Anantha Iyer v. Vukty Vork1y

· 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 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 this Court that : ... _._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 by- them cannot be treated as nullities. · · - 0 ' - 1961 •. lttuira M.ilu. i r ., key V a.1 A·,, 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 former High Court of April Travancore-Cochin in Appeal Suit No. 721 of 1951. tl 1955, oi the Manual T. Paikedy, Mahalin(Ja Iyer 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 ·, " ' • . . ' , . . 1963 · -lttavira Mathai ' ' . ~ ' v. Yark9 Varkey . . •' - . , . -- . 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. · . Mudlwlkar, "J. The relevant.facts are as follows : . . . The . 23 I items of property comprised in the . Ittiyavira to the year 1905) to 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 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. ·items of property Nos. 3; 5, 14 and 18 were hypothe cated 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 . 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' In respect of this amount, · amount. of Rs. 2,~!ll-8 0. . 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 · 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" ~ · that Ramalinga Iyer had 1963 lttav, ra Matlusi •• Vatkey Yark1.1 Mudliolk•" /. 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 the . deed of assignment 13-11-1088. Treating 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 in execution and were purchased by were sold In a subsequent Anantha Iyer at court auction. 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 In pursuance of this decree, suit on 10-11-1096. Mathai Ouseph obtained delivery of possession of 4 items of property (item, 31 5, 14 and 18) on 19-6-1098 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 lt may, the sale deed was executed was 8-10-1092. 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 pro perties 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 111 these proceedings, the properti~s were posses, ion. 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 ppe llant 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 respon dents 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 1961 Itt.vint Alath:ii •• Y.-l-1_, v arkty "'•""•l!.r, J. 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 procee dings 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, Venki teswara 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 fraudu lent and not binding on Ittiyavira and the suit pro perties. The allegation that the alleged sale in favour of the appellant was a sham transaction was denied by them as also the other allegdtions concer ning 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 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· It had the thing which it had no jurisdiction to do. 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 ·All that the decision relied upon if it fails to do so. 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 If manner laid down in the Civil Procedure Code. [I) A.!.R. (1935) P.C. 85. 1963 fflatira lltalhf'li v. Varkey Vark~v Mudltolkar, J. 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 respon the court of the Munsif. Moovattupuzha deni in 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 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 ' • 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 ·It, therefore, follows do not appear to have done so. 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, In para 12 the appellant filed a written statement. 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: filed in .\!oovattupu?.ha "This suit 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 1963 lttovir• Mdth11i v. r urkt)' Varkey M11ihelkM 1 J. 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 the court-fee memos returned." to<;ether with . to these avcrments in the There is no reference 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 It i~ apparently making appropriate averments. 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 the revision pctitinn preferred by the dismissed respondents. The appellant ha~ not stated 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 •. /:111:irQ .Wothai V11rko- Vark~• .\111./JrnUcar, J. 506 SUPREME COURT REPORTS [11164] VOL. )I the High Court 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 in support of the decree which had been passed in their favour by the 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 for grant of a certificate on the ground that Court the suit was barred by time. In the circumstances, we decline leave to the appellant to raise the point of limitation before us. .,,hich 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 is that the delivery of possession 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 the Amin who came tu effect delivery of possession did not remove the obstruction 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 to him, 1963 /ltavira .\faJhai v, rark~v v .. rkey Mudholkar, J. 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 the persons who had Elayath-who was one of attested the report Ex. D. He swears that the Amin effected delivery of the property and came to possession the High to the auction·purchaser. As 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 token whereof he had put his to him (P. W. 3) in 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 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 show that the tion is that this document would 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 /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 there 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 the auction-purchaser C>n 12-7-1099. it must be No doubt, in the proceedings under s. I J,) of the Criminal Procedure Code, there is a finding to the appdlant was in possession. the effect that this, that he wa, in That, however, mean• only possession at the date of the preliminary order made In view of our finding that in those proceedings. to the actual delivery of possession was effected auction-purchaser on 12-7-1099, 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 the disputes by 12-7-1099, and probably d.1ring 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, 1963 .. lllafliro Mathai Varkey Yark~' };Judholl.:ar, J. 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 attach ment 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 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. that of the appellant himself 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~· in fav0t1r of tion bond executed by Ittiyavira 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!\ 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 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 fu1 thrr to be consideration of this document. 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: It is "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 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 inference /963 lttqvira 1'1atliai • Varkey Varkey. ft1.udh1•lka1, J. 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 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 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 to the appel who is said to have loaned Rs iiOO/- lant's father was only 14 years of age at the time of 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 If there was any father·s liability to pay them. 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 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 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. Accor ding 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. 1963 ltt1wira MatM.i v. Vark~v V11rki•y \fudholktJr, J. / - not be accepted. There arc two reasons why this argument can- 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. 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 It would, therefore, 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. There is yet another reason why the argument of the lear ned counsel cannot be accepted. That reason 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.