KALIANNA GOUNDAN Vs. MASAYAPPA GOUNDAN

JUDGEMENT

(1.) In Ramanayya V/s. Rangappayya (1893) I.L.R. 17 Mad. 144 this Court held that where there is an attachment before judgment of family property in a suit against a member of an undivided Hindu family who is not sued as the representative of the family, and the defendant dies before the decree is passed, the right of the survivor in the property is not affected. The basis of this decision is that in such a case the attachment is merely intended to protect the property from alienation by the defendant pending the decision of the suit. Until the decree is passed the attachment cannot operate to render the property attached available for sale in execution. This judgment has been accepted as correctly interpreting the law for nearly fifty years, but the learned advocate for the appellant suggests that the decision is wrong and that the law should be restated.

(2.) In the present case two brothers Muthu Goundan and Masayyappa Goundan were joint. On the 21 of October, 1930, Muthu Goundan executed a promissory note in favour of Thanda Goundan the father of the appellant. In 1932, Thanda Goundan filed a suit against Muthu Goundan to enforce payment of the amount due on the promissory note. On the 18th of July, 1932, Thanda Goundan obtained an order of attachment before judgment in respect of Muthu's share in the joint family properties. On the 31 of October, 1932, Muthu died and his widow was made the defend-ant as the representative of his estate. On the 8 March, 1933, the Court granted the plaintiff the decree which he sought and on his death his son, the appellant, instituted proceedings in execution. In those proceedings it was ordered that the property should be sold on the 4 of November, 1936. On the 12 of October, 1936, Masayyappa Goundan, the respondent in this appeal, filed a petition asking for the discharge of the order of attachment. He claimed that he was joint with his brother and that on his brother's death the whole estate became his by reason of the rule of survivorship. This claim was allowed and the consequence was that on the 21 of March, 1938, the appellant filed the suit out of which this appeal arises to establish his rights to attach Muthu Goundan's share in the family properties. The appellant denied that Muthu and Masayyappa were joint, but this issue was decided against him by the Subordinate Judge and the District Judge concurred on appeal. As it was established that the brothers were joint the case was governed by Ramanayya V/s. Rangappayya (1893) I.L.R. 17 Mad. 144. Consequently the suit failed. This appeal is from the decree passed by the District Judge in the appeal from the decree of the Subordinate Judge.

(3.) In Krishnarao V/s. Lakshmana Shanbogue (1881) I.L.R. 4 Mad. 302, this Court held that where the interest of an undivided member of a Hindu family in the joint property has been attached in execution of a decree passed against him personally and the judgment-debtor dies pending the attachment a valid charge is created in favour of the plaintiff and this prevents the accrual to the other coparceners of the right of survivorship. This decision was followed in Lakshmana Aiyar V/s. Srinivasa Aiyar , Krishnamachariar V/s. Krishnamachariar and Sankaralinga Mudaliar V/s. Official Receiver of Tinnevelly . It is said that this principle should apply in a case where there has been an attachment before judgment and the defendant dies before the passing of the decree. There is, however, a very great difference between an attachment before judgment and attachment after judgment. As pointed out in Ramanayya v. Rangappayya (1893) I.L.R. 17 Mad. 144, until a decree has been obtained the attachment cannot operate to render the property available for sale in execution. The Court merely holds the property pending the decision of the suit. Where the attachment has taken place after judgment the decree-holder has what amounts to a charge.