Joshua vs Subbalekshmi Ammal and Others

M. Madhavan Nair, J.—This second appeal has arisen from a suit for declaration of title to property and for setting aside a decree and execution proceedings in regard thereof. The plaintiffs'' case is as follow : The suit properties belonged to their joint family as ancestral assets when the Travancore Christian Succession Act, II of 1092 came into force. As a result of that Act, the family became divided, the father and the children becoming tenants-in-common with equal shares. Subsequent thereto, David, the father of the plaintiffs, hypothecated the properties and brought about the decrees in O. S. Nos. 1794 of 1110, 223 of 1106 and 1195 of 1105 for enforcement of those encumbrances. On the death of the judgment-debtor, David, the plaintiffs were impleaded as his legal representatives, whereupon they contended that their 3/5th share in the suit properties were not bound by those hypothecations or the decrees based thereon or the execution proceedings following the same. The court below dismissed their objections and allowed the execution proceedings to be proceeded with. Plaintiffs have therefore instituted this suit for a declaration of their right to 3/5 share in the suit properties free of the decree and execution proceedings aforesaid. The defence was that the suit properties were not ancestral properties in the hands of David but were his separate properties liable to be proceeded against, for his liabilities.

The Munsif decreed the suit; but, the Additional District Judge dismissed the same. Hence this second appeal by the plaintiffs.

The Additional District Judge found that the question, whether the properties belonged to David as ancestral or separate, was concluded by prior decisions binding on the plaintiffs and that the suit was barred by Section 47 C.P.C

The basis of the first finding was the decisions evidenced by Exts. Y and I. In Ext. Y the erstwhile Travancore High Court only directed a remand of the matter to the executing court for reconsideration of the nature of suit item No. 1 only and left the parties to agitate their rights in regard to the other items in other proceedings. Subsequently the District Court found the suit item No. 1 to be the separate property of David. Therefore the prior decision, if any, was only with regard to the suit item No. 1 and not with regard to items 2 to 7.

With regard to Section 47, the contention is, as advanced in the courts below and pressed in this Court, that the plaintiffs, having been impleaded as legal representatives of the judgment-debtor in execution, ought to have agitated their rights in the properties in the execution itself and not in a fresh suit. I do not agree. The aforesaid decrees being on mortgages or charges, the decrees are to the effect that the claims be realised from the suit properties. When the legal representatives of the judgment-debtor are brought on record at execution it is not open to them to challenge the terms of the decree itself. They can only represent the deceased judgment-debtor before the court and therefore no contention which was not open to the original judgment-debtor can be urged by the legal representatives either.

Counsel for the defendant-decreeholders placed strong reliance on Merla Ramanna Vs. Nallaparaju and Others, especially the observation in paragraph 7 thereof. There the Supreme Court has only held that an objection to the execution being excessive or unwarranted by the terms of the decree ought to have been urged in the execution and was debarred from being moved in a subsequent suit. That dictum has no application to the facts of the present case. Here the contention is not by any judgment-debtor of execution against his properties being excessive or contrary to the terms of the concerned decree. The contention is that the rights of the plaintiffs cannot be or have been proceeded against in execution of a decree to which they had not been parties at all. Persons having independent rights in the property made liable for the decree by the decree cannot urge the same before the executing court when they are brought on record as legal representatives of the judgment-debtor. With regard to their independent rights they were not the legal representatives of the judgment-debtor, but were independent persons, and the contention that the property charged by the decree is not liable for the decree is one contrary to the decree itself and was not open to the judgment-debtor to move in execution. Such independent rights can be agitated only by a fresh suit. Vide Devasia Philipose v. Venkitta Subba Iyer Harihara Iyer ( 1952 KLT 289). I hold therefore that there is no bar u/s 47 C.P.C. in regard to the suit claim in this case. The question then is of the plaintiffs'' right in respect of the suit properties. Counsel for the plaintiffs was not able to make out that the suit properties, other than items 3 and 7, were ancestral properties in the hands of David when the Travancore Christian Succession Act came into force. With regard to two excepted items, namely items 3 and 7, Exts. T and P, the ''Ozhukuforms'' clearly indicated that they had been registered holdings in the hands of the grandfather of David. It then follows that these two items were ancestral properties in the hands of David; and became divided among the members of the joint family when the Christian Succession Act came into force as was held in Gnanaparadesi Thankamma v. Paradesi Gnanamma (29 T.L.J. 372 F.B.). It is not disputed that if such division became a fact, the plaintiffs were entitled to 3/5 share in those properties. There will therefore be a decree declaring the right of plaintiffs 2 and 3 and of 1st plaintiff, now represented by his legal representatives, the plaintiffs 4 to 6, each to an 1/5th share in suit items 3 and 7. The decree and execution proceedings impugned in this suit are declared not binding on the above said share in suit items 3 and 7. As suit item No. 3 has already been taken delivery by the auction purchaser in O. S. No. 942 of 1104, the plaintiffs are entitled to recover their 3/5 share thereof, divided out by metes and bounds at execution. The suit in regard to the rest of the claim is dismissed, In the circumstances of this case, as both parties have failed and succeeded in part, there need not be any order as to costs.