1956 Supreme(AP) 146

Andhra Pradesh High Court
Judges : S.R.DASS, SYED JAFAR IMAM, T.L.VENKATARAMA AYYAR
NAGUBAI ANIMAL - Appellant
Versus
B.SHAMA RAO - Respondent
Decided On : 04-26-56

Headnote:

LIS PENDENS - SALE DEED - MORTGAGE - TITLE - ADVERSE POSSESSION - LIMITATION - [S. 52, T. P. ACT] - [O. 34, R. 1, CIVIL P. C.] - [ART. 142, LIMITATION ACT] - A sale deed executed during the pendency of a suit for maintenance and a charge thereon is subject to the result of the suit and is extinguished by the purchase by the decree-holder in execution of the charge decree. The plea of lis pendens is open to the plaintiff even though not raised in the pleadings, if the question was raised at the trial with full knowledge of the defendants and they had ample opportunity to adduce evidence thereon. Collusion in judicial proceedings is a secret arrangement between two persons that one should institute a suit against the other to obtain a decision of a judicial tribunal for some sinister purpose, whereas a fraudulent proceeding is one where the claim made therein is untrue, but the claimant has managed to obtain the verdict of the court in his favour by practising fraud on the court. A statement by a party admitting a fact is not conclusive as to the truth of the matter stated therein, but is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. A person cannot both approbate and reprobate the same transaction, i.e., he cannot accept and reject the same instrument or say at one time that a transaction is valid and thereby obtain some advantage, and then turn round and say it is void for the purpose of securing some other advantage. A transfer pendente lite is valid and operative as between the parties thereto, but it cannot affect the rights of any other party to the suit under any decree or order which may be made therein. A sale in execution of a mortgage decree without notice to the Official Receiver in whom the equity of redemption had vested prior to the sale is not binding on him, but it is valid and effective as against parties to the action.

Fact of the Case:

The suit properties belonged to one Munuswami, who died leaving him surviving his third wife Chellammal, three sons by his predeceased wives, Keshavananda, 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 mortgagors on 3-9-1918, and it was also for a period of three years. On 6-9-1918 the three brothers effected a partition under a deed, Ex. K, which provided inter alia that they were to pay each a sum of Rs. 8 per mensem to their stepmother Chellammal, for her maintenance, and that their srep-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 Misc. 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 focma pauperis, Misc. 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 ate concerned in this appeal with only one of them, the suit of Devamma which was Misc. Case No. 379 of 1918-19, subsequently registered as Suit No. 100 of 1919-20.

Finding of the Court:

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 1919-20 by reason of the rule of lis pendens enacted in S. 52, T. P. Act. If it is, it is not in dispute that it becomes avoided by the purchase by Devamma en 2-8-1928. If it is not, it isequally indisputable that the appellants as purchasers of the equity of redemption from Keshavananda have a right to redeem the mortgage dated 1-9-1918, and not having been impleaded in O. S. No. 8 of 1933-34 are not bound either by the decree passed therein or by the sale in execution thereof.

Issues: 1. Whether the sale deed dated 30-1-1920 is subject to the result of the sale dated 2-8-1928 in execution of the decree in O. S. No. 100 of 1919-20 by reason of the rule of lis pendens enacted in S. 52, T. P. Act? 2. Whether the plea of lis pendens is open to the plaintiff even though not raised in the pleadings, if the question was raised at the trial with full knowledge of the defendants and they had ample opportunity to adduce evidence thereon? 3. Whether collusion in judicial proceedings is a secret arrangement between two persons that one should institute a suit against the other to obtain a decision of a judicial tribunal for some sinister purpose, whereas a fraudulent proceeding is one where the claim made therein is untrue, but the claimant has managed to obtain the verdict of the court in his favour by practising fraud on the court? 4. Whether a statement by a party admitting a fact is not conclusive as to the truth of the matter stated therein, but is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made? 5. Whether a person cannot both approbate and reprobate the same transaction, i.e., he cannot accept and reject the same instrument or say at one time that a transaction is valid and thereby obtain some advantage, and then turn round and say it is void for the purpose of securing some other advantage? 6. Whether a transfer pendente lite is valid and operative as between the parties thereto, but it cannot affect the rights of any other party to the suit under any decree or order which may be made therein? 7. Whether a sale in execution of a mortgage decree without notice to the Official Receiver in whom the equity of redemption had vested prior to the sale is not binding on him, but it is valid and effective as against parties to the action?

Ratio Decidendi: 1. 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 1919-20 by reason of the rule of lis pendens enacted in S. 52, T. P. Act. 2. The plea of lis pendens is open to the plaintiff even though not raised in the pleadings, if the question was raised at the trial with full knowledge of the defendants and they had ample opportunity to adduce evidence thereon. 3. Collusion in judicial proceedings is a secret arrangement between two persons that one should institute a suit against the other to obtain a decision of a judicial tribunal for some sinister purpose, whereas a fraudulent proceeding is one where the claim made therein is untrue, but the claimant has managed to obtain the verdict of the court in his favour by practising fraud on the court. 4. A statement by a party admitting a fact is not conclusive as to the truth of the matter stated therein, but is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. 5. A person cannot both approbate and reprobate the same transaction, i.e., he cannot accept and reject the same instrument or say at one time that a transaction is valid and thereby obtain some advantage, and then turn round and say it is void for the purpose of securing some other advantage. 6. A transfer pendente lite is valid and operative as between the parties thereto, but it cannot affect the rights of any other party to the suit under any decree or order which may be made therein. 7. A sale in execution of a mortgage decree without notice to the Official Receiver in whom the equity of redemption had vested prior to the sale is not binding on him, but it is valid and effective as against parties to the action.

Final Decision: Appeal dismissed with costs.