1. This is an appeal by the 7th plaintiff in O. S. 101 of 1096 District Court, Alleppey against an order passed by the learned Subordinate Judge, Vaikom, in execution proceedings. The dispute relates to the conflicting title to the suit property set up by the 4th defendant as purchaser of the property in execution of the decree in O. S. 1175 of 1099 District Munsiff's Court Vaikom and the 7th plaintiff as purchaser in execution of the decree in O. S. 101/1096 District Court, Alleppey. The facts necessary for disposal of this appeal are as follows :--
2. The plaintiffs and defendants 1 to 4 in the suit in the District Court are members of a Marumakkathayam Tarwad known as Chittayil Thanezhathu Tarwad. According to an Udambadi of 1080, the Tarwad appears to have divided into two branches comprising of plaintiffs and the 1st and 2nd defendants known as the Thanezhathu Branch and of the defendants 3 to 5 as the Thalapally Branch. There is no dispute that the 1st defendant was the Karnavan of the sub-tarwad consisting of the plaintiffs and defendants 1 and 2.
The suit itself was filed for recovery of maintenance with a charge on the suit properties. One of the items comprised in the said suit was item No. 58 of Plaint A schedule bearing Survey No. 130 of 1125 of an extent of 73 cents, garden land. It may be mentioned, it is this item that is the subject of dispute in the appeal before us.
3. In this suit, the 1st defendant contended that this item No. 58 was the self-acquisition of himself and the 2nd defendant and that both of them are exclusively entitled to the said property. There were other contentions raised by defendants 1 and 2 in the said suit regarding the nature of the other properties and it is not necessary to deal with them for the purpose of this appeal.
4. The 1st and 2nd defendants had executed a chitti hypothecation bond on 9-8-1096 in favour of Vaippan Mana. The said chitti hypothecation bond includes the disputed property and the said bond is marked as Ext. A in these proceedings. Vaippan Mana filed O. S. 1175 of 1099 in the District Munsiff's Court, Vaikom, against the defendants 1 and 2 who were also the defendants in the said suit, for enforcing the chitti hypothecation bond.
There was a decree passed in the said suit on 21-11-1099, Ext. B. The said decree-holder assigned the said decree on 11-8-1101 to one Krishna Pillai as per Ext. 4. The suit property was brought to sale and actually sold in court auction on 28-4-1109 and purchased by the assignee-decree-holder and he got also the- sale certificate, Ext. C dated 27-1-1101 and he has also obtained delivery as evidenced by Ext. D.
The said Krishna Pillai executed a sale of the suit property on 20-7-1120 under Ext. G in favour of his father-in-law, Krishnan Neelakantan who is the 4th defendant in O. S. 101 of 1098 and the said 4th defendant claims title to and possession of the suit property.
5. In O. S. 101 of 1096, the plaintiffs therein obtained a decree for maintenance and also a charge on the properties as prayed for by them. The judgment in the said suit dated 29-1-1103 is marked as Ext. 2 in these proceedings.
6. In execution of the decree for maintenance, plaint A Schedule Item 58, the disputed property, was brought to sale and the 7th plaintiff in the suit purchased the same on 9-6-1123 and obtained delivery of the properties on 29-11-1950. The 4th defendant, who claims under Ext. G as purchaser of the properties in the suit covered by the decree Ext. B, complained of dispossession of the properties by the 7th plaintiff and as such, applied on 5-12-1950 to the Sub-Court, Vaikom for re-delivery of the properties to him.
The said application was contested by the 7th plaintiff who had purchased the properties in execution of his decree in O. S. 101 of 1090 and obtained possession on 29-11-1950. The 7th plaintiff contended that the suit properties being their sub-tarwad properties, the decree obtained by the Vaippan Mana was not binding on them and that the decree and execution proceedings in O. S. 1175 of 1099 are not valid in law.
He also contended that the decree covered by Ext. B has also been discharged and that, in any event, the purchase by Krishna Pillai, a close relative of theirs in court auction is benami for the sub-tarwad, as the consideration for the assignment under Ext. 4 was met from the sub-tarwad funds. They also raised the plea that the 4th defendant was not in possession on 20-11-1950 when the properties were delivered to the 7th plaintiff.
7. The learned Subordinate Judge held that the decree covered by Ext. B and the court sale thereunder are binding on the sub-tarwad of the plaintiffs. He also held that Krishna Pillai was not a benamidar for the sub-tarwad of the 7th plaintiff and he also rejected the contention that the decree under Ext. B had been discharged already.
On the question of possession of the propers ties at the time of delivery, the learned Judge held that the property was in the possession of the 4th defendant when delivery was taken by the 7th plaintiff. On these findings, the learned Judge ordered the application for re-delivery filed by the 4th defendant together with means profits at the rate of Rs. 50/- per annum from 9941-1930.
8. In the appeal before us, Mr. T. S, Krishnarnoorthi Iyer, the learned Counsel for the appellant has raised three main contentions. They are :
(1) the assignment in favour of Krishna Pillai under Ext. 4 was obtained benami for the sub-tarwad of the plaintiffs and defendants 1 and 2.
(2) that the decree in O. S. 1175 of 109ft covered by Ext. B and the execution sale there-under are void and not binding on the sub-tarwad of plaintiffs and defendants 1 and 2; and
(3) that the 4th defendant was not in possession of the suit properties on 29-11-1950 when the 7th plaintiff obtained delivery of the properties.
9. In support of his 1st contention, Mr. T. S. Krishnamoorthi Iyer relies upon certain circumstances as indicating the benami nature of the assignment under Ext. 4 in favour of Krishna Pillai. Krishna Pillai is the father-in-law of the 4th defendant who was the senior Anandravan of the Chittayil Thanezhathu Tarwad of which the plaintiffs and defendants 1 and 2 are members.
Krishna Pillai gets an assignment under Ext. 4 of the decree, Ext. B for consideration. Prior to the assignment, the original decree-holder had obtained, as will be seen under Ext. 3 dated 5-8-1101, an order for arrest of the 2nd defendant in O. S. 1175 of 1099. On the same date as the assignment under Sxt. 4 namely, 11-8-1101, Krishna Pillai who has by then become the assignee-decree-holder makes an endorsement Ext. 3A that he has no intention to arrest the 2nd defendant.
On 7-8-1108 Krishna Pillai files an application for sale of the properties under the decree Ext. B and in response to the notices issued to the 1st and 2nd defendants therein (who are also the 1st and 2nd defendants in O. S. 101 of 1096), the 1st defendant, on 29-3-1108, files his objection statement Ext. 5 setting forth his defence to the execution of the said decree. In Ext. 5, the 1st defendant states, among other objections, that the decree has been paid off and that, in any event, the assignment of the decree in favour of Krishna Pillai is benami having been obtained by funds of the sub-tarwad.
On this, he contended that the decree has become extinguished and that Krishna Pillai has no right to execute the decree. Subsequently, when the 1st defendant died, an application dated 20-4-1109, Ext. 6, was filed by the present plaintiffs 3 and 8 to bring themselves on record in the place of the deceased 1st respondent, it was also stated in the said application that the assignment in favour of Krishna Pillai was taken benami by sub-tarwad funds.
In addition to the facts mentioned above, Mr. T. S. Krishnamoorthi lyer also relied upon the evidence of the 2nd defendant as C. P. W. 2 that the assignment, sale, and delivery in favour of Krishna Pillai was brought about at his instance.
10. At the outset, we may state that there is absolutely no evidence to prove the payment of the consideration under Ext. 4 from the sub-tarwad of the plaintiffs and defendants 1 and 3. No doubt, some of the circumstances reiied upon by Mr. Krisnnamoorthi Iyer and referred to above, may indicate that Krishna Pillai was ratker inclined to be sympathetic to the defendants in that suit.
It is very probable that Krishna Pillai being the father-in-law of the 4th defendant who is a member of the common Tarwad of the plaintiffs and defendants 1 and 2, was not anxious to get the 2nd defendant arrested. Mere allegations that the assignment was benami will not help the case of the 7th plaintiff. There is also evidence to show that Krishna Pillai was paying the taxes in respect of the properties and he was not reimbursed in the said payments by the Sub-tarwad which will be the case, if Krishna Pillai was a benamidar.
In fact, the 2nd defendant never objected to execution proceedings being taken by Krishna Pillai. The delivery receipt and tax receipt conclusively show that Krishna Pillai got delivery of the properties and was in enjoyment in his own right. Further, there is also the evidence of the father of the 7th plaintiff as C. P. W. and his evidence does not, in any way, support the theory of benami set up by the 7th plaintiff.
The learned Judge has conisdered the relevant matters with regard to this plea of benami and has held against the plaintiff. We accept the finding of the learned Judge on this point, and hold that the plea of benami set up by the plaintiff is not established.
11. Before dealing with the 2nd contention of Mr. T. S. Krishnamoorthi Iyer regarding the binding nature of the decree under Ext. B, we think it is desirable to dispose of the 3rd contention of Mr. Krishnamoorthi Iyer. It relates to the possession of the properties on 29-1-1950. Mr. Krishnamoorthi Iyer contended that possession of the properties never passed out of the sub-tarwad of the plaintiffs.
His case is that either the 1st defendant or the 2nd defendant was continuously in possession notwithstanding the delivery stated to have taken place under Ext. D dated 13-2-1110 in favour of Krishna Pillai. He again relied upon the evidence of C. P. W. 1 to the effect that the 2nd defendant was in possession till he was dispossessed by the 7th plaintiff on 29-11-1950 in execution of the decree in O. S. 101 of 1096. The 2nd defendant also says that in spite of delivery under Ext. D, he continued to be in possession.
The Patta also, it is stated, stands in the name of the 2nd defendant. Mr. Madhavan Nair, the learned counsel for the respondent contends that possession really passed to Krishna Pillai and subsequently the 4th defendant was in possession by virtue of his purchase under Ext. G on 20-7-1120. On a consideration of the entire materials placed before us, we are inclined to accept the finding of the learned Judge that possession, at the time of the delivery to the 7th plaintiff on 29-11-1950 was with the 4th defendant.
We cannot accept the contention of the learned counsel for the appellant that the delivery under Ext. D was a mere paper delivery and that Krishna Pillai, the assignee-decree-holder did not get actual possession of the properties. The whole series of Ext. H tax receipts stand in the name of Krishna Pillai and they were produced by the 4th defendant, his father-in-law, who now claims title to the properties.
There is further the admission of the 2nd defendant himself that he has not paid the tax, for the property even once. His case that the property tax, though paid by Krishna Pillai in the first instance was subsequently paid back to him has been rightly rejected by the learned Judge. Once the theory of benami has been held against the appellant, the natural conclusion is that the Sub-tarwad of the plaintiffs and defendants 1 and 2 had nothing to do with Krishna Pillai getting an assignment of the decree under Ext. B.
Having taken an assignment of the decree under Ext. B and put it in execution, it is only natural that Krishna Pillai must have obtained actual possession under delivery receipt, Ext. D. This is also supported by the tax receipts that have been paid by Krishna Pillai and subsequently by the 4th defendant. There is also the oral evidence of P. Ws. 1 and 2 who are independent witnesses, and who live close to the property to the effect that they have seen, the 4th defendant, and before him Krishna Pillai, in possession of the properties and this evidence has neither been challenged nor attacked in cross-examination, and their evidence has been rightly believed by the learned Judge.
For all these reasons, we accept the rinding of the learned Judge and hold that Krishna Pillai obtained actual possession of the property under the delivery receipt Ext. D and subsequent, to him,, his father-to-law was in possession as purchaser of the property. The 4th defendant was in possession till 29-11-1950, when he was dispossessed by virtue of the delivery effected to the 7th plaintiff in execution of the decree in O. S. 101 of 1096.
12. Now coming to the 2nd contention of Mr. T. S. Krishnamoorthi Iyer, it relates to the validity of the decree, Ext. B, in O. S. 1175 of 1099 District Munsiff's Court, Vaikorn. His contention is that the decree in the suit and the subsequent execution proceedings which resulted in the sale of the properties in favour of Krishna Pillai are not binding on the sub-tarwad of plaintiffs and defendants 1 and 2.
Mr. Madhavan Nair, learned counsel for the respondent, on the other hand, contends that the decree is perfectly legal and binding on the plaintiffs and the members of the sub-tarwad and as such the 7th plaintiff has no right to question either the decree or the sale that resulted in execution of that decree.
13. Mr. T. S. Krishnamoorthi Iyer's contention is that the decree covered by Ext. B has not been obtained in conformity with the provisions of Section 25 of Travancore Regulation I of 1088 which was in force at that time. His further contention also if, that by the time the execution proceedings were conducted in pursuance of the decree Ext. B, Travancore Regulation II of 1110 has come into force and the execution proceedings have not been taken in conformity with Section 31 of the said Act substantially corresponding to Section 25 of Travancore Regulation I of 1088 with a little difference which will be noted presently.
13a. Section 25 of Travancore Regulation I of 1088 runs as follows :
'No decree shall bind a Tarwad, unless it be obtained in a suit against the Karnavan as such and the senior Anandravan of his Tavazhi, and of every Tavazhi collateral to the same, if any'. Section 31 of Travancore Regulation II of 1100 runs as follow:
'No decree shall bind a Tarwad unless it is obtained against the Karnavan as such and the senior Anandravan of his Tavazhi, and of every Tavazhi collateral to the same, if any.'
14. It will be noted that though both the sections are substantially the same, B. 25 of Travancore Regulation I of 1088 refers to a decree obtained in a suit, whereas Section 31 of Travancore Regulation II of 1100 has omitted the words 'in a suit'. According to Mr. T. S. Krishnamoorthi Iyer, the decree covered by Ext. B cannot be considered to be one obtained against the 1st defendant as the Karnavan as such of the Tarwad of the plaintiffs and defendants 1 and 2.
His further contention regarding the walidity of the execution proceedings under the decree Ext. B is based upon the omission of the words 'in a suit' in Travancore Regulation II of 1100 and according to him, execution proceedings taken or continued contrary to the said section will not bind the Tarwad. In short, the term decree referred to Section 31 of the Act will take in also proceedings and orders passed by courts in execution.
15. Mr. Madhavan Nair, on the other hand, contends that inasmuch as the decree under Ext. B has been obtained against the 1st defendant who was admittedly the Karnavan along with the 2nd defendant, the senior Anandravan, it was perfectly valid and could not be attacked by the plaintiffs. He also contended that orders in execution cannot come within the definition of a decree, in its natural and grammatical meaning and that Section 31 of Travancore Regulation II of 1100 has no application to execution proceedings.
16. The learned Subordinate Judge has considered the question of the binding nature of the decree under Ext. B on the Sub-tarwad of the plaintiffs and defendants 1 and 2 and he held in our opinion rather in a summary way that the decree under Ext. B and execution proceedings thereunder are binding on the plaintiffs and their Tarwad.
17. We are not inclined to accept either the finding of the learned Judge on this point or the reasons on which the said finding is based. In our opinion, the learned Judge has not really adverted to certain material circumstances that were placed before him.
18. It will be seen that in the chitti hypothecation bond, Ext. A executed by the 1st and 2nd defendants, there is absolutely no whisper that the said document is being executed by the 1st defendant as Karnavan of the Sub-tarwad comprising of himself, the plaintiffs and the 2nd defendant. A reading of the said document clearly shows that Ext. A was executed by the 1st and 2nd defendants in their personal capacity on the basis that, the property covered by the said document is their personal property and not a property belonging to the Tarwad of which the 1st defendant was the Karnavan.
No doubt, copies of the plaint or the judgment in O. S. 1175 of 1099 have not been produced, but the decree in the said suit has been produced and marked as Ext. B. The cause title in the suit, as evidenced by Ext. B, shows that the defendants 1 and 2 were parties only in their individual capacity. There is nothing to show that it was obtained against any Tarwad represented by the 1st defendant as Karnavan.
19. Before referring to certain other proceedings which took place in the course of the execution proceedings in O. S. 1175 of 1099, it is desirable to refer to the proceedings in O. S. 101 of 1096. As stated at the beginning of the judgment, the plaintiffs and defendants 1 to 5 in this suit were members of a Marumakkatha-yam Tarwad known as the Chittayil Thanezhathu Tarwad.
There appears to have been an Utambadl by which the bigger tarwad was separated into two branches, namely, the Thanezhathu Branch and the Thalappally Branch. The plaintiffs and defendants 1 and 2 belong to the Thanezhathu Branch and admittedly the 1st defendant was the Karnavan of this Branch. Defendants 3, 4 and 5 belong to the Thalappally Branch. The suit was for recovery of maintenance with a charge on the properties. The suit property, item 58 of plaint A schedule was one such property over which the plaintiffs claim a charge.
But it is seen from the Judgment in the suit, Ext. 2, that the 1st and 2nd defendants claimed certain properties as their self-acquisitions and further contended that the plaintiffs were not entitled to claim a charge. One such property claimed by the 1st defendant as the exclusive property of himself and the 2nd defendant, was item No. 58 of the plaint A schedule, the subject-matter of this appeal
20. In view of this contention that the said item is their exclusive property, it stands to reason that when defendants 1 and 2 executed the chitti hypothecation bond, Ext. A in respect of this property to the Vaippan Mana, they could not have had any intention of executing such a document as representing the Sub-Tarwad of the plaintiffs and themselves. They had executed a mortgage over this property as their own and in their individual capacity.
The 1st defendant could not have even pretended to represent the sub-tarwad, much less, of dealing with a sub-tarwad property. Elaborate evidence was taken by the learned Judge in O. S. 101 of 1096 and ultimately on 29-1-1103, by judgment marked as Ext. 2 he held that among other items, the item No. 58 of plaint A schedule was hot the self-acquired property of the 1st defendant and that it was the property of the sub-tarwad comprising the plaintiffs and defendants 1 and 2, and granted a charge for the maintenance claim of the plaintiffs.
21. Reverting back to the execution proceedings taken in pursuance of the decree, Ext. B, it is seen that the 1st defendant therein died in or about Dhanu 1108. Krishna Pillai who has become the assignee-decree-holder by that time, filed an application to bring on record the 2nd defendant therein as his legal representative. In the meanwhile, on 20-4-1109, the 3rd and 8th plaintiffs in O. S. 101 of 1096 filed an application in the execution proceedings, Ext. 6 for impleading them as the legal representatives of their Karnavan, the deceased 1st resplendent and for permitting them to contest the execution proceedings.
In the said application they had raised various defences, such as that the decree was not binding and that Krishna Pillai was only a benamidar for their sub-tarwad and that he is not entitled to continue the execution. One contention, that is relevant for these proceedings was a statement that the decree in Ext. B is one obtained against their sub-tarwad Karnavan, the 1st defendent, and the suit property was the property of their sub-tarwad and as such, they have got a right to come on record. They also refer to the findings of the learned Judge in O. S. 101 of 1096 holding the suit property as belonging to their sub-tarwad.
22. To this application, Krishna Pillai, the assignee-decree-holder filed objections, Ext. 1 on 28-4-1109. In that objection petition, Krishna Pillai had definitely denied the right of plaintiffs 3 and 8 to come on record in the place of the deceased 1st defendant. He categorically states that there is no decree obtained by his assignor against either the Tarwad or its properties and that there is no decree against the deceased 1st defendant representing any Tarwad.
He also stated that it was only a decree against the 1st and 2nd defendants and the 2nd defendant was only liable both on his own account and also as the joint Executor of the hypothecation bond and he further stated that other members of the family have no right, to be made parties in the execution proceedings.
23. These contentions of Krishna Pillai set forth above, clearly show that even the decree-holder and his assignee never proceeded on the basis of having obtained a decree against the 1st defendant as representing the sub-tarwad of plaintiffs and defendants 1 and 2. On 28-4-1109, the court passed an order, Ext. 7 rejecting the application of the 3rd and 8th plaintiffs (Ext. 6), to come on record and recorded the 2nd defendant as the legal representative of the deceased 1st defendant.
These facts clearly show that there was no decree under Ext. E against the 1st defendant as Karnavan of the sub-tarwad of the plaintiffs and defendants 1 and 2, and the parties also understood the same in that light.
24. But as stated earlier, it will be seen that the decree and judgment in O. S. 101 of 1096 ultimately show that the suit property was the property of their sub-tarwad. Therefore, the question is, what is the effect in law of the decree covered by Ext. B. Section 25 of Travancore Regulation I of 1088 and the corresponding Section 31 of Travancore Regulation II of 1100, have been considered by the courts.
25. Mr. T. S. Krishnamoorthi Iyer relied upon the decision in Muthu Ammal Lekshmi Ammal v. Krishna Pillai Padmanabha Pillai, 26 Trav LJ 576 (A), where a Bench of the Travancore High Court has held interpreting Section 31 of the Nayar Act (Travancore Act II of 1100) that it cannot be said that the Regulation does not govern an order in execution. In that case, the learned Judges have held at page 588 of the Reports that a valid decree has been obtained against the Tarwad in accordance with the provisions of the Act.
Mr. Madhavan Nair, learned counsel for the respondent, has also invited our attention to the Pull Bench decision of the Travancore High Court reported in Raman Krishnan v. Narayanan Sankaran, 29 Trav LJ 707 (B). The learned Judges there have considered at pages 714 to 717 the scope of Section 25 of the Nayar Act (Travancore Regulation I of 1088) reproduced later as Section 31 of Regulation II of 1100. In our view, whatever interpretation may be put on Section 25 of the Travancore Regulation I of 1088 or Section 31 of Regulation II of 1100, it is impossible for us to say that the decree covered by Ext. B was obtained against the 1st defendant as representing the Tarwad. As already, stated, the chitti hypothecation bond, Ext. A, on which the suit was filed, and the decree Ext. B and the subsequent proceedings as evidenced by Ext. 6, Ext. 1 and Ext. 7 conclusively show that the 1st defendant was a party in his individual capacity and the decree and the subsequent execution proceedings were only against him in his individual capacity.
Therefore, it cannot be stated that any decree was obtained against the 1st defendant as Karnavan, much less, as a 'Karnavan as such'. When there is no decree at all against a Karnavan representing any Tarwad, it follows that no execution proceedings could be taken against any tarwad or its properties. The 4th defendant, the purchaser of the property under Ext. G was a party to the decree in O. S. 101 of 1096 where it has been specifically held that item 58 ofplaint A schedule is not the separate property ofthe 1st defendant Karnavan, but it is the sub-tarwad property of plaintiffs and defendants 1and 2.
If in spite of this decree passed on 29-1-1103, he has purchased the property as late as 20-7-1120 from his son-in-law under Ext. G, he ha6 done so only at his own risk. He must have been fully aware that the proceedings in O. S. 1175, of 1099 do not bind the sub-tarwad or the properties of the said sub-tarwad. We may also refer to the decision of the Full Bench of the Travancore-Cochin High Court reported in Kama-kshi Amma v. Gangadharan Pillai, 1953 Ker LT 706: (AIR 1954 Trav-O 60) (C).
The learned Judges in considering the effect of Section 31 of the Nayar Act (Regulation 11 of 1100) have held that a decree obtained against a member or members of a Nayar Tarwad in contravention of the provisions of Section 31 of the said Act is null and void, so far as that Tarwad and its properties are concerned. Their Lordships have also held that if, in execution of such a void decree purported to have been obtained against the tarwad, properties belonging to the same are '. sold, then the court sale will also be null and void.
As the learned Judges of the Pull Bench have stated that the facts in those particular cases have been given in 'the order of reference, it is useful to refer to one particular decree, the binding nature of which was considered by the Division Bench and which was also ultimately referred to the Full Bench. The plaintiffs who were the appellants before their Lordships, challenged certain transactions of their Karnavan and the decrees obtained on those transactions, as also the execution sales in pursuance of those decrees.
One such transaction was a promissory note executed by the Karnavan and by the member who was actually in management of the Tarwad. On the promissory note a decree in O. S. 1698 of 1104 D. M. C. padmanabhuram was obtained and in execution of the decree, certain items of properties of the Tarwad were sold and possession was taken by the assignee decree holder therein. The plaintiffs challenged this decree and the execution proceedings resulting in the sale as not binding on their sub-tarwad.
It was contended by the assignee-decree-holder therein that the properties were not sub-tarwad properties and in any event, the debt has been incurred by the Karnavan of the sub-tarwad and a decree obtained against him, and therefore, the decree and sale were binding on the plaintiffs.
26. Their Lordships of the Division Bench held that the property sold in execution of the said decree was the property belonging to the sub-tarwad of the plaintiffs. Their Lordships found that the decree in O. S. 1698 of 1104, though obtained against the 1st defendant who was the Karnavan, still it had not been obtained against the 1st defendant as a Karnavan representing the sub-tarwad.
Their Lordships held that as the properties belonged to the Tarwad and as the decree had not been obtained against 'Karnavan of the Tarwad' as provided for in Section 31 of the Nayar Act, that decree is not binding on the Tarwad and their Lordships also observed. 'So far as the Tarwad was concerned, the decrees would be null and void, and so any steps taken in execution would be of no avail.'
27. But in view of the divergence of the Judicial opinion on the question whether a suit itself is necessary to avoid such void and null decrees and as to the period of limitation applicable to such suits, their Lordships referred the matter to a Full Bench. The questions referred to the Pull Bench can be seen at page 719 (of Ker L.T) : (at p. 65 of AIR). The 1st and 2nd questions relate to the validity of a decree obtained in contravention of the provisions in Section 31 of the Act and its effect on an execution sale.
28. Their Lordships have considered several decisions bearing on this matter and held that a decree, without proper parties on record as provided in Section 31 of the Nayar Act will not be a decree against the Tarwad and the Tarwad will not be affected by such a decree, and that such a decree will be null and void so far as that Tarwad is concerned. In considering the effect of such a decree, their Lordships have held that a court has no jurisdiction to sell properties of persons who are not parties to the proceedings and that if in execution of a void decree purported to have been obtained aaginst the Tarwad, properties belonging to the same are sold, then the court sale also will be null and void.
29. After the matter came back before the Division Bench, on expression of the opinion by the Pull Bench, Their Lordships held that the decree in O. S. 1698 of 1104, is not binding on the sub-tarwad or its properties and that the plaintiffs were entitled to get back possession of the properties from the purchaser in court-sale in execution of the decree in the said suit.
30. The facts in O. S. 1698 of 104, which was considered by the Full Bench referred to above, are substantially the same as in the decree covered by Ext. B. With respect, we follow the principles laid down by the Full Bench referred to above and we hold that the decree, Ext. B and the execution proceedings in pursuance of the said decree are void and not binding on the sub-tarwad of the plaintiffs or their properties.
It follows that the 4th defendant and his assignor, Krishna Pillai have no right, title, or interest in the plaint A Schedule Item No. 58 which was sold in execution of the decree under Ext. B. As such, the possession obtained by the 7th plaintiff-appellant before us, obtained through court on 29-11-1950 in execution of his decree for maintenance in O. S. 101 of 1096 has to be maintained and it has to be held that the 4th defendant who has no title whatsoever, is not entitled to get redelivery of the properties.
31. In this view, the order of the lower court directing redelivery to the 4th defendant is set aside, and this appeal allowed with costs throughout.