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V.P. Krishnan Vs. Payankalath Narayanan Nayar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1938Mad555; (1938)1MLJ715
AppellantV.P. Krishnan
RespondentPayankalath Narayanan Nayar
Cases ReferredMohammad Afzal Khan v. Abdul Rahman
Excerpt:
- - sheo pershad singh .their lordships held that the executing creditor would acquire a valid charge upon the land to the extent of the member's share and interest therein which could not be defeated by his death before the actual sale. jugdeep narain singh clearly indicated that the rule of partnership law which enables a creditor to seize and sell the share of a partner can be applied to the shares of the members of an undivided estate without unduly interfering with the peculiar status and rights of the coparceners in such estate. 12. emphasis will have to be laid on the words 'at that time'.the effect of these privy council decisions is very clearly stated by bhashyam aiyangar, j......on a personal debt incurred by him. in execution of the same the respondent's share in the tarwad property, which is stated to be one-ninth, was attached on 28th august, 1934. a claim was preferred on behalf of the tarwad on 10th september, 1934, objecting to the attachment. while the execution petition and the claim petition were both pending, four out of the five members of the tarwad presented a petition to the sub-collector of malappuram under section 43 of the marumakkathayam act for registering the tarwad as impartible and it was accordingly registered on the 15th december, 1934. this fact was brought to the notice of the district munsiff, who held that, as the order of registration had become final under section 46 of the act, he had no longer any jurisdiction to deal with.....
Judgment:

Venkataramana Rao, J.

1. This is an application to revise the order of the learned Subordinate Judge of Ottapalam confirming the order of the District Munsiff of Ottapalam dismissing the execution petition for attachment and sale of the share of the respondent in the property of the tarwad to which he belonged. The petitioner obtained a decree in S.C.S. No. 382 of 1933 on the file of the District Munsiff of Ottapalam on 29th November, 1933, against the respondent on a personal debt incurred by him. In execution of the same the respondent's share in the tarwad property, which is stated to be one-ninth, was attached on 28th August, 1934. A claim was preferred on behalf of the tarwad on 10th September, 1934, objecting to the attachment. While the execution petition and the claim petition were both pending, four out of the five members of the tarwad presented a petition to the Sub-Collector of Malappuram under Section 43 of the Marumakkathayam Act for registering the tarwad as impartible and it was accordingly registered on the 15th December, 1934. This fact was brought to the notice of the District Munsiff, who held that, as the order of registration had become final under Section 46 of the Act, he had no longer any jurisdiction to deal with the petition, and as before the sale the registration was effected, further proceedings in execution could not be had. He therefore dismissed the execution petition. This order was confirmed by the learned Subordinate Judge. It is this order that is canvassed as illegal in revision by Mr. Kuttikrishna Menon on behalf of the petitioner.

2. A preliminary objection has been taken by Mr. Govinda Menon that this order is not liable to be revised under Section 115, Civil Procedure Code, on the ground that no question of jurisdiction is involved in the case. It seems to us that the lower Court acted illegally in declining to exercise its jurisdiction by refusing to further proceed with the execution and order sale in pursuance of the attachment. Both the lower Courts fell into error in thinking that by virtue of Section 46 once the registration of the tarwad is effected, the Court has no jurisdiction to proceed with the execution. The petitioner was not questioning the finality of the order of registration. The question is whether in spite of registration the creditor in pursuance of the attachment is not entitled to bring the property to sale. Where a Court taking a wrong view of the law assumes jurisdiction or declines to exercise jurisdiction, it will be a matter for interference under Section 115, Civil Procedure Code. Vide Ramaswami Goundan v. Muthu Velappa Gounder (1922) 44 M.L.J. 1 : I.L.R. 46 Mad. 536 . The very case relied on by Mr. Govinda Menon, namely Balakrishna Udayar v. Vasudeva Aiyar is a case in which on a wrong view of a particular section of Act XX of 1863 jurisdiction was assumed and the Court interfered in revision. We therefore overrule the preliminary objection.

3. The question in this case is, has the attachment which has been effected ceased to subsist on the subsequent registration of the tarwad as impartible? Mr. Govinda Menon sought to contend that the share of a member is incapable of attachment but in the judgment just delivered in Subramanyan Tirumurupu v. Naraina Tirumurupu : AIR1938Mad553 , we have held it is capable of attachment and it is unnecessary to deal with that matter at length. By virtue of the Marumakkathayam Act, the position of a tavazhi is assimilated to that of a member of a Mitakshara family in provinces where he is under an incapacity to alienate but nevertheless he has a right to claim a partition of his share. The position of such a member is, to use the language of Wallace, J.:

that he has at any definite period of time a present vested interest in the fractional share which would be his, if a partition was then and there made, and which would, by a partition at his will and pleasure, be converted into a separate interest.

4. The question is what is the effect of an attachment by a creditor of that share and what are the rights of a creditor which flow from such an attachment both in relation to the debtor and to other members of the family? The effect of such an attachment in consequence of the death of such a member of a joint family as the one indicated above, subsequent to the attachment was considered by their Lordships of the Privy Council in Suraj Bunsi Koer v. Sheo Pershad Singh . Their Lordships held that the executing creditor would acquire a valid charge upon the land to the extent of the member's share and interest therein which could not be defeated by his death before the actual sale. Thus in spite of his death it was held that the execution creditor would be competent to bring that share and interest to sale and the purchaser at such a sale would be entitled to have that share separated by means of a suit for partition. It was on the basis of this decision our High Court took the view in Sankaralinga Mudaliar v. Official Receiver of Tinnevelly : AIR1926Mad72 , that even an attachment before judgment would prevent the right of survivorship operating to the prejudice of a creditor who had effected an attachment if a decree was subsequently obtained in the suit. In that case no doubt it was held that the share would still survive to the other members of the family but only subject to the rights of the attaching creditor. It is unnecessary to consider whether the survivorship is completely lost or lost to the limited extent indicated in that judgment. But it is clear from the Privy Council decision that the cessation of interest of a debtor in consequence of his death would not affect the right of a creditor to have the property sold for the satisfaction of the debt by virtue of the attachment effected by him, that is, the attachment confers upon him a right which could not be put an end to. If this is the view taken in relation to the cessation of interest in consequence of the death of a member, it follows that the right acquired by the attaching creditor is not a defeasible right and no act of the debtor or any other member of the family which brings about the termination of that interest would operate to the prejudice of the said right. Therefore on the date of the registration of the tarwad as impartible, the petitioner had acquired a right which would entitle him to bring the share of the respondent to sale, and the property of the tarwad in the hands of the other members can only be held by the tarwad subject to the rights of the attaching creditor. The expression 'at any time' in Clause (1) of Section 43 cannot be held to have a retrospective effect so as to defeat the rights of the attaching creditor. The said expression and Clause 4 of Section 43 must be so construed as not to defeat the rights which third parties had acquired before the registration of the tarwad was effected, at any rate, before the application for the registration was made. In Kunchi Amma v. Minakshi Amma (1935) 70 M.L.J. 114 : I.L.R. 59 Mad. 693 the view was expressed that if a member of a family expresses his intention to become separated from the family the intention so expressed would operate as severance of status from the family and the subsequent registration of the tarwad as impartible would not prevent the disposal of his interest by him as his separate property; otherwise the construction of Section 43 would render the right granted under Section 38 illusory. The language of Section 43, Clause 4 lends support to this view. What it says is, it is only on registration that the provisions of Ch. VI will not apply, that is, until registration the rights of a tavazhi under Section 38 would not be affected and if such rights were exercised and the law attaches to such exercise certain legal consequences, they cannot be rendered nugatory by the subsequent registration.

5. Mr. Govinda Menon contends that we ought not to apply the principles deduced from decisions dealing with cases under Mitakshara law to cases arising under Marumakkathayam law and for that purpose relies on the observations in Gopala Nair v. Raghavan Nair (1924) 21 L.W. 215 which are to this effect:

It seems to me that Malabar law being essentially customary law, the process of solving questions, as they arise for decision, by extending the operation of a custom by analogy or by applying 'inferences' from the Hindu law, unless in the utter absence of evidence as regards custom, is bound to create a divergence between the Court-made law and the customary law as observed by the people.

6. In the first instance, we are not seeking to extend the operation of any custom by analogy or applying an inference drawn from Hindu law. The principle of the decision in Suraj Bunsi Koer v. Sheo Pershad Singh is not based upon any peculiar dectrine of Mitakshara law because by that law alienation, either voluntary or involuntary, is prohibited and in fact their Lordships applied certain general principles which would follow from certain admitted legal relationships. From the admitted right of a co-parcener to claim partition their Lordships, applied the principle deducible from the law of partnership that it is open to a creditor to attach the share of a member who at law can claim partition and have his share separated, and once that share is brought under the control of the Court, their Lordships held that a creditor would acquire a charge or lien which would enable him to have that lien worked out by selling the property in satisfaction of his debt. We therefore do not think that any customary law is infringed by the application of the principles deducible from the said decision. They follow from the rights which the members have now acquired by statutes which have modified the customs of Malabar.

7. It is next contended by Mr. Govinda Menon that even assuming that the said decisions are applicable, what could be attached, sold and purchased is an equity to file a suit for partition and before a suit is filed and the share is separated, the right comes to an end and there would be nothing to sell. In support of this contention he relied on certain cases, namely, Nanjaya v. Shanmugha (1913) 26 M.L.J. 576 : I.L.R. 38 Mad. 684 and Maharajah of Bobbili v. Venkataramanjulu Naidu : (1914)27MLJ409 and particularly the observations of Bakewell, J., in Nanjaya v. Shanmugha (1913) 26 M.L.J. 576 : I.L.R. 38 Mad. 684 which were approved and made the decision of a Division Bench in Sthapathiar v. Sivanarayana Pillai (1932) 64 M.L.J. 66 : I.L.R. 56 Mad. 534. So far as the decisions in Nanjaya v. Shanmugha (1913) 26 M.L.J. 576 : I.L.R. 38 Mad. 684 and Maharajah of Bobbili v. Venkataramanjulu Naidu : (1914)27MLJ409 are concerned, they hold that where there is an alienation of the share of a member of a joint family, either voluntary or involuntary, the alienee does not become a tenant in common with the other members of the family and until partition is effected, he will not be entitled to claim any mesne profits from the date of the alienation. It is not necessary for us to go into this question because that does not arise here and it is open to argument that this view is not in any way inconsistent with the principle laid down in the decisions adverted to by us because their Lordships in Deendyal Lal v. Jugdeep Narain Singh clearly indicated that the rule of partnership law which enables a creditor to seize and sell the share of a partner can be applied to the shares of the members of an undivided estate without unduly interfering with the peculiar status and rights of the coparceners in such estate. But he laid considerable emphasis on the observations of Bakewell, J., in Manjayo v. Shanmugha (1913) 26 M.L.J. 576 : I.L.R. 38 Mad. 684 which are to this effect:

Since the transferee only acquires an equity to compel a partition he has only a right in personam and not a right in rem...

8. Jackson, J., in Sthapathiar v. Sivanarayana Pillai (1932) 64 M.L.J. 66 : I.L.R. 56 Mad. 534 cites with approval this observation and holds that according to the true view an alienor cannot part with more than he has got and as the right of alienor becomes extinct upon his death the right of the alienee becomes extinct also; but however he is precluded from taking this view in cases of death on account of the definite pronouncement of the Privy Council by which he is bound, but he is not prepared to import other exceptions. With great respect to the learned Judges we may observe that the view taken proceeds on a complete misapprehension of the decisions on which the said observations are based. It is not possible to understand what exactly was meant by the words 'a transferee only acquires a right in personam and not a right in rem'. If a right in personam is understood to be a right available against certain persons only and not against all the world, of course the right of an alienee to file a suit for partition is only a right in personam against the members of the family but it is a right in rem in so far as he has got a vested right in the interest acquired by him available against all the world. If the decisions of the Privy Council are closely examined, it will be seen that what is sold and what the purchaser acquires is not a bare right to partition but a definite interest in the property; the only thing uncertain about it is the extent of the property which he would acquire in working out that interest by means of a suit for partition. In Deendyal Lal v. Jugdeep Narain Singh the declaration itself was to the effect that the purchaser at the execution sale has acquired; the share and interest of the member in the property which was attached and sold and that he was entitled to take such proceedings as he was advised to have that share and interest ascertained by partition. In Suraj Bunsi Koer v. Sheo Persad Singh their Lordships observe thus:

The effect of the execution sale was to transfer to the respondents the undivided share in eight annas of Mouza Bissumbhurpoore, which had formerly belonged to Adit Sahai (the member whose share was attached) in his lifetime; and their Lordships are of opinion that, notwithstanding his death, the respondents are entitled to work out the rights which they have thus acquired by means of a partition.

9. In fact, the declaration was made to the following effect:

An order declaring that, by virtue of the execution sale to them, the respondents acquired only the one undivided third share in the eight anna share of Mouza Bissumbhurpoore.in the pleadings mentioned, which formerly belonged to Adit Sahai, with such power of ascertaining the extent of such third part or share by means of a partition as Adit Sahai possessed in his lifetime; and ordering that the appellants be confirmed in the possession of the said eight anna share of Mouza Bissumbhurpoore, subject to such proceedings as the respondents may take in order to enforce their rights above declared.

10. In Hardi Narain Sahu v. Ruder Perkash Misser Sir Richard Couch, who delivered the judgment of the Judicial Committee, after referring to Deendyal Lal v. Jugdeep Narain Singh made the following observations:

The interest which is purchased is not, as Mr. Doyne argued, the share at that time in the property, but it is the right which the father, the debtor would have to a partition, and what would come to him upon the partition being made.

11. These observations have sometimes been misunderstood as leading to the conclusion that the purchaser did not acquire any share at all but a bare right to partition. But the subsequent observations of Sir Richard Couch make the position very clear. In that case the position was that if there was no partition, the father and son would each be entitled to a half but if a partition was effected, the wife would be entitled also to a share, so that if a partition be deemed to have taken place at the date of the transfer, the property would have to be divided into three shares and what the alienee would get would be only a third and not a half. That is why their Lordships made the observation that:

The interest which is purchased is not, as Mr. Doyne argued, the share at that time in the property.

12. Emphasis will have to be laid on the words 'at that time'. The effect of these Privy Council decisions is very clearly stated by Bhashyam Aiyangar, J., in Aiyyagari Venkataramayya v. Aiyyagari Ramayya I.L.R.(1902) 25 Mad. 690 (F.B.) thus:

According to the theory of an undivided Hindu family, each member has a present vested interest, which, by a partition at his will and pleasure, can be converted into a separate interest. The judicial decisions have recognised that such interest is transferable either in whole or in part for value and that the transferee therefore takes a vested present interest. What is transferred to him is thus a present vested interest and not a future contingent interest, uncertain and fluctuating, until the transferee actually effects a partition - even assuming that such contingent and possible future interest could legally be transferred [vide Section 6(o) of the Transfer of Property Act]. The transfer in question operates upon the vested interest which the transferor had in the family property just before the alienation and the same is converted for the benefit of the transferee into the separate share and interest of the transferor by a partition of the family property at the time of such alienation. The estate that is transferred to and vested in the alienee is not an 'equitable interest' as understood in the English law, but a 'legal estate' which has to be reduced into possession by the alienee standing in the shoes of the transferor and effecting a partition on the footing on which the family and the property both stood at the time of the transfer.

13. It is unnecessary to deal with the view taken herein or by the Division Bench in Sthapathiar v. Sivanarayana Pillai (1932) 64 M.L.J. 66 : I.L.R. 56 Mad. 534 as to whether the actual share to be allotted to the alienee is to be determined as on the date of partition as held in Rangasami v. Krishnaien (1891) 1 M.L.J. 603 : I.L.R. 14 Mad. 408 (F.B.) or as on the date of the alienation as held in Chinnu Pillai v. Kalimuthu Chetti : (1911)21MLJ246 , because that question does not arise at present.

14. Mr. Govinda Menon next relies on Section 64 of the Civil Procedure Code, and on the decision of the Privy Council in Mohammad Afzal Khan v. Abdul Rahman (1932) 63 M.L.J. 664 : L.R. 59 IndAp 405 : I.L.R. 13 Lah. 702 (P.C.) and contends that the only thing prohibited by the attachment is a private transfer and that the subsequent registration of the tarwad is not affected by it. We are inclined to consider that this contention is irrelevant and unsound. Section 64, Civil Procedure Code, has in our opinion no bearing on the question under discussion. It does not say when an attachment terminates; for example, death does not terminate an attachment and after the death of a judgment-debtor, further proceedings can be had by bringing the legal representatives of the judgment-debtor on record without a fresh attachment. The question in this case is whether the subsequent registration terminates the attachment pending on the date of the registration. Again, the case in Mohammad Afzal Khan v. Abdul Rahman (1932) 63 M.L.J. 664 : 1932 L.R. 59 IndAp 405 : I.L.R. 13 Lah. 702 (P.C.) only decides that where the interest of one of several co-sharers in some of the properties held jointly by them is attached in execution of a decree against him and those properties are subsequently allotted to the other co-sharers in pursuance of a decree passed in accordance with an award effecting partition in an arbitration without the intervention of the Court, it would not amount to a private transfer within the meaning of Section 64, Civil Procedure Code. It therefore has absolutely no bearing on the facts of this case.

15. We are therefore of the opinion that the subsequent registration of the tarwad as impartible does not preclude the Court from proceeding with the execution petition and directing a sale of the property. We accordingly set aside the orders of the lower Courts and remand the petition to the Court of the District Munsiff of Ottapalam for disposal according to law in the light of the observations contained in this judgment. Costs will abide the result.


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