Kumara Pillai, J.
1. This appeal arises out of a suit for cancellation of two decrees in so far as they relate to certain properties. There are three items of properties in the plaint schedule. The plaintiff, a Nambudiri Brahmin lady, claimed that all these items belonged to the illom consisting of herself and her husband, defendant 3, and their children, and that the two decrees impugned in the plaint, Exts. D and E, which were obtained by defendants 1 and 2 against defendant 3, were not binding on the illom and the illom properties.
The Court below found that plaint items 2 and 3 were illom properties and that the two decrees were not binding on the said properties. So far as item 1 was concerned it took the view that the said property was the separate property of defendant 3, and that even if the plaintiff and her children had any right to the property the validity of the mortgages executed by defendant 3 on the foot of which the two decrees had been obtained by defendants 1 and 2 could not be impugned by her because of Section 41 of the Transfer of Property Act. Consequently the lower Court decreed the suit as regards items 2 and 3 and dismissed it as regards item 1. Plaintiff has therefore tiled this appeal.
2. Exts. B and C prove beyond the shadow of a doubt that it was with the money obtained by mortgaging two illom properties that plaint item 1 was acquired in the name of defendant 3. Ext. B is the mortgage by defendant 3 and the plaintiff. A sum of Rs. 3,000 was received thereunder expressly for the purpose of taking a sale in the name of defendant 3, and Ext. C is the sale deed, taken on the same day, for item 1. Defendant 3 was at the time the karnavan. We therefore hold that plaint item 1 is not the separate property of defendant 3 but a property belonging to the illom consisting of himself, the plaintiff and their children.
3. Section 41 of the Transfer of Property Act can have no application at all to a case where the karnavan of a marumakkathayam tarwad or illom alienates tarwad or illom property standing in his name. He is not the ostensible owner of the property standing in his name but one of the real owners, and the property stands in his name not because of or with the consent of the real owners but because of the law that property belonging in the tarwad or illom shall ordinarily vest in the karnavan. The view taken by the lower Court is therefore clearly unsustainable. There was no suggestion in this Court that the decrees obtained against defendant 3 alone were binding on the plaintiffs illom.
4. It follows that the decree of the lowerCourt so far as ft dismisses the suit as regardsplaint item 1 should be set aside, and that the suitshould be decreed in terms of the plaint as regardsthat item also. The appeal is accordingly allowed, but without costs.