DHANALAKSHMI BANK LTD Vs. NEELAKANTAN NAMBUTHIRIPAD
HIGH COURT OF KERALA
DHANALAKSHMI BANK LTD., TRICHUR
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(1.)I see nothing in the Hindu Succession Act, 1956, which affects S.62 of the Cochin Nayar Act by which this case is governed, except to the extent to which that section says that the interest of a member of an undivided tarwad in the tarwad property is not heritable. Nor do I see how, even if I am prepared to subscribe to it, the proposition stated on the authority of Muneswari v. Jagal Mohini (AIR 1952 Calcutta 368) that "an attachment of an undivided share of a member of a Mitakshara Joint family during his lifetime operates as a division of interest and causes a severance of status" can be of any assistance to the appellant decree holder seeing that the question we have to consider is not what would be the effect of such an attachment if made, but whether such an attachment can be made at all having regard to what S.62 of the Cochin Nayar Act and S.60 of the Civil Procedure Code say.
(2.)S.62 of the Cochin Nayar Act runs thus:
"62. Until partition, no member of the tarwad shall be deemed to have a definite share in the tarwad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein."
The provisions of the Hindu Succession Act which are put forward as affecting this section, and, therefore, by reason of S.4 of that Act, repealing it, are S.7(1) and 30. But, S.7(1) says nothing whatsoever as to the nature of the interest held by a marumakkathayee Hindu in the property of his tarwad during his lifetime. Neither does S.30. What S.7(1) does is to provide for the devolution of that interest on the death of the member concerned, whether by testamentary or intestate succession. This devolution is to be according to the provisions of the Act and not according to marumakkathayam law; and, for this purpose the explanation to the sub-section defines the interest of the member as the share that would have fallen to him if a partition had been made on a per capita basis immediately before his death. The fiction goes no further and it in no way implies that the interest held by him during his lifetime is anything other than an undefined, undivided interest. S.30 only says that a Hindu may make a testamentary disposition, in accordance with law, of property which is capable of being so disposed of by him and that the interest of a Hindu in coparcenery property or the interest of the member of a tarwad in tarwad property is property capable of being so disposed of within the meaning of the section. About the nature of that interest during the lifetime of the member, the section is silent.
(3.)The discussion in Para.4 of the judgment in Bank of New India Ltd. v. Ponnamma ( 1960 KLT 698 FB) makes it clear that, there is no contradiction between S.7 and 30 of the Hindu Succession Act on the one hand and S.62 of the Cochin Nayar Act on the other and no supersession of the latter provision by the two former provisions, excepting, I must qualify as I have already done (but shall not hereafter) in so far as S. 62 of the Cochin Nayar Act says that the interest of a member in the tarwad property is not heritable - the statute considered in the Full Bench case namely, the Travancore Kshatriya Act, S.46 contains no such provision. There is therefore nothing in S.62 of the Cochin Nayar Act on which the repeal in S.4 of the Hindu Succession Act can operate. The provision in S.7(1) and 30 of the latter Act for succession to the interest of a member of a tarwad in tarwad property on his death is not provision with regard to the nature of that interest during his lifetime, or with regard to its liability to seizure in execution of a decree obtained against him personally, so as to bring clause (a) of S.4(1) of. the Hindu Succession Act into play; nor is there anything in S.62 of the Cochin Nayar Act inconsistent with any of the provisions of the Hindu Succession Act so as to bring clause (b) into play.
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