The Judgment of the Court was delivered by

Govinda Menon, J.:— The suit out of which this second appeal arises was for recovery of a sum of money by sale of the plaint items on the strength of a mortgage deed Ex. A.1 dated 2-5-1934 for a sum of Rs. 750 executed by one Krishna Menon, karnavan of the tarwad of defendants 1 to 4 in favour of the plaintiff. Defendant 5 is the purchaser of the jenm right, etc. in some of the mortgaged items in court auction under Ex. B.10 The other defendants were impleaded either as persons in possession or as mortgagees.

2. The main contest by defendant 5 was that the hypothecation deed was not valid and binding on the tarward of defendants 1 to 4 and as such the plaint items could not be sold in enforcement of that document. There were other pleas raised by her with which at this juncture we are not concerned. The trial Court found that to the extent of Rs. 635-7-11 the mortgage was binding on the tarwad and decreed the suit for sale of the properties to that extent. Defendant 5 preferred an appeal to the lower appellate Court, contending that Ex. A-1 was totally invalid and unenforceable. The plaintiff did not put forward any memorandum of cross-objections with regard to the sum not found binding. The learned Sub-ordinate Judge accepted the objections raised by defendant 5 and allowed the appeal, thereby dismissing the suit. The second appeal is filed by the plaintiff.

3. Though the trial Court found that defendant 5 as purchaser of the jenm rights etc. over some of the mortgaged items has got herself substituted to all the rights and liabilities of the mortgagors tarwad with regard to these items, and therefore, could justifiably object to the validity of the mortgage, on the finding that to the extent, of Rs. 635-7-11 it was binding, that Court gave the decree.

4. Before the learned Sub-ordinate Judge one of the main points urged was that being a stranger to the tarwad, defendant 5 cannot attack the validity of the mortgage, which could be done only by a member of the family and by none else. The learned Sub-ordinate Judge, following the decision in Cherutty v. Saraswati Ammal, 1945 Mad WN 464 1945 Mad 457 (A) AIR 1945 Mad 457 (A) held that as at least one member of the tarwad, namely, defendant 4, had impugned the validity of Ex. A.1, it is open to defendant 5 to contest the binding nature of that document. The learned Judge held also that no portion of the consideration was binding on the tarwad.

5. The first question for consideration is whether it is open to defendant 5 to allege and prove the invalidity of the mortgage. What is urged by Mr. N. Sundara Iyer on behalf of the appellant is that Ex. B. 10, which is the sale certificate issued in favour of defendant 5 in O.S No. 255 of 1934, on the file of the District Munsif of Walluvanad, as a result of which these properties came to be sold and purchased by defendant 5, it has been stated in the colum relating to encumbrances charged on the properties that a sum of Rs. 750 and interest due under the document No. 640 of 1934 was an encumbrance.

6. The reference is to Ex. A1 and the mortgagee's name is also mentioned thereunder. In the column relating to remarks, what is stated is that the jenmam Kanom, Kuzhikur and chamayam rights which belong to the tarwad have been sold after reserving the encumbrances. Relying upon these recitals, the learned counsel for the appellant urges that what defendant 5 has obtained is only the right, title and interest of the tarwad, namely, jenmam, kanmam, kuzhikur and chamayam rights, subject to the encumbrances in favour of the plaintiff. If that is so, having purchased in court auction, only the residuary rights after reserving the mortgage, it is not open to defendant 5 now to come forward and say that the mortgage is not binding.

7. Krishnaswami Nayudu, J. who heard the second appeal in the first instance being of the opinion that a substantial question is involved in this argument, has referred the case to this Bench.

8. We have, therefore, to see what exactly is the position occupied by defendant 5, as a result of the purchase under Ex. B. 10. No doubt in the remarks column, there is a mention that the rights of the tarwad have been purchased subject to the encumbrance. In our opinion, what is meant is that if there are binding and valid encumbrances then the purchaser would be bound by them. What is the effect and the nature of the sale certificate is then to be noticed.

9. In a mortgage suit the purchaser under such conditions is certainly a representative of the holder of the rights of the mortgagor. Whether the rights of the mortgagee have also become submerged in the purchase need not be considered now. But one thing is clear, that when in execution of I a hypothecation decree the equity of redemption of the mortgagor is sold and purchased by a third party, certainly he steps into the shoes of the mortgagor, having all the rights, liabilities and privileges, which the mortgagor had.

10. That being the case, it seems to us that under Ex. B. 10 in the place of the tarwad of defendants 1 to 4, defendant 5 is substituted, the result being that so far as defendant 5 is concerned, she has got every right, which the tarwad could exercise. Now there is no doubt whatever that the mortgagor, an entity, or a juristic person as award, acts through its accredited representative, the karnavan. Therefore if a karnavan acts in excess of his powers, then it is open to any member of the tarwad to avoid the transaction and claim the properties on behalf of the tarwad.

11. The decision in Chappan v. Ram, 37 Mad 420 : AIR 1914 Mad 445 (B) is an authority for the proposition. It is contended on behalf of the appellant that the transaction is not void but voidable. But even if that is so, as has been held in a number of decisions of this Court, there is no necessity for a junior member of a tarwad, in impugning a transaction by the karnavan, to file a suit to have it set aside. He can ignore it and recover possession of the property, if the acts of the karnavan cannot be said to be within his powers. Under these circumstances, and since defendant 5 has stepped into the shoes of the mortgagor if the mortgagor is entitled to question the transaction defendant 5 is equally entitled to do so.

12. The juristic person styled the tarwad is within its rights in questioning the mortgage. That can be done by any member acting on behalf of the tarwad, and since the rights of the tarwad had devolved upon defendant 5 there is no doubt whatever that she can question the validity of the mortgage. Mr. Sundara Iyer argued that the suit was originally decreed ex parte, and it was only as against defendant 5 that the ex parte decree was set aside, and retrial ordered. That being the case, the mortgage decree has become final as against the tarwad. The answer to this question is this.

13. When the entire rights of the tarwad have passed on to a third party, the mortgage decree against persons, who have no rights in the property is a nullity and cannot bind the property. It is as if a decree has been passed by a Court against persons thoroughly unconcerned with the mortgage alone being made parties. Therefore we do not think there is any bar for defendant 5 to object to the mortgage by the ex parte decree against defendants 1 to 4.

14. The decision in 1945 Mad WN 464 : AIR 1945 Mad 457 (A) on which the learned Sub-ordinate Judge relies is authority for the proposition that when a member of the tarwad questions the validity of a certain transaction, along with him, a stranger who is also interested in questioning it can join. It is unnecessary for the purpose of this case to rely on the observations of the learned Judge in that case. For there is no doubt that all the rights of the tarwad had devolved upon defendant 5. The principle that a stranger cannot attack the binding nature of a transaction, where the members of the tarwad did not attack the same is applicable only to such instances where that stranger has not vested in him proprietary rights in the property which the tarwad had.

15. The plaintiff melcharthdar in the case just cited was only a second mortgagee as it were from the family. He does not stand in the shoes of the family at all. It is because of that situation, that it becomes obligatory that one who is entitled to question the transaction should join him in doing so. We are, therefore, clearly of the opinion that it is open to defendant 5 to impugn the validity or otherwise of Ex. A.1

16. Mr. Kuttikrishna Menon, for the respondent, raised a further contention that because the sale certificate stated that the properties were sold subject to the mortgage that alone would not preclude the purchaser from contesting the binding nature of the mortgage, unless there was a decision by the Court at the time the sale proclamation was settled under O. 21, R. 62, that there was a valid and binding mortgage on the property. He relied upon various cases.

17. In Daso Polai v. Narayana Patro, 57 Mad 195 : (AIR 1933 Mad 879) (C), it was held that the Civil Procedure Code makes a clear distinction between a case where property is sold subject to a mortgage as under O. 21, R. 62, and a case in which notice of an alleged mortgage is given in the proclamation of sale as under O. 21, R. 66. In the former case the Court is satisfied of the existence of the mortgage and sells only the judgment-debtor's equity of the redemption and the purchaser has to redeem the mortgage. In the latter case the purchaser buys the property with notice of the mortgage, subject to such risks as the notice might involve.

18. In other words the executing Court does not decide whether the mortgage subsists or not and the purchaser is not precluded from questioning the validity of the mortgage. In the instant case it has not been shown that there has been any adjudication of the validity of the mortgage, in accordance with the provisions of O. 21, R. 52 of the CPC.

19. Mookerjee and Panton, JJ. in Kalidas Choudhuri v. Prasanna Kumar Das 47 Cal 446 : (AIR 1920 Cal 354) (D), were of the opinion that where a purchaser merely buys an estate, which is under a mortgage, but does not take it subject to the encumbrances nor undertakes to discharge it, he is not precluded from impeaching the validity of the mortgage. The distinction between the two classes of cases depends upon the question whether mere notice of the alleged mortgage has been given in the proclamation. To find out whether the property has been sold subject to the mortgage one has to see whether there has been adjudication under O. 21, R. 62 of the CPC.

20. The other case on which the learned counsel relies is Sambasiva Aiyar v. Subramania Pillai AIR 1936 Mad 70 (E), where there are observations which are similar. A somewhat similar case ta point is the decision in Ramnath v. Sunderbai, ILR 1948 Nag 310 : (AIR 1948 Nag 290) (F). Where it is observed that an auction purchaser, who purchased the entire joint family interest in an item of property can impeach the mortgage for want of legal necessity, and the learned Judge cites as authority for that statement, Ram Kishore v. Baijnath 3 Luck 598 : (AIR 1928 Oudh 287) (G) and, Shyam Behari Singh v. Rameshwar Prasad Sahu*, 20 Pat 904 : (AIR 1942 Pat 213) (H).

21. The principle to be observed in such matters is whether the purchaser is entitled to the entire rights of the family as a result of his purchase. There can be no doubt whatever that after the purchase under Ex. B. 10 the tarwad of defendants 1 to 4 did not have any vestige of a right over the properties in question, all of which have come into the ownership of defendant 5.

22. We may also in this connection refer to the decision in Govinda Mohapatra v. Venkatakrishnayya, AIR 1950 Orissa 6 (I) which contains certain useful observations. Under these circumstances, there can be no doubt whatever that it is perfectly within the competence of defendant 5 to question the validity of Ex. A.1

23. The further argument of the learned counsel for the appellant is that the mortgage is binding on the family of defendants 1 to 4. The learned Sub-ordinate Judge in paras. 8 and 9 of his judgment discusses this question, and holds that the mortgage was executed at a time when a suit was pending against Krishna Menon for moving him from karnavasthanam, & eventually he was removed for his misdeeds and mismanagement.

24. A mere glance at Ex. A.1 shows that most of the items of consideration are such as cannot be said to be binding on the family at all. The plaintiff never made any enquiries before advancing the money. Most of the members of the tarwad were living separately and were maintaining themselves. The karnavan was highly indebted and also filed an insolvency petition. It was under these circumstances that the mortgage came to be executed. We entirely agree with the elaborate discussion by the learned Sub-ordinate Judge about the invalidity of the mortgage contained in paras. 8 and 9 of his judgment and that being a question of fact is binding upon us. No other question argued before us. The second appeal therefore fails and is dismissed With costs.

V.R.B

25. Appeal dismissed.