1. This appeal raises questions of some difficulty with reference to the interpretation of Section 14 of Act IV of 1938 and its application to families governed by Marumakkattayam law.
2. The appellants were the defendants in a suit brought oil a promissory note for a sum of Rs. 5,664-10-0, executed by them and by two other members of their family who have since died, on 1st December, 1935. The debt is admittedly a family debt binding the tavazhi' of which the defendants are members. There is no particular difficulty about the way in which the debt is to be scaled down if it is to be scaled down. The suit note can be traced back to an earlier note, dated 2nd January, 1927, for a sum of Rs. 2,100 executed by a representative of the defendants' tavazhi to the plaintiffs' assignor. This note of 1927, is made up of four other notes regarding which the materials are not very complete. But one of those notes is a note for Rs. 700, dated 1st February, 1917 which itself can be traced back to a still earlier note of 6th August, 1906 for RS. 250, between the same parties so that Rs. 450 out of this Rs. 700 must represent interest. Then there is a note of 1919 for Rs. 195 which is in the name of a different promisee and therefore has to be treated as a separate debt. There is another note of 1924, which is also in favour of a different promisee and there is a note of 1925, in favour of the plaintiff's assignors for a sum made up entirely of interest, but there are no materials to show, on which debts that interest accrued due. It seems to follow therefore that except for the amount of Rs. 450 representing the interest included in the principal of the note of 1917, the balance of the consideration for Rs. 2,100 for Ex. A, the note of 1927, must be deemed to be the original principal of the suit transaction. It seems to follow therefore that the proper way of scaling down this debt is to treat as the original principal the amount of Rs. 2,100 less Rs. 450; that is to say, Rs. 1,650 and award interest at 6 1/4 per cent, from 1st October, 1937, on this sum.
3. This calculation only applies to the extent to which the defendants are entitled to relief as agriculturists under the Act and that can only be decided after 'dealing with questions of some complexity. The tavazhi to which all the defendants and others who are not parties belong, formed part of a larger tarwad which has been divided as a result of a suit for partition brought by the present ninth, tenth and eleventh defendants and their mother. The partition decree decides that the tarwad properties are to be divided so as to treat as units certain sub-tavazhis whose shares in the tarwad properties remain undivided. The major tavazhi which is responsible for the present suit debt now consists of a number of sub-tavazhis and a number of individual sharers who under the Marumakkattayam Act must be regarded as tavazhis since they have no female ancestor alive. Now it seems to be established, vide--Subramanian Tirumurupu v. Naraina Tirumurupu : AIR1938Mad553 that when an individual member of a Marumakkattayam family himself constitutes a tavazhi entitled to claim partition, his share is attachable; and it would seem to follow that such a person has a saleable interest in the family property. If that family property is agricultural land and he is not otherwise disqualified, such a person would be entitled to claim to be an agriculturist for the purposes' of Act IV of 1938. With reference to those groups of individuals each constituting a sub-tavazhi the female ancestor of which is still living, they have no right to claim partition without the consent of that female ancestor and it is reasonable to hold that they have as individuals no saleable interest in the family properties, though, for calculating the shares into which the tarwad properties have to be divided, the number of individuals comprised in such groups is taken into consideration and the allotment of shares is per capita. When we turn to the provisions of Act IV of 1938, we have to consider what is the position regarding this major tavazhi which is primarily responsible for the suit debt and the individual members of that tavazhi some of whom are certainly agriculturists, one of whom would be an agriculturist were it not for a disqualification by payment of income-tax and others who are apparently not agriculturists because they are junior members of a sub-tavazhi or group and not entitled to claim partition.
4. It has been contended that Section 14 of Act IV, which prescribes a procedure for dealing with a Hindu family containing agriculturist and non-agriculturist members has no application to a Marumakkattayam tarwad or tavazhi. There are two main reasons for seeking to exclude Marumakkattayam families from the scope of Section 14. The first is that in the, 'definition of 'person' in Section 3 (i) of the Act, the Legislature has enumerated separately an undivided Hindu family and a Marumakkattayam or Aliyasanthana tarwad or tavazhi, from which it is contended that we should infer that for the purposes of this Act a Marumakkattayam family is something different from an undivided Hindu family. The answer which has been suggested is that a Marumakkattayam family is not necesarily a Hindu family at all, because it may be a family of Muhammadans and' that therefore when the Legislature desired to treat such a family as a person, it was necessary to enumirate separately the ordinary undivided Hindu family and the Marumakkattayam tarwad or tavazhi which was not necessarily Hindu. From this separate enumeration no inference can therefore be drawn that the term 'undivided Hindu family' will not include a Marumakkattayam family if that family is Hindu. The other argument is based on the difficulty of working out Section 14 of the Act in the case of a Marumakkattayam tarwad. No doubt there are difficulties, but we shall endeavour to show that those difficulties are not insuperable and not so great as to justify the Courts in giving to Section 14 an interpretation other than that which it would naturally bear.
5. There are very clear and cogent reasons for holding that Section 14, does apply to a Marumakkattayam Hindu family. In the first place, it must, we think, be conceded, that when we talk in general terms of a Hindu family whether divided or undivided and do not exclude any particular type of Hindu family, we should ordinarily be understood as using language sufficiently wide to include a Marumakkattayam family. Secondly Section 14 itself is subject to the provisions of Sections 5 and 6 of the Act and both these sections specifically refer to an 'undivided Hindu family other than a Marumakkattayam or Aliyasanthana tarwad : or tavazhi'. The exclusion specified in these two sections is made for special reasons which will be apparent on a perusal of those sections. Now when the Legislature found it necessary to exclude from the category of undivided Hindu families a Marumakkattayam tarwad or tavazhi, the exclusion is made by specific language. The natural inference is that when there is no such specific language excluding the Marumakkattayam family, the phrase 'Hindu family' would ordinarily include a Marumakkattayam 'family which is Hindu by religion. No effective reply has been suggested to this contention. It seems to us necessarily to involve the conclusion that Section 14 must have been intended to apply to a Marumakkattayam tarwad or tavazhi unless it is quite impracticable so to apply it....
6. We will turn now to the practical difficulties. It has been argued that those members of the major tavazhi who are junior members of one of the minor sub-tavazhis and are not entitled to claim partition, are non-agriculturists because they have no sale-, able interest in agricultural lands; and yet, when we come to apply Section 14 to them, it is necessary to treat them as having a share in the family properties and such share is liable to be sold by the creditor for their proportionate share of the family debt; that is to say, it is argued that to apply Section 14 in such a case involves a provision for the sale of that which is not a saleable interest. It is also argued that the purchaser who is rash enough 'to purchase these shares in Court auction will find it impossible to reduce them to possession since many of the sharers are not entitled to claim partition and that the complications resulting from the amended decree would be almost insoluble. It seems to us that most of these difficulties and apparent contradictions can be resolved by interpreting the word 'members' in Section 14 as equivalent to 'members entitled to a share'. There is after all no reason why persons who are members of an undivided family merely in the sense that they live in the family house and are maintained out of the family assets, should be brought within the scope of Section 14, if they have no share in the family properties; for the object of Section 14, clearly is to work out the liabilities imposed 'Upon the family properties when these liabilities have to be treated in a different way according to the status of the different sharers. If once it is conceded that Section 14, uses the word 'member' in the sense of a 'member entitled to share', it would seem to follow that in the 'Malabar tarwad the 'member' would not ordinarily or necessarily be the individual who is merely taken into consideration in counting heads for the purpose of working out the shares on partition to be allotted to the group of individuals which is treated as a unit at the time of partition. There is nothing foreign to the tenor of this Act in regarding a group of individuals as a person. For, the definition in Section 3 (i) expressly provides that a person means an individual and includes an undivided Hindu family or Marumakkattayam tarwad or tavazhi. The sub-tavazhi in the present case is a person within the meaning of the Act. There seems to be no reason why the sub-tavazhi, the smallest unit which can claim a share should not be regarded as the 'member' for the purpose of Section 14 and we see no necessary reason for treating as the 'member' the individual who along with others comprises this 'person' which collectively is entitled to a share.
7. No doubt, as has been pointed out by. Mr. Govinda Menon for the respondents, the Marumakkattayam Act speaks of members of the tarwad in the wider sense as equivalent to those individuals whose heads are counted for the purpose of determining the division of the shares. But we do not think that it follows from this use that-when the word 'member' is used in Section 14 6f Act IV of 1938, with specific reference to the shares of those members in the family property, it should not be interpreted in the stricter sense as an individual or group of individuals entitled to a share at partition. Accepting this interpretation, most of the difficulties in applying this Section 14 to a Marumakkattayam family disappear. There is no difficulty about the saleability of the share of the member. For, the sub-group is entitled to a share or shares and can claim partition of that share. There is no apparent; difficulty which would result from the sale of the share of such a subgroup and it is fairly easy to say whether any particular tavazhi is or is not an agriculturist.
8. Another difficulty upon which emphasis has been laid also disappears by an interpretation of Section 14 in a way for which there is authority. No doubt if, as was contended in the lower Court, each of the individual sharers was entitled to demand that his individual share should be sold separately for the proportionate amount of the family debt, whether scaled down or not scaled down according to his status, the result in a Malabar family would be great confusion and complexity. But our learned brother Horwill, J., has interpreted Section 14 in a way which seems to us to be consistent with its language and which avoids this undesirable result. According to his view (vide Jagannatha Aiyangar v. Suppiah Chettiar (1940) 2 M.W. 187 when there are in one family agriculturist members and non-agriculturist members, the proper procedure having regard to, Section 14 is not to sell each member's share separately for his individual proportionate liability of the debt, but to take together the agriculturist members and sell their collective share of the family property for their proportionate liability as scaled down and to take together the non-agriculturist members of the, family and sell together their collective share of the family property for the proportionate share of the family debt as not scaled down. This procedure is simple and as the learned Judge points out, there is no equity in restricting the liability of each individual member to his individual proportionate share of the debt; while the use of the singular word 'share' instead of the plural 'shares' in Clauses (a) and (b) of the section sufficiently indicates an intention that the collective share of each category of members should be jointly liable for what is after all a joint family debt., If this, interpretation is accepted--and we do accept it--then the procedure in a Marumakkattayam family would be to find out first which members (including in this term any sub-tayazhi entitled to claim partition) are agriculturists and which are non-agriculturists; ascertain how many shares belong to the agriculturist members and how many to the non-agriculturist members and, after scaling down the debt, hold the agriculturist section of members collectively liable for the proportionate share of the debt as scaled down and the non-agriculturist section of members collectively liable for the proportionate share of the debt as not scaled down. The creditor would thus be required to divide his execution proceedings into two parts, one relating to the scaled down decree and the other relating to the unsealed down decree and so far as family properties are concerned, each of these parts' of the decree would be executable against a composite fraction of the family property. There would be no special difficulty either in executing such a decree or in working out the equities among the members of the family after execution.
9. A further question which has been raised relates to the personal liability of the defendants who have actually executed the suit promissory note. The tavazhi consists of 25 members. Of these 25, only the 13 defendants have actually signed the note. We have already explained how their liability so far as the family properties are concerned, will have to be worked out. It remains to decide whether the personal liability and the liability of their separate properties will be governed by the same principles. Section 14 is by no means clear on this point. When the section says,
The creditor shall notwithstanding any law to the contrary be entitled to proceed against the non-agriculturist member or members and his or their share of the family property to the extent only of his or their proportionate share of the debt,
what does it mean? In the most literal interpretation, it Would seem to mean that whatever the nature of the liability, so long as it is annexed to the family debt, both the personal, property of the non-agriculturist and his share of the 'family property would be liable only to the extent of his proportionate share of the debt. But surely the section cannot be read as imposing a personal liability regardless of the nature of the contract in which the debt is embodied. If the section is intended at all to govern the personal liability of the agriculturist members of a family, we must necessarily read into it some qualifying words to the effect that the creditor shall be entitled to proceed- personally only if he can claim a personal remedy against the debtor. It is. on the other hand argued that Section 14 has got nothing to do with the remedies of the creditor against the 'personal or separate property of the members of an agricultural family and that it must be read as relating only to the liability of such a member in respect of his share of the family property. This interpretation also involves the addition of one or two words to the section. We have to read the word 'and' in the phrase 'member or members and his or their share' as equivalent to in respect of. There is a great deal to be said for this interpretation of the section having regard to the apparent object with which the section was enacted. Clearly, it was intended to deal with the difficulty of apportioning a liability which was partly scaled down and partly intact to the properties of the family whether undivided or divided. There was no apparent reason why any special process should be applied so far as the separate properties of members were concerned. The natural process is that in respect of his separate properties, the individual member should claim relief according to his status and without reference to the extent of his share in the family properties. The apportionment of joint liability between agriculturists and non-agriculturists is really not a matter arising with reference to the personal liability of actual executants.
10. If it were possible to take the literal meaning of the section as it stands and give it a practical effect without doing violence to basic principle's, which there was clearly no intention to violate, we should have no option but to do so. But as we have; pointed out, the literal interpretation of this section would involve the creation of a liability which does not exist in the contract; in order to limit a contractual liability in favour of a class of persons whom the Act was not specially designed to benefit. If, on the other hand, we adopt the view that this section was concerned only with the liability of family property, all that is necessary to give effect to that apparent intention is to treat the phrase 'member or members and his or their share' as a somewhat inexact way of expressing what was really intended, namely, 'member or members in respect of his or their share'. We believe that to be the intention of the Act and in view of the apparent impossibility of interpreting the section literally, we have come to the conclusion that this interpretation involves the least donation from the language and the apparent scope of the section.
11. The result therefore is that in this view the operation of Section 14 will not affect the personal liability of the defendants who have actually executed this note. They will be entitled to scale down the decree so far as their personal liability is concerned, even as they would be entitled to scale down any other debt, not by rendering themselves liable for only a part of the debt, but by being liable for the whole of the debt, subject to such reduction as they may be entitled to if they are agriculturists.
12. The genealogical table which has 'been furnished to us seems to, make it clear that the second defendant, the tavazhi of four members including the third and twelth defendants and the sixth defendant's tavazhi which consists of herself and her five children are non-agriculturists. The second defendant is admittedly disqualified by the payment of income-tax and the other two sub-tavazhis just referred to are each entitled to shares of the tarwad property which according to the evidence would make them liable to pay more than Rs. 500 as land revenue. We are not able to accept the contention that because this land revenue is actually being paid by the receiver in the partition suit, it is not a payment by the persons entitled to the properties in respect of which it is paid. The rest of the members of the family appear to be agriculturists.
13. The result therefore is that the plaintiff is entitled to a decree for the full amount of the suit claim with interest at 6 per cent, from the date of the plaint and full costs and subsequent interest against all the defendants personally. The decree so far as the liability of the family properties is concerned will be a joint decree for the proportionate share of the full amount of the debt with costs as against those defendants and tavazhis which are non-agriculturists. As against the agriculturist defendants, the plaintiff, will be entitled to a joint decree against their proportionate share of the family properties for the proportionate share of the debt as scaled down in the manner indicated above and proportionate costs in the lower Court. Both parties will bear their own costs in the appeal and in the memorandum of objections.