JUDGMENT P. Subramonian Poti, J. 1. This Second appeal arises from proceedings in execution. The first appellant is the original decree holder and the second appellant claims to have obtained half of the rights under the decree by an assignment. The decree is one for recovery of property and also for recovery of mesne profits and costs. Recovery was prayed for against the illom represented by defendants, the first defendant being the karanavan and the second defendant the senior anadiravan. The suit was dismissed by the Trial Court, and this was confirmed by the appellate court. But in the second appeal the plaintiff was granted a decree holding that the plaint property belonged to the plaintiff and his mother, the 11th defendant in the suit, and the plaintiff was allowed to recover the property. Decree regarding mesne profits was also granite against the illom of first defendant. A further decree personally against the first defendant for recovery of mesne profits was also granted. During the pendency of the appeal before this court, S. A. 448 of 1951, the second defendant died and it appears that this was not noticed. In fact, the respondents in that appeal were only defendants 1 and 2. It is admitted that the parties are Namboodiries governed by the Travancore Malayala Brahmins Act III of 1106. S.12 of that Act provided that no decree shall bind on illom unless it is obtained against the karanavan as such and the senior anandiravan of his branch and that of every collateral branch, if any. When execution was taken out what was contended was that the decree cannot be executed since, during the pendency of the second appeal, the second defendant, who was the senior anandiravan, died and in the absence of the next senior anandiravan on the party array, the decree is not one in confirmity with the provisions in S.12 of the Travancore Malayala Brahmins Act 1106 and therefore, the decree is not executable. Regarding the execution of the personal decree against the first defendant for mesne profits, it was contended that such a decree cannot be executed so long as the appeal had abated as against the second defendant and the claim that could be urged as against the first defendant personally was one which cannot independently exist without the claim against the illom being alive. This contention did not find favour with the execution court, though it found that there is no decree binding on the illom and so far as recovery of property or mesne profits is concerned, it was unenforceable against this illom, but it allowed execution to proceed against the share of the first defendant in the properties comprised in the proclamation schedule, which were the items attached in execution of the decree as assets of the first defendant. The appellate court, in the appeal filed by defendants 1 and 3 held that the order of the court below in so far as it permitted execution against the first defendant cannot be sustained. It is that which is challenged in this appeal by the appellants. 2. The order of the Trial Court in so far as it went against the decree holder has become final, as there was no appeal against that before the court below. The only question raised before me in the second appeal concerns the right of the appellants to execute the decree as against the first defendant personally. 3. Though elaborate arguments were addressed before me by both sides on the consequence of failure to implead the legal representatives of one of the defendants when a joint decree has been prayed for and obtained, and the courts below have elaborately gone into this question, I find there is absolutely no scope for considering this in this appeal. What is urged on the basis of the decision in State of Punjab v. Nathu Ram AIR 1962 SC 89 is that when a suit abates as against one of the parties, against whom and the others still remaining on the party array a joint decree is prayed for, the suit must abate as against all the defendants. This stand is apparently taken on the basis of certain observations in the decision referred to by me. It is contended that if the suit is allowed to continue as against the surviving defendants it is likely to involve a decision in one way in regard to those, while by abatement as against the defendant whose legal representatives were not impleaded, the decision would be different in regard to such party and that in effect would be to give rise to conflicting findings. I do not think support for this view can be gained from the decision of the Supreme Court. I do not think support for this view can be gained from the decision of the Supreme Court. But I need not go into this question. No question of abatement would arise in a case where the person who dies is on the party array in a representative capacity. Normally, the karanavan would represent a tarwad in any litigation and a decree with the karanavan on the party array would be binding on the tarwad. But, by the provision in S.12 of the Travancore Malayala Brahmins Act of 1106 a safeguard has been provided in the interests of the tarwad and that safeguard necessitates representation of the tarwad by the karanavan as such, the senior anandaravan and the senior anandaravan of every collateral branch. A senior anandaravan is impleaded in such a suit not as a person holding an estate, but as a representative of the tarwad. On his death, there is no question of impleading his legal representatives. The term "legal representative" is defined in S.2(11) of the Code of Civil Procedure as follows: "Legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued." There is no question of representing the estate of a deceased defendant when such defendant happens to be a senior anandaravan. There is no question of devolution of the estate of the deceased on his death in such a case. Therefore, the definition of "legal representative" has no application to a case where the person who dies during the pendency of the suit is on the party array as representing another, O.22 R.4 of the Code of Civil Procedure which deals with abatement on the death of a party where no application to implead legal representatives is made would not be applicable to such a case and if so, none of the interesting questions raised before me do in fact arise in this case. 4. But it is true that, if on the date of decree the senior anandaravan is not on the party array, the decree would not be one binding on the illom. 4. But it is true that, if on the date of decree the senior anandaravan is not on the party array, the decree would not be one binding on the illom. But no question of non executability of a decree against the first defendant, obtained personally, would arise in such a case. The decree against the first defendant is one which will not in any way be affected by the character of the decree as against the tarwad. Hence I do not think the courts below were right in their view that the decree obtained by the first appellant cannot be put into execution as against the first defendant personally. 5. But what I have stated is not sufficient to dispose of this appeal. That is because there is another question which is raised and that relates to the legality of the attachment effected by the decree holder in execution of the decree against the first defendant. It is admitted that what was attached is the interest which the first defendant is supposed to have in the properties belonging to his illom. There has been no individual partition in the illom and what is attached is not purported to be the share of the first defendant obtained in any such partition. On the other hand, what is contended is that the share of a member in the Namboodiri family is liable to attachment in execution of a decree against that member, a contention which did not find favour with the court below. A full Bench of this court held in Ammalu Amma v. Lakshmy Amma, 1966 KLT 32 (F.B.) that in respect of the undivided interest of a member governed by the Madras Marumakkathayam Act 1933 or the Travancore Nair Act of 1100 of the Cochin Nair Act of 1113 or the Travancore Ezhava Act of 1100 no attachment can be effected. This rule was followed by the court below in the case of Namboodiries too. What is urged before me is that this view adopted by the court below is incorrect. In support of this, the learned counsel brings to my notice certain decisions of the Travancore High Court dealing with the law applicable to Namboodiries. No doubt, in certain matters, they are governed by the Hindu Mithakshara law as modified by custom. What is urged before me is that this view adopted by the court below is incorrect. In support of this, the learned counsel brings to my notice certain decisions of the Travancore High Court dealing with the law applicable to Namboodiries. No doubt, in certain matters, they are governed by the Hindu Mithakshara law as modified by custom. But, in regard to holding of property by the Illom, Namboodiries are not certainly governed by the principles of Hindu Mithakshara Law. Such property of the illom was not partible until the right to partition was recognised by the Kerala Nambudiri Act, 1958. A limited right to partition was recognised earlier under the Travancore Malayala Brahmin Act 1106, in S.20 and that was a right to partition of the properties among the widows of an illom when there were only widows surviving as members thereof. Just as in the case of Marumakkathayees governed by the statutory provisions such as Travancore Nair Act and Travancore Ezhava Act, in whose "case the right to partition was recognised only by statute, in the case of Namboodiries also until such right was recognised by the Kerala Nambudiri Act, 1958, no member of an Illom had a right to demand partition or to separate himself from the Illom and walk away with his share. The incidents of properties of the Illom vis a vis the member were more or less akin to that of a Marumakkathayam tarwad. This being the case, I will have to see how far the reasoning which persuaded the learned Judges in the Full Bench decision to adopt the view that the undivided interest of a member was not attachable would apply to the case of a member of a Namboodiri Illom., Though it was urged in that case that the right to partition conferred a power of disposal and that was the basis of recognizing the right of alienation of a Hindu coparcenar, that did not find acceptance with the Full Bench. Govindan Nair J., after posing the question. "..... Can it be that a power of disposal necessarily inheres in the right to a partition?" Said: "I think not, and with great respect, I think that to say that it does, is to confuse between an incident of a right and a consequence of the exercise of that right." Again the learned Judge said: "...... "..... Can it be that a power of disposal necessarily inheres in the right to a partition?" Said: "I think not, and with great respect, I think that to say that it does, is to confuse between an incident of a right and a consequence of the exercise of that right." Again the learned Judge said: "...... as we have seen, a right to partition does not of its own force confer a power of disposal." Though in strict theory even the share of a coparcenar in a joint family property may not be alienable or attachable by a creditor, it was by judicial inroad into this principle that such a right came to be gradually recognised in course of time. This gradual growth was founded on principles of equity. Though the Madras High Court had attempted to apply these principles of equity even to a case of a Marumakkathayee governed by the Madras Marumakkathayam Act, 1933 in the decision in Subramanyan Tirumuuppu v. Naraina Tirumuuppu AIR 1938 Mad. 553 , the Full Bench did not approve of this approach. It was also noticed by the Full Bench that there was not a single decision of the Travancore High Court wherein it had been held that an undivided share of a member of a Marumakkathayani tarwad was capable of being attached and sold in execution of a decree obtained personally against that member. This could be certainly said also of the right of a member of a Namboodiri Illom in the properties of the Illom. 6. Another reason which weighted with the Full Bench in holding that the properties of a person governed by the Madras Marumakkathayam Act or the Travancore Nair Act or the Travancore Ezhava Act or the Cochin Nair Act was not liable to attachment was that S.60 of the Code of Civil Procedure provided that attachment in execution of a decree can be made only in regard to such property over which the judgment debtor had a disposing power which he may exercise for his own benefit. In regard to a property which is not obtained by a member on partition, he has no disposing power and if this could be true in regard to persons governed by the various Acts with which the Full Bench was dealing, it is equally true with regard to a Namboodiri governed by the Kerala Nambudiri Act, 1958. In regard to a property which is not obtained by a member on partition, he has no disposing power and if this could be true in regard to persons governed by the various Acts with which the Full Bench was dealing, it is equally true with regard to a Namboodiri governed by the Kerala Nambudiri Act, 1958. I, therefore, see no reason to hold that the principle of this decision would be inapplicable to the case of a Namboodiri governed by the Kerala Nambudiri Act, 1958, If that be so, I have to hold that the attachment of properties of the tarwad which had not been separately allotted to the first defendant cannot be sustained. In this view, the second appeal fails in regard to the execution now taken out against the properties attached and proclaimed for sale, but it succeeds to the limited extent of my holding that the decree will be executable against the first defendant and his personal assets. In the circumstance of the case, I direct both parties to suffer their costs.