordinate it to the rights based. on the decree in the suit. As between the 472 parties to the transaction	 however	 it was perfectly valid	 and operated to vest the title of the transferor in the transferee. Under section 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 bad not been impleaded as a party thereto. But it is argued for the appellants that having regard to the words of section 52 that pendente lite "the property cannot be transferred"	 such a transfer must	 when it falls within the mischief of that section	 be deemed to be non est	 that in consequence Keshavananda must	 for purposes of lis pendens	 be regarded as the owner of the properties	 notwithstanding that he bad transferred them	 and that the Official Receiver who succeeded to his rights had a right to be impleaded in the action. This contention 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 parties thereto. It will be inconsistent to bold 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 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 execu 473 tion of her charge decree? It has been held by the Privy Council in Kala Chand Banerjee vs Jagannath Marwari(1) 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 execution of the decree therein	 under which the plaintiff claims. It is the purchaser pendente lite in the charge suit	 O.S. No. 100 of 1919 20	 that now attacks the sale held on 2 8 1928 as null and void. Is he entitled to do so? Counsel for the respondent has invited our attention to the decision in Wood vs Surr(2). There	 the mortgagor filed a suit for redemption in 1838. A preliminary decree for accounts was passed in 1843 and pursuant thereto	 a final decree was made in 1848 declaring the amount payable	 and time for payment was given till 1849. The amount not having been paid	 the mortgage became foreclosed. During the pendency of these proceedings	 the mortgagor was adjudicated bankrupt in 1844	 but the Official Assignee	 in whom the equity of redemption had vested	 was not impleaded in the mortgage action. In 1841	 the mortgagor bad created a further mortgage in favour of one Mrs. Cuppage	 and she was not made a party in the redemption suit. After the foreclosure of the mortgage in 1849	 one Mr. Wood claiming in the rights of Mrs. Cuppage instituted an action to redeem the mortgage. The question was whether being transferee pendente lite he was bound by the foreclosure proceedings. The contention on his behalf was that as the official assignee was not a party to those proceedings	 there had been no proper foreclosure	 and that the whole matter was at large. In negativing this contention	 Sir John Romilly	 M. R. observed: "There can be no question but that the suit (Davis 's suit) was defective by reason of no notice having been taken of the insolvency. The proceeding (1) [1927] L	 R. 54 T.A. 190	 (2) ; ; 	 474 having gone on exactly as if no insolvency had taken place	 the subsequent proceedings would	 in my opinion	 be wholly inoperative against the assigneein insolvency and if he thought fit to contest the validity of the decree of foreclosure against Davis	 it could not be held to be binding on such assignee. But that does not conclude the question	 which really is	 whether the plaintiff who	 but for this	 would in truth have been bound	 can take advantage of this objection. I am of opinion that although the suit was undoubtedly defective	 by reason of this insolvency	 the assignee alone could take advantage of this defect. It is obvious that Davis himself could not take advantage of it	 or if from any subsequent cause	 or any subsequent circumstance	 the insolvency 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 vs Shambhu Dayal(1) and Subbaiah vs Ramasami Goundan(2). 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 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 (1) A.I.R. 1931 All. (2) I.L.R. 475 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 section 52 of the Transfer of Property Act	 by the court sale dated 2 8 1928. It must be mentioned that the appellants also pleaded that the suit was barred by limitation under article 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 had been abandoned by the appellants. We accordingly 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 in 1936. The appeal fails	 and is dismissed with costs.

Summary:
The appellants as defendants in a suit for declaration of title to certain building sites sought to resist the respondents ' claim	 arising by purchase from a purchaser in a sale in execution of a mortgage decree passed on a mortgage deed of 1918	 by a counter claim based on a purchase of the same lands made in 1920 by their pre decessor in interest from one of the mortgagors against whom was then pending a suit for maintenance and for declaration of a charge on the land in suit. That suit was decreed in 1921 and the lands were purchased by the decreeholder in execution of her decree in 1928. The mortgagor had been adjudged an insolvent in 1926 and the Official Receiver in whom his estate vested was not made a party to the execution proceeding. Suit to enforce the mortgage deed of 1918 was brought in 1933 impleading the Official Receiver and the purchaser in execution of the maintenance and charge decree but not the appellants. In execution of the decree passed in this suit	 the lands in suit were sold to a third party in 1936 and in 1938 the respondent 's father purchased them. The respondent did not specifically raise the question of lis pendens in his pleading nor was an issue framed on the point	 but he raised the question at the very commencement of the trial in his deposition	 proved relevant documents which were admitted into evidence without any objection from the appellants who filed their own documents	 cross examined the respondent and invited the court to hold that the suit for maintenance and a charge and the connected proceedings evidenced by these documents were collusive in order to avoid the operation of section 52 of the Transfer of Property Act. The District Judge held that the appellants ' title acquired by the purchase of 1920 was extinguished by the sale held in execution of the charge decree by the operation of section 52 of the Transfer of Property 59 452 Act and decreed the suit and his decision was affirmed by the High Court in appeal. Hold	 that the decisions of the courts below were correct and must be affirmed. That in the facts and circumstances of the case the omission of the respondent to specifically raise the question of lis pendens in his pleading did not take the appellants by surprise and was a mere irregularity which resulted in no prejudice to them. Rani Chandra Kunwar vs Chaudhri Narpat Singh ([1906] L.R. 34 I.A. 27)	 applied. Siddik Mahomed Shah vs Mt. Saran and Others (A.I.R. 	 explained and held inapplicable. That section 52 of the Transfer of Property Act did not prevent the vesting of title in a transferee in a sale pendente lite but only made it subject to the rights of other parties as decided in the suit and subsequent insolvency of the transferor could not	 therefore	 vest any title in the Official Receiver or make the title of the execution purchaser liable to attack on the ground that the Receiver was not made a party to the execution proceeding. That even assuming that title could not wholly pass by a transfer pendento lite and some interest would still subsist in the transferor to vest in the Receiver	 the lands in suit having been sold in execution of a charge decree	 the sale would at the most be not binding on him and he could	 if he so chose	 move to set it aside; but the transferee pendente lite or his representative could not be allowed to make his non joinder a ground for attacking the sale. Wood vs Surr ([1854) ; 	 applied. Inamullah Khan vs Shambhu Dayal (A.I.R. 1931 All. 159)	 Subbaiah vs Ramasami Goundan (I.L.R. and Kala Chand Banerjee vs Jagannath Marwari ([1927] L.P. 54 I.A. 190)	 referred to. That no question of limitation or adverse possession really arose in the case. It was well settled that a claim of adverse possession could not affect the right of a prior mortgagee to bring the properties to sale and adverse possession against the purchaser under that sale could not commence prior to the date of sale. Held further	 that there was a fundamental distinction bet ween a collusive and a fraudulent proceeding in that while the former was the result of an understanding between the parties	 both the claim and the contest being fictitious	 and the purpose to confound third parties	 in the latter the contest was real	 though the claim was untrue	 and the purpose to injure the defendant by a verdict of the court obtained by practising fraud in it; that an admission was a mere piece of evidence and could not be conclusive except by way of estoppel when it had been acted 453 upon to his detriment by the person to whom it was made	 the weight to be attached to it depending on the circumstances of each case	 and the onus of proving that it was not true could not shift to the maker of it unless it was so clear and unambiguous as to be conclusive in absence of any explanation from him. Slatterie vs Pooley	 ([1840] ; and Rani Chandra Kunwari vs Choudhri Narpat Singh ([1906] L.R. 34 I.A. 27)	 referred to. That the maxim that 'a person could not approbate and repro bate ' had its origin in the doctrine of election and was confined to reliefs arising out of one and the same transaction and against the parties to it. Where	 however	 there was no question of election	 as the relief claimed was one and the same	 although based on different and inconsistent grounds	 the maxim had no application. Verschures Creameries Ltd. vs Hull and Netherlands Steamship Company Ltd. ([1921] 2 K.B. 608)	 considered and distinguished.