A decree in partition executed without all necessary parties is inexecutable; restrictive covenants in Wills cannot negate legatees' rights.

JUDGMENT :

EASWARAN S., J.

The appellants resisted execution of the final decree in OS No.56/2011 on the files of the Munsiff’s Court, Kannur, by filing an application under Order-XXI Rule-97 of the Code of Civil Procedure, 1908.

2. The brief facts necessary for the disposal of the appeal are as follows:

The property originally belonged to one Nambi Nair. The said Nambi Nair executed a Will on 21.07.1908 and the same was registered with Kannur SRO on 05.08.1908. The property covered by the Will was bequeathed in favour of one Kalyani, D/o.Lakshmikunji @ Patty and her son Sankaran and further in favour of children to be born to Kalyani. The appellants claim through one Karunakaran Nair, S/o.Radhamma, who is the daughter of Kalyani, a beneficiary under the Will. The dispute in the present case centers around a restrictive covenant in the Will, by which the rights of a legatee were reverted to the other legatees on his/her death, since the testator wanted to keep the property within the tharavad and did not want the property to revert back to the tharavad of individual legatees. The 1^st respondent herein as the plaintiff along with the other respondents herein as defendants instituted OS No.56/2011 before the Munsiff’s Court, Kannur excluding the predecessor-in- interest of the appellants, namely Karunakaran Nair. By O.S.No.56/2011, the 1^st respondent herein sought partition of the property covered by the Will executed by Nambi Nair on the strength of the restrictive clause under the Will. By judgment and decree dated 07.06.2011, a preliminary decree was passed. For execution of the preliminary decree, a final decree application, FDIA No.2701/2011, was preferred and final decree was passed, and for execution, EP No.212/2013 was filed. During the pendency of the execution petition, a claim under Order-XXI Rule-97 of the Code of Civil Procedure, 1908 was raised by the appellants, contending that the property scheduled to the application was derived by the predecessor-in-interest of the appellants through document No.2333/1951 of SRO, Kannur. It was further contended that the property was originally mortgaged to one Damodaran Nair in the year 1936. He transferred his right to Narayanan Nair by document No.2669/1936 of SRO, Kannur, and thereafter, the entire right of Damodaran Nair was purchased by Kottarathil Narayanan Nair as per document No.472/1944 of SRO, Kannur. Thereafter, the property was assigned to Kottarathil Karunakaran Nair as per document No.2333/1951. On the death of Karunakaran Nair, the property devolved upon his legal heirs through intestate succession as well as through gift deeds for a portion of the property. It was further contended that in an earlier suit, OS No.227/1995, filed by Kottarathil Padmanabhan Nair, the brother of Karunakaran Nair, seeking for partition, a defence was raised that the property covered by document No.2333/1951 was sold in court auction in 1957 to one Palliparath Punnakkal Ebrahim and that from Ebrahim, one Sreedevi Kovilamma purchased the property as per document No.146/1957. Later, the property was purchased by one Pokkiyarath Kannakurup, the father of Padmanabhan Nair and Karunakaran Nair, in the year 1958 and later devolved upon their children. The suit for partition was dismissed, finding that the property belonged to the tharavad and Lakshmikutty Amma, the landlady, was not made a party. Aggrieved by the judgment and decree, Karunakaran Nair preferred AS No.57/1997 before the District Court, Thalassery. AS No.57/1997 was also dismissed, against which RSA No.1256/2010 was preferred. By judgment dated 28.09.2018, the RSA was dismissed. While dismissing the RSA, the findings