# NAGUBAI AMMAL & OTHERS v. B. SHAMA RAO & OTHERS

- **Citation:** [1956] 1 S.C.R. 451
- **Court:** Supreme Court of India
- **Decided:** 1956-04-26
- **Bench:** S. R. Das, Venkatarama Ayyar, Jafer Imam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nagubai-ammal-others-v-b-shama-rao-others-1319
- **Pages:** 25

## Headnote

451
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 gronnd-Limitation and adverse possession against a purchaser in execution of a decree on a prior mortga.ge-Oommencement-' Ool lusive' Mid 'Jra.1td11lent' - DistinctionAdmission-Evid entiary valuc-TVhen can shift the burden of proof
-Ma.xim that 'a person ca.nnot a.pprobate and reprobate'-Applicability-Transfer of Property Act (IV of 1882), s. 52-Indian
Limitation Act (IX of 1908), Art. 142.
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 predecessor-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 s"uit.
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 estrite 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 thq,court
to hold that the suit for maintenance and a charge and the connected
proceedings evidenced by these documents were collusive in order to
a~oid. the operation of s. 52 of the T~ansfer 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 dec1·ee by the operation of .s. 52 of the Transfer of Property
1:;0
1956
April 26
1956
N agubai Ammal
and others
v.
B;· Shama Rao
and others
452
SUPREME COURT REPORTS
[1956]
Act and decreed the suit and his decision was affirmed by the High
Court in appeal.
Held, that the decisions of the courts below were correct and
must be affirmed.
That in the facts and circnmstances of the case the omission of
the respondent to specifically raise the question of !is pendens in
his pleading did not take the appellants by surprise and was a mere
irregularity which resulted in no prejudice to tliem.
·
Rani Chandra Kunwar v. Chaudhri Narpat Singh ([1906] L.R.
34 I.A. 27), applied.
Siddik Ma~d Shah v. Mt. Saran and Others (A.LR. 1930
P.d. 57), explained and held inapplicable.
That s. 52 of the Transfer .of Prope~ty 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 penden"te 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,

## Text

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S.C.R.
SUPREME COURT REPORTS
NAGUBAI AMMAL & OTHERS
v.
B. SHAMA RAO & OTHERS.
[S. R. DAS, C.J., VENKATARAMA AYYAR
and JAFER IMAM JJ.]
451
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 gronnd-Limitation and adverse possession against a purchaser in execution of a decree on a prior mortga.ge-Oommencement-' Ool lusive' Mid 'Jra.1td11lent' - DistinctionAdmission-Evid entiary valuc-TVhen can shift the burden of proof
-Ma.xim that 'a person ca.nnot a.pprobate and reprobate'-Applicability-Transfer of Property Act (IV of 1882), s. 52-Indian
Limitation Act (IX of 1908), Art. 142.
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 predecessor-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 s"uit.
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 estrite 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 thq,court
to hold that the suit for maintenance and a charge and the connected
proceedings evidenced by these documents were collusive in order to
a~oid. the operation of s. 52 of the T~ansfer 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 dec1·ee by the operation of .s. 52 of the Transfer of Property
1:;0
1956
April 26
1956
N agubai Ammal
and others
v.
B;· Shama Rao
and others
452
SUPREME COURT REPORTS
[1956]
Act and decreed the suit and his decision was affirmed by the High
Court in appeal.
Held, that the decisions of the courts below were correct and
must be affirmed.
That in the facts and circnmstances of the case the omission of
the respondent to specifically raise the question of !is pendens in
his pleading did not take the appellants by surprise and was a mere
irregularity which resulted in no prejudice to tliem.
·
Rani Chandra Kunwar v. Chaudhri Narpat Singh ([1906] L.R.
34 I.A. 27), applied.
Siddik Ma~d Shah v. Mt. Saran and Others (A.LR. 1930
P.d. 57), explained and held inapplicable.
That s. 52 of the Transfer .of Prope~ty 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 penden"te 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.LR. 1931 All. 159).
Subbaiah v. Ramasami Goundan (I.L.R. [1954] Mad. 80) and Kala
Chand Banerjee v. Jagannath Marwari ([1927] L.R. 54 I.A. 190),
referred to.
That no question of limitation or adverse possession really
arose in the case. It was well settled
th~t 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 between a collusive and a fraudulent proceeding in that while the
former was the result of an nnderstanding between the parties,
both the claim and the contest being fictitious, and the purpose
to confonnd third parties, in the latter the contest was real,
though the claim was untme, 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 estoppal when it he.d been acted
S.C.R.
SUPREME COURT REPORTS
453
upon to his detriment by the person to whom it we.a 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 nnambi·
guous 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), refer·
red 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 so.me, although based on diff·
erent 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.
CIVIL APPELLATE JURISDIOTION:
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,
1951!
Nagubai Ammal
and others
v.
B. ShamaRao
and others
1956
N agubai Animal
and others
v.
B. Sha1na Rao
and others
Venkatarama
Ayyar j.
454
SUPREME COURT REPORTS
(1956]
Madhavananda and Brahmananda, 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 including 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 mortgagots 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
S.C.R.
SUPREME COURT REPORTS
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 exec1,1tion thereof, and
the execution petition was finally dismissed on
22-1-1926.
He then filed a second suit against the
mortgagors, O.S. No. 86of1931-a2, for arrears of ren·t
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
1956
Nagubai Ammal
and others
v.
B. ShamaRao
and others
Venkatarama
AyyarJ.
1956
N agubai Ammal
and others
v.
B. Shama Rao
and others
Venkatarama
llyyar J.
456
SUPREME COURT REPORTS
[1956)
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 mortgaged 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 he accordingly
filed O.S. No. 92 of 1938-39 in the court of the Subordinate Judge, Bangalore for establishing his title to
the suit properties, and for an injunction restraining
. Garudachar from interfering with his possession. The
..
S.C.R.
SUPREME COURT REPORTS
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 conveyed 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 defendants from interfering with his possession, or in the
alternative, for a decree in ejectment if they were
held to be in possession. The claim made in the plaint
is a simple one. It is that the title of Chapman as
purchaser in execution of the decree passed on the
mortgage dated 1-9-1918 prevailed against all titles
created subsequent to that date, and that accordingly
Dr. Nanjunda Rao and his successors acquired under
the sale deed dated 30-1-1920 no title which could be
1956
Nagubai Ammal
and others
v.
B.ShamaRao
and others
V<nkatarama
Ayyar J.
1956
Nagubai .-1tnmal
and other&
v.
B. Shama Rao
and others
Venkatarama·
AyyarJ.
458
SUPREME COURT REPORTS
[1956]
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
tit.le to the suit properties by adverse possession for
over 20 years.
The District Judge of Bangalore, who tried the
suit, held tha.t 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.100of1919-20), and was in consequence extinguished by the purchase by her in executioi;i of the charge decree in that suit. On the question of limitation, the learned Judge held that the
plaintiff had established possession of the properties
within 12 years of the suit, and that the defendants
had failed to establish title by 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 propertie·s in execution of her maintenance decree, and dis·
missed 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 leg.al 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
-
S.C.R.
SUPREME COURT REPORTS
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. 8of1933-34
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. 100 of 1919-20 on 2-8-1928 is
void and inoperative, as the Official Receiver in whom
60
1956
Na gubai Ammal
and others
v.
B. ShamaRao
at1d otlzers
Venkatara1na
Ayyar J.
1956
N agubai Amtnal
and others
v.
B. S/lama Rao
and others
Venkatarama
Ayyar ].
460
SUPREME COURT REPORTS
[1956]
the estate of Keshavananda had vested on 19-2-1926
was not a party to the sale proceedings. These contentions must now be considered.
l. 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 the plaintiff contains any avermeut 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 superior to tho~e 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 aeries, 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 aeries, and
filed documents in proof of it. The trial. went on
thereafter for nearly three months, the defendants
adduced their evidence, and the hearing 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
S.C.R.
SUPREME COURT REPORTS
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 had no
opportunity of adducing evidence. But that rule has
no application to a case where parties go to trial with
knowledge that a particular question is in issue, though
no specific issue has been framed thereon, and adduce
evidence 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.LR. 1930 P.O. 57.
(2; [1906-07] IJ.R. 34 I A. 27.
1956
Nagubai Ammal
and others
v.
B. Shama Rao
and others
Venkatarama
Ayyar J.
1956
N agubai Ammal
and others
v.
B. ShamaRao
and others
Venkatarama
Ayyar J.
462
SUPREME COURT REPORTS
[1956]
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 bad 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 had 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 9f Devamma, he having married her after
the maintenance suits had been decreed and sometime
S.C.R.
SUPREME COURT REPORTS
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 001lusive, 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
arrangeipent 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
1956
Nagubai Ammal
and others
v.
B. Shama Rao
and others
Venkatarama
AyyarJ.
1956 .
N ag11bai .<11nmal
a,id others
v.
B. Shama Rao
and others
Veukatarama
AyyarJ.
464
SUPREME COURT REPORTS
[1956]
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 0.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 had
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 he was
entit.led. 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 he was obstructed in his
S.C.R.
SUPREME COURT REPORTS
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.
100of1919-20 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 estoppal, as the title of Dr. Nanjunda Rao
arose under a purchase which was long prior to the
admissions made in 1932and in thesubsequentyears.
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 wellknown 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. Okaudhri
(l) [1840] 6 III. & W. 664, 669; 151 E.R. 579, 581,
1956
Na gubai Ai11mal
and others
v.
B. Shama Rao
a11d ot/iers
V<flkataranta
AyyarJ.
1956
Nagubai A1nmal
and others
v.
B. Shama Rao
and others
Vtnkatarama
Ayyar J.
466
SUPREME COURT REPORTS
[1956]
NarpatSingh: Ran·i Chandra Kunwar v. Rajah Makund
Singh('), 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 tne
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 chsrged on the family properties. With reference
to their step-sisters, Srikantamma and Devamma, tlie
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 IQaintenance 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 LA. 27.
S.C.R.
SUPREME COURT REPORTS
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 o.f 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 examin'ed 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,
eyen 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 sa,le
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 O.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 changed 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
61
1956
Nagubai Ammal
and others
v.
B. Shama Rao
and others
Venkataranta
Ayyar J.
1956
Na gubai A mm al
and others
v.
B. Shanta Rao
and others
Venkataranta
AyyarJ.
468
SUPREME COURT REPORTS
(1956)
were collusive, there is no reason why on the materials now before him he could not think otherwjse. 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 0.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 0.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.