The main legal point established in the judgment is that the suit was not maintainable under S. 40 of the Civil Procedure Code, and the plaintiffs had no valid title or possession of the properties in question.

1. The Plaintiffs in O.S. No. 132/1117 on the file of the Kottayam District Court have preferred this appeal against the judgment and decree of that Court dated 8.11.1120, dismissing their suit. The dismissal was on the ground that under S. 40 of the Code of Civil Procedure, Travancore (Act VIII of 1100) the suit was not maintainable. S. 40 of the Travancore Civil Procedure Code corresponds to S. 47 of the Civil Procedure Code, Act V of 1908.

2. In O.S. 70/1088 on the file of the Kanjirappally District Munsiff's Court, Defendant 1 obtained a money decree against one Narayana Panicker on 19.4.1088 and in execution thereof attached certain properties as belonging to the judgment-debtor, brought the attached properties to sale and himself purchased them. The attachment was on 5.1.1104, the sale on 13.8.1104 and the confirmation thereof on 1.10.1104. On 17.9.1107 the decree-holder purchaser, i.e., defendant 1, applied for delivery and pending that application Narayana Panicker died on 14.1.1108. Defendant 1 sought to implead the present plaintiffs, who were his children as parties to that proceedings in place of their deceased father and the court made them "additional defendants". Plaintiffs 1 and 2 here were "additional defendants" 2 and 4 respectively there an on 25.4.1108 they filed C.M.P. Nos. 4364 and 4365 opposing delivery. They set up an independent title to the properties covered by the sale certificate in themselves and the other children of Narayana Panicker and sought to impugn the validity of the execution sale among of other things on the ground of fraud as well.

3. Narayana Panicker was the Karnavan of a Nair Tarwad. In execution of the decree in O.S. 70/1088 Defendant 1 first attached certain properties of the tarwad and some junior members raised objection to the attachment. The execution court upheld their objection and the attachment was released. After that Narayana Panicker brought a suit in O.S. 103/1102 on the file of the Kottayam District Court for partition of the tarwad properties. A preliminary partition decree was passed in that suit on 30.1.1103 and almost immediately, on 11.2.1103, he executed a gift deed in favour of his children under which he gave share in the tarwad properties to them. The final decree in the partition suit was passed on 21.5.1104 and under it Narayana Panicker's share was divided by metes and bounds and the same was delivered to the donees, his children. According to the plaintiffs they obtained delivery on 3.7.1105. It would appear that some of the properties comprised in Narayana Panicker's share were afterwards exchanged for portions of the properties that remained undivided among the remaining members of his tarwad. (See Ext. F dated 12.8.1107). The properties Defendant 1 purchased in execution of the decree in O.S. 70/1088, form part of the properties the plaintiffs claim to have been delivered to them under the final decree in the partition suit and the subsequent exchange arrangement. It was the title so claimed that Plaintiffs 1 and 2 put forward in C.M.P. Nos. 4364 and 4365 before the Kanjirappally District Munsiff's Court in answer to the application of Defendant 1 for delivery pursuant to the sale certificate granted to him by that court. Ext. J, the order the District Munsiff of Kanjirappally passed over-ruling the opposition to the delivery, shows that besides putting forward their title to the properties sold in O.S. 70 plaintiffs 1 and 2 also attached the validity of the execution proceedings and the sale held in that case. The court however held that the execution sale was valid and that the gift deed in favour of the plaintiffs was sham, not intended to take effect. According to the learned District Munsiff when the attachment in O.S. 70/1083 was effected Narayana Panicker was in possession of the attached properties and the subsequent delivery to the plaintiffs pursuant to the final decree in the partition suit was fraudulent and collusive and with a v