T KUNHIKKALAVAN Vs. E KOCHURAMAN

JUDGEMENT

(1.) The plaintiff, whose claim to recover the suit property was dismissed by the District Munsif of Chowghat and confirmed by the Subordinate Judge of Ottapalam, has preferred this second appeal. The suit came to be instituted by the appellant in the following circumstances : The suit properties originally belonged to one Kunhikalavan. He executed a will marked Ex. P. 1 in the case, on the 26th of July 1895 giving a life estate to his wife, Kunhikurumba, and the remainder to his nephews, that is, his brother's sons, Raman and Kunhayappan. The will recited that after the death of his wife Kunhikurumba the sons of his younger brother Paru, namely, Raman and Kunhayappan, and their descendants should enjoy the properties. There was also a pious wish expressed therein that these legatees and their descendants will look after his daughters. During the lifetime of Kunhikalavan one of the legatees, Kunhayappan, died with the result that Raman became the sole legatee under the will. On the death of Kunhikalavan and his widow Kunhikurumba Raman got into possession and enjoyment of the properties.

(2.) In execution of a decree in a small cause suit, one Aydross, the predecessor in interest of the present respondent, brought the suit properties to sale and purchased them himself in Court auction in or about the year 1932, and a sale certificate was issued to him on 24th October 1932.

(3.) Twelve years later, that is, in the year 1944, the appellant instituted the present suit for recovering the suit property on the basis that under the will, Ex. P. 1, Raman and his brother had only a life estate in the suit properties and the vested remainder was given to the children of Raman and Kunhayappan by the testator and, therefore, the only interest which the decree-holder auction- purchaser acquired in the suit properties by virtue of the court-sale, is only what Raman had in the property namely life estate which came to an end with the death of Raman and that, in any event, since the children of Raman acquired a joint interest along with Raman under the terms of the will, the purchaser in the Court auction sale was entitled only to the share of Raman. The suit was resisted by the defendant on the ground that the bequest to Raman and Kunhayappan under the will was a vested remainder and not a mere life estate, and therefore the auction purchaser acquired the absolute right possessed by Raman in the suit properties by virtue of the court-sale. Another defence raised to the suit was that since the debts incurred by Raman were not incurred for any illegal or immoral purpose, the sale in pursuance of the execution of the decree obtained for these debts was valid and binding upon the sons.