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Kunhappa Nambiar and anr. Vs. Shridevi Kettilamma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1895)ILR18Mad451
AppellantKunhappa Nambiar and anr.
RespondentShridevi Kettilamma
Cases ReferredSankara v. Kelu I.L.R.
Excerpt:
malabar law - partition of tarwad--decree against karnavan on tarwad debt before partition--execution after partition. - - the second appeal came on for hearing on the 10th of december 1894 before muttusami ayyar and best, jj......and is dismissed with costs.[1]second appeal no. 1323 of 1894 (unreported): in this case the plaintiff, who was the appellant in the high court, sued for a declara-tion that certain property was not liable to be attached in execution of a decree obtained in 1880. his case was that the judgment-debtor had not been sued in his capacity as karnavan of the plaintiff's tarwad so as to render the decree binding on the plaintiff as alleged by the defendants, that the debt for which the decree was passed had been incurred in 1878 for purposes not binding on the tarwad, that under a razinamah, dated 1877, and a karar or parti-tion-deed, dated march 1882, the lands of the tarwad had been divided and the lands now in question had been allotted to the plaintiff's branch of the tarwad. the second.....
Judgment:

1. The appellants' vakil has brought to our notice the decision in Krishnan Nambiar v. Krishnan Nair[1] in which it was held that the state of things at the time when the debt was contracted must be looked to, and that a creditor cannot be affected by any subsequent arrangement in the family to which he was not a party; and that consequently subsequent partition in a tarwad is no ground for holding the divided members and their property not liable for the decree obtained against the karnavan, as such, prior to the partition. We see no reason to doubt the correctness of the above decision. But it is no authority for holding to be valid the sale of partitioned property in the absence of the parties to whom it has been apportioned.

2. For a sale to be binding on such persons, they should be expressly included as parties to the execution proceedings in which case they will have an opportunity of paying the debt and thus saving the property from sale. As they have ceased to be members of the tarwad, the original karnavan can no longer be held to represent them. The decision above referred to and relied on for appellants is therfore reconcilable with that in Sankara v. Kelu I.L.R. 14 Mad. 29 which the Judge has followed.

3. This appeal fails and is dismissed with costs.

[1]

Second Appeal No. 1323 of 1894 (unreported):

In this case the plaintiff, who was the appellant in the High Court, sued for a declara-

tion that certain property was not liable to be attached in execution of a decree obtained

in 1880. His case was that the judgment-debtor had not been sued in his capacity as karnavan

of the plaintiff's tarwad so as to render the decree binding on the plaintiff as alleged by

the defendants, that the debt for which the decree was passed had been incurred in 1878 for

purposes not binding on the tarwad, that under a razinamah, dated 1877, and a karar or parti-

tion-deed, dated March 1882, the lands of the tarwad had been divided and the lands now in

question had been allotted to the plaintiff's branch of the tarwad.

The second appeal came on for hearing on the 10th of December 1894 before Muttusami

Ayyar and Best, JJ.:


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