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Narayanan and anr. Vs. Kannan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Judge
Reported in(1885)ILR7Mad315
AppellantNarayanan and anr.
RespondentKannan and ors.
Cases ReferredIn Renaud v. Tourangeau L.R.
Excerpt:
gift - restriction on enjoyment--attempt to create estate subject to incidents of malabar tarwad property--sale of interest of donee by judgment-creditor. - .....line.' the question is, whether the donor had power to create such an estate so as to prevent the execution creditor of one of the donees--the first defendant--from proceeding in execution against the share of that defendant. this the creditor certainly could do but for the conditions attempted to be imposed, under which the estate would pass subject to the peculiar incidents of tarwad property. it has been held that' a hindu, the possessor of property which he could dispose of at will, could not put restraint upon the exercise by his descendants, to whom he passed the same by will, of the right of partition, such right being an incident of the estate given by hindu law (k. venkatrammanna v. k. brammanna sastrulu) 4 m.h.c.r. 345. and in the present case we are of opinion that on another.....
Judgment:

1. It is not disputed that the property in this case was at the disposal of the donor, that he could deal with it at his pleasure as he could have dealt with it had it been his self-acquisition. By the gift, then, it passed to the donees absolutely, or would have so passed but for the restriction in the deed of gift, the effect of which was no doubt intended to be, as is found by the Subordinate Judge, 'that the estate should be impartible, and be held by the donees as joint family estate descendible to their heirs in the female line.' The question is, whether the donor had power to create such an estate so as to prevent the execution creditor of one of the donees--the first defendant--from proceeding in execution against the share of that defendant. This the creditor certainly could do but for the conditions attempted to be imposed, under which the estate would pass subject to the peculiar incidents of tarwad property. It has been held that' a Hindu, the possessor of property which he could dispose of at will, could not put restraint upon the exercise by his descendants, to whom he passed the same by will, of the right of partition, such right being an incident of the estate given by Hindu law (K. Venkatrammanna v. K. Brammanna Sastrulu) 4 M.H.C.R. 345. And in the present case we are of opinion that on another ground the appellants cannot prevail, seeking as they do to set up the restriction imposed on the donees under the terms of the deed of gift to the prejudice of a creditor under a valid and subsisting decree. In Renaud v. Tourangeau L.R. 2 P.C. 4--a case from the Dominion of Canada (in which, however, the decision of the point now at issue turned on general principles of law)--there was in the will proved a prohibition against alienation, intended to be imposed by a testator, who devised property to his children with a direction that they should not in any manner encumber, mortgage, or alienate the immoveable property for a period of twenty years; their Lordships held that when such prohibition is made exclusively in the interests of a donee or legatee, it cannot be allowed to operate against the right of an execution-creditor coming in by operation of law and not by the act of the devisee or donee.

2. On this ground we dismiss this appeal with costs.


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