Ittavira Mathai v. Varkey Varkey and Another

Mudltolkar, J. 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 respon-deni 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

504 SUPREME COURT Rt.l>ORtS [1964] VOL 19'3 the suit been barred by time whe~ it was instituted in ltl#WfJ Mor.._ the court of the Munsiff,_ a pka to that effect could

•• have been taken by the appellant. The defendants f.zrkl,J IGikly do not appear to have done so. ·It, therefore, follows MMtllttlA•, J. 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 plain-tiffs 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 ascer-tain the value· of the properties. The value was

ascertained to be Rs. 4,6021-chs. I+ and so 1963 an order was passed from the :\foovattupuzha lttovir• Mdth11i .:-.runsiff's Court on 21-2-1118 stating that the v. plaint should be returned and filed in the r urkt)' Varkey proper court having jurisdiction to try the case, M11ihelkM1 J. 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 on 4.:~·l l lS when the plaint was re-presented to the /:111:irQ •. .Wothai District Court, computing the period of limitation

even from the date of ll1e original order. Moreover._ V11rko-Vark~• the appellants could well have raised the question of .\111./JrnUcar, J. 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 lightly brushed aside. In addition to the presumption, 1963 however, there is the evidence of P. W. 2--Vasu Vasu /ltavira .\faJhai Elayath-who was one of the persons who had v, attested the report Ex. D. He swears that the Amin rark~v v .. rkey came to the property and effected delivery of Mudholkar, J. possession to the auction·purchaser. As the High Court has pointed out, he is a respectable person re-siding 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 auction-purchaser 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 conten-tion is that this document would show that the appellant continued to be in possession of the proper-ties. 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 he had obstructed the delivery of possession of the

properlies by the Amin to the auction purchaser. No /l/ooir• MaJ'uri doubt, the District .Judge has recorded an order there-

•• l'itrhy Vat~J on 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 con-tended 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 Proce-dure 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, after the application was made by the respondents 1963 under s. 145 of the Code of Criminal Procedure, the lllafliro .. Mathai Magistrate before whom it was made ordered attach-ment of property and placed it in the possession of Varkey Yark~' the Receiver who continued to be in possession till };Judholl.:ar, J. the final decis'ion of those proceedings. The posses-sion of the Receiver during this period would nrce-ssarily 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 considera-tion 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 Ramalin-ga Iyer to the a~~ignce Sankara Rama Iyer. There;~· no evidence to show that any of the debts recited in 1963 the document were actually due from Ramalinga flfatira MaJliai Iyer or that any money had been received by him

v. from Sankara Rama Iyer. The appellant d()(."S not Ya1..l:1.)' Var~·1y even say that he had. made enquiries concerning the M•diwlt.,, J. consideration of this document. It is fu1 thrr to be

borne in mind that though the document was execut-ed 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 auction-purchascr all the rights of the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer. /963 lttqvira •- 1'1atliai The next and the last point urged by learned counsel is that the appellant is not bound by the Varkey Varkey. decree in 0. S. No. 59 of 1093, because he was not ft1.udh1•lka1, J. 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 scree-ning 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 you-nger 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 appel-lant's father was only 14 years of age at the time of 1968 execution of that document. It 1s impossible to

believe tr1at a young boy like him could have betn in IUaoiro Mollto! the position to loan Rs. iiOO/· to his father. It was

v.

York.} Yark.7 urged before us by Mr. Paikedy that what the parties Af•ttlMlkar, /, 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 proper-ties 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 Rs. 5,000/-. This provision was also repealed before 1963 the appeal in question was even preferred. Accor-ltt1wira MatM.i ding to him, however, the appellants were entitled to v. prefer an appeal before a Tribunal which existed Vark~v V11rki•y when the suit itself was instituted. The rights __ of \fudholktJr, J. 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. There-fore, 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 un-constitutional. It would, therefore, follow that whatever rights may have vested in the party in the matter of filing an appeal were abrc·gaced by compe-tent 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 to h~ve the appeal heard by a Full Bench lttaoira MatMi by virtue of the provisions of Act V of 1125

v. had never vested in any of the parties to the present V"'kry VarktJ litigation. Therefore, their abrogation by a later Mw!Wlw, J. law cannot entitle them to make a complaint. There

is yet another reason why the argument of the lear-ned counsel cannot be accepted. That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of jud-ges is merely a matter of procedure. No party has a vested right to have his appeal heard by a speci-fied number of judges. An appeal lay to the High Court and the appeal in question was in fact heard and disposed by the High Court and, therefore, no right of the party has been infringed merely because. it was heard by two judges and not by three judges. No doubt in certain classes of cases, as for instance, cases which involve an interpretation as to any pro-vision of the Co11stitution, the Constitution provides that the Bench of the Supreme Court hear· ug th•~ matter must be cumposed of judges who will not be · less than five in number. But it does n"t follow

from this that the legal requirements in this regard cannot be altered by a competent body. We there-fore overrule the contention of the learned counsel and hold that the appeal was rightly heard and deci-ded by a Bench of two judges.

In the result, we affirm the decree of the High Court and dismiss the appeal with costs.

Appeal dismissed.