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Kunhacha Umma v. Kutti Mammi Hajee
Factual and Procedural Background
The respondent obtained a decree for money to be paid "out of the assets of the deceased Uthotti" in Original Suit No. 485 of 1888 on the file of the District Munsif of Badagara. In execution of that decree, property was attached; the present appellant objected to the attachment under Section 278 of the Code of Civil Procedure.
The property attached comprised seven items. The District Munsif allowed the appellant's objections with regard to all seven items. On appeal the District Judge modified the Munsif's order by making the judgment-debtor's share in Nos. 2 to 6 liable, relying on the decision in Narayanan v. Kannan (I.L.R., 7 Mad., 315). That modification was upheld on a further appeal to this Court by Shephard, J., who referred to Parvathi v. Koran (No. 1066 of 1889). The present appeal challenges (1) that the disputed properties are assets of the judgment-debtor, and (2) that even in his lifetime the judgment-debtor had an interest in those properties liable to attachment and sale.
As to the substantive facts, the properties originally belonged to one Taruvai (the father of the judgment-debtor Uthotti and of the appellant). Exhibit D (admitted by the respondent) shows that these properties were given after Taruvai's death to his first wife Ayissumma and her children according to his orally expressed wish; the appellant and Uthotti are two of those children. Other properties were simultaneously given to Taruvai's second wife and her children.
The procedural history includes a Full Bench reference and hearing. The Full Bench answered the referred question in the affirmative, and the Division Bench subsequently set aside the orders of the District Court and of the learned Judge of this Court and restored the order of the Court of First Instance (the Munsif). There was no order as to costs.
Legal Issues Presented
- Whether the properties given by Taruvai after his death to his first wife Ayissumma and her children were taken by them with the incidents of property held by a tarwad (i.e., whether the donees took the properties as tarwad coparcenary property such that the property is non-partible and not liable to attachment for a member's debts).
- Whether the properties in dispute are assets of the judgment-debtor (Uthotti) so as to be available for satisfaction of the decree against him.
- Whether, even during his life-time, the judgment-debtor had an interest in those properties that was liable to attachment and sale.
Arguments of the Parties
Appellant's Arguments
- The grant to Ayissumma and her children was a gift to them as joint tenants, thereby constituting a separate tarwad for that branch.
- Once held as tarwad property, the properties are non-partible and subject to the incidents of tarwad property; consequently the property cannot be attached or sold to satisfy a decree obtained against one member of that tarwad.
- At the Full Bench hearing, Govinda Menon (for the appellant) argued that the donor's intention must be presumed to have been that the donees should take the property jointly as tarwad property and that the attachment was therefore illegal.
Respondent's Arguments
- The respondent's vakil relied upon the decisions in Narayanan v. Kannan and Parvathi v. Koran to justify dismissal of the appeal (i.e., to uphold the view that the judgment-debtor's interest was liable).
- Before the Full Bench, Mr. Wedderburn and Ryru Nambiar (for the respondent) argued that the question is one of tarwad coparcenary incidents, not English-style joint tenancy or right of survivorship, and that the case should be determined according to principles in Mahomed Shumsool v. Shewakram so far as applicable.
- They submitted that the donor was a Muhammadan (governed by Makkatayam law, as instructed) while the wife and children were governed by Marumakkatayam; the donees formed part of an existing tarwad (including the wife's sisters and their children), and the donor could not be presumed to have intended to benefit the whole tarwad (which would lessen benefit to his own wife and children).
- The respondent's counsel urged the Court to give effect to the gift so as to benefit the donor's wife and children as far as possible by construing the gift as creating exclusive properties for that branch (self-acquisition), which would make individual shares dealable and liable for debts (thus validating the attachment).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Narayanan v. Kannan, I.L.R., 7 Mad., 315 | Held that the right of partition is "an incident of the estate given by Hindu law" and was relied upon to treat donees' shares as partible/liable (authority for making judgment-debtor's share in certain items liable). | The District Judge modified the Munsif's order on the authority of this decision; the Court below (Shephard, J.) upheld that modification. The Full Bench concluded that Narayanan appears in conflict with certain Privy Council principles and should not be followed; as a result, the Division Bench set aside the District Court and learned Judge orders that had relied on Narayanan. |
| Parvathi v. Koran (No. 1066 of 1889) | Followed the decision in Narayanan v. Kannan (i.e., treated the same principle as applicable in that context). | Shephard, J., referred to Parvathi v. Koran in upholding the District Judge's reliance on Narayanan. The Full Bench noted that Parvathi merely follows Narayanan. |
| Moidin v. Ambu (S.A. Nos. 647 & 648 of 1890) | Referred to as a case in which Narayanan's correctness had been questioned; contemplated a Full Bench reference (but was found unnecessary in that case). | The opinion records that Narayanan's correctness was questioned in Moidin v. Ambu and that a Full Bench reference contemplated there should now be made because the present appeal's outcome depends on Narayanan's correctness. Later the Full Bench decision did not follow Narayanan. |
| Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick, 6 M.I.A., 526 | Privy Council authority cited for a rule of construction: in absence of expressed intention by donor, presume donees take with certain incidents (the opinion indicates this supports presuming donees take with incidents of tarwad property). | The Full Bench relied on this Privy Council principle to hold that, where the donor expressed no intention as to mode of holding, the presumption is that donees take as properties of their branch with the ordinary incidents of tarwad property; the decision in Narayanan was regarded as in conflict with this principle. |
| Mahomed Shumsool v. Shewakram, L.R., 2 I.A., 7 (also cited at p.14) | Privy Council principle of construction relevant to how gifts to branches should be construed where custom governs (cited as applicable so far as relevant). | The Court stated the case must be determined according to principles laid down in Mahomed Shumsool so far as applicable; the Full Bench found its view consistent with this authority and used it to support the presumption that the donees took the properties with tarwad incidents. |
| Renaud v. Tourangeau, L.R., 2 P.C., 4 | Authority for holding an absolute prohibition of alienation (by the tarwad or its karnavan) to be invalid in certain contexts. | The opinion notes Renaud was cited in Narayanan and is authority for invalidating an absolute prohibition on alienation, but the Court found it hardly supports the proposition that a prohibition of alienation of a member's share is not valid against a creditor seeking to proceed against that member's interest in joint property. |
| Krishna v. Raman (Second Appeal No. 708 of 1884, unreported) | Considered a similar question in South Malabar; the finding was that a gift to a woman, her sisters and brother was to be treated as a gift to them constituting a tarwad, rendering the property subject to ordinary incidents of tarwad property in the absence of direct evidence of a contrary intention. | The opinion quotes this earlier finding and treats it as consistent with the approach now adopted: in absence of direct evidence of donor's contrary intention, presume the gift was to the branch as tarwad property. |
Court's Reasoning and Analysis
The court proceeded in stages, addressing the contested question whether Ayissumma and her children took the properties with the incidents of property held by a tarwad.
First, the opinion reviews the conflict in authority: the District Judge had relied on Narayanan v. Kannan (and Parvathi v. Koran followed Narayanan) to make the judgment-debtor's share liable. However, Narayanan's correctness had been questioned in later rulings (including Moidin v. Ambu) and appeared to conflict with Privy Council authority.
The Full Bench observed that the reference to English-style joint tenancy (and its right of survivorship) is misleading; the real question is the incidents of tarwad coparcenary under Marumakkatayam custom. The Full Bench applied the rule of construction derived from the Privy Council decisions (specifically Sreemutty Soorjeemoney Dossee and Mahomed Shumsool) that, in the absence of an expressed intention by the donor regarding how the property should be held, the presumption is that the donees take the property as belonging exclusively to that branch and with the ordinary incidents of tarwad property under the Marumakkatayam usage governing them.
The Court considered and rejected the principal reasoning of Narayanan which treated the right of partition as an incident of the estate in a way that would render such property partible; the Full Bench regarded that reasoning as inapplicable to Marumakkatayam estates where impartibility (not partibility) is the legal incident.
The opinion also considered and distinguished Renaud v. Tourangeau: while Renaud supports the invalidity of an absolute prohibition on alienation, it does not substantiate the wider proposition that a prohibition of alienation of the share of any member (except with tarwad consent) is not valid against a creditor.
The Full Bench answered the referred question in the affirmative: Ayissumma and her children took the properties with the incidents of property held by a tarwad. On that basis the Division Bench followed the Full Bench, set aside the District Court and learned Judge orders (which had made the judgment-debtor's share liable), and restored the Munsif's order allowing the appellant's objections to attachment.
Holding and Implications
Holding: The court's final ruling was to allow the appeal in substance by following the Full Bench's answer to the referred question. The core ruling may be stated as:
The properties given to Ayissumma and her children were taken by them with the incidents of property held by a tarwad, and therefore the attachment in execution of the decree was not sustainable as to those properties.
Direct consequences applied by the Court:
- The orders of the District Court and of the learned Judge of this Court that had made the judgment-debtor's share liable were set aside.
- The order of the Court of First Instance (the Munsif), which had allowed the appellant's objections to the attachment, was restored.
- There was no order as to costs because of conflicting rulings on the subject.
Broader implications: The opinion discusses conflicting earlier authorities (notably Narayanan v. Kannan) and follows Privy Council guidance on construction in the absence of an expressed intention by the donor. The Court did not purport to lay down a novel general rule beyond applying established construction principles; no further new precedent or broader legal rule beyond this application is explicitly stated in the opinion.
1. The following are' the facts of this case:
2. The present respondent obtained a decree for money to be paid " out of the assets of the deceased Uthotti" in the hands of defendants 2 and 3 in Original Suit No. 485 of 1888, on the file of the District Munsif of Badagara. In execution of that decree property was attached, and the present appellant objected to the attachment under Section 2. 278 of the Code of Civil Procedure.
3. The property so attached consisted of seven items. The Munsif allowed the appellant's objections with regard to all seven. The District Judge, on appeal, modified the Munsif's order to " the extent of making the judgment-debtor's share in Nos. 2 to 6 liable." He did this on the authority of the decision in Narayanan v. Kannan I.L.R., 7 Mad., 315. This decision of the District Judge was upheld on appeal to this Court by Shephard, J., who further referred to the decision in Parvathi v. Koran S.A. No. 1066 of 1889. Hence the present appeal in which it is contended (1) that the properties in dispute are not assets of the judgment-debtor and (2) that even in his life-time the judgment-debtor had not in these properties an interest liable to attachment and sale.
4. lt is admitted on both sides that the properties in question belonged to one Taruvai, the father of the judgment-debtor Uthotti and also of the present appellant. As is seen from Exhibit D, the truth of the statements contained in which is admitted by the respondent, these properties were given after Taruvai's death to his first wife Ayissumma and her children in accordance with his orally expressed wish. The appellant and Uthotti are two of the children of Ayissumma. Other properties were, at the same time, given to Taruvai's second wife and her children.
5. Appellant's contention is that the property thus given to Ayissumma and her children was given to them as joint tenants; that they thus became with regard to this property a separate tarwad; and that the property was held by them subject to the incidents of tarwad property, and that it is consequently non-partible, and, therefore, not liable to attachment or sale in satisfaction of a decree obtained against one of the members of the tarwad.
6. On the other hand, respondent's vakil refers to Narayanan v. Kannan I.L.R., 7 Mad., 315 and to Parvathi v. Koran see ante, p. 202 as authorities justifying the dismissal of this appeal.
7. Parvathi v. Koran see ante., p. 202 merely follows the decision in Narayanan v. Kannan I.L.R., 7 Mad., 315 and the correctness of this latter decision has been questioned in Moidin v. Ambu S.A. Nos. 647 and 648 of 1890 by Muttusami Ayyar and SHEPHARD, JJ., who have pointed out that the decision in Narayanan v. Kannan I.L.R., 7 Mad., 315 appears to be in conflict with the principle laid down in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick 6 M. 1. A., 526, Mahomed Shumsool v. Shewakram L.R., 2 I.A., 7.
8. The principal reason assigned by the learned Judges who decided Narayanan v. Kannan I.L.R., 7 Mad., 315 for arriving at the conclusion come to by them, namely, that the right of partition is "an incident of the estate given by Hindu law," is inapplicable to an estate under the Marumakkatayam law--of which estates impartibility and not partibility is the legal incident.
9. The case of Renaud v. Tourangeau L.R., 2 P.C., 4, also referred to in that decision, is no doubt authority for holding to be invalid an absolute prohibition of alienation, e.g., in the case dealt with in Narayanan v. Kannan I.L.R., 7 Mad., 315, a prohibition of alienation, by the tarwad itself, or by its karnavan acting on behalf of the tarwad; but it seems hardly authority for the proposition that in the case of property devised (as that was) to be held under the usual custom of Malabar, a prohibition of alienation of the share of any member (except with the consent of the tarwad or by its karnavan) is not valid against a creditor seeking to proceed against one member's interest in the joint property.
10. Finally, the mere fact of the property having been such that the grantor could have dealt with it as if it had been his self-acquisition, appears to be an invalid reason for holding it to be partible after it has been devised to a definite branch cf the family for the purpose of being held jointly by that branch.
11 It is true that in the present case there is no express prohibition against alienation, nor is it stated in so many words that the property was to be held by the grantees as their tarwad property; but taking into consideration what are known to be the ordinary notions and wishes of persons in Malabar in the position of Taruvai, the grantor of the property, and also the ordinary incidents of property in the same district, and also bearing in mind that other property was similarly granted at the same time to the second wife and her children, there can be no doubt, I think, that the intention was that the property should be held by the grantees as joint tenants. The four unities of a joint tenancy are all found in this case, namely (1) of possession, (2) of interest, (3) of title, and (4) of the time of commencement of such title.
12. I would, therefore, allow this appeal were it not for the decision in Narayanan v. Kannan I.L.R.,7 Mad., 315.
13. As the correctness of the decision in that case has been questioned by Muttusami Ayyar, J., one of the learned Judges who was party to it, and also by Shephard, J., who was a party to Parvathi v. Koran see ante, p. 202 in which it was followed, I am of opinion that the reference to the Full Bench contemplated in Moidin v. Ambu see ante. p. 203) (but subsequently found to be unnecessary in that case) should now be made, as the allowance or disallowance of the present appeal depends upon the correctness or otherwise of the decision in Narayanan v. Kannan I.L.R., 7 Mad., 315.
Subramania Ayyar, J.
14. I concur in making this reference to a Full Bench. Narayanan v. Kannan I.L.R., 7 Mad., 315 was decided in March 1884. Krishna v. Raman (Second Appeal No. 708 of 1884, unreported), which came from South Malabar was decided in February 1855. There, a question similar to that raised here was considered. The finding in that case was that the gift was to a woman, her sisters and brother. It was contended that the donees did not take the property as tenants-in-common. With reference to this contention, Muttusami Ayyar and brandt, JJ., stated that
" In the absence of any direct evidence that the intention of the donor was otherwise, we are of opinion that it is consistent with the custom in such cases in Malabar; and that we must assume that the gift was a gift to the brother and sisters constituting them, as such, a tarwad, and rendering the property conveyed by the gift subject to the ordinary incidents of property held by a tarwad."
15. This question which I propose to refer is whether Ayissumma and her children took the properties in question with the incidents of property held by a tarwad.
16. This appeal came on for hearing before the Full Bench (collins, C.J., Muttusami Ayyar, Parker and Wilkinson, JJ.)
17. Govinda Menon, for Appellant, argued that the intention of the donor must be presumed to have been that the donees should take the property jointly as tarwad property, and that accordingly the attachment was illegal.
18. Mr. Wedderburn and Ryru Nambiar for Respondent.
19. The reference by best, J., to the incidents of joint-tenancy is misleading, for, in the present case, the question is not as to a right of survivorship in the English sense, but as to the incidents of tarwad coparcenary. No doubt the case must be determined according to the principles laid down in Mahomed Shumsool v. Shewakram L.R.,2 I.A., p. 14, so far as they are applicable; but here there is no special circumstance from which the intention which the appellant argues should be presumed to have been that of the donor can be inferred. For it appears that he was a Muhammadau, and I am instructed that he was governed by Makkatayam law, while the wife and children were undoubtedly subject to the Marumakkatayam rule. Moreover, they formed part of a tarwad to which the wife's sisters and their children also belonged. The donor cannot be presumed to have desired to benefit the whole of that tarwad, for that would diminish the benefit to be derived by his own wife and children; and it is submitted that the Court should so give effect to the gift as to benefit them as far as possible. The idea of separate self-acquired property has long been familiar in Malabar, and here the donees, if they took the property as self-acquisition, would be better off than if the gift was such as to leave the property fettered in the manner now so irksome to holders of tarwad property. Moreover the Court should be averse to extend further than the personal law of the parties clearly requires the stereotyped rule of impartibility which will govern this property if it is tarwad property. If the property was taken by the donees as self-acquired, each of them could deal freely with his share and consequently the share of each would be liable for his debts, and consequently the present attachment was legal.
20. The properties in question originally belonged to one Taruvai, and they were given after his death to his wife Ayissumma and her children in accordance with his orally expressed wish. Thequestion referred to us is whether Ayissumma and her children took the properties with the incidents of property held by a tarwad. In the case before us the donor expressed no intention as to how the properties should be held by the donees, and in the absence of such expression, the presumption is that he intended that they should take them as properties acquired by their branch or as the exclusive properties of their own branch, with the usual incidents of tarwad property in accordance with Marumakkatayam usage which governed the donees. This view is in accordance with the principle laid down by the Privy Council in Sreemutty Soorjee-monee Dosee v. Denobundoo Mullick 6 M.I.A., 526 and Mahomed Shumsool v. Shewakram L.R., 2 I.A., 7. The decision in Narayanan v. Kannan I.L.R., 7 Mad, 315 was not followed in Moidin v. Ambu see ante. p. 203 and it appears to us to be in conflict with the rule of construction indicated by the Privy Council.
21. We answer the question in the affirmative.
22. This appeal came on for final disposal before the Division Bench, and the Court delivered the following judgment.
23. Following the decision of the Full Bench we set aside the orders of the District Court and of the learned Judge of this Court and restore that of the Court of First Instance.
24. There having been contlicting ruliugs on the subject we make no order as to costs.
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