1. The following are' the facts of this case:
2. The present respondent obtained a decree for money to be paid ' out of the assets of the deceased Uthotti' in the hands of defendants 2 and 3 in Original Suit No. 485 of 1888, on the file of the District Munsif of Badagara. In execution of that decree property was attached, and the present appellant objected to the attachment under Section 2. 278 of the Code of Civil Procedure.
3. The property so attached consisted of seven items. The Munsif allowed the appellant's objections with regard to all seven. The District Judge, on appeal, modified the Munsif's order to ' the extent of making the judgment-debtor's share in Nos. 2 to 6 liable.' He did this on the authority of the decision in Narayanan v. Kannan I.L.R. 7 Mad. 315. This decision of the District Judge was upheld on appeal to this Court by Shephard, J., who further referred to the decision in Parvathi v. Koran S.A. No. 1066 of 1889. Hence the present appeal in which it is contended (1) that the properties in dispute are not assets of the judgment-debtor and (2) that even in his life-time the judgment-debtor had not in these properties an interest liable to attachment and sale.
4. lt is admitted on both sides that the properties in question belonged to one Taruvai, the father of the judgment-debtor Uthotti and also of the present appellant. As is seen from Exhibit D, the truth of the statements contained in which is admitted by the respondent, these properties were given after Taruvai's death to his first wife Ayissumma and her children in accordance with his orally expressed wish. The appellant and Uthotti are two of the children of Ayissumma. Other properties were, at the same time, given to Taruvai's second wife and her children.
5. Appellant's contention is that the property thus given to Ayissumma and her children was given to them as joint tenants; that they thus became with regard to this property a separate tarwad; and that the property was held by them subject to the incidents of tarwad property, and that it is consequently non-partible, and, therefore, not liable to attachment or sale in satisfaction of a decree obtained against one of the members of the tarwad.
6. On the other hand, respondent's vakil refers to Narayanan v. Kannan I.L.R. 7 Mad. 315 and to Parvathi v. Koran see ante, p. 202 as authorities justifying the dismissal of this appeal.
7. Parvathi v. Koran see ante., p. 202 merely follows the decision in Narayanan v. Kannan I.L.R. 7 Mad. 315 and the correctness of this latter decision has been questioned in Moidin v. Ambu S.A. Nos. 647 and 648 of 1890 by Muttusami Ayyar and SHEPHARD, JJ., who have pointed out that the decision in Narayanan v. Kannan I.L.R. 7 Mad. 315 appears to be in conflict with the principle laid down in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullick 6 M. 1. A. 526, Mahomed Shumsool v. Shewakram L.R. 2 IndAp 7.
8. The principal reason assigned by the learned Judges who decided Narayanan v. Kannan I.L.R. 7 Mad. 315 for arriving at the conclusion come to by them, namely, that the right of partition is 'an incident of the estate given by Hindu law,' is inapplicable to an estate under the Marumakkatayam law--of which estates impartibility and not partibility is the legal incident.
9. The case of Renaud v. Tourangeau L.R. 2 P.C. 4, also referred to in that decision, is no doubt authority for holding to be invalid an absolute prohibition of alienation, e.g., in the case dealt with in Narayanan v. Kannan I.L.R. 7 Mad. 315, a prohibition of alienation, by the tarwad itself, or by its karnavan acting on behalf of the tarwad; but it seems hardly authority for the proposition that in the case of property devised (as that was) to be held under the usual custom of Malabar, a prohibition of alienation of the share of any member (except with the consent of the tarwad or by its karnavan) is not valid against a creditor seeking to proceed against one member's interest in the joint property.
10. Finally, the mere fact of the property having been such that the grantor could have dealt with it as if it had been his self-acquisition, appears to be an invalid reason for holding it to be partible after it has been devised to a definite branch cf the family for the purpose of being held jointly by that branch.
11 It is true that in the present case there is no express prohibition against alienation, nor is it stated in so many words that the property was to be held by the grantees as their tarwad property; but taking into consideration what are known to be the ordinary notions and wishes of persons in Malabar in the position of Taruvai, the grantor of the property, and also the ordinary incidents of property in the same district, and also bearing in mind that other property was similarly granted at the same time to the second wife and her children, there can be no doubt, I think, that the intention was that the property should be held by the grantees as joint tenants. The four unities of a joint tenancy are all found in this case, namely (1) of possession, (2) of interest, (3) of title, and (4) of the time of commencement of such title.
12. I would, therefore, allow this appeal were it not for the decision in Narayanan v. Kannan I.L.R.7 Mad. 315.
13. As the correctness of the decision in that case has been questioned by Muttusami Ayyar, J., one of the learned Judges who was party to it, and also by Shephard, J., who was a party to Parvathi v. Koran see ante, p. 202 in which it was followed, I am of opinion that the reference to the Full Bench contemplated in Moidin v. Ambu see ante. p. 203) (but subsequently found to be unnecessary in that case) should now be made, as the allowance or disallowance of the present appeal depends upon the correctness or otherwise of the decision in Narayanan v. Kannan I.L.R. 7 Mad. 315.
Subramania Ayyar, J.
14. I concur in making this reference to a Full Bench. Narayanan v. Kannan I.L.R. 7 Mad. 315 was decided in March 1884. Krishna v. Raman (Second Appeal No. 708 of 1884, unreported), which came from South Malabar was decided in February 1855. There, a question similar to that raised here was considered. The finding in that case was that the gift was to a woman, her sisters and brother. It was contended that the donees did not take the property as tenants-in-common. With reference to this contention, Muttusami Ayyar and brandt, JJ., stated that ' In the absence of any direct evidence that the intention of the donor was otherwise, we are of opinion that it is consistent with the custom in such cases in Malabar; and that we must assume that the gift was a gift to the brother and sisters constituting them, as such, a tarwad, and rendering the property conveyed by the gift subject to the ordinary incidents of property held by a tarwad. '
15. This question which I propose to refer is whether Ayissumma and her children took the properties in question with the incidents of property held by a tarwad.
16. This appeal came on for hearing before the Full Bench (collins, C.J., Muttusami Ayyar, Parker and Wilkinson, JJ.)
17. Govinda Menon, for Appellant, argued that the intention of the donor must be presumed to have been that the donees should take the property jointly as tarwad property, and that accordingly the attachment was illegal.
18. Mr. Wedderburn and Ryru Nambiar for Respondent.
19. The reference by best, J., to the incidents of joint-tenancy is misleading, for, in the present case, the question is not as to a right of survivorship in the English sense, but as to the incidents of tarwad coparcenary. No doubt the case must be determined according to the principles laid down in Mahomed Shumsool v. Shewakram L.R.2 IndAp 14, so far as they are applicable; but here there is no special circumstance from which the intention which the appellant argues should be presumed to have been that of the donor can be inferred. For it appears that he was a Muhammadau, and I am instructed that he was governed by Makkatayam law, while the wife and children were undoubtedly subject to the Marumakkatayam rule. Moreover, they formed part of a tarwad to which the wife's sisters and their children also belonged. The donor cannot be presumed to have desired to benefit the whole of that tarwad, for that would diminish the benefit to be derived by his own wife and children; and it is submitted that the Court should so give effect to the gift as to benefit them as far as possible. The idea of separate self-acquired property has long been familiar in Malabar, and here the donees, if they took the property as self-acquisition, would be better off than if the gift was such as to leave the property fettered in the manner now so irksome to holders of tarwad property. Moreover the Court should be averse to extend further than the personal law of the parties clearly requires the stereotyped rule of impartibility which will govern this property if it is tarwad property. If the property was taken by the donees as self-acquired, each of them could deal freely with his share and consequently the share of each would be liable for his debts, and consequently the present attachment was legal.
20. The properties in question originally belonged to one Taruvai, and they were given after his death to his wife Ayissumma and her children in accordance with his orally expressed wish. Thequestion referred to us is whether Ayissumma and her children took the properties with the incidents of property held by a tarwad. In the case before us the donor expressed no intention as to how the properties should be held by the donees, and in the absence of such expression, the presumption is that he intended that they should take them as properties acquired by their branch or as the exclusive properties of their own branch, with the usual incidents of tarwad property in accordance with Marumakkatayam usage which governed the donees. This view is in accordance with the principle laid down by the Privy Council in Sreemutty Soorjee-monee Dosee v. Denobundoo Mullick 6 M.I.A. 526 and Mahomed Shumsool v. Shewakram L.R. 2 IndAp 7. The decision in Narayanan v. Kannan I.L.R. 7 Mad 315 was not followed in Moidin v. Ambu see ante. p. 203 and it appears to us to be in conflict with the rule of construction indicated by the Privy Council.
21. We answer the question in the affirmative.
22. This appeal came on for final disposal before the Division Bench, and the Court delivered the following judgment.
23. Following the decision of the Full Bench we set aside the orders of the District Court and of the learned Judge of this Court and restore that of the Court of First Instance.
24. There having been contlicting ruliugs on the subject we make no order as to costs.