1. The question for decision in this Civil Miscellaneous Appeal is whether Item No. 1 attached by the decree-holder-respondent does not form part of the estate of the late A. P1. A. Palaniappa Chettiar.'
2. Periannan Chettiar, the 1st respondent herein, instituted a suit on a hundi drawn by Palaniappa Chettiar, the deceased father of the 2nd defendant the appellant before us and obtained a decree in O.S. No. 86 of 1931. This decree, was to recover the decreed amount 'from the 2nd defendant's share in the family properties if any and also from the separate assets if any of his father in his hands.' In execution of this decree Item No. 1 in the list of properties filed in E.P. No. 87 of 1932 was sought to be attached by the appellant as property belonging to the late Palaniappa Chettiar. The 2nd defendant-appellant objects to the attachment on the ground that this item, which is an amount of money, is not liable to be attached in execution of the decree as it does not belong to the late Palaniappa Chettiar. The only point for consideration is whether Item No. 1 formed part of the estate of the late A. P1. A. Palaniappa Chettiar.
3. The appellant's case is that the amount of money forming Item No. 1 was set apart at the time of his mother's marriage as a trust fund for the benefit of his mother and her children. It appears from the papers and this fact is not denied that at the time of the marriage of his mother with his father the bridegroom's maternal uncle, the decree-holder in this case, deposited Rs. 1,500 at the instance of the bride's father in the name of her husband, that is, the deceased Palaniappa Chettiar, on the maral of the bridge's father. The appellant's case is that according to the custom prevailing amongst the Nattukottai Chetties such money though deposited in the name of the husband is really in the nature of a trust fund which will enure to the advantage of the bride and her children and that they are really beneficiaries of the amount which is in the nature of a trust held by the trustee, the husband. It is, therefore, contended that this item No. 1 cannot be proceeded against in execution of the decree as it belongs to the 2nd defendant and other children of the deceased Palaniappa Chettiar. The oral evidence adduced on behalf of either side was discarded by the lower Court as interested testimony. The lower Court held that there was nothing to show that the money deposited in the circumstances mentioned above should be considered to be a trust fund, but it held that the maraldar has some control over the money in question and acts as an effective check on the indiscriminate withdrawal of the money by the person in whose name it was deposited. In the opinion of the lower Court, whatever restrictions there may have been so far as Palaniappa Chettiar was concerned in his dealings with the money, those restrictions all passed away after his death and the amount became subject to the claims of decree-holders who have obtained decree against him. For these reasons the objections of the 2nd defendant-appellant were over-ruled.
4. In this appeal a preliminary objection was taken by Mr. Ramabhadra Ayyar that no appeal lies against the order under Section 47, Civil Procedure Code, his objection being that since the appellant urges an independent claim to the property, his position is analogous to that of a claimant under Order XXI, Rule 58, Civil Procedure Code, and so far as he is concerned the proceedings relate to the investigation of claims under Order XXI, Rule 58, and the subsequent sections and his remedy against the lower Court's order is to file a suit to set it aside and not to prefer an appeal under Section 47, Civil Procedure Code. This contention is based mainly upon the decision in Budrudeen Sahib v. Abdul Rahim Sahib 31 M 125 but that decision is inapplicable because there the judgment-debtor objected to the attachment on the ground that he held the property in trust for some third persons; the objection was not, as in the present case, based on his own claims to the property. The decision in Ramanathan Chettiar v. Levvai Marakkayar 23 M 195 is also distinguishable on the same ground. The appellant's contention that an appeal lies is supported by the decision in Vengappayyan v. Karimpanakal Parvati 26 M 501 where it was held:
A question as to whether improvements on land attached in execution of a decree are property of a deceased judgment-debtor which has come to the hands of his representatives as such or belong to the representatives in their own right can be and ought to be decided under Section 244(c) and not by a separate suit.
5. In the present case the question is whether Item No. 1 has come into the hands of the appellant as the property of the deceased judgment-debtor or whether it belongs to him in his own right. That being the case, it follows that according to Vengappayyan v. Karimpanakal Parvati 26 M 501 the question should be decided under s. 47, Civil Procedure Code. As pointed out in the above-mentioned case, the decision in Ramanathan Chettiar v. Levvai Marakkayar 23 M 195 has no bearing on this question. It is not necessary to discuss the other cases such as Madhusudan Das v. Govinda Pria Chowdhurain 27 C 34 and Krishna Chandra Dutta v. Dina Nath Biswas : AIR1928Cal94 cited by the appellant. We must, therefore, overrule the preliminary objection.
6. Coming to the merits, we are satisfied that the lower Court's decision is wrong. The lower Court says that the maraldar has some control over the money in question and acts as an effective check in the indiscriminate withdrawal of the money by the person in whose name it was deposited, and that whatever restrictions there may have been so far as Palaniappa Chettiar was concerned, these restrictions all passed away after his death. If the maraldar acts as an effective check on the withdrawal of the money during the lifetime of Palaniappa Chettiar, we cannot understand how that effective check would cease to exist on the death of Palaniappa Chettiar. Apparently the check exists because the money is not the money of Palaniappa Chettiar. We have already stated that it was deposited at the instance of the bride's father by the bridegroom's maternal uncle. No doubt it was deposited in the name of the husband. That does not show that the money belongs to the husband. Such deposits are made amongst the Nattukottai Chetties with the object of providing what may be called a marriage settlement at the time of the marriage, the obvious object being to provide a fund for the mother and the children that may be born to her. It was pointed by Krishnan, J., in Appeals Nos. 115 and 43 of 1922 that:
It is usual with the Nattukottai Chetty community to give stridhanum in the form of hundis which are cashed and deposited in banks and usually the vilasam that is put into the accounts is that of the husband. The fact that the entry in the defendants' books is in the name of the husband is thus not inconsistent with the plea that the money belongs to the plaintiff.
7. The deposit in some cases is made by the bride's father, in others as in the present case, by a relation of the bridegroom. Here it was made at the instance of the bride's father who acted as the maraldar. What the exact position of the maraldar is would depend upon the circumstances of the case. The Subordinate Judge himself says he acts as an effective check on the indiscriminate withdrawal of the money. Having regard to the circumstances of the case we think that the amount which is sought to be attached, which consists of the accumulation arising out of the Rs. 1,500 originally deposited, cannot be held to be money belonging to Palaniappa Chettiar, the 2nd defendant's father. We think it enures to the advantage of the 2nd defendant's mother and her children and was held in the nature of a trust fund by Palaniappa Chettiar for their benefit. We would, therefore, hold that Item No. I did not form part of the estate of the late A. P1. A. Palaniappa Chettiar and is, therefore, not attachable.
8. The appeal is allowed and the order of the lower Court is set aside with costs here and in the Court below.