Judgment :- 1. In C.R.P. No. 48 of 1987, the fourth defendant in O.P. No. 40 of 1982 is the revision petitioner. After filing the revision, he died, and his legal heirs have been recorded. In C.R.P. No. 49 of 1987, respondents 1 and 2 in O.P. No. 40 of 1982, on the file of Sub Court, Erode, are the petitioners. 2. In a suit for partition of joint family properties, an Arbitrator was appointed to pass an Award and the same was made a decree of Court. It is the said decree that is sought to be executed. In the Award, in so far as the lands are concerned, provision was made thus:— The entire leasehold paddy lands in the hands of Mr. N.S. Ramaswamy Gounder along with his own paddy fields is divided into two lots and allotted one to Mr. N.P. Palaniswamy and the other to Mr. N.P. Thiruvengadam as detailed below:— i. The lot allotted to Mr. N.P. Palaniswamy is: a) Sadasamba Vayal to an approximate extent of 8 acres, b) Kuttisuvara Vayal - an extent of 9 acres. ii) The lot allotted to Mr. N.R. Thiruvengadam is: a)Eswaran Vayal to an extent of 8 acres. b) Avanashi trust Vayal to an extent of 6 acres. The concerned parties will adopt the customs and manners adopted so far regarding the leasehold properties in the hands of the joint family. Each of them must measure the paddy in kind or its money value as the rent for the above leasehold properties at the appropriate time inclusive of this current year to Mr. N.S. Ramaswami Gounder or under his directions to the concerned landlords. These two parties can enjoy the leasehold rights as long as the landlord continues and willing to do so. Hereby Mr. N.S. Ramaswami Gounder is given a right to terminate the lease and surrender the possession to the landlords during his life time to retain the goodwill of the family with the land-lords. As far as the paddy fields owned by Mr. N.S. Ramaswamy Gounder will be treated in par with the other leasehold lands of Mr. N.R. Palaniswamy and Mr. N.R. Thiruvengadam.” 3. In C.R.P. No. 48 of 1987, Mr. N.S. Ramswami Gounder is the revision petitioner. N.R. Palaniswamy, son of N.S. Ramaswami Gounder has filed the Execution Petition. As far as the paddy fields owned by Mr. N.S. Ramaswamy Gounder will be treated in par with the other leasehold lands of Mr. N.R. Palaniswamy and Mr. N.R. Thiruvengadam.” 3. In C.R.P. No. 48 of 1987, Mr. N.S. Ramswami Gounder is the revision petitioner. N.R. Palaniswamy, son of N.S. Ramaswami Gounder has filed the Execution Petition. After the Award was passed, Palaniswamy field a suit as O.S. No. 135 of 1984, on the file of the District Munsifs Court, Gobichettipalayam. That suit was to restrain the defendants in that suit by means of a permanent prohibitory injunction from surrendering the tenancy rights in the suit property and to direct the defendants to pay costs of the suit and to grant such other reliefs as the Court may deem fit and proper in the circumstances of the case. The suit was filed against the father, who is the revision petitioner herein. It was represented that the said suit was not prosecuted. 4. Later, an Execution Petition was filed as E.P. No. 48 of 1985 claiming various reliefs in respect of various items of properties. In this Revision, we are concerned only with 8 acres of land of which the family had a leasehold right and the same was directed to be enjoyed by Palanisami. 5. The prayer so far as the plaint schedule property is concerned, reads thus:— Tamil Since the remainder portion of the relief sought for is unnecessary, the same is not incorporated. 6. To the Execution Petition, an objection was filed by the revision petitioner contending that he is the lessee of the landlord and it is under him, his sons are enjoying the same and, therefore, their position is only that of such lessees. So long as he is the head lessee, he can surrender the same and in fact he has also surrendered the leasehold right to the landlord. It is further said that the execution petition, which is one for recovery of property, cannot be maintained, since no decree for possession is given under the Award. 7. So long as he is the head lessee, he can surrender the same and in fact he has also surrendered the leasehold right to the landlord. It is further said that the execution petition, which is one for recovery of property, cannot be maintained, since no decree for possession is given under the Award. 7. The executing Court took evidence and came to the conclusion that the alleged lease by the revision petitioner to the landlord is not binding in the family and the same is not intended to retain good relationship between the family and the landlords and, therefore, it is not binding on the family of the revision petitioner and his sons. So holding, the relief sought for in the Execution Petition was granted, i.e., Palaniswami was allowed to recover the property from the sixth respondent. The same is challenged in C.R.P. No. 48 of 1987. 8. According to me, the order of the court below is prima facie is illegal. I have already extracted the relevant portion of the Award so far as the plaint property is concerned. It is said that Palaniswami and Thiruvengadam, i.e., the sons of the revision petitioner are to enjoy the leasehold properties, measure paddy or pay rent to the revision petitioner, who in turn shall hand over the same to the landlord. It further says that to retain the goodwill of the family with the landlords, the revision petitioner is given a right to terminate the lease and surrender the property to the landlords. Nowhere, a decree is granted to Palaniswami to recover possession from Ramaswami Gounder. The prayer under O. 21, R. 35, C.P.C. relates to a decree for immovable property. That provision can be applied only when there is a decree for delivery of immovable property. Possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf, and if necessary, by removing any person bound by the decree and refuses to vacate the property. 9. From a reading of O. 21, R. 35, C.P.C., it is clear that there shall be a decree for delivery of immovable property. In this case, I cannot find that there is any such decree. It only says that Palaniswami and Thiruvengadam are entitled to enjoy as before the leasehold rights under the revision petitioner. 9. From a reading of O. 21, R. 35, C.P.C., it is clear that there shall be a decree for delivery of immovable property. In this case, I cannot find that there is any such decree. It only says that Palaniswami and Thiruvengadam are entitled to enjoy as before the leasehold rights under the revision petitioner. If, after the decree, Ramaswami Gounder has surrendered the leasehold right to the landlord, that is not a matter which can be adjudicated in execution of this decree. 10. Apart from the same, I have already said that Palaniswami himself filed a suit against his father admitting that he is in possession of the property and wanted an injunction to restrain Ramaswami Gounder from surrendering the tenancy right, which he subsequently allowed to go for default. 11. The question raised is, whether there was surrender by Ramaswami Gounder to the landlord and whether the same is to retain the goodwill of the family with the landlords. But such a question cannot be adjudicated in execution. That has nothing to do with the discharge or satisfaction of the decree which is sought to be executed. The landlord is not a party to the Award, and if he takes surrender or terminated the lease, by accepting the property from Ramaswami Gounder, that is a matter which has to be agitated in a separate suit. Whether the landlord is entitled to get possession, and what is the effect of any document executed by him thereafter are all alien so far as the decree sought to be executed is concerned. The Court below exceeded in its jurisdiction in directing Ramaswami Gounder to handover possession of the property to Palanisami. 12. In the result, that part of the Order is set aside and the Execution Petition so far as Sadasamba Vayal having an approximate extent of 8 acres, filed by Palanisami against his father, is dismissed as not maintainable. C.R.P. No. 48 of 1987 is, therefore, allowed, however, without any order as to costs. 13. So far as C.R.P. No. 40 of 1987 is concerned, that also arises from the same proceedings. In C.R.P. No. 40 of 1987, the other son of Ramaswami Gounder, i.e., Thiruvengadam and his wife are the revision petitioners. Ramaswami Gounder (shown as fifth respondent in that Revision) died thereafter, and on his death, Thiruvengadam has been recorded as legal representative of his father. In C.R.P. No. 40 of 1987, the other son of Ramaswami Gounder, i.e., Thiruvengadam and his wife are the revision petitioners. Ramaswami Gounder (shown as fifth respondent in that Revision) died thereafter, and on his death, Thiruvengadam has been recorded as legal representative of his father. This revision, namely, C.R.P. No. 40 of 1987(Miscellaneous) also arises under the same Award. In Clause V of the Award, Ramaswami Gounder was directed to execute a Will regarding his entire immovable properties by making his two sons and their family as exclusive beneficiaries within six months from the date of Award, and the Will should come into forces only after the lifetime of Mrs. and Mr. Ramasami Gounder. This direction by the Arbitrator is also now part of the decree which has been accepted by the Sub Court. 14. It is the case of Palanisami, the other son, that Ramaswami Gounder has not executed a Will and, therefore, he must be compelled to execute such a Will. That is the prayer or relief sought for. The prayer is made under O. 21, R. 34, C.P.C. The said provision deals with execution of decree for execution of a document or endorsement of a negotiable instrument. It says that where a decree is for execution of a document or for endorsement of a negotiable instrument and judgment debtor neglects pr refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to Court. Further portion of the Rules says that if the judgment debtor thereafter fails to execute the document, the Court may compel it, and on his behalf, the Court also can execute the document. 15. Even though the decree directs Ramaswami Gounder to execute a Will, how far that can be enforced has to be seen. According to me, O. 21, R. 34, C.P.C. applies only to those cases where a transfer inter vivos , is the subject matter. In a Will, such a contingency will never arise, and it comes into effect only on the death of the testator. According to me, O. 21, R. 34, C.P.C. applies only to those cases where a transfer inter vivos , is the subject matter. In a Will, such a contingency will never arise, and it comes into effect only on the death of the testator. The question whether a person wants to execute a Will, or in whose favour it should be executed, is something which he has to decide, and I do not think that by passing a decree by accepting an Award of an Arbitrator, the Court can compel Ramaswami Gounder to execute a Will in a particular way. The very scope of executing a testamentary disposition will have to change, if the Court can compel a person to execute a will in a particular way. According to me, that clause of the decree can never be executed. 16. If we are to take that clause as a package for a family settlement, to purchase peace, evidence in this case shows that Ramaswami Gounder has already signed the Will prepared by the Arbitrator. The circumstances under which the Execution Petition came to be filed, may be treated as follows:— It is admitted by Palanisami that his father did sign a Will as contemplated in the decree which was prepared by the Arbitrator. But later, Ramaswami Gounder cancelled it and executed another Will where he has disinherited Palanisami. That is the reason why he has filed the Execution Petition. On his own showing, Ramaswami Gounder has executed a Will. That itself is sufficient compliance of the decree. Whether subsequently he has revoked it or he has executed another Will, should not have been the subject matter of this Revision, or a matter of Execution. The Will signed by Ramaswami Gounder is one prepared by the Arbitrators which itself provides for revocation of the deed. If so, Ramaswami Gounder gets a right to revoke also, which is not a part of the Award, but a part of the Will. The lower Court assumed that on the basis of the Award, which was made a decree of Court, Ramaswami Gounder will have no right to revoke the same and execute another will. The reasoning is very curious. If we are to accept the reasoning, it follows that the Court is enforcing the Will of the Arbitrator and not that of N.S. Ramaswami Gounder. The reasoning is very curious. If we are to accept the reasoning, it follows that the Court is enforcing the Will of the Arbitrator and not that of N.S. Ramaswami Gounder. It is against public policy to compel a person that he should execute a Will in a particular way. The Court below should have refused to execute a decree or at any rate should have held that N.S. Ramasami Gounder has signed a Will prepared by the Arbitrator and, therefore, nothing survives for Execution. The question whether Ramaswami Gounder has power to revoke or execute another Will, and that too during his lifetime, should not have been taken into consideration by the executing Court. It is admitted that N.S. Ramasami Gounder was the absolute owner of the property during his lifetime, and if so, his power of disposal over the same also cannot be questioned by any one. The finding of the Court below that Ramaswami Gounder had no power to revoke or execute a Will was, therefore, unwarranted, and the same was without jurisdiction. 17. The Revision Petition is filed by Thiruvengadam, the son and daughter-in-law of Ramsami Gounder, on the basis of a document executed by Ramaswami Gounder. At the time when C.R.P. No. 48 of 1987 was filed, Ramaswami Gounder was alive, and on his death, the first revision petitioner has been recorded as legal representative. Since during the lifetime of Ramaswami Gounder, the question of validity of the Will should not have been considered, the finding of the Court below was, therefore, without jurisdiction. C.R.P. No. 49 of 1987 is, therefore, allowed with costs, by setting aside the Order of the Court below. Costs of this Revision shall be realised from the 1st respondent herein.