26 April 1956
Supreme Court


Case number: Appeal (civil) 216 of 1953






DATE OF JUDGMENT: 26/04/1956


CITATION:  1956 AIR  593            1956 SCR  451

ACT:        Lis  pendens,  Scope  of-If prevents  passing  of  title  as        between  the  transferor and  the  transferee-Nonjoinder  of        Receiver  in insolvency in the execution  proceeding-Effect-        Transferee  pendente lite, if entitled to  attack  execution        sale  on  that  ground-Limitation  and  adverse   possession        against  a  purchaser in execution of a decree  on  a  prior        mortgage-Commencement-’Collusive’     and      ’fraudulent’-        Distinction--Admission-Evidentiary value-When can shift  the        burden of proof -’Maxim that ’a person cannot approbate  and        reprobate’-Applicability-Transfer  of  Property Act  (IV  of        1882), s. 52-Indian Limitation Act (IX of 1908), Art. 142.

HEADNOTE:        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 s. 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 s. 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 v. Chaudhri Narpat Singh ([1906] L.R. 34        I.A. 27), applied.        Siddik  Mahomed Shah v. Mt.  Saran and Others  (A.I.R.  1930        P.C. 57), explained and held inapplicable.        That  s. 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 v. Surr ([1854) 19 Beav. 551), applied.        Inamullah  Khan  v. Shambhu Dayal (A.I.R.  1931  All.  159),        Subbaiah  v.  Ramasami Goundan (I.L.R. [1954] Mad.  80)  and        Kala  Chand  Banerjee v. 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 v. Pooley, ([1840] 6 M. & W. 664) and Rani Chandra        Kunwari  v. 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. v. Hull and Netherlands Steamship        Company   Ltd.   ([1921]  2  K.B.   608),   considered   and        distinguished.

JUDGMENT:        CIVIL APPELLATE JURISDICTION: 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.   S.  Krishnaswami  Iyengar and M. S. 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. 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        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.  S.        Krishnaswami  Ayyangar, learned counsel for the  appellants,        did not press before us the contention urged by them in  the        courts  below  that  when a plaint  is  presented  in  forma        pauperis  the  lis commences only after it is  admitted  and        registered  as a suit, which was in this case on  17-6-1920,        subsequent  to  the  sale  under  Exhibit  VI--a  contention        directly opposed to the plain language of the Explanation to        section  52.  And he also conceded and quite  rightly,  that        when  a suit is filed for maintenance and there is a  prayer        that it be charged on specified properties, it is a suit  in        which  right to immovable property is directly in  question,        and  the lis commences on the date of the plaint and not  on        the  date of the decree, which creates the charge.   But  he



      contends that the decision of the courts below that the sale        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.        1.   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 v. 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 v. Chaudhri Narpat Singh: Rani  Chandra        Kunwar v. 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.  S.  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. S. No. 100 of 1919-20 were  collusive,  and        that,   in  consequence,  even  if  the  initial   onus   of        establishing  this  fact  was on the  defendants,  that  was        shifted  on to the plaintiff on proof of the  abovementioned        admissions,  and as there was no evidence worth the name  on        his side to explain them, he must fail.        We must now examine the several statements which are  relied        on  by  the appellants as admissions, ascertain  what  their        true import is, and determine what weight should be attached        to them.  On 27-6-1932 Abdul Huq moved the insolvency  court        for a direction to the Official Receiver to take  possession        of the mortgaged properties, which were stated to be in  the        occupation of one Lokiah.  This Lokiah, it has been  already        mentioned,  is  the husband of Srikantamma,  the  sister  of        Devamma,  he having married her after the maintenance  suits        had been decreed and sometime        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 v. 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 v. Chaudhri        (1)  [1840] 6 M. & W. 664, 669; 151 E.R. 579, 581.        466        Narpat Singh: Rani Chandra Kunwar v. 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. S. No. 100 of 1919-20 were  fraudulent        and not collusive in character.  Those statements would not,        in  our opinion, be sufficient, without more, to  sustain  a        finding that the proceedings were collusive.        But assuming that they are sufficient to shift the burden on



      to  the plaintiff of proving that the decree and sale in  0.        S.  No.  100  of 1919-20 were not  collusive,  the  evidence        adduced  by him is, in our opinion, ample to discharge  that        burden.   He  has  filed  Exhibit J  series,  which  give  a        complete  picture  of the proceedings in 0. S.  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. S. No. 92 of  1938-        39  he had thought that the proceedings were  collusive,  he        now thought otherwise.  Counsel for the appellants  strongly        criticised this evidence, and contended that in the  absence        of facts as to why he chanced his mind, the statement of the        plaintiff that he now thought otherwise was worthless.   But        then,  the  plaintiff  as  also  Abdul  Huq  and  his  legal        representatives  were utter strangers, and  their  statement        about  the collusive character of the proceedings,  in  O.S.        No. 100 of 1919-20 could only be a matter of inference.   If        on  the materials then before him the plaintiff  could  have        thought that those proceedings



      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. S. No. 92 of 1938-39 are  relied  on  as        barring  the plea that the decree and sale in 0. S. No.  100        of  1919-20  are  not  collusive,  not  on  the  ground   of        resjudicata  or estoppel but on the principle that a  person        cannot  both approbate and reprobate, it is immaterial  that



      the  present  appellants were not parties thereto,  and  the        decision   in  Verschures  Creameries  Ltd.  v.   Hull   and        Netherlands  Steamship Company Ltd.(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  v. Wauchope(1): Douglas-Menzies  v.        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) [1819] 1 Bli. 1, 21.        (2) [1908] A C. 224, 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. S. No. 92 of 1938-39 that the  proceedings        in  0.  S. No. 100 of 1919-20 were collusive; nor  did  they        acting  on  those  pleadings  acquire  rights  to  the  suit        properties.  Nor is there any question of election,  because



      the only relief which the plaintiff claimed in 0. S. No.  92        of 1938-39 and which he now claims is that he is entitled to        the suit properties.  Only, the ground on which that  relief        is claimed is different and, it is true, inconsistent.   But        the  principle  of election does not forbid  it,  and  there        being no question of estoppel, the plea that the proceedings        in 0. S. No. 100 of 1919-20 are not collusive is open to the        plaintiff.        3.It  was finally contended that the purchase by Devamma  in        execution of the decree in 0. S. No. 100 of 1919-20 was void        and conferred no title on her, because the 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 v. 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 v. 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) [1854] 19 Beav. 551; 52 E.R, 465,        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   v.   Shambhu  Dayal(1)  and  Subbaiah   v.   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. 159.        (2) I.L.R. [1954] Mad, 80.                                    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.        62        476