The main legal point established in the judgment is that the execution sale in O.S. No. 496 of 1104 was not binding on the plaintiffs and their shares in the properties, as it only included the share of defendant 1 and not the interests of his sons.

1. This is an appeal against the preliminary decree in a suit for partition. The parties are Gowada Saraswatha Brahmins governed by the Hindu Mithakshara Law. Plaintiffs 1 to 3 are brothers. Their father was defendant 2. He died during the pendency of the suit in the lower court. Defendant 18 is the widow of defendant 2 and the mother of the plaintiffs.

2. There are 4 items of properties in the plaint schedule. Items 1 and 2 are garden lands held on verumpattom from the Cochin Thirumala Devaswom, and items 3 and 4 are garden lands held on kanom from the same Devaswom. According to the allegations in the amended plaint, plaint items 1 and 2 are the ancestral properties of the joint family of defendant 2 and the plaintiffs, and plaint items 3 and 4 are properties purchased with the sale proceeds of another ancestral property belonging to the said joint family. All the plaint items thus belong to the joint family of defendants 2 and the plaintiffs, and defendant 2 and plaintiffs 1 to 3 have equal rights in them. On 1.8.1102 defendant 1 took an usufructuary mortgage, Ext. XXI, for these properties from defendant 2 alone and obtained possession of them. Ext. XXI is not supported by consideration and family necessity, and plaintiffs were also not parties to it. It does not, therefore, bind the plaintiffs or their shares in the plaint properties. With a view to obtain the properties for himself, defendant 1 advanced a further sum of Rs. 300 to defendant 2 for immoral purposes and took from him a pro-note on 11.8.1103, and on that pro-note he obtained a decree, Ext. N, against defendant 2 in O.S. No. 496 of 1104 of the Cochin Munsiff's Court and attached and purchased the plaint properties in execution of that decree and also got delivery of them in pursuance of the court sale. The shares of the plaintiffs in the plaint properties were not liable to the attached and sold in execution of the decree in O.S. No. 496 of 1104, and, in fact, their shares have not also been sold in execution. The decree and execution proceedings, including the court sale, do not, therefore, affect the plaintiffs or their shares in the plaint properties. On the above allegations, plaintiffs prayed for partition and recovery of possession of 3/4 share in the plaint properties. They also sought for a declaration, that the mortgage, Ext. XXI, and the decree and execution proceedings in O.S. No. 496 of 1104 were not binding on them and their shares in the plaint properties. It was further prayed that, in the event of Ext. XXI being held to be binding on the plaintiffs and their shares in the plaint properties, they might be allowed to redeem that mortgage also so far as their shares were concerned. Plaintiffs stated that, if they had to redeem Ext. XXI, they were ready to pay the value of the improvements effected by defendant 1 and those claiming under him, and sought to set off against the value of improvements payable by them the damages due to them on account of the alleged dismantling and removal by defendant 1 of a building worth Rs. 15,000 from plaint item 4. Mesne profits, past and future, at the rate of Rs. 450/- per year, were also claimed.

3. It may also be mentioned here that after executing Ext. XXI, defendant 2 took back the properties on a lease from defendant 1 and that what was sold in execution in O.S. No. 496 of 1104 is described in the sale certificate in that case Ext. S, as the "remaining rights belonging to the judgment-debtor after the charge for the mortgage amount of Rs. 8,000 due to the decree-holder under the mortgage of 1.8.1102 (Ext. XXI) and for Rs. 444 due to him on account of arrears of rent under the lease back of the same date and interest thereon".

4. Defendant 1 and defendant 3, who has purchased item 1 from defendant 1, contested the suit. Their main contentions were that the plaint properties belonged to defendant 2 alone and the members of his joint family had no right at all to those properties, that Ext. XXI and