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Case Number

Appeal Against Order No. 282 of 1936 and Letters Patent Appeal No. 44 of 1937.

Advocates

Mr. K. Kuttikrishna Menon for the Appellants.
Mr. K. Narayana Menon for the Respondents.

Judges

Burn
Venkataramana Rao, JJ.

Acts

Art. 182(5) of the Limitation Act.

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Smart Summary

Structured Summary of the Opinion Delivered by Venkataramana Rao, J.

Factual and Procedural Background

This is an appeal against an 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 junior members. The attachment was made in execution of a decree in O.S. No. 37 of 1931 obtained against the petitioners for their personal debts. The Subordinate Judge held that, after the Marumakkathayam Act, 1933, the interests of such junior members are attachable by virtue of Section 38 of that Act. The present appeal challenges that view and other aspects of the execution order.

Legal Issues Presented

Whether, after the Marumakkathayam Act, 1933 (particularly Section 38), the interest of a junior member (a tavazhi) in a Malabar tarwad is a disposable interest capable of seizure and sale in execution of a decree for personal debts.
Whether the learned Subordinate Judge erred in directing attachment of all the shares of the appellants rather than confining attachment to the shares of those appellants who constitute a tavazhi (specifically appellants 1 and 2).
Whether the execution application is barred by limitation.

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. Kuttikrishna Menon)

Under the Marumakkathayam law governing the appellants there was no interest of the appellants in the tarwad property capable of attachment.
The Marumakkathayam Act has not altered the law in this respect; the only right a junior member has is a claim for partition under Section 38 if he fulfills the conditions, and that right does not amount to a disposable interest until partition is actually effected.
Unless the right of partition is exercised and the property obtained by virtue of it, the junior member has no disposable interest that a creditor can attach.
The learned Subordinate Judge erred in directing attachment of all the shares of the appellants rather than restricting attachment to appellants 1 and 2 (who were conceded to constitute a tavazhi).
The execution application was argued to be barred by limitation.

The opinion does not contain a detailed account of any specific arguments advanced by the respondent beyond the Subordinate Judge's holding that Section 38 renders the interests attachable.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Deendyal Lal v. Jugdeep Narain Singh (Judicial Committee of the Privy Council)	The distinction between a sale of a share in a joint estate in execution and a voluntary alienation by a co-sharer; that a creditor may, under some circumstances, seize a member's share in execution even where the member could not voluntarily alienate it.	The Court relied on this decision to support the proposition that a creditor can seize and sell a coparcener's share when that member has a right to demand partition and a defined interest capable of separation.
Sadabart Prasad Sahu v. Foolbash Koer (observations of Peacock C.J. cited with approval)	Peacock C.J. observed that involuntary alienation (e.g., seizure under execution) might be different from voluntary alienation and noted that a living member's interest that entitles him to demand partition could, under execution, be seized.	The Court cited Peacock C.J.'s reservations as approved by the Privy Council to illustrate that the existence of a right to demand partition supports a creditor's right to attach the member's share in execution.
Madho Parshad v. Mehrban Sing (Privy Council)	Explains that a member of a joint family is entitled to require partition and that where partition can be enforced (or where attachment severing a share has occurred) the member's share becomes capable of alienation and sale like separate property.	The Court used this authority to equate the attachment of a member's undivided share in execution with severance sufficient to justify sale by a creditor, grounding the conclusion that Section 38's conferment of a partition right permits attachment.
Stokes' Reports (as referenced)	Referenced as authority for the proposition that under certain decisions a member's share might be capable of seizure under execution.	Cited in the opinion (via Peacock C.J.'s remarks) as part of the line of reasoning supporting seizure in execution where a member has an enforceable right to partition.

Court's Reasoning and Analysis

The Court proceeded by first defining the nature of a junior member's interest under Marumakkathayam law and then assessing the effect of the Marumakkathayam Act, 1933 (particularly Section 38) upon that interest.

Definition of pre-Act position: Under Marumakkathayam law, the property of a Malabar tarwad is vested in all members as a collective (the tarwad is impartible). There is no definite individual share, no right of compulsory partition, and consequently individual members could not alienate property nor could their interest be seized and sold in execution for personal debts.
Purpose of the 1933 Act: The Act was enacted to amend the law of partition in certain respects to confer a right of partition on members (under specified conditions), thereby enabling their interests to be separated and dealt with subject to conditions in the Act.
Construction of Section 38: The Court quoted Section 38 (including the Explanation) and observed that it unmistakably confers on a member who constitutes a "tavazhi" the right to claim partition and separate from the tarwad. The appellants 1 and 2 were conceded to satisfy the Explanation and thus constituted a tavazhi on the date of the attachment.
Legal consequence of the vested partition right: Because the right to claim partition is vested by Section 38, the Court held that the creditor is entitled to seize and sell the interest which is capable of separation and definition. The Court anchored this conclusion on established authorities holding that the foundation for a creditor's right to seize a coparcener's share is the member's right to claim partition and convert his undivided interest into a separate estate.
Reliance on precedent: The Court relied on the Judicial Committee's reasoning in Deendyal Lal v. Jugdeep Narain Singh, Peacock C.J.'s observations in Sadabart Prasad Sahu v. Foolbash Koer (as approved), and the exposition in Madho Parshad v. Mehrban Sing to show that attachment in execution is legally treated as a form of severance (or as sufficient to support alienation) where a right to partition exists or can be enforced.
Response to Section 50 argument: The appellants relied on Section 50 of the Marumakkathayam Act (preservation of existing rules of law except as expressly altered). The Court rejected that reliance, reasoning that the rule preventing compulsory partition had been expressly abrogated to the extent provided in Section 38; therefore Section 50 did not assist the appellants.
Correction of scope of attachment: The Court accepted the appellants' contention that the lower court erred in directing attachment of all the shares of the appellants. The Court held that only the shares of appellants 1 and 2 (who constituted a tavazhi) were properly subject to attachment.
Limitation point: The Court overruled the contention that the execution application was barred by limitation. It held the execution petition was made within three years of an earlier order made on a prior execution petition wherein relief was sought under Order 21, Rule 22, Civil Procedure Code (a notice to judgment-debtors). The Court treated such an application as a "step-in-aid" of execution and held that the earlier order furnishes the starting point for limitation under Article 182(5) of the Limitation Act.

Holding and Implications

Holding: The Court confirmed the decision of the lower Court but modified the order by restricting attachment to the shares of appellants 1 and 2 only. The execution application was held not barred by limitation. Each party was directed to bear his own costs. The Letters Patent Appeal No. 44 of 1937 was dismissed without costs. The written disposition concludes: "Order modified."

Implications:

The direct effect of the decision on the parties is that the attachment in execution is upheld only insofar as it applies to the shares of appellants 1 and 2 (who constituted a tavazhi); the broader attachment of all appellants' shares is set aside.
The Court treated Section 38 of the Marumakkathayam Act as effecting a statutory alteration to the previous rule against compulsory partition to the extent expressed in that section; where Section 38 confers a right to demand partition (i.e., a vested right in a tavazhi), a creditor may seize and sell that member's interest in execution. The opinion indicates no new binding precedent is being created beyond the application of Section 38 together with established authorities.
No broader or novel principle beyond the case's direct consequences was declared; the decision applies the statute and existing authorities to the facts before the Court and modifies the lower court's order accordingly.

If any particular detail sought in these sections is not present in the provided opinion, the summary strictly refrains from adding or inferring information beyond the text of the opinion.

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T.M Subramanyan Tirumurupu And Others v. T.E Naraina Tirumurupu And Another S

(Delivered by Venkataramana Rao, J.)

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 S. 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 S. 38 if he fulfills 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 tarwad 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 with and dispose of them subject to the conditions specified in the Act. It is to give effect to this object that S. 38 was enacted and the relevant portion, so far as is applicable to the present case, runs thus:—

(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 life time of an ancestress common to such tavazhi and to any other tavazhi or tavahis 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.”

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. Jugdeep Narain Singh(1). They 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 reservations of Peacock C.J in Sadabart Prasad Sahu v. Foolbash Koer(2). 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 are different. So long as Bhagwan lived, he had an interest in this property which entitled him, if he pleased, to demand a partition, and to have his share of the joint estate converted into a separate estate.”

These observations were cited with approval by the Judicial Committee in Deendyal Lal v. Jugdeep Narain Singh 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 v. Mehrban Sing where their Lordships explain the scope of this principle at page 161 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.”

It will be seen that the attachment of a member's undivided share in execution of a decree was put on the same footing as severance effected by an agreement by the members to hold the property in definite shares for the purpose of justifying a sale by a creditor, the whole basis being rested on the undoubted right of a member to demand partition and have his demand complied with, if necessary, by legal process. S. 38 of the Act having conferred in unmistakable terms upon a member who constitutes a tavazhi the right to demand partition and have his share in the joint estate converted into a separate estate, a creditor is entitled to attach and sell his share. There has been a deliberate departure from and alteration made by the legislature of the previous state of the law by the conferment of this right of partition and once this right is conferred, all the necessary legal consequences, must follow therefrom. Mr. Kuttikrishna Menon relied on S. 50. We are not able to see how that section helps him. What S. 50 of the Marumakkathayam Act says is,

“Nothing contained in this Act shall be deemed to affect any rule of Marumakkathayam law, custom or usage, except to the extent expressly laid down in this Act.”

But the rule of Marumakkathyam law which prevented a cumpulsory partition has been abrogated to the extent indicated in S. 38 of the Act and it is in virtue of that section a junior member of a Malabar tarwad has got the right to demand partition and a creditor acquires the right to have it enforced for his benefit.

The next point urged by Mr. Kuttikrishna Menon is that the learned Subordinate Judge erred in directing an attachment of all the shares of the appellants whereas the shares of Appellants 1 and 2 alone could be attached. This contention is correct. The order of the lower Court must therefore be modified by directing attachment of the shares of appellants 1 and 2 only.

The last point urged by Mr. Kuttikrishna Menon is that the execution application is barred by limitation. There is no substance in this contention as the present execution petition is made within three years of the order made on a prior execution petition wherein relief was prayed for the issue of a notice to the judgment-debtors under O. 21, R. 22, Civil Procedure Code. An application for such a relief is a step-in-aid of execution and the order made on such an application furnishes a starting point for limitation under Art. 182(5) of the Limitation Act. We therefore overrule this contention.

In the result, the decision of the lower Court is confirmed subject to the modification above indicated. We direct each party to bear his own costs. The Letters Patent Appeal No. 44 of 1937 is also dismissed but without costs.

Order modified.

N.R.R

T.M Subramanyan Tirumurupu And Others v. T.E Naraina Tirumurupu And Another S

Structured Summary of the Opinion Delivered by Venkataramana Rao, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. Kuttikrishna Menon)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

T.M Subramanyan Tirumurupu And Others v. T.E Naraina Tirumurupu And Another S

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