C.A. Vaidialingam, J.
1. this Second Appeal on behalf of the plaintiff appellant, Mr. P. GovindanNair, his learned counsel, challenges the decree and judgment of the learned Subordinate Judge, Vaikom reversing the decree of the trial court.
2. In view of the only point that has been raised and which will be mentioned later, it is unnecessary to refer to the various points that were in controversy in this litigation.
3. The suit was for redemption of a mortgage evidenced by Ext H dated 5-2-1104, executed by one Govinda Kurup, in favour of the first defendant. The third defendant appears to have acquired some rights and there is no controversy that the 4th defendant has now obtained the rights of defendants 1 and 3.
4. According to the plaintiff the suit property belonged to one Govinda Kurup, against whom a decree had been obtained in O. S. 1035/1104, District Munsiff's Court, Vaikom by one Padmanabhan. The decree-holder, in execution of his decree, attached and brought the property to sale and obtained also a sale certificate in his favour namely, Ext. A dated 5-1-1110 and also claims to have obtained delivery of possession evidenced by the delivery Kychit, Ext. B dated 29-3-1110. The plaintiff obtained a transfer of the rights of Padmanabhan under Ext. C dated 23-7-1110. By virtue of this purchase, the plaintiff instituted the present action for redemption of the mortgage, Ext. H.
The plaintiff also alleged that Lakshmi, Govinda Kurup's sister had intervened in the execution proceedings taken by Padmanabhan, by filing a claim petition and that claim petition was rejected and the execution was allowed to be proceeded with. Notwithstanding the adverse order passed on the claim petition, the said order had not been challenged and therefore, it has become final. Therefore, it was contended that the 4th defendant, who claims under the said Lakshmi, is concluded by the adverse order on the claim petition by virtue of the provisions of Order XXI rule 63, especially because no suit was filed to set aside the said claim order. There were also several other contentions regarding certain other transactions which are not necessary to he dealt with in this appeal.
5. The 4th defendant was the main contesting defendant. According to him, the property belonged not to Govinda Kurup alone, but to the Sakha of Govinda Kurup and his sister one Lakshmi. Govinda Kurup had executed a gift in favour of his sister of all his rights in the property and the said gift is Ext. IV dated 24-6-1104. Therefore, at the time when execution was taken against Govinda Kurup in O. S. 1035/1104, there were no rights of Govinda Kurup which could either be attached, sold or purchased by Padmanabhan,The 4th defendant also contended that under Ext. V dated 30-9-1116, Govinda Kurup and his sister Lakshmi have executed a sale in favour of the 4th defendant and therefore, the 4th defendant has become the full owner of the properties including the equity of redemption. In consequence, the 4th defendant contended that the mortgage has become extinguished and that there is nothing to be redeemed.
6. The 4th defendant further contended that the decree in O. S. 1035/1104 evidenced by Ext.VII is only against Govinda Kurup personally and therefore, it cannot bind the tarwad to whom the properties belong; and therefore, he contended that the entire proceedings namely, the decree, the attachment and the sale in O. S. 1035/1104 are all void, of no legal effect and not binding on the tar-wad of Govinda Kurup and his sister.
7. The learned District Munsiff was of the view that the order rejecting the claim made by Lakshmi, though as a minor, cannot be ignored lightly and that it should have been challenged and got set aside by a suit instituted within the time allowed by law. In this view, the learned District Munsiff held that it is not open to the 4th defendant to challenge the validity of the proceedings connected with O. S. 1035/1104 and contend that they are void and not binding as against the tarwad.
The learned District Munsiff also seems to be of the view that in substance, the decree in O. S. 1035/1104 is to be considered as one against the family of Govinda Kurup as Karnavan and therefore, the 4th defendant cannot contest the validity of the decree and sale proceedings. The learned District Munsiff also recorded findings on certain other points which were in controversy between the parties.
8. Ultimately, the learned Judge held that the plaintiff is entitled to redeem the mortgage and he gave also certain consequential directions following from this finding.
9. There was an appeal by the 4th defendant challenging the decree of the trial court in favour of the plaintiff. The learned Subordinate Judge, on the basis of the Full Bench decision of the Travan-core-Cochin High Court reported in Kamakshi Amma v. Gangadharan Pillai, 1953 Ker LT 706: (AIR 1954 Trav-Co. 60), came to the conclusion that as the decree in O. S. 1035 of 1104 has been obtained in contravention of the provision of Section 31 of the Nair Act, it is null and void so far as the tarwad and its properties are concerned and he also held that the court sale and other proceedings in consequence of such a void decree are also null and void.
10. Regarding the orders passed on the claim petition filed by Lakshmi, the learned Judge hold that the said order had been passed on an application filed by the minor Lakshmi without a proper guardian and therefore, there was no proper claim and no proper order passed by tbe court. On the other points found in favour of the plaintiff by the trial court also, the learned Judge disagreed with those findings. In the result, the learned Judge held that the suit is not maintainable and as such dismissed the plaintiff's suit, thus reversing the decree of the trial court.
11. The findings on fact recorded by the lower appellate court have not been challenged by Mr. Govindan Nair in this Second Appeal. The learned ' counsel has also not challenged the reasoning of the learned Judge that the decree and other proceedings in O. S. 1035/1104 are void and not binding on the tarwad. In fact, Mr. Govindan Nair could not challenge that view, because' it is really based upon the decision of the Full Bench of the Travancore-Cochin High Court reported in 1953 Ker LT706; (AIR 1954 Trav-Co 60). The correctness of this decision has not also been challenged.
12. The only contention that has been raised by Mr. P. Govindan Nair is that the view of the learned Judge that there has been no proper claim made by the minor represented by a proper guardian and therefore, there has been no proper order which will operate as a bar under Order XXI rule 63 C. P. C., is not correct. According to Mr. P. Govindan Nair learned counsel, Lakshmi, the sister of Govinda Kurup, though a minor, actually filed an application represented by a next friend, objecting to the attachment and sale of the properties.
Therefore, it follows that she did make a claim and there was an order rejecting the claim petition. No doubt, there was another application filed by one Narayanan Narayana Kurup to get himself appointed as the guardian of the minor Lakshmi in the claim petition and that was dismissed on the ground that the main objection petition itself has been rejected. But Mr. Govindan Nair contends that as the main claim petition has been dismissed, it operates as a bar under Order XXI Rule 63 C. P. C., especially when no suit has been filed within the time, though admittedly the minor Lakshmi became a major as early as 1113.
13. Mr. K. P. Abraham, learned counsel for the contesting respondent, argued that the court acted improperly in rejecting the application for appointment of a guardian. Therefore, an application filed by a minor without a next friend is no application at all in law and therefore, there was no proper claim application filed by Lakshmi and therefore in consequence, there is no order in law which could operate as a bar under Order XXI Rule 63 C. P. C.
14. In the view that I take about the contentions of Mr. P. Govindan Nair it is really unnecessary for me to consider as to whether a proper and legal claim application had been filed by a proper person acting as the next friend of the minor1 Lakshmi.
15. I will proceed for the purpose of this case on the basis that there Was a claim application objecting to execution against the tarwad. filed by Lakshmi, a minor represented by a next friend and that it was as a fact rejected by the court. Tbe question will be, what is the effect of such an application and tbe order passed rejecting the claim. According to the decision of the Full Bench of the Travancore-Cochin High Court reported in 1953 Ker LT 706: (AIR 1954 Trav-Co 60), it is clear that
'A decree obtained without clue regard to the provision of Section 31 of the Nair Act would be void so far as the tarwad is concerned .......... Thedecree without proper parties on record as provided for in Section 31 of the Nair Act will not therefore he a decree against tarwad and the tarwad will not in any way be affected by such a decree. In other words that decree will be null and void as far as that tarwad is concerned'.
The position is again summed up by the learn-ed Judges at p. 720 (of Ker LT): (at p. 66 of AIR) as follows ;
'Thus it is our considered opinion that a decree obtained against a member or members of aNair tarwad in contravention of the provisions in Sec. 31 of the Nair Act II of 1100 is null and void so far as that tarwad and its properties are concerned.''
16. Dealing with the validity of proceedings taken in execution of such void decrees, the learned Judges again observe at p, 720 (of Ker LT) : (at p. 66 of AIR) as follows :
'So we answer this question that if in execution of a void decree purported to have been obtained against the tarwad, properties belonging to the same are sold then the court sale also will be null and void'.
17. Therefore, it is clear from the decision of the Full Bench referred to above, that a decree obtained against the provisions of the Nair Act is null and void so far as the tarwad and its properties are concerned and even proceedings in execution of such a decree are also null arid void. As mentioned by me earlier, the view of the lower appellate court that the decree and other sale proceedings in O. S. 1035/1104 are null and void so far as the tarwad is concerned, has not been challenged before me.Therefore, the question arises as to what is the effect of the claim application filed by Lakshmi on the ground that the decree-holder is not entitled to proceed against the properties of the tarwad. In my opinion, an answer to this question is provided by the decision of the Privy Council reported in Muthiah Cheiti v. Palaniappa Chettt, ILR 51 Mad 349 : (AIR 1928 PC 139).
18. The claim by Lakshmi, in the case before me, was made on the basis that the decree in Order 8, 1035/1104 is not binding on the tarwad and that it is void and that the decree-holder has no right to proceed in execution against the properties of the tarwad by way of attachment or sale. Therefore, the claim was really made for and on behalf of the tarwad. The Full Bench decision is clear to the effect that such a decree and execution proceedings are all null and void and not binding on the tarwad or its properties.
If the decree was null and void, the attachment of the tarwad properties in execution of such a void decree is also null and void and of no legal consequence. Therefore, in law there was no attachment, in respect of which really, a claim should or could have been made. No doubt, a claim was made and rejected. In my opinion, the fact that men an unnecessary claim was made and rejected is of absolutely no consequence in law.
19. In the case before the Privy Council, though an order to attach had been made, still attachment as such was not effected in the manner required by law. A party, on the assumption that there was an attachment in fact, intervened by way of a claim proceeding objecting to attachment, and the claim was rejected and no suit was filed to set aside the said order as required under Order XXI Rule 63 C.P.C. The learned Judges of the Madras High Court held that the said party was concluded by the provisions of Order XXI Rule 63 C.P.C. as he has proceeded on the basis that there was an attachment and filed a claim petition which was rejected by the court. The ' decision of the Madras HighCourt is reported in Muthiah Chetty v. Palaniappan Chetty, ILK 45 Mad 90 : (AIR 1922 Mad 447).
20. But when the matter came up on appeal before their Lordships of the Privy Council their Lordships did not agree with the view expressed by the Madras High Court. As a fact in that case there was no attachment, But notwithstanding that, a party had intervened by way of a claim petition which was dismissed. The learned Subordinate Judge bad held that there was no attachment over the properties and therefore, there was no necessity for a suit being brought within one year, though a claim on the basis that there was an attachment was made and rejected. Their Lord* ships of the Privy . Council approved the reasoning of the learned Subordinate Judge in the following words at p. 357 of the reports (ILR Mad) : (at p, 142 of AIR) :
'For the case before the Board is not that the order Was defective in form; the Order was from the beginning a nullity. After full consideration they think that the judgment of the Subordinate Judge to the following effect is right: 'It has been argued by the learned vakil for defendants 10 and 11 that, as the suit was brought more than a year after the dismissal of the claim petition, it is barred, and that plaintiff is not entitled to get any relief in this suit. I do not think that this position is tenable. In the first place there was no attachment over the properties,;' and then follows the passage already cited.
He adds :........... the present suit is not barredby limitation under Article 11 of the Limitation Act'.
'Their Lordships think this judgment was right. The High Court appears to have been moved to a reversal of the judgment of the Subordinate Judge on this question of limitation by the consideration that although the property was not attached, yet for some time both parties had assumed that it was'.
Their Lordships again forcibly express that in such cases, there cannot be a limitation from the date of a nullity in the following words at p. 358 (of ILR Mad) : (at p. 142 of AIR) :
'No case of estoppel can arise. It is not pleaded: and it would be somewhat difficult for a case to be figured in which out of the fact of mutual error there had in effect been a two-fold result, namely, (1) that a statutory requirement bad been jumped over, and (2) that a limitation as from the date of a nullity had begun to run against one of the parties to the error. The Board, for the reasons stated, is of opinion that the suit is not barred by limitation.'
21. Applying the principles laid down by their Lordships of the Privy Council, in my opinion, the fact that Lakshmi intervened by a claim petition on behalf, of the tarwad, in execution of a decrees which is void as against the tarwad, is exactly similar to the claim application filed in the case before the Privy Council by a party on the basis that there was an attachment, when as a fact, there was no attachment.
22. Mr. P. Govindan Nair attempted to distinguish the Privy Council case by contending thatin the Privy Council case, there was no attachment as a fact; whereas in the case before me, whatever may be its legal validity, there was an attachment as a fact and the party had intervened by filing a claim. In my opinion, the fact that there is no attachment in fact and that there could be no attachment in law Or at the most, there was only an attachment which is also void, stand on the same footing and there is no difference in law between the absence of an attachment in fact and the absence of an attachment in law.
23. In the result, the decree and judgment ofthe learned Subordinate Judge are confirmed,though for different reasons given by me in thisjudgment. The Second Appeal fails and is dismissed with costs. No leave.