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Bank of New India Ltd. Vs. Sukumari Ponnamma - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 938 of 1958
Reported inAIR1961Ker105
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60; Hindu Succession Act, 1956 - Sections 7 and 30; Travancore Kshatriya Act, 1108 - Sections 43 and 46
AppellantBank of New India Ltd.
RespondentSukumari Ponnamma
Appellant Advocate K.C. John, Adv.
Respondent Advocate R. Kesava Pillai,; B.K. Krishna Pillai and; A.S. Narayan
DispositionRevision allowed
Cases ReferredMadho Parshad v. Mehrban Singh.
family - share in tarwad properties - sections 43 and 46 of travancore kshatriya act, 1108 - person's share in tarwad properties available to creditors after death - such interest also available for creditors before death - once right to partition without concurrence of others conceded to members of tarwad his position becomes assimilated to members of mitakshra hindu family. - .....hindu succession act, 1956, every member of a tarwad hns been conceded a heritable right in the tarwad properties and the same is liable to attachment.2. the learned munsiff held:' is not disputed that the right of anundivided hindu in a hindu family whether kshatriya or otherwise, will devolve on his heirs on his death. but, to say that the said right is now become definite and determined under the 'hindu succession act so that lie can deal with it, as in the case of tenants-in-common, cannot be accepted without hesitation. hence, i do not think that the undivided right in the schedule property brought under attachment is alienable at present. hence the attachment order will not be effective, . if is therefore vacated.'3. it is to revise the above said order that the decree.....

Madhavan Nair, J.

1. The 'plaintiff having obtained a money decree against defendants 1 and 2 attached the second defendant's undivided one-third share in certainproperties belonging to her Thavazhi consisting of herself and her two children. The respondent, who is the daughter of the second defendant, preferred a claim under Order XXI, Rule 58, Civil P. C., objecting to that attachment on the groundthat, the Thavazhi being undivided the second defendant has no definite share in the properties liable to be attached in execution. The decree-holder, on the other hand, contended that with the coming into force of the Hindu Succession Act, 1956, every member of a Tarwad hns been conceded a heritable right in the Tarwad Properties and the same is liable to attachment.

2. The learned Munsiff held:

'........It is not disputed that the right of anundivided Hindu in a Hindu family whether Kshatriya or otherwise, will devolve on his heirs on his death. But, to say that the said right is now become definite and determined under the 'Hindu Succession Act so that lie can deal with it, as in the case of tenants-in-common, cannot be accepted without hesitation. Hence, I do not think that the undivided right in the schedule property brought under attachment is alienable at present. Hence the attachment order will not be effective, . If is therefore vacated.'

3. It is to revise the above said order that the decree holder has preferred the Civil Revision Petition. When it came up for hearing before a learned Judge of this Court, it was referred to a Division Bench; and when it subsequently came up before a Division Bench, it was referred to a Full Bench for decision as the question involved appeared to be one of general importance.

4. It is admitted, that the property concerned belongs to the Thavazhi of the second defendant,having been allotted to that Thavazhi in the partition of their tarwad, and. that the parties are governed by the Travancore Kshatriya Act, 1108. Section 46 of that Act provides:

No Alienable Or Heritable Right Until Partition.

'46. Until partition, no member of a Thavazhi or group in a Tarwad shall be deemed to have a defnite share in the Tarwad property. a demand under Section 43 or 45, as the case may be, will also constitute a partition for the purposes of this section'.

Section 7(1) of the Hindu Succession Act, 1956, which is contended to have superseded the above provision of the Travancore Kshatriya Act, reads thus:

'7(1). When a Hindu to whom the marumakkathayam or nambudiri law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an interest in, the property of a tarwad, tavazhi or illom, as the case may he, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may he, under this Act and not according to the Marumakkathayam or Nambudiri law.

Explanation. -- For the purposes of this subsection, the interest of a Hindu in the property of a tarwad, thavazhi or illom shall be deemed to be the share in the property of the tarwad, thavazhi or illom, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the tarwad, thavazhi or illom, as the case may be, then living, whether he or she was entitled to claim such partition or not under the Marumakkathayam or Nambudiri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely.'

A plain reading of the two sections together makes it clear that there is no contradiction or supersession of the former by the latter. All that is enacted in Section 7(1) of the Hindu Succession Act is that when an individual dies, a partition must be deemed to have taken place in his Tarwad immediately before his dealh and the share that may then be deemed to have fallen to the share of the deceased may be inherited by his heirs. It does not, in any way, affect the rights of parties before a partition. So also, the Explanation to Section 30 of the Hindu Succession Act, wherein it is provided that the interest of a member of a Tarwad or Thavazhi shall be, deemed to be property capable of being disposed of by him or by her' is only 'for purposes bf that section', that is, to enable such member to make a testamentary disposition of what would otherwise descend to his heirs under Section 7(1) of that Act. It cannot be taken as laying down any general proposition of law. It cannot therefore be said that the Hindu Succession Act, by its Sections 7 and 30, has conceded a heritable right to a member of a Mammakkathayam Tarwad in its properties even before a partition thereof.

5. But the question does not stop there. Shri K.C. John, the learned counsel for the decree-holder, contended that the Travancore KshatriyaAct has, by its Section 43, conceded a right to partition to every member of a Tarwad and therelore the merest of an individual member thereof is seizable in execution. Shri H. Kesava Pillai, the (earned counsel for the claimant argued that under the Marumakkathayam Law no member of a Tarwad had an attachable interest in the Tarwad properties, that the Kshatriya Act has not made any alteration in the law in this respect; that the right which a member can have is only a bare tight to claim partition under certain circumstances specified in the section and that until that right is actually exercised by the member concerned he cannot be said to have a definite share in the property liable to be seized in execution. Under the pristine Marumakkatbayam law, the property of a Tarwad was indivisible, and no member could demand a share or lay claim to any specific interest in. Tarwad property. (See Padmanabhan Raman v. Raman Narayanan, 18 Trav LR 31 (FB) at p. 37 and Kunhikrishnan v. Ananthasaman, 1959 Ker LT 1160). in fact, it was declared in Narnyanan Narayanan v. Parwathi Nangeli, 5 Trav LR 116 at p. 118. that impartibility of properties held in common by the members of n Tarwad was 'the very essence' of the Marumakkathayam system. No member could therefore think of any alienable interest in the property or of separation from the tarward or of taking a bit of the Tarwad's assets for himself. in such a condition no creditor could look upon the properties of a Tarwad or any share or interest therein as lifble for the debt of an individual member of She Tarwad. Needless to say, this incapacity affected the economic and industrial condition of Marumakkathayam communities^. The struggle for existence and the race for progress soon brought Co light the necessity for removing such handicaps and securing for the individual a start in life by giving him a definite, share in the properties of his Tarwad. Very soon, partition by consent of all the adult members'of the Tarwad became a common feature in Marumakkathayam Tarwads and the share of properties allotted to an individual member was reckoned as his absolute property, heritable, alienable and available to his creditors. (See the observations in Maharaja Pillai v. Ramalekshmi, 44 Trav LR 126 (FB) at p 135) in course of time even the requirement of the consent of all adult members was found to be an obstruction to enterprises of many individual members, and1 to remedy this evil a right of compulsory partition came to be conceded to all the members in a Tarwad. this is what we find embodied in Section 43 of the Travancore Kshatriya Act, 1108. It provides: Right to Partition.

'43. Every member of a Tarwad shall have the right to divide himself or herself, as the oasf may be, from the Tarwad, by making a demand for the purpose, and on such demand such member shall be entitled to such' share in the Tarwad properties as will fall to such member, if a division per capita were made among all the members of the Tarwad on the date of such demand:

Provided that such demand is made. in oneof the following ways:

(a) by the presentation of a plaint in a suit for partition or that of a written statement or other pleading claiming a share in a suit for partition, or

(b) by an unequivocal declaration in writing registered in accordance with the law for the time being in force for the registration of documents.'

This section, in unambiguous terms, confers a ' right of partition upon all the members of a Kshatriya Tarwad since the first day of Medom 1108 when the Act came into force. So, on the date of attachment in this case (i.e., on 15-12-1955) the. second defendant was entitled to demand partition and immediate separation of her share in the properties of her Thavazhi.

6. It was contended on behalf of the claimant that this bare right to partition, in the absence of actual exercise thereof by the member concerned, would not amount to a definite interest in the property so as to enable a creditor to seize and sell the same for realisation of his dues.

7. The question is not free from difficulty but it is not new. The identical question arose before the Judicial Committee of the Privy Council in the case in Deendayal Lal v. Jugdeep Narain Singh, 4 Ind App 247: ILR 3 of 198 (PC) which arose from Upper Bengal which is the present Bihar State. Under the system of Mitakshara Law administered in that country (See Mulla's Hindu Law, Section 261) no coparcener could alienate his undivided interest in the family properties. Nevertheless it was held that a creditor could seize and sell his share in execution of a decree obtained against him. Their Lordships observed that the rights of a purchaser under an execution sale may at times be very different, from those of a purchaser under a voluntary conveyance, and instanced the case of a partnership in support of their view. a partner cannot himself sell his share so as to introduce a stranger into the firm without the consent of his co-partners; but a creditor can seize and sell his share and thereby acquire his right to have the partnership accounts taken in order to ascertain and realise lis value. Their Lordships applied the same principle to the rights of a member in the undivided joint family estate, limiting the right of the purchaser thereof at an execution sale 'to that of compelling the partition which his debtor might have compelled, had he been so minded, before the sale of his share took place'. this was followed by their Lordships in Suraj Bunsi Koer v. Sheo Prasad Singh, 6 Ind App 88: ILR 5 Cal 148 (PC).

8. The position was clarified by their Lordships of the Privy Council in a later decision in Madho Parshad v. Mehrban Singh. 17 Ind App 194: ILR 18 Cal 157 at pp. 196-197 in which it is observed as follows:

'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 compiled 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 aspartition 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.'

9. a further elucidation of the above dictum is seen in the judgment of a Division Bench of the Madras High Court in Subramaniam v.Naraina, AIR 1938 Mad 553 at p. 555, in thesewords:

'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 ....... TheAct having conferred in unmistakable terms upon a member .....the right to demand partition andhave 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 enforcement of this right of partition and once this right is conferred, all the necessary legal consequences must follow therefrom.'

10. The entire position was succinctly reiterated by his Lordship Mr. Justice Venkatarama Iyer in 1959 Ker LT 1160, which was a case that arose before the Madras High Court from the North Malabar District, thus:

'Under the customary Marumakkathayam Law though every member acquires by birth a right in the family properties, that right is only to be maintained out of those properties. No marumakkathayi is entitled to claim partition and separate possession of his interest, unless all the ether members agree to it. It follows from this that when a member purports to alienate his interest in the family properties, the transferee can get nothing under it -- not a right to be maintained, which is personal to the alienor and not a light to partition and separate possession as the alienor himself had no such right. The position, therefore, is that a marumakkithayi has no such interest in the family properties as is capable of being transferred for his own personal purposes ........

The rule that a Marumakkathayi had no power to dispose of his share was based not on grounds of public policy but on the nature of the lights which he had over the family properties, which was only a right to be maintained with no right to demand partition. The question of inalienability is inherent in the very nature of the right which was purely personal. When, therefore, that right is modified, and a right to parti-lion and separate possession is conferred, thereis no reason why a rule which was founded on the personal character of the right should, be maintained even after that right had ceased to be personal.'

11. We are in respectful agreement with the dicta cited above. The anomaly of following the old Marumakkathayam rules in the present state of affairs, where 'right of partition' and 'right of succession' have become common features, cannot be overestimated. If a person's share in the Tarwad properties becomes available for his creditors as soon as he dies, there cannot be any moral justification in holding that such interest cannot be available to the creditors during Ms lifetime. Once the right to partition without the concurrence of others has been conceded to a member of a Tarwad, his position becomes assimilated to that of a member of a Mitakshara Hindu family especially in States where a coparcener is not allowed to alien his interests in the family property but has nevertheless a light to claim partition at his will. Such a member has a present vested interest in the property which may be converted into a separate and. absolute estate by a partition, or more correctly, by a mere demand for partition, at his will and pleasure. Such an interest in the property is not illusory or vague. It is definite and certain. All that is uncertain about it is the time when the will is exercised and the rig it is converted into a separate or ex. elusive estate. Hut that affects only the extent of the property that may fall to bis share. The right to share is always inherent in him. It can at any moment be converted into physical property. It is therefore a valuable right in the property which must be available for seizure and sale in execution by the person to whom he is indebted.

12. In the result, we hold that the interest of the second defendant in her Thavazhi properties is a right which can be attached in execution of the decree against her. The order of the court below is, therefore, reversed;, and the attachment effected by the decree-holder in the case on 17-12-1955 is restored to effect. The revision petitioner will have his costs from the respondent.

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