AMMALU AMMA Vs. LAKSHMI AMMA
LAWS(KER)-1963-8-46
HIGH COURT OF KERALA
Decided on August 31,1963

AMMALU AMMA Appellant
VERSUS
LAKSHMI AMMA Respondents


Referred Judgements :-

KUNHIKRISHNAN V. ANANTHARAMAN [REFERRED TO]
KUNHIKRISHNAN V. ANANTHARAMAN [REFERRED TO]
SUBRAMANYAN V. NARAINA [REFERRED TO]
DHANALAKSHMI BANK LTD .,TRICHUR V. NEELAKANTAN NAMBUDIRIPAD AND ANOTHER [REFERRED TO]
KUNCHI AMMA V. MINA­KSHI AMMA [REFERRED TO]
MADHAVI AMMAL V. SUBRAMANIAN [REFERRED TO]
SIDHESHWAR MUKHERJEE VS. BHUBAESHWAR PRASAD NARAIN SINGH [REFERRED TO]
BENGAL IMMUNITY COMPANY LIMITED VS. STATE OF BIHAR [REFERRED TO]
POTTI LAKSHMI PERUMALLU VS. POTTI KRISHNAVENAMMA [REFERRED TO]
COMMISSIONER OF INCOME TAX GUJARAT VS. KESHAVLAL LALLUBHAI PATEL [REFERRED TO]
AGA MIRZA AHMAD VS. BHUDAR CHANDRA [REFERRED TO]
ANTHERMAN VS. KANNAN [REFERRED TO]
TRILOK SINGH VS. DWARKA PRASAD GUPTA [REFERRED TO]


JUDGEMENT

C.A.VAIDIALINGAM,J. - (1.)SUBJECT to what is stated by me,regarding my views about the interpretation to be placed on the relevant provisions of the Madras Marumakkathayam Act,1932(Act No.XXII of 1933)"hereinafter referred to as the Madras Act,arising for decision in C.R.P.No.619/63,I agree with the majority view,just now expressed regarding their decision in C.R.P.Nos.1075/62,1120/62 and A.S.179/63,which arise under the Travancore Nayar Act,( Act II of 1100 ),the Travancore Ezhava Act(Act III of 1100)and the Cochin Nayar Act(Act No.XXIX of 1113)respectively.But with regard to the majority decision,on the question of the right of a member of a Marumakkathayam tarwad governed by the Madras Act,to alienate his undivided interest,or the right of a creditor to attach the undivided interest of such a member of a Marumakkathayam tarwad,governed by the provisions of the Madras Act,with respect,I regret,I am not inclined to agree.
(2.)WITH reference to the decision of the majority expressed under the other three enactments,referred to earlier,I am agreeing with the opinion expressed by them only because of certain special provisions contained in those statutes,to which I will make a reference immedi­ately,before I discuss the question arising for consideration in C.R.P.619/1963.
In C.R.P.1075/62 the order,which is under attack,is one passed by the learned Munsiff of Haripad,overruling the objections raised in a claim petition filed under O.XXI,r.58,C.P.C .,regarding an attachment effected by the decree -holder,of the undivided interest of defendants 1 and 3 in their tarwad property,in execution of a decree obtained by him,against those defendants per­sonally.The respondent decree -holder in that case,had obtained a decree in O.S.368/1952 on the file of the Court of the Munsiff,Haripad,against the defendants therein;and in execution of that decree,attached their undivided interest in their tarwad property.Those defen­dants are governed by the Travancore Nayar Act(Act II of 1100 ).One of the members of the defendants tarwad filed in a claim petition,the order in which is under attack in this revision petition,under O.XXI,r.58,C.P.C,objecting to the attachment on various grounds.One of the objections raised by the claimant was that inasmuch as the judgment -debtors,who are members of the tarwad,had not made any claim for partition,their undivided in­dividual interest in the tarward property cannot be attach­ed.The learned Munsiff overruled those objections,holding that the decree -holder is entitled to attach the interest of defendants 1 and 3 in the tarwad property and the question as to what exactly is the extent of the interest that could be attached and brought to sale can be consi­dered more appropriately when the decree -holder files a suit for partition.

(3.)IT is only necessary to note two sections of the Travancore Nayar Act which are material for the present purpose,namely sections 33 and 39.Sections 33 and 39 occur in Chapter VII,relating to the 'Partition of tarwad property ' ;.Section 33 which relates to the right to claim partition,is as follows:"
"33. Right to claim partition ."Subject to the provisions of sections 34,35 and 36,every adult member of a tarwad shall be entitled to claim his or her share of the properties of the tarwad."

It will be seen that the right to claim partition under the above section is made subject to the three sections mentioned therein.Section 39,which relates to the nature of the right to tarwad property before partition,is as follows:"

"39. Nature of right to tarwad property before partition. "Until partition,no member of the tarwad shall be deemed to have a definite share in tarwad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein."

It will be seen that though a right is given under section 33 to every adult member of a tarwad to claim his or her share of the properties of the tarwad,never­theless section 39 makes it very clear that until partition,no member of the tarwad can be considered to have a definite share in the tarwad property liable to be seized in execution.It also makes it very clear that no member of the tarwad,until partition,shall be deemed to have any alienable or heritable interest therein.So far as the pro­hibition placed upon heritable interest under section 39 is concerned,that must be considered,to have been abrogated by the provisions made in sections 7 and 30 of the Hindu Succession Act,1956(Central Act 30 of 1956 ).Therefore,in view of the specific provisions contained in section 39 of the Travancore Nayar Act,it must be held,in this case,that inasmuch as there has been no claim for partition made by defendants 1 and 3,no execution can be levied as against their undivided interest in the tarwad properties.It is because of this specific provision contained in section 39 of the Travancore Nayar Act,that I agree with the majority view just now expressed.

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