1. Respondent 1, who is an assignee of the right of a junior member of a tarwad for arrears of maintenance from the. tarwad, filed a suit to recover the arrears. He obtained a decree, and, in execution of the decree, attached the tarwad properties. Certain junior members of the tarwad, who were in possession of tarwad properties as maintenance holders, then filed the suit out of which this second appeal arises to have the attachment set aside on the ground that respondent 1 must satisfy his decree from the other tarwad properties and had no right to bring their properties to sale. The suit failed in both the lower Courts.
2. The contention that plaintiff-appellants' properties were not liable to attachment and sale was founded on decisions of this Court that the karnavan cannot set aside an arrangement by which junior members of a tarwad have been put in possession of some of the tarwad lands in lieu of maintenance. In an old case, Parakkal Kondi Menon v. Vadakantil Kunhi Penna (1864) 2 M.H.C.R. 41, on the question of whether a certain property handed over by the males of the tarwad for the support of a woman was liable in respect of a judgment binding upon the family it was held that, as the karnavan could at any time alter the disposition of family property made for purposes of maintenance, such property was still family property and so liable for a judgment binding on the family. The proposition, viz., that the karnavan can at any time alter the disposition of family property made for maintenance of junior members, is admittedly no longer good law. The judgment went on, however, that even
if the family arrangement amounted to a binding contract between the members of the family, such arrangement could in no circumstances have the effect of withdrawing family property from the execution of a decree binding that property.
This proposition has not been overruled, and appears to me to be still good law. It was held, no doubt, in Ramaswami Pattar v. Gopalan A.I.R. 1917 Mad. 78 that a suit for possession of a lease granted by a karnavan in respect of properties which were already held under a maintenance arrangement by junior members could not be maintained. It seems to me however clear that the case of a lessee from the karnavan who seeks to recover properties from maintenance-holders is distinguishable from the case of a person who seeks to sell such property in execution of a decree that is binding on the family. A karnavan cannot overcome the prohibition against upsetting a family arrangement for maintenance purposes simply by granting a lease to a stranger; but where a stranger holds a decree which is binding on the family, then a mode of % enjoyment of the property which is enforceable against the karnavan or other members of the family cannot stand against the claims which the decree-holder has against the family as a whole : vide Sundara Aiyer's Malabar Law, Edn. 4, p. 151. Respondent 1, therefore, is not precluded from proceeding against the appellants' properties merely because they held them under an arrangement in lieu of maintenance.
3. Next it has been argued that under Section 10, Mappilla Marumakattayam Act, respondent 1 must exhaust his remedy against the personal property of the karnavan or the income of the tarwad property before the immovable property of the tarwad can be brought to sale. The Marumakattayyam Act was passed in 1939; and accordingly, unless Section 10 is retrospective in effect - and there is no reason to hold that it is - it will not apply to the case now before me. Furthermore, even if the section had retrospective effect, it applies only to the execution of decrees obtained by an anandravan for maintenance. It has been argued by the learned Government Pleader that as respondent l is an assignee of the rights of an anandravan to maintenance, for the purposes of Section 10 he stands in the shoes of the anandravan himself. This contention can-not be accepted. If it was intended that the provisions of Section 10 should apply to the assignee of an anandravan of his right to maintenance, this would have been made clear in the language of the section itself. In my opinion, therefore, the decisions of the lower Courts are correct, and the appeal must be dismissed with costs of respondent 1. Leave to appeal refused.