T M SUBRAMANYAN TIRUMURUPU Vs. TENARAINA TIRUMURUPU

JUDGEMENT

(1.) This is an appeal against the order of the learned Subordinate Judge of South Kanara directing attachment of the shares of the petitioners in the property of the tarwad of which they are the junior members in execution of a decree in O.S. No. 37 of 1931 on the file of the same Court obtained against them for their personal debts. The learned Subordinate Judge took the view that whatever might have been the law before the passing of the Marumakkathayam Act of 1933, after the passing of that Act, their interest is attachable by virtue of Section 38 of the said act. This view is canvassed by Mr. Kuttikrishna Menon. His contentions are that under the Marumakkathayam law, by which the appellants are governed, there was no interest of the appellants in the property capable of attachment, that the Act has not in any way effected an alteration of the law in this respect, that the only right which a junior member has is a claim for partition under Section 38 if he fulfils the conditions but not otherwise, and that unless that right is exercised and he obtains the property by virtue thereof, he has no disposable interest therein. To appreciate the contentions, it is necessary to define precisely what the interest of a junior member is in the property of the tar wad to which he belongs and how the Act has effected an alteration in regard to his rights in the said property. Under the Marumakkathayam law no member of a Malabar tarwad has got any definite share but the property of the tarwad is vested in all the members comprising the tarwad. The tarwad is impartible except with the consent of all the members or probably with the consent of the adult members of the family and by reason of this limitation no individual member can alienate the property nor can his interest therein be seized and sold in execution by a creditor for his personal debt. This incapacity is due to the fact of there being no right of compulsory partition and therefore no right to have the interest separated for separate enjoyment. Nevertheless the interest is proprietary and a vested interest though joint. It is to remedy this incapacity an Act was passed to amend the law of partition in certain respects in order to confer a right of partition on the members of a tarwad under certain conditions and to enable them to have their interests separated so that they can deal and dispose of them subject to the conditions specified in the Act. It is to give effect to this object that Section 38 was enacted and the relevant portion, so far as is applicable to the present case, runs thus: Section 38. (1) Any tavazhi represented by the majority of its major members may claim to take its share of all the properties of the tarwad over which it has power of disposal and separate from the tarwad; provided that no tavazhi shall claim to be divided from the tarwad during the lifetime of an ancestress common to such tavazhi and to any other tavazhi or tavazhis of the tarwad, except with the consent of such ancestress, if she is a member of the tarwad. (2) The share obtained by the tavazhi shall be taken by it with the incidents of tarwad property. Explanation. - For the purpose of this chapter, a male member of a tarwad or a female member thereof without any living child or descendant in the female line, shall be deemed to be a tavazhi if he or she has no living, female ascendant who is a member of the tarwad.

(2.) It will thus be seen that a male or female member of a tarwad constituting a tavazhi within the meaning of the explanation is entitled to claim partition and separate from the tarwad. The right of partition is therefore in unambiguous terms conferred upon an individual member who constitutes a tavazhi and it is conceded in this case that appellants 1 and 2 fulfil the conditions imposed by the Explanation and constitute a tavazhi. Therefore on the date of the attachment in question, appellants 1 and 2 were entitled to claim their shares in the property of the tarwad and separate therefrom. If this right is thus vested in them by virtue of the Act, the creditor is entitled to seize and sell the interest which they have and which is capable of separation and definition. Under the Mitakshara law it is well settled that in certain provinces a member of a joint family is incapable of alienating his share for separate debts without the consent, express or implied, of all the other members, but this incapacity was held not to prevent a creditor from seizing and selling his share in execution of a decree obtained against him. This was definitely settled by the Judicial Committee of the Privy Council in a very early decision reported in Deendyal Lal V/s. Jugdeep Narain Singh (1877) L.R. 4 I.A. 247 : I.L.R. 3 Cal. 198 (P.C.). The pointed out the distinction between the sale of a share in a joint estate under an execution and an alienation by the voluntary act of a co- sharer and referred with approval to the observations of Peacock, C.J., in Sadabart Prasad Sahu V/s. Foolbashkoer (1869) 3 Beng.L.R. 31 (F.B.). In that case one Bhagwan Lal who was a member of a joint family along with his nephew governed by the Mitakshara Law, died without leaving any male issue. During his life time he executed a possessory mortgage in respect of his undivided share in order to raise money on his own account and not for the benefit of his family. A question arose after his death whether the nephew could recover the property without redeeming the same. Their Lordships held that he could do so, as Bhagwandas had no authority, without the consent of his co-sharers, to mortgage his undivided share in a portion of the joint family property, in order to raise money on his own account and not for the benefit of the family. In dealing with this question, Peacock, C.J., observed that the case of an involuntary alienation might be different. He remarked thus: It is unnecessary for us to decide whether, under a decree against Bhagwan in his lifetime, his share of the property might have been seized. According to the decision in Stokes Reports, it might have been seized, but the case as against Bhagwan and that against the survivors is very different. So long as Bhagwan lived, he had an interest in this property which entitled him, if he had pleased, to demand a partition, and to have his share of the joint estate converted into a separate estate.

(3.) These observations were cited with approval by the Judicial Committee in Deendyal Lal V/s. Jugdeep Narain Singh (1877) L.R. 4 I.A. : 247 : I.L.R. 3 Cal. 198 (P.C.) above quoted and made the basis of their decision. In that case their Lordships instanced the case of a partnership in support of the view they were enunciating. Under the law of partnership a partner could not without the consent of his co-partners alienate his share so as to introduce a stranger but it is open to a creditor to seize and sell his share and the same principle would be applied to the shares in a joint undivided estate without unduly interfering with the peculiar rights of the coparceners in such an estate. Thus it will be seen that the foundation of the right of a creditor to seize the share of a coparcener rests on the fact that he has a right to claim partition and convert his share in the joint property into separate property and this position was made clear in a later decision in Madho Parshad Vs. Mehrban Singh (1890) L.R. 17 I.A. 194 : I.L.R. 18 Cal. 157 at 161 (P.C.) where their Lordships explain the scope of this principle thus: Any one of several members of a joint family is entitled to require partition of ancestral property, and his demand to that effect, if it be not complied with, can be enforced by legal process. So long as his interest is indefinite, he is not in a position to dispose of it at his own hand, and for his own purposes; but, as soon as partition is made, he becomes the sole owner of his share, and has the same powers of disposal as if it had been his acquired property. Actual partition is not in all cases essential. An agreement by the members of an undivided family to hold the joint property individually in definite shares, or the attachment of a member's undivided share in execution of a decree at the instance of his creditor, will be regarded as sufficient to support the alienation of a member's interest in the estate or a sale under the execution.