05 December 1956
Supreme Court


Case number: Appeal (civil) 178 of 1955






DATE OF JUDGMENT: 05/12/1956


CITATION:  1957 AIR  314            1957 SCR  195

ACT: Adverse  Possession-Possession  of  co-heir,  when  adverse- Ouster-Possession  of  Receiver  pendente lite,  if  can  be tacked.

HEADNOTE: V  died an infant in 1927 and H, an agnatic relation.  filed a,  suit for the recovery of the properties belonging  to  V which were in the possession of third parties, on the ground that he was the sole nearest male agnate entitled to all the properties.  During the pendency of the suit a Receiver  was appointed  for the properties in February, 1928.   The  suit having been decreed H obtained possession of the  properties from  the Receiver on January 20, 1930, and after his  death in  1936, his nephew, the appellant, got into possession  as His  heir.  On October 23, 1941, the respondent brought  the present  suit for the recovery of a one third share  of  the properties from the appellant on the footing that he and his brother were agnatic relations of V of the same degree as H, that  all  the  three were equal co-heirs of V  and  that  H obtained the decree and got into possession on behalf of all the co-heirs.  The appellant resisted the suit and contended that the respondent lost his right by the adverse possession of  H and his successor and that for this purpose  not  only the  period from January 20, 1930, to October 23, 1941,  was to  be counted, but also the prior period when the  Receiver was  in possession of the properties during the pendency  of H’s  suit. it was found that-the; respondent’s case  that  H obtained the decree and got possession, from the Receiver on behalf of the other co-heirs was not true : Held, that the respondent did not lose his right by  adverse possession.  Even assuming that H’s possession from  January 20,  1930, was adverse and amounted to ouster of  the  other co-heirs,  such adverse possession was not adequate in  time to  displace  the  title of the respondent  and  the  period during  which  the Receiver was in possession could  not  be added, because (1) the Receiver’s 196 possession  could not be tacked on to H’s possession,  as  a Receiver is an officer of the Court and is not the agent  of any  party to the suit and notwithstanding that in  law  his



possession  is  ultimately  treated  as  possession  of  the successful  party on the termination of the suit,  he  could not  be  considered  as the agent of such  party  with’  the animus of claiming sole and exclusive title with the view to initiate adverse possession ; and (2) during the time of the Receiver’s  possession the respondent could not sue  H,  and limitation could not therefore run against him. The  possession  of one co-heir is considered,  in  law,  as possession  of  all the co-heirs and in order  to  establish adverse  possession  ouster of  the  non-possessing  co-heir should  be  made  out  and as  between  them  there-must  be evidence  of open assertion of hostile title,  coupled  with exclusive  possession  and enjoyment by one of them  to  the knowledge of the other so as to constitute ouster.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 178 of 1955. Appeal  by special leave from the judgment and decree  dated December 3, 1951, of the High Court of Judicature at  Madras in  Second Appeal No. 766 of 1947 against the  decree  dated November  19,  1946, of the District Court of  Anantapur  in Appeal  No.  130  of 1945 arising out of  the  decree  dated January  31,  1945,  of  the  Court  of  Subordinate  Judge, Anantapur, in Original Suit No. 10 of 1944. M.   C.  Setalvad, Attorney-General of India, P. Ram  Reddy, K. Sundararajan and M. S. K. Aiyangar, for the appellant. C.   K.  Daphtary,  Solicitor-General of India,  and  K.  R. Chaudhury, for the respondent. 1956.   December 5. The Judgment of the Court was  delivered by JAGANNADHADAS  J.-The plaintiff in the action out  of  which this  appeal  arises brought a suit for declaration  of  his title  to a one-third share in the suit properties  and  for partition  and  recovery  of  that  share.   The  suit   was dismissed  as having been barred by limitation  and  adverse possession.   On  appeal  the District  Judge  reversed  the decision and decreed the suit.  The.  High Court  maintained the  decree of the District Judge on second  appeal.   Hence this appeal before us on special                             197 leave  by  the  first defendant in the action,  who  is  the appellant  before us.  The main question that arises in  the appeal is whether the plaintiff has lost his right to a one- third, share in the suit property by adverse possession. The property in suit belonged to one Venkata Reddy.  He died an infant on Augutst 25, 1927.  At that time, the properties were  in the possession of the matemal uncles of the  father of the deceased Venkata Reddy.  One Hanimi Reddy, an agnatic relation of Venkata Reddy, filed a suit O.S. No. 26 of  1927 for recovery of the properties from ’the said matemal uncles and obtained a decree therein on March 15, 1929.  A Receiver was  appointed for the properties in February, 1928,  during the pendency of the suit and presumably the properties  were in his possession.  This appears from the decree which shows that  it directed the Receiver to deliver possession to  the successful  plaintiff  in that suit’ Hanimi  Reddy  obtained actual  possession of these properties on January 20,  1930, and continued in possession till he died on August 16, 1936. The  first  defendant  in  the present  action  who  is  the appellant before us is a son of the brother of Hanimi  Reddy and  came  into possession of all the properties  as  Hanimi Reddy’s  heir.  The respondent before us is  the  plaintiff. The  present  suit was brought on the  allegation  that  the



plaintiff and the second defendant in the suit, his brother, were agnatic relations of Venkata- Reddy, of the same degree as  Hanimi Reddy and that all the three were equal  co-heirs of Venkata Reddy and succeeded to his properties, as such-on his  death.  It was alleged that though Hanimi  Reddy  filed the  prior  suit and obtained possession of  the  properties thereunder,  he  did  so as one of the  do-heirs,  with  the consent  of the plaintiff and the second defendant and  that he  was enjoying the properties jointly with  the  plaintiff and  his  brother as tenants-in-common but  that  the  first defendant,  who came into possession on the death of  Hanimi Reddy  denied the title of the plaintiff and his brother  in or  about the year 1940.  The plaint in the  present  action was  filed  originally  in the District Munsif  s  Court  on October 23, 1941, and was ordered 198 to  be  returned for presentation; to the  District  Judge’s Court on November 30, 1942.  It was actually re-presented in that Court on December 2, 1942.  One of thequestions  raised in the suit was that the, suit was, barred by limitation  on the ground that it must be taken to have been ingtituted not on  October(23, [1941], but on December 2, 1942.  This  plea was  upheld  by  the  trial  Court.   On  first  -appeal-the District  Judge held that the plaintiff is entitled  to  the benefit  of  a. 14 of the Limitation Act and that  the  suit must  be  taken as having- been instituted  on  October  23, 19419  and is; therefore, in time.  He accordingly  decreed, the suit.  In the -High Court the question as to whether the plaintiff  was  entitled  to  the benefit  of.  14  of  the, Limitation Act, though raised, was not finally decided.   It was held that the possession of Hanimi Reddy was not adverse to the plaintiff and that accordingly he was entitled to the decree  as  prayed  for.   The  question  as  to  the   non- availability  of the benefit of s. 14 of the Limitation  Act to  the  plaintiff in the present suit has not  been,  urged before  us and- the finding of the District Judge  that  the plaint  must  be  taken to have been  validly  presented  on October  23,  1941, stands.  That date must,  therefore,  be taken to be the commencement of the action for the  purposes of  this appeal.  It will be noticed that this date is  more than fourteen years from the date when the succession opened to  the properties of Venkata Reddy on August 25, 1927,  but is less than twelve years after Hanimi Reddy obtained actual possession  in execution of his decree on January 20,  1930. The  contention  of  the  learned  Attomey-General  for  the appellant  first defendant is that the possession of  Hanimi Reddy was adverse, that the plaintiff as well as the  second defendant  lost  their right by the  adverse  possession  of Hanimi  Reddy  and his successor, the first  defendant,  and that  for this purpose not only the period from January  20, 1930, up to October 23, 1941, is to be counted but also  the prior period during the pendency of Hanimi Reddy’s suit when the  Receiver was in possession of the suit properties.   It is the. validity of 199 these two parts of the argument which has to be considered. It  will  be convenient to consider in  the  first  instance whether or not the possession of- Hanimi Reddy from  January 20, 1930, up to the date of his death in 1936 was adverse to his  co-heirs.  The :facts relevant for this pur  ,pose  are the  following.   At the date when Venkata  Reddy  died  his properties were in the custody of the two maternal uncles of his father.  Hanimi Reddy filed his suit on the  allegation, as  already  stated above, that he was the  nearest  agnatic relation  alive of the deceased minor Venkata Reddy  and  as



his next rightful heir to succeed to all the estate, movable and immovable, of the said minor, set forth in the schedules thereto.   He  appended a genealogical tree  to  his  plaint which  showed  his relationship io Venkata Reddy  through  a common ancestor and showed only the two lines of himself and Venkata Reddy.  Plaintiff and the second defendant belong to another  line  emanating from the same common  ancestor  but that  line  was  not  shown and  the  plaintiff  and  second defendant were ignored.  The first defendant in the  present suit did not admit the relationship of plaintiff and  second defendant  in his written statement.  He disputed  that  the father  of the plaintiff and second defendant was  descended from the common ancestor either by birth or by adoption,  as shown  in  the genealogical table attached  to  the  present plaint.   It is possible that this may have been the  reason for  Hanimi  Reddy  ignoring the plaintiff  and  the  second defendant in-his suit.  However this may be, at the trial in this suit it was admitted that the plaintiff and the  second defendant are the agnatic relations of Venkata Reddy of  the same degree as Hanimi Reddy.  The defendants in the  earlier suit  who were in possession on that date claimed to  retain possession  on  behalf of an alleged illatom  sonin-law  (of Venkata  Reddy’s  father)  a son  of  the  second  defendant therein.   It  may  be mentioned that in that  part  of  the country (Andhra) an illatom son-in-law is a boy incorporated into  the family with a view to give a daughter in  marriage and is customarily recognised as an heir in the absence of a natural-born son, This 200 claim  appears  to  have been negatived  and  the  suit  was decreed.   During  the pendency of the suit a  Receiver  was appointed in February, 1928.  He presumably took  possession though  the  date  of his taking possession is  not  on  the record.  The decree in that suit dated March 15, 1929, is as follows: "This Court doth order and decree that plaintiff do  recover possession  of  immovable  property  and  movables  in   the possession of the Receiver." It is in the evidence of the first defendant himself as D.W. I  that the properties, were taken possession of  by  Hanimi Reddy  on January 20, 1930.  The plaintiff examined  himself as P.W. 1 to substantiate the case as set out in his  plaint that  he  and  the second defendant and  Hanimi  Reddy  were enjoying  the properties jointly as tenants in common.   The relevant portion of his evidence is as follows: "Annu  Reddy (Hanimi Reddy) uncle of defendant " and  myself filed  0. S. No. 26 of 1927, District Court,  Anantapur-same as  O.S.  No.  24  of  1928,  Sub-Court,  Anantapur-for  the properties  of the deceased Venkata Reddy.  As Hanimi  Reddy was  the eldest member, he was attending to the  conduct  of that suit.  I was also coming to Court along with him.   The suit  ended  in our favour.  Hanimi  Reddy  took  possession through Court after the decree in the year 1930.  Since then both  Hanimi Reddy and myself have been in joint  possession and enjoyment of the same." In cross-examination he said as follows: "I  told Hanimi Reddy that I would also join him as a  party in  O.S.  24 of 1928.  He said there was no need for  me  to join and that he would give my share to  me................. I  did  nut  file  any application  to  be  impleaded  as  a defendant................. I have nothing in writing to show that  Hanimi Reddy was giving me any produce from  the  suit lands."  The  first defendant filed the plaint, judgment and  decree in  Hanimi  Reddy’s suit as also pattas, cist  receipts  and



lease  deeds  taken  by  Hanimi Reddy  in  his  time.   With reference to this evidence the trial Court found as follows;                             201 "The  documents  filed  on behalf  of  the  first  defendant completely establish that Hanimi Reddy filed the suit in his individual capacity and obtained possession thereof.   There is  nothing  to indicate that either the  plaintiff  or  the second    defendant    took   any    interest    in    those proceedings................. There is no evidence of  Hanimi Reddy  having given any produce to the plaintiff or  to  the second defendant.............. The plaintiff and the  second defendant  have been excluded from participation of  profits to  their knowledge since 1930." The learned District  Judge found  on  appeal (when the same was remanded to him  for  a finding by the High Court) as follows: "I  have  no hesitation in holding that  the  plaintiff  had nothing to do with the institution or conduct of the suit 0. S. No. 24 of 1928 on the file of the Sub Court of Anantapur, and  that  he never had any actual joint enjoyment  of  suit properties  with  the  late D. Hanimi  Reddy  or  the  first defendant." He  has  not  given  a  finding  as  to  whether  the   non- participation of the profits by the plaintiff and the second defendant was in the nature of exclusion to their knowledge. But  there are some admitted and relevant facts brought  out in evidence which are significant.  The present evidence  as well  ’as  the’  plaint in the earlier  suit  of  1927  show clearly  that  all the parties including Hanimi  Reddy  were residents of village Mamuduru.  All the suit properties  are situated  in  that  village  itself;  as  appears   from,the schedules  to the plaint in the earlier suit.  Hanimi  Reddy and  the  plaintiff were fairly closely related  as  appears from the plaintiff’s admission as follows: "My  brother-in-law who is also the nephew -of Hanimi  Reddy was  staying  with  Hanimi  Reddy.   My  father-in-law   and defendant No. 1’s father-in-law is the same." On these facts the question that arises is whether, in  law, the  possession  of  Hanimi Reddy from  January,  20,  1930, onwards  was  adverse  to  the  plaintiff  and  the   second defendant. 26 202 Now,   the   ordinary  classical  requirement   of   adverse possession  is  that  it  should be  nec  vi  nec  clam  nec precario. (See Secretary of State for India v. Debendra  Lal Khan(1)).   The  possession  required must  be  adequate  in continuity,  in publicity and in extent to show that  it  is possession adverse to the competitor. (Se(,, Radhamoni  Debi v. Collector of Khulna(2)).  But it is well-settled that  in order.  to  establish adverse possession of one  co-heir  as against  another  it is not enough to show that one  out  of them  is in sole possession and enjoyment of the profits  of the properties.  Ouster of the non-possessing co-heir by the co-heir  in  possession, who claims his  possession  to  be. adverse, should be made out.  The possession of one  co-heir is  considered, in law, as possession of all  the  co-heirs. When  one  co-heir  is  found to be  in  possession  of  the properties it is presumed to be on the basis of joint title. The  coheir  in  possession  cannot  render  his  possession adverse to the other co-heir not in possession merely by any secret  hostile animus on his own part in derogation of  the other co-heir’s title. (See Corea v. Appuhamy(3)).  It is  a settled  rule of law that as between co-heirs there must  be evidence  of open assertion of hostile title,  coupled  with exclusive  possession  and enjoyment by one of them  to  the



knowledge  of  the other so as to constitute  ouster.   This does  not  necessarily mean that there must  be  an  express demand  by  one and denial by the other.   There  are  cases which  have held that adverse possession and ouster  can  be inferred  when  one co-heir takes  and  maintains  notorious exclusive  possession  in  assertion of  hostile  title  and continues  in such possession for a very  considerable  time and  the  excluded  heir’ takes no steps  to  vindicate  his title.  Whether that line of cases is right or wrong we need not pause to consider.  It is sufficient to notice that  the Privy  Council in N. Varada Pillai v.  Jeevarathnammal(4)  q uotes,  apparently with approval, a passage from  Culley  v. Deod Taylerson(5) which indicates that such a situation  may Tell lead to an inference of (1)  [1933] L.R. 6i I.A. 78, 82. (2)  [1900] L.R. 27 I.A. 136, 140. (3)  [1912] A.C. 230. (4)  A.I.R. 1919 P.C. 44, 47. (5)  3 P. & D. 539; 52 R.R. 566.                             203 ouster "if other circumstances concur". (See also  Govindrao v.  Rajabai(1)).   It may be further mentioned  that  it  is well-settled that the burden of making out ouster is on  the person claiming to displace the lawful title of a co-heir by his adverse possession. In the present case there can be no doubt that Hanimi  Reddy obtained  sole possession of the suit properties  after  the death  of  Venkata Reddy on the basis of an  action  against third  parties  in which he claimed to be the  sole  nearest male  agnate  having  title to all  the  properties.   After obtaining  possession  he was in continuous  and  undisputed possession of the properties till his death enjoying all the profits  thereof.   No  doubt  in  an  ordinary  case   such possession and enjoyment has to be attributed to his  lawful title, he being one of the co-heirs.  But the plaint in  the suit  of  1927 and the decree therein render  it  reasonably clear that he filed the suit and obtained possession on  the basis  of his having exclusive title ignoring  his  coheirs. It  is  urged  that  knowledge  of  the  assertion  of  such exclusive  title  averred in a plaint cannot be  imputed  to other co-heirs who are not parties to the suit.  But in this case  it is not difficult on the evidence to ,say  that  the plaintiff  and  the second defendant must  have  been  fully aware,  at  the  time, of the nature of the  claim  made  by Hanimi  Reddy  in the prior litigation and on the  basis  of which he obtained possession.  That knowledge is implicit in the  very  case that they have put forward  in  the  present plaint.   Their case is that the prior suit was  brought  by Hanimi  Reddy  with  the consent of the  plaintiff  and  the second  defendant  and  on  their  behalf.   No  doubt  that specific  case has been found against them and that  finding is yes judicata between the parties.  But there is no reason why  the admission as to the knowledge of the nature of  the litigation and the contents of the plaint which such a  case necessarily implies should not be attributed at least to the present plaintiff.  It appears reasonable to think that  the plaintiff  being  unable to explain his  inaction  for  over fourteen  years  after the death of Venkata Reddy  has  been constrained to put (1)  A. I. R. 1931 P.C. 48. 204 forward a false case that the prior suit by Hanimi Reddy was with his consent and on his behalf.  It is significant  that the  plaintiff  has remained silent with out  asserting  his right during Hanimi Reddy’s lifetime, and comes forward with



this  suit  after  his  death,  rendering  it  difficult  to ascertain  whether  the  fact  of  Hanimi  Reddy  completely ignoring  the  existence  of the plaintiff  and  the  second defendant   as   co-heirs  was  not  in  denial   of   their relationship and consequently of their title as co-heirs  to their  knowledge.   The  fact that even so late  as  in  the written  statement  of the first defendant  relationship  is denied may be indicative as to why Hanimi Reddy ignored  the plaintiff  and  the second defendant and why  they  remained silent.   The learned Judges of the High Court thought  that there  was nothing to show that Hanimi Reddy was aware  that plaintiff  and  second  defendant  had  any  rights  in  the properties as co-heirs.  This assumption is contrary to  the admission  of  mutual  knowledge  of  each  other’s   rights implicit  in the plaintiff’s case that Hanimi Reddy  brought his  suit  with  the  consent of  the  plaintiff.   In  such circumstances and especially having regard to the fact  that both the plaintiff and Hanimi Reddy were living in the  same village   and  the  plaintiff  has  put  forward   a   false explanation  to account for’ his inaction, a Court  of  fact might  well have inferred ouster.  Sitting on an  appeal  in special  leave,  however,  we do not feel  it  desirable  to decide  the case on this ground. We, therefore,  proceed  to consider the further question that arises in the case, viz., whether the Receiver’s possession can be tacked on to Hanimi Reddy’s  possession, on the assumption that  Hanimi  Reddy’s possession on and from January 209 1940, was adverse to  the plaintiff. The learned Attorney-General urges that prior possession  of the Receiver pending the suit must be treated as  possession on  behalf of Hanimi Reddy with the animus of  claming  sole and exclusive title disclosed in his plaint.  In support  of this contention he relies on the well-known legal  principle that when a Court takes possession of properties through its Receiver, such Receiver’s possession is that of all the                             205 parties  to the action according to their titles. (See  Kerr on  Receivers, 12th Ed., p. 153).  In Woodroffe on  the  Law relating to Receivers (4th Ed.) at p. 63 the legal  position is stated as follows: " The Receiver being the officer of the Court from which  he derives  his appointment, his possession is exclusively  the possession  of the Court, the property being regarded as  in the custody of the law, in gremio legis, for the benefit  of whoever   may  be  ultimately  determined  to  be   entitled thereto." But  does  this  doctrine  enable  a  person  who  was   not previously  in possession of the suit properties,  to  claim that  the Receiver must be deemed to have  taken  possession adversely  to the true owner, on his behalf, merely  because he  ultimately succeeds in getting a decree  for  possession against   the  defendant  therein  who  was  previously   in possession without title.  A ’Receiver is an officer of  the Court  and  is not a particular agent of any  party  to  the suit,   notwithstanding  that  in  law  his  possession   is ultimately, treated as possession of the successful party on the  termination  of the suit.  To treat  such  Receiver  as plaintiff’s  agent  for the purpose  of  initiating  adverse possession  by the plaintiff would be to impute  wrong-doing to  the Court and its officers.  The doctrine of  Receiver’s possession being that of the successful party cannot, in our opinion,  be pushed to the extent of enabling a  person  who was  initially out of possession to claim the tacking on  of Receiver’s possession to his subsequent adverse  possession. The   position  may  conceivably  be  different  where   the



defendant  in the suit was previously in adverse  possession against the real owner and the Receiver has taken possession from  him  and  restores it back to him  on  the  successful termination  of the suit in his favour.  In such a case  the question that would arise would be different, viz.,  whether the  interim  possession of the Receiver would  be  a;  dis- continuance  or abandonment of possession or interrupt.  ion of the adverse possession.  We are not concerned with it  in this case and express no opinion on it. The matter may be looked at from another point of view.   It is well-settled that limitation cannot begin 206 to  run against a person unless at the time that  person  is legally in a position to vindicate his title by action.  In. Mitra’s  Tagore Law Lectures on Limitation and  Prescription (6th Ed.) Vol.1, Lecture VI, at p. 159, quoting from  Angell on  Limitation,  this Principle is stated in  the  following terms: "   An   adverse  holding  is  an   actual   and   exclusive appropriation of land commenced and continued under a  claim of  right, either under an openly avowed claim, or  under  a constructive claim (arising from the acts and  circumstances attending  the appropriation), to hold the land against  him who  was in possession. (Angell, sections 390 and 398).   It is  the intention to claim adversely accompanied by such  an invasion of the rights of the opposite party as gives him  a cause of action which constitutes adverse possession." Consonant  with this principle the commencement  of  adverse possession, in favour of a person, implies that person is in actual  possession,  at the time, with a  notorious  hostile claim  of  exclusive title, to repel which, the  true  owner would then be in a position to maintain an action.  It would follow  that  whatever may be the animus or intention  of  a person  wanting to acquire title by adverse  possession  his adverse  possession cannot commence until he obtains  actual possession  with the requisite animus.  In the leading  case of  Agency Company v. Short(1) the Privy Council points  out that  there  is discontinuance of  adverse  possession  when possession  has  been  abandoned and  gives  as  the  reason therefor, at p. 798, as follows: "  There is no one against whom he (the rightful owner)  can bring his action." It is clearly implied therein that adverse possession cannot commence  without actual possession which can furnish  cause of  action.   This  principle  has  been  also.explained  in Dwijendra  Narain  Roy v. Joges Chandra De(2) at p.  609  by Mookerjee J. as follows : The substance of the matter is that time runs when the cause of  action  accrues, and a. cause of  action  accrues,  when there is in existence a person who can (1) (1888) 13 App.  Cas. 793. (2) A.I.R. 1924 Cal. 6oo, 207 sue  and another who can be sued....... The cause of  action arises when and only when the aggrieved party has the  right to  apply to the proper tribunals for relief.   The  statute (of  limitation) does not attach to a claim for which  there is  as  yet no right of action and does not  run  against  a right  for  which there is no corresponding  remedy  or  for which  judgment cannot be obtained.  Consequently  the  true test  to determine when a cause of action has accrued is  to ascertain   the  time  when  plaintiff  could   first   have maintained his action to a successful result." In the present case, the co-heirs out of possession such  as the  plaintiff and the second defendant were not obliged  to



bring a suit for possession against Hanimi Reddy until  such time  as  Hanimi Reddy obtained actual  possession.   Indeed during  the  time  when  the  Receiver  was  in  possession, obviously,  they  could  not  sue  him  for  possession   to vindicate  their title.  Nor were they obliged  during  that time  to  file a futile suit for possession  either  against Hanimi  Reddy  or against the defendants in  Hanimi  Reddy’s suit when neither of them was in possession.  It appears  to us, therefore, that the adverse possession of Hanimi  Reddy, if any, as against his co-heirs could not commence when  the Receiver  was in possession.  It follows that assuming  that the possession of Hanimi Reddy from January 20, 1930, was in fact  adverse  and amounted to ouster of the  co-heirs  such adverse  possession was not adequate in time by October  23, 1941,  the  date  of  suit, to displace  the  title  of  the plaintiff.  It follows that the plaintiff respondent  before us is entitled to the decree which he has obtained and  that the  decision  of the High Court is, in our  view,  correct, though  on  different  grounds.  It may  be  mentioned  that objection  has  been  raised on behalf  of  the  respondents before  us  that  the question"  of  tacking  on  Receiver’s possession  was not in issue in the lower Courts and  should not be allowed to be raised here.  In the view we have taken it is unnecessary to deal with this objection. In the result the appeal is dismissed with costs. Appeal dismissed. 208