# [1964] 1 S.C.R. 495

- **Citation:** [1964] 1 S.C.R. 495
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** S.J. Imam, K. Subba Rao, Raghubar Dayal, J. R. Mul)HOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-1-s-c-r-495-2917
- **Pages:** 20

## Headnote

Limitaticm-Suit filed beycmd time-Decree, if a nu//ityPaint of limitation n'ot rai<ed in High Court, if entertainable by
,9uprern.rt. Oou.rt-Recei,ver'a po~seasion., -if muqt ensure to aucc~s
ful party-Appeal-Forum-Abrogated by subsequent legis/,aticm1/ and whe• can be cluzllen(Jfd-Travancore High Courl Act, 1099
(IV of 1099)), s. 11 (1), M repealed by Ordinance II o/ 1124ln<lian Limitation Act, 1908 (9 o/ 1908), s. 3. Arts. 47, 142.
One lttiyavira, the deceased father of the appellant
puxhascd propertiei and p.Jd part of the con•ideration for the
tranMction in cash arui"f1.>l' the balance executed two hypothecation bonds in favour of his vendors, Ramalinga Iyrr and
Raman Vela Yudhan.
Ranulinga Iyer a'8igned his hypothecation bond in favour of one Sankara Rama Iyer. He had
cxr-c•1tcd a promissory note in favour of one Anantha Iyer who,
•ftcr hfa death, institurcd a suit agaimt his son Sankara Subha
Iyer for rec,wery of the amount thereunder and obtained a
decree. T1e4ting the deed of assignment c~ecnted by Ramalinga
1161
B~o/ s.,.,
ltUlw1ri11 Lid.
..
Dub1. S•lu Tax
Vffici1r
Shah, J.
1963
\.
1963
;: Itiu1iTa Afalhai
..
Y11rk1J Vurkt)'
' -
496 . . SU;I'REME..: COURT REPORTS [1964]. VOL ..
I
·~--· ·---------
Iyer in favour ·of .Sankara ·Rama Iyer as· a sham document,
Anantha · Iyer attached the mortgagee rights of Ramalinga - ·
· Iyer in the hypothecation bond and· eventually purchased them •.
In a partition in Anantha.lycr's family, the.rights under the
· hypothecation bond purchased by him were allotted to his share • .
and to that of his brother.
These two persoris instituted a suit'".
against lttiyavira · beillg 0. S. No. 59 of 1093 and· obtained· a
- ___ decree forrealisation·of thi: amount against him and transferred --
. their dec1ee to orie Venkiteswara Iyer who. at the court auction
1
held in execution of that decree, purchased the hypothecated
.: properties,_w_h_ich are properties· in the suit and . eventually.
obtained possession of the properties on 12. 7._ 1099.'
.
'. '" "'
1:'
Before the institution of 0. S. 59 of !093 by .Anantha
Iyer and his brother, Ittiyavira had executed a sale deed of
these properties on 8. 10. 1093 in favour of his son, the appe-
" llant. The appellant was not· ma-le a party to 0. S; No. 59 of
· \ 1093.
· It1iyavira died · in · the 1107 . and on 2. 2. 1108, ·
· Venkiteswaia Iyer sold all· the. suit properties to the plaintiffs.
respondents. Thereafter the respondents instituted proceedings
under s. 145 of the Code of Crimirial Procediire ·in the Court of
. Magistrate claiming their posses~ion over the. suit properties
which was disputed by the appellant. The properties were "
attached and 'placed in the possession.of. the. Receiver appointed.
by the court. Eventually, the court held that the appellant's
possession over the properties be .maintained until othenvise
ordered by the competent civil court. . The High Court of
Travancore affirmed- the order of the Magistrate and the appe-
.
Hant was handed over the possession of the properties by the
-- Receiver .. Consequently, the .respondents instituted a suit out .
of which this appeal arises; The trial court dismissed the suit .··
and that decision' was rever>ed by• the High Court.· It was ·:
contended ·before this Court that the decree obtained by ·
Anantha Iyer in 0. S. 59/1093 was a nullity because the suit.
was barred by time . .' It wa• further- urged that the appeal
b<lore the- High Court should have· been heard not· by. a
Division Bench of merely two Judge<, but by a Bench of three
Judgos as provided ins. II (l) of the· .Travancore High Court
_._Act, 1099;·:
: ...
·., .-
H•ld, .that if the suit· was barred by time and yet, the
court decreed it, the cou1t :.would be-· committing an illegality---.
and the aggriev<d party would be entitl.ed to' have the decree' ·
set aside by pref.rring an appeal against it. · As has often been
-said, courto; have jurisdiction io decide right or to decide \vrong ..
and even th')u"h ·they decide wrong, rhe

## Text

_Characters 0–39,176 of 40,389. This is a partial read: ask again with offset=39176 for what follows._

1 S.C.R.
SUPREME COURT REPORTS
495
Company in an appeal properly filed before the
taxing authorities to contend that under the terms of
the agreement with Caltex (India) Ltd., the Company
is the owner of the goods received by it and that on
that account consumption of those goods by it for its
own vehiclCll did not amount to sale and the Sales
Tax Officer will be entitled to consider that question
on its merits and will not be bound by any expression
of opinion by the High Court as to the interpretation
of the agreement produced before it.
Having regard
to the circumstances, there will be no order as to costs.
Appeal clisrni8sed.
ITTAVIRA MATHAI
v . .
VARKEY VARKEY AND ANOTHER
(S.J. IMAM, K. SUBBA RAO, RAGHUBAR DAYAL,
and J. R. Mul)HOLKAR, JJ.)
Limitaticm-Suit filed beycmd time-Decree, if a nu//ityPaint of limitation n'ot rai<ed in High Court, if entertainable by
,9uprern.rt. Oou.rt-Recei,ver'a po~seasion., -if muqt ensure to aucc~s
ful party-Appeal-Forum-Abrogated by subsequent legis/,aticm1/ and whe• can be cluzllen(Jfd-Travancore High Courl Act, 1099
(IV of 1099)), s. 11 (1), M repealed by Ordinance II o/ 1124ln<lian Limitation Act, 1908 (9 o/ 1908), s. 3. Arts. 47, 142.
One lttiyavira, the deceased father of the appellant
puxhascd propertiei and p.Jd part of the con•ideration for the
tranMction in cash arui"f1.>l' the balance executed two hypothecation bonds in favour of his vendors, Ramalinga Iyrr and
Raman Vela Yudhan.
Ranulinga Iyer a'8igned his hypothecation bond in favour of one Sankara Rama Iyer. He had
cxr-c•1tcd a promissory note in favour of one Anantha Iyer who,
•ftcr hfa death, institurcd a suit agaimt his son Sankara Subha
Iyer for rec,wery of the amount thereunder and obtained a
decree. T1e4ting the deed of assignment c~ecnted by Ramalinga
1161
B~o/ s.,.,
ltUlw1ri11 Lid.
..
Dub1. S•lu Tax
Vffici1r
Shah, J.
1963
\.
1963
;: Itiu1iTa Afalhai
..
Y11rk1J Vurkt)'
' -
496 . . SU;I'REME..: COURT REPORTS [1964]. VOL ..
I
·~--· ·---------
Iyer in favour ·of .Sankara ·Rama Iyer as· a sham document,
Anantha · Iyer attached the mortgagee rights of Ramalinga - ·
· Iyer in the hypothecation bond and· eventually purchased them •.
In a partition in Anantha.lycr's family, the.rights under the
· hypothecation bond purchased by him were allotted to his share • .
and to that of his brother.
These two persoris instituted a suit'".
against lttiyavira · beillg 0. S. No. 59 of 1093 and· obtained· a
- ___ decree forrealisation·of thi: amount against him and transferred --
. their dec1ee to orie Venkiteswara Iyer who. at the court auction
1
held in execution of that decree, purchased the hypothecated
.: properties,_w_h_ich are properties· in the suit and . eventually.
obtained possession of the properties on 12. 7._ 1099.'
.
'. '" "'
1:'
Before the institution of 0. S. 59 of !093 by .Anantha
Iyer and his brother, Ittiyavira had executed a sale deed of
these properties on 8. 10. 1093 in favour of his son, the appe-
" llant. The appellant was not· ma-le a party to 0. S; No. 59 of
· \ 1093.
· It1iyavira died · in · the 1107 . and on 2. 2. 1108, ·
· Venkiteswaia Iyer sold all· the. suit properties to the plaintiffs.
respondents. Thereafter the respondents instituted proceedings
under s. 145 of the Code of Crimirial Procediire ·in the Court of
. Magistrate claiming their posses~ion over the. suit properties
which was disputed by the appellant. The properties were "
attached and 'placed in the possession.of. the. Receiver appointed.
by the court. Eventually, the court held that the appellant's
possession over the properties be .maintained until othenvise
ordered by the competent civil court. . The High Court of
Travancore affirmed- the order of the Magistrate and the appe-
.
Hant was handed over the possession of the properties by the
-- Receiver .. Consequently, the .respondents instituted a suit out .
of which this appeal arises; The trial court dismissed the suit .··
and that decision' was rever>ed by• the High Court.· It was ·:
contended ·before this Court that the decree obtained by ·
Anantha Iyer in 0. S. 59/1093 was a nullity because the suit.
was barred by time . .' It wa• further- urged that the appeal
b<lore the- High Court should have· been heard not· by. a
Division Bench of merely two Judge<, but by a Bench of three
Judgos as provided ins. II (l) of the· .Travancore High Court
_._Act, 1099;·:
: ...
·., .-
H•ld, .that if the suit· was barred by time and yet, the
court decreed it, the cou1t :.would be-· committing an illegality---.
and the aggriev<d party would be entitl.ed to' have the decree' ·
set aside by pref.rring an appeal against it. · As has often been
-said, courto; have jurisdiction io decide right or to decide \vrong ..
and even th')u"h ·they decide wrong, rhe decree rendered bythem cannot be
0treated as nullities. ·
·
-
1 S.C:.R.
SUPREME COURT REPORTS
497
Maqhul
Ahmad
v.
Onkar
Pratap Narain
Singh,
A. I. R. 1935 P. C. 85, held inapplicable.
Where the question of limitation WAS not raised in the
Hi~h Court, it cannot be allowed to be raised in this Court
whCn the qllestion \Vas one of 111ixed fact <>f la'"'·
Jn the instant case the possession of the Receiver during
the proceedings under s. 145 of the Code of Ctiminal Procedure
would neceSiarily unure for the benefit of the succeosful party
and if this period is taken into account, the respondent's iuit
would be well within time,
HelJ,, further that no party has a vested right to have
his appeal heard by a specified number of judges and no right
of the party has ht-en infringed merely because it was heard by
two Judges and not by three Judges.
A
liti~ant has no right
to contend that a tribunal before whom he should have taken
an appeal when he instituted the suit, should not be abolished
and unless it can be shown that the repe!'i of the Travancore
High Court Act wag unconstitutional, whatever right of appeal
may have vested in the party stood abrogated by the competent
legislature.
CIVIL A" .•ELLATE JuRISDICTION: Civil Appeal
No. 372of1960.
" Appeal from the judgment and decree dated
April tl 1955,
oi the
former
High Court of
Travancore-Cochin in Appeal Suit No. 721 of 1951.
Manual T. Paikedy, Mahalin(Ja Iyer
and
Ganpat Rai, for the appellant.
V. A. Syed Muhu nmad, for the re5pondent.
1963. January 15.
Court was delivered by
The Judgment
of the
MunHOLKAR, ].-This is an appeal by certi·
ficate from the judgment of the TravancorP,-Cochin
High Court which allowed the appeal preferred by
the respondents from the decree of the District Court
1961
lttuira M.ilu. i
•.
r ., key V a.1 A·,,
"
·,
' •
. .
' ' .
', . . 1963
·-
lttavira Mathai
~
' v. . . •' - .
Yark9 Varkey
Mudlwlkar, "J.
. . .
' .•.. ~---· ...
, .
-- . 7 ( ·,,,,.. .. ·.,, ...
498
SUPREME COURT RE.PORTS [1964] VOL.
.
.
of Parur dismissing their ~uit for declaration of title
to and recovery of possession of certain properties and '
for other consequential reliefs.
·
The relevant.facts are as follows :
. . .
The . 23 I items of property comprised in the .
schedule to the plaint belonged originally to two
persons Ramalinga Iyer ("lyen" as described by the
High Court) and Raman Velayudhan .. They sold.
them on. 6-6-1080 (Malayalam .Era which roughly
correspondS to the year 1905) to Ittiyavira the
deceased father of the appellant-defendant No •.. 1, -
Part of the consideration· for the sale was paid by
Ittiyavira in cash and for the· balance, he executed ·
two hypothecatioi:I bonds in favour his vendors on the
same qate. One of the bonds was executed in favour
of Raman Velayudhan_and the amount secured there-
.under was Rs .. 308-8-0.
In respect of this amount, ·
·items of property Nos. 3; 5, 14 and 18 were hypothecated with·Raman Velayudhan by ·Ittiyavira. The
other bond was in favour. of Ramalinga Iyer and
. under this bond, Ittiyavira hypothecated with him
items .Nos. 1, :!, 4, 6-13, 151-7, and 19-23 and also
the remaining items, subject to the hypothecation
bond in favour of Raman Velayudhan, for securing
an
amount. of Rs.
2,~!ll-8 0.
. On · 3-10-1082,.
Ramalinga Iyer assigned his hypothecation bond in
favour of one Sankara Rarria Iyer ("I yen" as described
by the High Court).
The parties are in dispute'
. concerning this transaction. ·According . to one ·of ·
them, the deed· of' assignment Ex. · V ·was a sham
document and was. not intended to take effect while
according to the other, it was'\ genuine document ....
·
It. would appear that Ramalinga Iyer had
executed a promissory note in favour of one. Anantha .
Iyer ("lyen" as described by the High Court). After
· · -~he death of Ramalinga Iyer, Anantha Iyer instituted
· · a'suit against ~is son S1\ukara Subha Iyer ("Iyen" ~ ·
l S.C.R. SUPREME COURT REPORTS
499
described by the High Court) for recovery of the
amount thereund.er and obtained a decree Ex. VI on
13-11-1088.
Treating the . deed of assignment
executed ·by Ramalinga Iyer in favour of Sankara
Rama Iyer as a sham document,
Anantha Iyer
.attached the mortgagee rights of Ramalinga Iyer in
the hypothecation bond which had been executed in
his favour by Ittiyavira. The rights under this bond
were sold in execution and were purchased by
Anantha Iyer at court auction. In a subsequent
partition in Anantha Iyer's family, the rights under
the hypothecation bond purchased in execution by
him were allotted to his share and' that of his brother
Manicka 1 yer ("I yen" as described by the High
Court). Thereafter, these two persons instituted a
suit against Ittiyavira b.eing 0. S. No. 59 of 1093 in
the District Court at 'Parur and obtained a decree for
realisation ot the amo~nt ~gainst lttiya'(ira. The .
decree-ho~ders subsequently transferred th~ir,
1cfetree to
one Venk1teswara Iyer ("lyen" · as descnbed, by the
High Court) . which the latter executed and at the
court auction held in execution of that decree, he
himself purchased the hypothecated properties which
are the properties in the suit on 27-4-1099. ·Exhibit C
is the sale certificate which was granted to him by
the court.
Venkiteswara Iyer eventually obtained
possessiQD..ofthe properties on 12-7-1099.
It would appear that Raman Velayudhan also
assigned the hypothec:ation bond which was executed
in his favour by lttiyavira in favour of some person
who eventually sued on the bond and obtained decree
in 0. S. No. 462 of 1094 in the court of the Munsiff,
1\1oovattupuzha. · In. execution of that decree, items
Nos. 3, 5, 14 and 18 were purchased by one Mathai
Ouseph the brother of the second defendant in the
suit on 10-11-1096.
In pursuance of this decree,
Mathai Ouseph obtained delivery of possession of 4
items of property (item, 31 5, 14 and 18) on 19-6-1098
1963
lttav,ra Matlusi
••
Vatkey Yark1.1
Mudliolk•" /.
1963
llltn:ira Mathai
v.
Vukty Vork1y
M1nili lkor, J,
500 SUPREME COURT REPORTS [1964] VOL.
and thereafter sold them to defendant No. 2 (wife of
appellant) on 5 12-1104.
Even before the institution of 0. S. 59 ofl 093
by Anantha Iyer and his brother, Ittiyavira had
exrcutcd a sale deed in favour of his son -the appe·
II.mt before us-whcrrunder, he conveyed to him
all the properties in the suit. The date on which
the sale deed was executed was 8-10-1092. lt may,
however, be mentiowd that the appellant was not
made a party to 0. S. No. 59 of 1093 filed b/
.'\nantha I v~r and his brother and the contention
raised by tl;e respoBdcnts is that the sale in favour
of the appellant is not a genuine transaction and
th~rcfore he wa~ not a necessary party to the suit.
lttiyavira died
in the year
1107 and on
2-2·1 l113, Venkiteswara Iyer sold all thP. suit properties t<:> the plaintiffs respondents.
Thereafter, the
resp•;ndents institutr.d proceedings under s. l 4ii of the
Code of Criminal Procdure in the court of the
Magistrate, First Cla,s, Perumbavoor claiming that
\hey were in posses,ion of the suit properties, that
the appdlant was disputing their possession and that
there was a likelihood of a breach of peace because
of the attempt of the appellant to "obstruct'' their
posses,ion.
111 these proceedings, the properti~s were
attached and placed !n th" pos,ession of the Receiver
app'.lintcd by the court.
Eventually. the court held
that the properties werr in the possession of the a ppellant awl ordered that his possession be ma;ntainecl
until orh,·rwise orden·cl bv a competent Civil Court.
I he <ml er of the
~hgi,trate was affirmed by the
Travancorc High Court and thereafter, the .Rcc.-ivcr
handed over the possession of the properties to the
a;:>pe!lant.
Consequmt 11pon this order the respondents i,mituted a suit out of which this appeal arises.
Their contention in the suit i! that the alleged sale
by Ittiyavira in favour of the appellant is a sham
i.ransactiou. that therefore he did not obtain any
1 S.C.R.
SUPREME COURT REPORTS
501
rights thereunder and that consequently it was not
necessary to implead him in 0. S. No. 59 of 1093.
They also alleged that l\fathai Ouse,>h did not obtain
any rights under his auction purchase because the
sale and delivery of possession in execution of the
decree in 0. S. No. 462 of 1094 were benami for
lttiyavira. For this reason, it. wai contended that
defendant No. 2 acquirrd.no rights to items 3, 5, 14
and 1 ~ in the plaint. The <\ppellant disputed the
validity of the decree and of the execution proceedings in 0. S. No. 497 of 1088 and contended that
the decree was obtained and the execution procee·
dings taken out, fraudulently against
Ramalinga
lyer's heirs inasmuch as Ramalinga Iyer had assigned
the hypothecation bond in favour of Sankara Rama
Iyer on 3-10-1082..
The plea of the appellant thus
was that Anantha Iyer did not obtain any rights to
the -hypothecation bond executed by Ittiyavira in
favour of Ramalinga Iyer, and consequently, Venkiteswara Iyer obtained no ·rights under his purcha.~e
in execution of the decree in 0. S. No. 59 of 10113.
The entire proceedings were characterised as fraudulent and not binding on Ittiyavira and the suit properties. The allegation that the alleged sale in
favour of the appellant was a sham transaction was
denied by them as also the other allegdtions concerning the purchase of items 3, 5, 14 and 18 oy
Mathai Ouseph.
The trial court dismissed the suit.
The High
Court, however, reversed the decree of the trial court
except with respl'ct to items 3, 5, 4 and 18 in the
plaint. No cross-appeal or cross-objections having
been filed by the respondents, the appeal before
us is confined to the remaining items provided in the
plaint schedule.
The first point raised by Mr. Paikedy for the
appellant is that the decree in 0. S. No. 59 of 1093
obtained by Anantha Iyer and his brother in the suit
1961
Itt.vint Alath:ii
••
Y.-l-1_, v arkty
"'•""•l!.r, J.
1963
ln&it'a MoJIW
Y.
y ork,y V arl:11
T>02
SUPREME COURT REPORTS (1964) VOL.
on the hypothccation bond executed by Ittiyavira
in favour of l{amalinga lycr was a nullity because
the suit was barred by time.
Even assuming that the
suit was barred by time, it is difficult to appreciate
the contention of learned counsel that the decree can
be treated as a nullity and ignored in substquent
litigation. If the suit wa< barred by time and yet,
the coun decreed it, the court would be committing
an illegality and thcrtfore the aggrieved party would
be entitled to have tlie decree set aside by preferring
an appeal against it.
But it i.5 well settled that a
court having jurisdiction over the subject matter of
the suit and over the parties tl1ereto, though bC'und
to decide right may decide wrong; and that even
though it decided wrong it would not be doing some·
thing which it had no jurisdiction to do. It had the
jurisdiction ovu the subject-matter and it had the
jurisdiction over the party and, therefore, merely
because it made an error in dr.cili;ng a vital issue in
the suit, it cannot be said that it has acted beyond
its jurisdiction. As has often been said, courts have
jurisdiction to decide right or to decide wrong and
even though they decide wrong, the decrees rendered
by tliem cannot be treated as nullities.
Learned
counsel, however, referred us to the decision of the
Privy Council in Maqhul Ahmed v. Onkar Parl.ap
Narain Sin11h ('), and contended that sioce the court
ii bound under th~ pro,·isions of s. 3 of the Limita·
tion Act to ascertain for itself whether the suit before
it was within time, it would act without jurisdiction
if it fails to do so. ·All that the decision relied upon
says that s. 3 of the Limitation Act is peremptory
and that it is the duty of the court to take notice of
this provision and give effect to it even though the
pgint of limitation is not referred to in thr pleadings.
The privy council has not said that where the court
fails to perform its duty, it act~ without jurisdiction.
If it fails to do its duty, it merely makes an error of
law and an error of law can bt> corrected only in the
manner laid down in the Civil Procedure Code. If
[I) A.!.R. (1935) P.C. 85.
' •
l S.C.R.
SUPREME COURT REPORTS
503
the partv aggrieved does not take appropriate steps
to have that error corrected, thr erroneous decree will
hold good and will not be open to challenge on the
basis of being a nullity.
The next point raised by learned counsel is
that the present suit was barred because it was not
instituted within three years of the decision of the
Magistrate, First Class, Perumbavoor, h91ding that
the appellant was in possession of the suit ·properties.
It is no doubt true that .the order in question was
passed on 28-12-1111 while the suit was instituted in
the District Court, Parur on 4-3-1118 and even if
limitation is computed with reference to the date of
the order of the High Court dismissing the revision
petition the suit will be said to have been instituted
more than three years thereafter. The fact, however, is
that the plaint was originally instituted by the respondeni in the court of the Munsif. Moovattupuzha
and numbered as original suit .No. 129tj of 1114.
The appellant contended that the valuation of the
suit property made by the respondents was low and
therefore the court appointed a Commissioner for
ascertaining their true value.
The' Coinmissioner
reported that the value of the suit properties was
Rs. 4,602. The court thereupon passed an order on
21-2-1118 returning the plaint for presentation to the
proper court inasmuch as the sum total of the value
of the reliefs claimed in the plaint was beyond
it~
pecuniary limits. Shortly thereafter, the . plaint was
presented by the respondents in the District Court at
.Parur. If the respondents had filed the suit in the
Court of the Munsiff within three years of the date pf
the final order passed in proceedings under s. 145 of
the Code of Criminal Procedure but the plaint was
returned for presentation to the proper court, they
would be entitled under s. 14 of the Limitation Act
to the deduction of the entire period during which
they were prosecuting their suit w~th due diligence
and in good faith in the co1,1rt of the Munsiff.
Had
1963
fflatira lltalhf'li
v.
Varkey Vark~v
Mudltolkar, J.
19'3
ltl#WfJ Mor.._
••
f.zrkl,J IGikly
. MMtllttlA•, J.
504 SUPREME COURT Rt.l>ORtS [1964] VOL
the suit been barred by time whe~ it was instituted in
the court of the Munsiff,_ a pka to that effect could
have been taken by the appellant.
The defendants
do not appear to have done so. ·It, therefore, follows
that the suit must have been within time, when it
was instituted in the court of the Munsiff. After the
plaint was represented in the District Court at Parur,
the appellant filed a written statement. In para 12
of the p_laint the respondents have stated thus :
"The cause of action for this suit has arisen
within the jurisdiction of this court from 15th
Kanni 1113, the date of the final order in the
summary case."
The only answer to this plea of the respondents
which the appellant has given in the written sta_tement
is to be found in para 13 of the written statement
which reads thus :
"The plaintiffs have no manner of rj.ght what·
soever, as alleged in para 10 of the plai:it.
Even if the plaintiffs had any rights, they have
become barred by limitation; and they need
not be considerr.d at this juncture.
The plaintiffs have no right to contend like this in the
present suit, airer thr. lapse of a long period
since the 2nd ddendant's brother took posses·
sion of the properties in execution proceedings.
The plaintiffs are barred .from contending so."
Just below the plaint, the respondents have also stated
thus:
"This suit is
first filed in .\!oovattupu?.ha
Munsiff's Court as 0. S. No. 1296/1114.
The
defendants contended that the plaint properties
arc of great value and so a Commissioner was
appointed during the trial of the suit to ascertain the value· of the properties. The value was
1 S.C.R.
SUPREME COURT REPORTS
50.5
ascertained to be Rs. 4,6021- chs. I+
and so
an order was passed from the :\foovattupuzha
.:-.runsiff's Court on 21-2-1118 stating that the
plaint should be returned
and filed in the
proper court having jurisdiction to try the case,
since the same cannot be tried in the Munsiff's
Court. According to that order, the plaint was
received back on
a0-2-1118.
The correct
valuation is shown and the plaint is filed in this
court
to<;ether with the court-fee memos
returned."
.
There is no reference to these avcrments in the
written statement of the appellant. It would thus be
clear that the appellant. has not raised a s11fficicntly
clear plea of limitation by stating relevaut facts and
making appropriate averments.
It i~ apparently
because of this that the trial court, though it did
raise a formal issue of limitation, gave no finding
thereon. Nothing woul_d have been simpler for the
trial court than to dismiss the suit on the ground of
limitation if the plea was seriously 1·aised before it.
Had the point been pressed it would not have been
required to discuss in detail the various questions of
fact pertaining to the merits of the case before it
could dismis~ the suit. In the plaint, the respondents
claimed that the· period of limitation for the suit
commenced on 1.5-2-1 lla when
the High Court
dismissed the revision
pctitinn
preferred by the
respondents.
The appellant
ha~ not stated that
under Art. 47 of the Limitation Act, the period of
limitation is to be computed not from the date of the
revisioual order but from the date of the original
order. Had he done so, we have no doubt that the
respondents would at least have placed on record by
amending the plaint the date on which the plaint
was instituted in the Court of the Munsiff.
Thus,
had the plaint been instituted in the court of the
Munsiff say two months before the expiry of the
limitation, the suit would have been within time
1963
lttovir• Mdth11i
v.
r urkt)' Varkey
M11ihelkM1 J.
1963
/:111:irQ .Wothai
•.
V11rkoVark~•
.\111./JrnUcar, J.
506 SUPREME COURT REPORTS [11164] VOL.
on 4.:~·l l lS when the plaint was re-presented to the
District Court, computing the period of limitation
even from the date of ll1e original order. Moreover._
the appellants could well have raised the question of
limitation in the High Court in support of the
decree which had been passed in their favour by the
trial
court. Had they dune so, the High Court
would have looked into the records before it for
;atisfying itself whether the suit was within time or
not.
The point now raised before us is not one
purely of law but a mixed question of fact and law.
:\o specific ground has ev;n been taken in the
petition made by the appellant before the High
Court for grant of a certificate on the ground that
the suit was barred by time. In the circumstances,
we decline leave to the appellant to raise the point
of limitation before us.
The next contention of the learned counsel is
that the suit is governed by Art. 142 of the Limitation
Act and as the rcspondenls have not established that
they were in possession within 12 years thereof, their
suit is barred by time.
This plea of the appellant
rests upon another contention .,,hich is that the
delivery of possession
to the auction purchaser in
0. S. No. 59 of l09a was a sham and fraudulent
transaction. The appellant claimed that he was in
possession of these properties at the time of delivery
of possession and that he actually
obstructed the
delivery of possession
to the auction·purchascr.
According to him, the Amin who came tu effect
delivery of possession did not remove the obstruction
and therefore what is recorded in Ex. D, the report
pertaining to the delivery of possession, establishes
at best the delivery of merely symbolical possession.
Exhibit D shows on its face that actual p011session of
the properties was delivered
by the Amin to the
auction.purchaser in pursuance of the execution
sale. A presumption as to regularity attaches to the
records of the court and s.ich presumption cannot be
)I
l S.C.R.
SUPREME COURT REPORTS
507
lightly brushed aside. In addition to the presumption,
however, there is the evidence of P. W. 2--Vasu Vasu
Elayath-who was one of the persons who had
attested the report Ex. D. He swears that the Amin
came to the property and
effected delivery of
possession
to the auction·purchaser.
As the High
Court has pointed out, he is a respectable person residing in the nc;ighbourhood and that since nothing has
been brought out in his cross-examination to discredit
him, he deserves .. to
he believed. Then there is the
evidence of P. W. 3, Meeralava Osakkal Rawther, who
was also present at the time of delivery of possession.
Exhibit D states that the charges for beating of a
drum at the time of delivery of posse<sion were paid
to him (P. W. 3) in token whereof he had put his
signature on •the exhibit. This witness also swears
that actual delivery of possession to the auctionpurchaser was effected
as stated in Ex. D.
His
evidence has also been accepted by the High Court.
\Ve see no reason to take a different view of the
evidence.
Learned counsel. however, refers us to Ex, J
which
i~ a petition d:ited 16-7- lOH9 filed by
the
appellant in the District Court, Parur in 0. S. l\o. 59
of 1093 and says that this was filed only four days
after the date of delivery of possession.
His contention is that this document would
show that the
appellant continued to be in possession of the properties.
What is stated in that petition however is this :
"For the reasons statcel m the accompanying
affidavit it is prayed that the Court may be
pleased, to decl.are my possession and rights
etc. over the properties mentioned in the decree
in the above suit and to hold that the said
properties are not liable to be sold for the said
decree. and to allow this petition with costs." .
It would thus be cleaF that he has onlv claimed his
right to the possession of the properties' and not that
1963
/ltavira .\faJhai
v,
rark~v v .. rkey
Mudholkar, J.
1963
/l/ooir• MaJ'uri
••
l'itrhy
Vat~J
;,118 SUPREME COURT REPORTS llliG4J \'OL.
he had obstructed the delivery of possession of the
properlies by the Amin to the auction purchaser. No
doubt, the District .Judge has recorded an order thereon to the effect that since the appellant does not say
that he was dispossessed his application is not tenable.
It seems to us that in the absence of any averments
of the kind we have already indicated, the appellan•
cannot derive any benefit
from his
application.
It was contended in the High Court and it is contended also before us that the appellant had sent an
obstruction petition to the Amin, but he ha5 neither
produced a
certified copy of that
petition nor
examined the Amin in proof of what he has .said. In
the circumstances, agreeing with the High Court,
we hold that there can be no doubt that actual
delivery of possession of the suit properties \\'as
effected by the Amin
to
the auction-purchaser
C>n 12-7-1099.
No doubt, in the proceedings under s. I J,) of
the Criminal Procedure Code, there is a finding to
the effect that the appdlant was in possession.
That, however, mean• only this, that he wa, in
possession at the date of the preliminary order made
in those proceedings.
In view of our finding that
actual delivery of possession was effected to the
auction-purchaser on 12-7-1099,
it must be
said
that the appellant's possession on the date of the
preliminary order could only. have originated in a
trespass subsequent to the delivery of possession on
12-7-1099, and
probably d.1ring
the disputes by
reason of which the respondents were compelled to
take proceedings under s. u:; of the Criminal Procedure Code. The present suit cannot therefore be
regarded as one by auction-purchasers for recovery
of property on the strength of an execution sale in
their favour but only one for eviction of a person
who obtained wrongful possession of property by
trespass after delivery of possession had been effected
through court.
As we have already pointed out,
l S.C.R.
SUPREME COURT REPORTS
509
after the application was made by the respondents
under s. 145 of the Code of Criminal Procedure, the
Magistrate before whom it was made ordered attachment of property and placed it in the possession of
the Receiver who continued to be in possession till
the final decis'ion of those proceedings.
The possession of the Receiver during this period would nrcessarily ensure for the benefit of the successful party.
If, therefore, this period is tak.cn into account the
respondents' suit would be well within time.
The next point urged by learned counsel is
that Anantha Iyer and his brother got no rights by
reason of the attachment and sale of the hypothec~·
tion bond executed by Ittiyavira
in fav0t1r of
Ramalinga Iyer because long before their. purchase,
I<amalinga Iyer had assigned that bond to Sankara
Rama Iyer. The contention of the respondtnt is
that Ex. V under which the alleged assignmrnt was
made i~ a sham document executed by Ramalinga
Iyer in order to screen the hypothecation bond from
his creditors and to preserve the amount thereunder
for his own· benefit. It is clear from the evidence
includii°t!\
that of the
appellant
himself
that
Ramalinga Iyer was deeply in debts at the time of
the exe<11tion of Ex. V.
After the execution of
Ex. V, Ramalinga Iyer who pr:iduced that document
for r"gistration
before the Sub-Registrar himself
obtai11ed the docum~nt bark from him.
Then~ is no
evidence to show that thereafter he handed it over
to Sankara Rama Iyer or that the lat· er had accep•cd
the transaction. The major part of the consideration reciteJ in Ex. V consisted of amounrs alleged
to be due from Ramalinga Iyer to his creditors wh.ich
the assignee was st1pposed to discharge. The balance
of the consideration was not paid at the time of tile
execution of the said document but was said to have
been adju~ted against the amounts due from Ramalinga Iyer to the a~~ignce Sankara Rama Iyer.
There;~·
no evidence to show that any of the debts recited in
1963
lllafliro Mathai
..
Varkey
Yark~'
};Judholl.:ar, J.
1963
flfatira MaJliai
v.
Ya1..l:1.)'
Var~·1y
M•diwlt.,, J.
IHO SUPREME COURT REPORTS [1964] VOL.
the document were actually due from Ramalinga
Iyer or that any money had been received by him
from Sankara Rama Iyer.
The appellant d()(."S not
even say that he had. made enquiries concerning the
consideration of this document.
It is fu1 thrr to be
borne in mind that though the document was executed in the year )(JS:/, right uptill now, neither Sankara
Rama I ycr nor any person claiming under him has
made any attempt to realise the amounts due under
the hypothecation bond. The High Court has pointed
out thus:
"ff the assignment was a genuine transaction
and was intended to take effect the assignee
would not have foregone the amount under the
hypmhecation bond, especially when he had
to get such a lan~e amount from Ramalinga
Iyer and also paid a further consideration as
mentioned in Ex. V.
That one circumstance,
that the assignee has not made any attempt to·
realise the amount under the
hypothecation
bond during the 32 years that had elapsed
after the assignment and before the institution
of the present suit amounts almost to proof
positive of the fact that the assignment was not
a genuine transaction and was only a sham
documenc executrd for the purpose of screening
the amount under the hypothccation bond for
the benefit of Ramalinga Iyer himself.''
We agree with the observations of the High Court
and would add that this circumstance as well as the
omission of the aprellant to examine any person
directly connerted with the execution procecdinb'S
would justifr an
inference
that
the
transaction
evidenced by Ex. V is not a genuine one and that
the document itself is sham and bogus.
Upon this
view, we hold that the sale in execution of the decree
obtained by Anantha Iyer conveyed to the auctionpurchascr all the rights of the hypothecation bond
1 S.C.R.
SUPREME COURT REPORTS
511
executed by Ittiyavira in favour of Ramalinga Iyer.
The next and the last point urged by learned
counsel is that the appellant is not bound by the
decree in 0. S. No. 59 of 1093, because he was not
made a party thereto. If in fact the assignment of
the properties by lttiyavira in favour of the appellant
was a genuine one, tile appellant's contention would
have to be upheld.
The document on which the
appellant relies is Ex. XXIX.
According to the
respondents, this document is sham and bogus and
was executed by Ittiyavira for the purpose of screening the property for his own benefit.
The trial
court held that the document was a genuine one but
the High Court has reversed that finding.
At the
outset, we have to bear in mind the fact that the
alleged sale was by a father in favour of his son aI]d
that the son at the date of that transaction W.lS not
shown to have had any independent means of his
own from which to provide tor the consideration for
the sale.
According to the cbcumeut, the consider<>.-
tion was Rs. ~5,000/- which consisted of Rs. 1,500/-
. said to have b< en pa id by the appellant to his father
from time to time before the trans;;ction, Rs. 1,000/-
either paid or agreed to be paid by him to his mother
in discharge of a debt by his father to her. and
Rs. 500/- which had already been paid to his younger brother in dischar,i!;e of a debt which the father
owed to him.
We agree with the High Court that
the recit~ Is excite suspicion.
There is rio proof of
these payments excrpc the interested testimony of the
appell~nt himself.
fn the proceedings und·:·r s. I-Hi
oft he Criminal Procedure Code, the appellant had
stated that he harl obtained the nccessarv hinds fur
obtainin.~ Ex. XXIX from his mother; b~t in view or
a recital in that document that
he had to pay
]{s 1000/- to his mother, it ·would appear that he
has prevaricated.
Then a((ain. the younger brother
who is said to have loaned Rs iiOO/- to the appellant's father was only 14 years of age at the time of
/963
lttqvira 1'1atliai
•-
Varkey Varkey.
ft1.udh1•lka1, J.
1968
IUaoiro Mollto!
v.
York.} Yark.7
Af•ttlMlkar, /,
512
SUPREMECOURTREPORTS [l964]VOL.
execution of that document.
It 1s impossible to
believe tr1at a young boy like him could have betn in
the position to loan Rs. iiOO/· to his father.
It was
urged before us by Mr. Paikedy that what the parties
really meant was that the appellant was to pay the
sums of Ks. l,000/- and Rs. 500/- respectively to his
mother and younger brother so as to discharge his
father·s liability to pay them.
If there was any
substar.ce !:i this contention, it should have been
advanced before the courts below and not raisc4Jor
the first time before us. Apart from that it would
appear that despite the execution of the document,
lttiyavira continued to be the owner of the properties comprised in it.
No doubt, the appellant claims
to have been in actual posse.-.sion of the properties
and possibly he was, but, as has been pointed out by
the High Court, his possession was no more than that
of an agent of lttiyavira. We, therefore, agree with
the High Court that Ex. XXIX was a sham and
bogus document and that the transaction evidenced
by it is not genuine.
Having thus failed on all the contentions on
merits, learned counsel has sought to urge a new
point before us.
The point is
that the appeal
before the Hil{h Court should have been heard not by
a Division Bench of merely two judges, but by a
Bench of three judges, as provided ins. ll (1) of the
Travancore High Court Act. 1099 (IV of 1099).
Learned counsel admits that the appeal was heard not
by the Travancore High Couit but by the High
Court of Travancore-Cochin which came into being
after the merger of the two States of Travancore
and Cochin. He admit~ that the Travancore High
Court Act, I 099 was repealed by Ordinance II of
I 124 which was re-enacted by Act V of 1125; but
he
says that s. 25 of that Act provided that a
Full Bench will hear and decide all appeals from
the decrees of the District Courts in
which
the
amount or va:uc of the subject-mailer is in excess of
1 s.c.R.
SUPREME COURT REPORTS
513
Rs. 5,000/-. This provision was also repealed before
the appeal in question was even preferred.
According to him, however, the appellants were entitled to
prefer an appeal before a Tribunal which existed
when the suit itself was instituted.
The rights __ of
parties to a suit in the matter of preferring an appeal
are governed by the law as it obtained when the suit
was instituted and, therefore, according to him, as
under that law in a suit of that kind an appeal lay
before a Bench of three judges, it could be heard
only by such a Bench and not one consisting of a
lesser number of judges.
There arc two reasons why this argument can-
- not be accepted.
In the first place, the High Court
of Travancore was itself abolished as a result of
the merger and a new High Court came -into
being-the Hi!(h Court of Travancorc-Cochin.
The
rights of parties to prefer appeals to that High Court
were governed initially by Ordinance II of 1124 and
later by Act V of 1125. These provisions came into
being subsequent to the institution of the suit. Therefore, the rights of a person aggrieved by the decision
of a suit instituted prior to the coming into force of
Act V of 112& were only those whi_ch were conferred
by that Act. A litigant has no right to contend that a
Tribunal before whom he should have taken an appeal
when he instituted the suit, should not be abolished.
The Legislature has full power to enact a law of
that kind and it is not contended before us that the
repeal of the Travancore High Court Act was unconstitutional.
It would,
therefore, follow that
whatever rights may have vested in the party in the
matter of filing an appeal were abrc·gaced by competent legislature.
New rights we1e cor.r~rrcu in place
of those which were taken away and it is only the
new rights which could be availed of.
After the new
rights were conferred even they were modified in one
respect and that was with regard to the hearing of
certain kinds 0f appeals by a Full Bench.
The rights
1963
ltt1wira MatM.i
v.
Vark~v V11rki•y
\fudholktJr, J.
/
1963
lttaoira MatMi
v.
V"'kry VarktJ
Mw!Wlw, J.
514
SUPREME COURT REPORTS [1964] VOL.
to
h~ve the appeal heard by a
Full Bench
by virtue of the provisions of Act V of
1125
had never vested in any of the parties to the present
litigation.
Therefore, their abrogation by a later
law cannot entitle them to make a complaint.