Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 2500 (KER)

Edappara Thilakam, W/o. Karunakaran Nair v. Kottarathil Komalavalli Amma, D/o. Kannakurup

2025-09-19

EASWARAN S.

body2025
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. 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 rendered by the courts below were vacated, holding that the findings rendered therein will not operate as res judicata. Thus, it was contended that in the absence of the legal heirs of Karunakaran Nair in OS No.56/2011, the decree passed in respect of item No.1 property is not binding upon them and as far as item No.2 is concerned, an independent right was set up by virtue of Ext.A2. The executing court found that in respect of item No.1, no document was produced to show the title of the claim petitioners, and in respect of item No.2, the parties are governed by the judgment in OS No.227/1995 and therefore, dismissed the said application. Aggrieved, AS No.48/2019 was preferred before the Sub Court, Kannur, which was also dismissed on 28.5.2020, and hence, the present second appeal is filed raising the following substantial questions of law as framed in the appeal: (i) Whether the Courts should have permitted execution of a non-interparties decree against a necessary party to the suit? Aggrieved, AS No.48/2019 was preferred before the Sub Court, Kannur, which was also dismissed on 28.5.2020, and hence, the present second appeal is filed raising the following substantial questions of law as framed in the appeal: (i) Whether the Courts should have permitted execution of a non-interparties decree against a necessary party to the suit? (ii) Whether Courts failed to adjudicate rights of decree holders and resistors mandated by Order-XXI of the Code of Civil Procedure ? (iii) Whether the Courts can rely on unnecessary findings in Exhibit A9 and B6 relieved against in Exhibit A13 judgment? (iv) Whether the Courts misread statements in Exhibit B3 as admission in a suit since withdrawn? 3. Heard Sri.B.Krishnan, assisted by Sri.R.Parthasarathy, the learned counsel appearing for the appellants, Smt.M.Keerthi, the learned counsel appearing for respondent Nos.1 and 4 to 9, Sri.M.K.Sumod, the learned counsel appearing for respondent Nos.11 to 13. 4. Sri.B.Krishnan, the learned counsel appearing for the appellants, contended that since the appellants were not a party in OS No.56/2011, the executing court ought not to have permitted execution of the decree in the suit. Further, it is contended that since Karunakaran Nair had an independent right by virtue of the Will executed by Nambi Nair, the courts below failed to consider the crucial aspect that, the rights devolved upon Sri.Karunakaran Nair, by virtue of a testamentary succession, cannot be deprived of the strength of a restrictive covenant in the registered Will. If, as contended by the decree holders, the intention of the testator Nambi Nair was that the parties should remain joined, at any rate, OS No.56/2011 having been instituted, the intention to become separate being expressed by the members of the tharavad, the legal heirs of Karunakaran Nair were necessary parties in OS No.56/2011. It is further contended that the parties were governed by the Marumakkathayam Law and that the right, if any, in favour of Karunakaran Nair by virtue of the erstwhile Madras Marumakkathayam Law could not have been taken away by virtue of a restrictive covenant in the registered Will, which formed the basis of OS No.56/2011. The courts below had not considered the impact of Section 4 (1) of the Kerala Joint Hindu Family System (Abolition) Act , 1975. The courts below had not considered the impact of Section 4 (1) of the Kerala Joint Hindu Family System (Abolition) Act , 1975. As regards the claim for item No.2, it is contended that in the light of the findings of this Court in Ext.A13, the judgment in RSA No.1256/2010, no conclusiveness can be attached to the findings of the trial court in OS No.227/1995. The courts below failed to notice the independent rights of Karunakaran Nair over item No.2 and failed to adjudicate the same in an application under Order-XXI Rule-97 of the Code of Civil Procedure , 1908. 5. Per contra, Smt.Keerthi M, the learned counsel appearing for the plaintiffs/respondent Nos.1 and 4 to 9, contended that the claim petition as such is not maintainable. The claim petitioners are not necessary parties in OS No.56/2011. The intention of the testator, late Nambi Nair, was evident from the execution of the Will and the testator wanted the property not to go out of the tharavad. The legal heirs of Karunakaran Nair had got right, title and interest over various extents of property through their matrilineal succession and therefore, they will not get any right, title and interest over the claim schedule property by virtue of the intestate succession over the extent of the property inherited by Sri.Karunakaran Nair by virtue of the testamentary succession. 6. Supporting the arguments of Smt.Keerthi M., Sri.M.K.Sumod, the learned counsel appearing for respondent Nos.11 to 13, contended that the application under Order-XXI Rule-97 of the Code of Civil Procedure is not maintainable, especially since the application is not preferred by the decree holders, but third parties. In support of his contention, he relied on the decision of the Supreme Court in Sriram Housing Finance and Investment India Ltd. v. Omesh Mishra Memorial Charitable Trust [(2022) 15 SCC 176] 7. In reply, Sri.B.Krishnan, the learned counsel appearing for the appellants, pointed out that going by the Three Judges Bench decision of the Supreme Court in Silverline Forum Pvt. Ltd. v. Rajiv Trust and Another [ (1998) 3 SCC 723 ] and also in Babulal v. Raj Kumar and Others [AIR 1996 SC 2050], an application by a third party to get his rights adjudicated is maintainable under Order-XXI Rule-97 of the Code of Civil Procedure , 1908. 8. 8. Since the respondents seriously resisted the appeal on the ground that the application under Order-XXI Rule-97 of the Code of Civil Procedure , 1908 filed by the appellants is not maintainable and further that they have no semblance of right in view of the restrictive covenant in the Will executed by late Nambi Nair, this Court is of the considered view that additional questions of law are required to be framed as regards the restrictive covenant in the Will. Hence, the following additional substantial questions of law were framed: (v) Whether the application under Order-XXI Rule-97 of the Code of Civil Procedure can be maintained by a person other than the decree holder? (vi) Whether the restrictive covenant in the registered Will No.25/1908 of SRO, Kannur would operate against late Karunakaran Nair and his legal heirs? 9. Extensive arguments were addressed by the parties as regards the validity of the Will, which prompted this Court to frame the aforesaid additional questions of law other than those which have been framed in the memorandum of appeal. 10. This Court will address the first objection raised by Sri.M.K.Sumod, the learned counsel appearing for respondent Nos.11 to 13, that an application under Order-XXI Rule-97 of the Code of Civil Procedure is not maintainable, and that the decree holders can file such an application for removal of the obstructions. 11. Order-XXI Rule-97 of the Code of Civil Procedure reads as under: “ RESISTANCE TO DELIVERY OF POSSESSION TO DECREE-HOLDER OR PURCHASER 97. Resistance or obstruction to possession of immovable property. — (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.” 12. Going by the literal meaning of the words contained under Order- XXI Rule-97 of the Code of Civil Procedure , the application can only be filed by the decree holder to remove the obstructions, if any, caused in execution of the decree. Going by the literal meaning of the words contained under Order- XXI Rule-97 of the Code of Civil Procedure , the application can only be filed by the decree holder to remove the obstructions, if any, caused in execution of the decree. This right is exemplified under Order-XXI Rule-99, enabling third parties other than the judgment debtors, who have been dispossessed, to prefer an application for restoration of possession. Under Order-XXI Rule-101, such an application raising independent questions of title must be adjudicated in the execution proceedings itself and not by a separate suit. The thrust of the argument of Sri.M.K.Sumod is based on the decision of the Supreme Court in Sriram Housing Finance and Investment India Ltd. v. Omesh Mishra Memorial Charitable Trust [ (2022) 15 SCC 176 ], wherein it is stated that only a decree holder is entitled to make an application under Order-XXI Rule 97 of the Code of Civil Procedure , where he is offered with a resistance or obstruction. 13. However, in Babulal v. Raj Kumar and Others [AIR 1996 SC 2050], the Supreme Court held that an application under Order-XXI Rule-97 of the Code of Civil Procedure , 1908 cannot be dismissed on the ground that the objector was not dispossessed and that the executing court was required to determine the question, when the objectors had objected to the execution of the decree as against them, who were not parties to the decree. The case considered by the Supreme Court arose from a decree for specific performance. 14. In Silverline Forum Pvt. Ltd. v. Rajiv Trust and Another [ (1998) 3 SCC 723 ] , a Three Judges Bench of the Supreme Court considered the impact of Order-XXI Rule-97 of the Code of Civil Procedure and held that a third party to the decree, who offers resistance, would thus fall within the ambit of Rule-101, if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. Paragraph Nos.10, 11 and 12 are extracted hereunder: “10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Paragraph Nos.10, 11 and 12 are extracted hereunder: “10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of property Act. 11. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. 12. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. similarly, a third party, who questions the validity of a transfer made by a decree- holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. in the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.” 15. It is clear that when the Supreme Court rendered its decision in Sriram Housing Finance and Investment India Ltd. (supra), the existing binding principle laid down by the Three Judges Bench decision in Silverline Forum Pvt. Ltd. (supra) as well as Babulal (supra) and in Bhanwar Lal v. Satyanarain [ (1995) 1 SCC 6 ] was not noticed. In the light of the decision of the Supreme Court in Silverline Forum Pvt. Ltd. (supra), this Court is of the considered view that the objection raised by Sri.M.K.Sumod, the learned counsel appearing for respondents 11 to 13, cannot be sustained. Accordingly, the said contention is rejected and it is held that the application under Order- XXI Rule-97 of the Code of Civil Procedure preferred by the appellants is maintainable. 16. As regards the question whether the appellants, as legal heirs of late Karunakaran Nair, were necessary parties to OS No.56/2011, this Court needs to address various intricate questions raised by Smt.Keerthi, the learned counsel appearing for the respondents-decree holders. According to Smt.Keerthi, the appellants, who are the legal heirs of Karunakaran Nair, cannot dispute the registered Will No.25/1908 executed by Nambi Nair. She would assert before this Court that the intention of the testator has to be upheld by this Court and that the Will, having been more than 30 years old, a presumption regarding its validity must be drawn in terms of Section 90 of the Indian Evidence Act , 1872. In support of her contention, relied on the decision of the Supreme Court in Kalidindi Venkata Subbaraju and Others v. Chintalapati Subbaraju and Others [ AIR 1968 SC 947 ]. She further pointed out that when a Will is interpreted, it is the duty of the court to avoid intestacy. In support of her contention, relied on the decision of the Supreme Court in Kalidindi Venkata Subbaraju and Others v. Chintalapati Subbaraju and Others [ AIR 1968 SC 947 ]. She further pointed out that when a Will is interpreted, it is the duty of the court to avoid intestacy. In support, the decision of the Single Bench of this Court in Parukutty Amma v. Parukutty Amma [ 1999 (1) KLT 593 ] is relied. It is also her case that the admission of a Will in a prior litigation must be taken into consideration by the court, and in support of her contention, she relied on the decision of this Court in Devassia Mathew v. Mathai [ 1990 (1) KLT 559 ] 17. No doubt, the proposition canvassed by Smt.Keerthi, the learned counsel appearing for the decree holders, appears to be appealing at first blush. While asserting before this Court that, the intention of the testator must be respected by this Court, the learned counsel, Smt.Keerthi, would, however, fairly submit before this Court that Karunakaran Nair was also a beneficiary of the Will and that he derived right, title and interest over the property covered by item No.1. But then, according to the learned counsel, once Karunakaran Nair expired, the property reverted to the other legatees by virtue of the clause under the Will. It is precisely the reason why the legal heirs of Karunakaran Nair were not made parties to the subsequent suit. The infirmity in the aforesaid argument is writ large on its face. Once the decree holders admit that Karunakaran Nair was also a beneficiary under the Will and that he had derived right, title and interest over the property, then it becomes imperative for the plaintiff to implead the legal heirs of the deceased Karunakaran Nair. Failure to do so would entail non-executability of the decree as against the legal heirs of deceased Karunakaran Nair. 18. The presumption regarding the validity of the Will under Section 90 of the Indian Evidence Act , 1872, is of no consequence as far as the present case is concerned. It must be noted that the execution of the Will is not per se disputed by the parties. However, the executability of the Will qua the share inherited by Sri.Karunakaran Nair by virtue of the bequest under the Will, is a subject matter of the dispute. It must be noted that the execution of the Will is not per se disputed by the parties. However, the executability of the Will qua the share inherited by Sri.Karunakaran Nair by virtue of the bequest under the Will, is a subject matter of the dispute. Therefore, when the executability of the decree is being questioned in an application under Order-XXI Rule-97 of the Code of Civil Procedure and the court is called upon to decide the rights of the parties inter se under Order XXI Rule 101 of the Code of Civil Procedure , the acceptability of the Will is not an issue to be considered. 19. Coming to the next question regarding the operation of the restrictive covenant in the Will, the learned counsel for the decree holders is assertive in her submission that the intention of the testator must be given effect to by this Court. No doubt, while interpreting a Will, the intention of the testator must be respected. But then, the further question is whether the legacy under the Will can lapse by incorporating a restrictive covenant to deprive the propounder, his share, which he is otherwise entitled to. This Court cannot remain oblivious of the fact that, late Sri.Karunakaran Nair, the predecessor- in-interest of the appellants, had already derived the right, title and interest by virtue of the bequest when Nambi Nair, the testator, died in the year 1928. The decree holders do not dispute the aforesaid fact. However, they seek to place reliance on the restrictive covenant to contend that the rights once devolved upon Karunakaran Nair would revert to the other legatee’s consequent to his death. A restrictive covenant in a Will which prevents the legatee from enjoying the legacy must always be viewed as detrimental to the interest of the legatee. 20. In this context, it is pertinent to mention that a restrictive clause which impairs the right of a legatee from enjoying the bequest under the Will came up for consideration before the Privy Council in Tiruchendur Sri. Subramania Swami Temple Vs P. Ramaswamia Pillai & Ors [AIR 1950 Privy Council 32], wherein it was held that when a bequest takes place, the beneficiary is entitled to take the whole of the property unless the Will intends to give only a restrictive bequest. 21. Subramania Swami Temple Vs P. Ramaswamia Pillai & Ors [AIR 1950 Privy Council 32], wherein it was held that when a bequest takes place, the beneficiary is entitled to take the whole of the property unless the Will intends to give only a restrictive bequest. 21. In Madhuri Ghosh and Anr vs Debobroto Dutta and Anr [ (2016) 10 SCC 805 ], the Supreme Court held that when an absolute bequest is made in a Will, any subsequent bequest made qua the same property will be of no effect. 22. Turning to Section 95 of the Indian Succession Act , 1925, this Court finds that where a property is bequeathed to a person, he takes the property without any limitation, unless it appears from the Will that only a restricted interest was intended for him. From the submissions raised across the bar by the respective parties, this Court finds that the testator did not intend to grant a restricted interest to late Karunakaran Nair. 23. A further issue that would arise for consideration is, can the appellants ignore the restrictive covenant under the Will? Admittedly, the parties were governed by the pristine Marumakkathayam law. The parties belonged to the Malabar area, which was then governed by the Madras Marumakkathayam Act, 1932. Admittedly, the Will was executed prior to the coming into force of the Madras Marumakkathayam Act. But, then, since it is not disputed before this Court that Karunakaran Nair was entitled to hold the respective shares over the property, the rights devolved upon Karunakaran Nair by virtue of the Madras Marumakkathayam Act, 1932, which later came to be abolished by the State of Kerala when the Kerala Joint Hindu Family System (Abolition) Act , 1975 was enacted, cannot be ignored by this Court. Section 4 (1) of the Kerala Joint Hindu Family System (Abolition) Act , 1975 entitled Karunakaran Nair to hold an independent share along with the other legatees under the Will. The rights conferred upon Karunakaran Nair by virtue of Section 4 (1) of the aforesaid Act cannot be taken away by a restrictive covenant under the Will. Therefore, when Karunakaran Nair died in the year 2009, the right, title and interest over the extent of share which Karunakaran Nair had, would automatically devolve upon the appellants, and therefore, the appellants were necessary parties to OS No.56/2011, and non-impleading them would render the decree inexecutable against them. Therefore, when Karunakaran Nair died in the year 2009, the right, title and interest over the extent of share which Karunakaran Nair had, would automatically devolve upon the appellants, and therefore, the appellants were necessary parties to OS No.56/2011, and non-impleading them would render the decree inexecutable against them. 24. It is beyond cavil that, the members of the tharavad decided to get themselves separated and hence filed the suit for partition. The collusive nature of the suit is writ large on the face because the plaint claim remained undisputed by the other defendants. Therefore, in all fairness, the legal heirs of Karunakaran Nair also ought to have been arrayed as defendants in the suit. Therefore, the finding rendered by the executing court that, as regards item No.1 of the claim schedule, the appellants failed to establish an independent right, cannot be sustained. In the light of the fact that the claim of the appellants is sought to be objected on the ground of the restrictive covenant in the registered Will No.25/1908, it becomes inevitable for this Court to hold that, the moment the claim is objected on the ground of restrictive covenant, the right of the appellants over the plaint item No.1 stands automatically proved. At any rate, since the appellants were not made parties in OS No.56/2011, the decree passed in OS No.56/2011 is not binding on them and the obstruction made by them is legal. 25. Coming to the claim as regards item No.2, it becomes obvious that the executing court failed to notice the findings rendered in OS No.227/1995. The reference made by the court to the judgment of this Court in RSA No.1256/2010 is completely misplaced. A reading of the judgment of this Court in RSA No.1256/2010 makes it explicitly clear that the finding rendered in the suit will not operate as res judicata against late Karunakaran Nair or against the persons claiming under him in a subsequent suit or by persons claiming under him. 26. Still further, this Court cannot ignore the fact that OS No.227/1995 was not decided on merits and the same was dismissed only on technical reasons. 26. Still further, this Court cannot ignore the fact that OS No.227/1995 was not decided on merits and the same was dismissed only on technical reasons. In Sundaram @ Meenakshisundaram R.M. Vs Sri Kayarohanasamy and Neelayadhakshi Amman Temple (Through its Executive Officer) Nagapattinam, Tamil Nadu [2022 KHC 6716], the Supreme Court considered the question as to whether, when a suit is dismissed for technical reasons, which decision was not an adjudication on the merits of the dispute, and that the second appeal was dismissed, granting liberty to file a fresh suit, constitutes res judicata or not. It was held that, the subsequent suit is not barred by res judicata. Applying the principles to the facts of the case, it is beyond doubt that none of the parties to RSA No 1256/2010 challenged the observations of this Court that the findings in OS No.227/1995 will not operate as a bar in subsequent proceedings. Therefore, when OS No.56/2011 is decreed and its executability is questioned on the ground that late Karunakaran Nair had an independent right over the property, the executing court ought to have entertained the application and adjudicated their rights in its correct perspective. Having not done so, this Court is of the considered view that a patent error has crept into the consideration of the entire issues by the executing court. 27. Having concluded so, the next question to be considered is, what relief the appellants are entitled to. Normally, on a finding that the clause in the Will providing for reversion of legacy is inoperative, the decree becomes inexecutable against the appellants. However, it must be noticed that the executing court did not deem it appropriate to consider the claim on merits and decide to what extent the claim petitioners are entitled to succeed. At any rate, the appellants cannot have a claim as regards the entire property covered by the Will. Once it is found that the decree in OS No.56/2011 is inexecutable qua the share of the appellants, the further question is to what extent the parties to the suit are entitled to execute the decree. This is a matter, which should gain the attention of the executing court. 28. Once it is found that the decree in OS No.56/2011 is inexecutable qua the share of the appellants, the further question is to what extent the parties to the suit are entitled to execute the decree. This is a matter, which should gain the attention of the executing court. 28. Resultantly, this Court answers the substantial questions of law framed in the appeal in favour of the appellants as follows: a) The decree in OS No.56 of 2011 is inexecutable qua the appellants since they, being necessary parties to the suit, were not impleaded. b) Claim petition preferred by the appellants under Order-XXI Rule-97 of the Code of Civil Procedure is maintainable. c) The appellants are not bound by the clause in the Will which provides for reversion of the legacy of late Karunakaran Nair. d) Findings in OS No.227/1995 will not operate as res judicata since the suit was dismissed for technical reasons, i.e. non impleading of necessary parties. 29. As a result of the above discussion, the order dated 11.3.2019 in EA No.404/13 in EP No.212/13 in FDIA No.2701/11 in OS No.56/11 on the files of the Principal Munsiff’s Court, Kannur as confirmed in AS No.48 of 2019 by the Sub Court, Kannur as per judgment dated 28.05.2020 is set aside. Consequently, EA No.404/2013 in EP No.212/13 in FDIA No.2701/11 in OS No.56/11 will stand restored to the files of the Principal Munsiff’s Court, Kannur. The Munsiff’s Court, Kannur is directed to reconsider EA No.404 of 2013 in the light of observations and findings rendered by this Court as above and decide the extent of the property to which the appellants herein are claiming and thereafter proceed with the execution of the decree in OS No.56 of 2011 in respect of the balance property, if any. The decision as directed by this Court shall be taken, at any rate, before the closure of the courts for Christmas Vacation. Parties are directed to appear before the Principal Munsiff’s Court, Kannur on 6.10.2025. The appeal is allowed as above.