ITTAVIRA MATHAI versus VARKEY VARKEY AND ANOTHER

Citation: [1964] 1 S.C.R. 495 · Decided: 15-01-1963 · Supreme Court of India · Bench: SYED JAFFER IMAM · Disposal: Dismissed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

1 S.C.R. 
SUPREME COURT REPORTS 
495 
Company in an appeal properly filed before the 
taxing authorities to contend that under the terms of 
the agreement with Caltex (India) Ltd., the Company 
is the owner of the goods received by it and that on 
that account consumption of those goods by it for its 
own vehiclCll did not amount to sale and the Sales 
Tax Officer will be entitled to consider that question 
on its merits and will not be bound by any expression 
of opinion by the High Court as to the interpretation 
of the agreement produced before it. 
Having regard 
to the circumstances, there will be no order as to costs. 
Appeal clisrni8sed. 
ITTAVIRA MATHAI 
v . . 
VARKEY VARKEY AND ANOTHER 
(S.J. IMAM, K. SUBBA RAO, RAGHUBAR DAYAL, 
and J. R. Mul)HOLKAR, JJ.) 
Limitaticm-Suit filed beycmd time-Decree, if a nu//ity-
Paint of limitation n'ot rai<ed in High Court, if entertainable by 
,9uprern.rt. Oou.rt-Recei,ver'a po~seasion., -if muqt ensure to aucc~s­
ful party-Appeal-Forum-Abrogated by subsequent legis/,aticm-
1/ and whe• can be cluzllen(Jfd-Travancore High Courl Act, 1099 
(IV of 1099)), s. 11 (1), M repealed by Ordinance II o/ 1124-
ln<lian Limitation Act, 1908 (9 o/ 1908), s. 3. Arts. 47, 142. 
One lttiyavira, the deceased father of the appellant 
puxhascd propertiei and p.Jd part of the con•ideration for the 
tranMction in cash arui"f1.>l' the balance executed two hypothe-
cation bonds in favour of his vendors, Ramalinga Iyrr and 
Raman Vela Yudhan. 
Ranulinga Iyer a'8igned his hypothe-
cation bond in favour of one Sankara Rama Iyer. He had 
cxr-c•1tcd a promissory note in favour of one Anantha Iyer who, 
•ftcr hfa death, institurcd a suit agaimt his son Sankara Subha 
Iyer for rec,wery of the amount thereunder and obtained a 
decree. T1e4ting the deed of assignment c~ecnted by Ramalinga 
1161 
B~o/ s.,., 
ltUlw1ri11 Lid. 
.. 
Dub1. S•lu Tax 
Vffici1r 
Shah, J. 
1963 
\. 
1963 
;: Itiu1iTa Afalhai 
.. 
Y11rk1J Vurkt)' 
' -
496 . . SU;I'REME..: COURT REPORTS [1964]. VOL .. 
I 
·~--· ·---------
Iyer in favour ·of .Sankara ·Rama Iyer as· a sham document, 
Anantha · Iyer attached the mortgagee rights of Ramalinga - · 
· Iyer in the hypothecation bond and· eventually purchased them •. 
In a partition in Anantha.lycr's family, the.rights under the 
· hypothecation bond purchased by him were allotted to his share • . 
and to that of his brother. 
These two persoris instituted a suit'". 
against lttiyavira · beillg 0. S. No. 59 of 1093 and· obtained· a 
- ___ decree forrealisation·of thi: amount against him and transferred --
. their dec1ee to orie Venkiteswara Iyer who. at the court auction 
1 
held in execution of that decree, purchased the hypothecated 
.: properties,_w_h_ich are properties· in the suit and . eventually. 
obtained possession of the properties on 12. 7._ 1099.' 
. 
'. '" "' 
1:' 
Before the institution of 0. S. 59 of !093 by .Anantha 
Iyer and his brother, Ittiyavira had executed a sale deed of 
these properties on 8. 10. 1093 in favour of his son, the appe-
" llant. The appellant was not· ma-le a party to 0. S; No. 59 of 
· \ 1093. 
· It1iyavira died · in · the 1107 . and on 2. 2. 1108, · 
· Venkiteswaia Iyer sold all· the. suit properties to the plaintiffs. 
respondents. Thereafter the respondents instituted proceedings 
under s. 145 of the Code of Crimirial Procediire ·in the Court of 
. Magistrate claiming their posses~ion over the. suit properties 
which was disputed by the appellant. The properties were " 
attached and 'placed in the possession.of. the. Receiver appointed. 
by the court. Eventually, the court held that the appellant's 
possession over the properties be .maintained until othenvise 
ordered by the competent civil court. . The High Court of 
Travancore affirmed- the order of the Magistrate and the appe-
. 
Hant was handed over the possession of the properties by the 
-- Receiver .. Consequently, the .respondents instituted a suit out . 
of which this appeal arises; The trial court dismissed the suit .·· 
and that decision' was rever>ed by• the High Court.· It was ·: 
contended ·before this Court that the decree obtained by · 
Anantha Iyer in 0. S. 59/1093 was a nullity because the suit. 
was barred by time . .' It wa• further- urged that the appeal 
b<lore the- High Court should have· been heard not· by. a 
Division Bench of merely two Judge<, but by a Bench of three 
Judgos as provided ins. II (l) of the· .Travancore High Court 
_._Act, 1099;·: 
: ... 
·., .-
H•ld, .that if 

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