1. The plaintiff seeks to sell certain lands in execution of a decree ho has obtained against the first defendant as the property of his judgment-
debtor; the defendants contend that the first defendant has no interest therein liable to be attached and sold.
2. From exhibit I, it appears that the property was originally purchased in the name of Nambi, the late Karnavan of the first defendant''s Tarwad as
benamidar with the money paid to him by Parwathy, the mother of the first defendant. The Karnavan with the junior members assigned their
interest to Parwathy and her son the first defendant (exhibit I). Parwathy is dead--and the question for decision is as to the interest of the first
defendant in the property.
3. It is contended by the defendants that the property belongs to the Tavazbi of the deceased Parwathy, as having been purchased for them
(exhibit I) and also on the ground that the members of the Tavazhi have been in adverse possession for more than 12 years before the institution of
the suit. The plaintiff''s case is that Parwathy and her sons were joint tenants and on Parwathy''s death the first defendant became sole owner.
4. The Judge held that the first defendant''s interast which must be presumed to be one half is liable to be attached and sold. Both the parties take
objection to his finding.
5. The Judge has assumed that according to the defendants. Parwathy''s husband made her a gift of Rs. 400 the purchase-money. This appears to
be incorrect. He also assumed that the defendants'' contention was that the property was purchased also for the benefit of the other children of
Parwathy, whereas the defendants'' contention always has been that it has been purchased for Parwathy''s Tavazhi, i.e., Parwathy''s children and
their descendants in the female line. This would make a material difference. If it was purchased for all the children of Parwathy who were then
alive, there is no reason why their names also should not have been mentioned in exhibit I, whereas if the assignment was executed in favour of the
Tavazhi, then the execution in favour of the senior female and senior male is accounted for. There is no finding by the Judge whether the members
of the Tavazhi have been in possession or only the first defendant and his mother. Further the Judge has not in coming to his conclusion kept in
view the rules of law, applicable to such cases.,
6. We proceed to state them so far as they are necessary to the decision of this case.
7. In Vydinada v. Nagammal ILR (1888) Mad. 258 a Hindu Testator devised gone properties to his nephew and that nephew''s wife. They were
held to be joint-tenants and not tenants in common and it was also held that the nephew could not sever the joint-tenancy by an alienation by him
alone to a creditor, Commenting on this case their Lordships of the Privy Council observe in Jogeswar Narain Deo v. Ramohandra Dutt ILR
(1896) Cal. 670: ""There are two substantial reasons why it ought not to be followed as an authority. In the first place, it appears to their Lordships
that the learned Judges of the High Court of Madras were not justified in importing into the construction of a Hindu will an extremely technical rule
of English conveyancing. The principle of joint-tenancy appears to be unknown to Hindu Law, except in the case of co-parcenary between the
members of an undivided family. In the second place, the learned Judges misapprehended the law of England, because it is clear according to that
law that a conveyance or an agreement to convey his or her personal interest by one of the joint-tenants operates as a severance.
8. Thus the questions for decision whether Chandu has an alienable interest and whether he took by survivorship his mother Parwathy''s interest in
the property have to be decided according to the Marmakkatayam Law, not according to the principle of joint-tenancy as known to English Law.
9. Co-parcenary exists among the members of an undivided Malabar Tarwad. If therefore the Tarwad to which Parwathy and the first defendant
belonged had acquired the property under exhibit I, then all the other members of the Tarwad, and not the first defendant exclusively, would have
taken by survivorship the interest of the deceased Parwathy. But all the parties to this suit are agreed that the property was not purchased for the
Tarwad.
10. The property according to the defendants'' witnesses was purchased with the sum of Rs. 400 given to Parwathy by her father and the recitals
in exhibit I apparently show that the amount was advanced by her alone. If the property for that or any other reason belonged exclusively to
Parwathy, and the name of the first defendant was inserted in exhibit I to enable him to represent the estate before public officials; then, on her
death, the property lapses according to the decisions (it is now too late to depart from those decisions) not to the Tavazhi, i.e., her descendants but
to the Tarwad who take it as her heir subject to the liability of discharging her debts (Ryrappan Nambiar v. Kelu Kurup ILR (1882) Mad. 150.
But as the debt for which the property is now attached is not alleged to have been contracted by her, and the first defendant would in that case
have no alienable interest therein, it cannot be attached to discharge his debt and the plaintiff''s suit will, in that event, have to be dismissed.
11. If, as contended by the appellants before us, the property was purchased for the benefit of the Tavazh, i.e., Parwathy, her children and their
descendants in the female line, then it would depend upon the constitution of. Tavazhi, whether the first defendant has any alienable interest or not.
If the Tavazhi forms a distinct branch from the main Tarwad with separate properties, and its own Karnavan as the manager of its property and the
guardian of the minor members, then, in a Court of Law, it forms a Tarwad though popularly called a Tavazhi and the incidents of Tarwad property
will apply to it and the plaintiff''s suit must fail as the first defendant has no interest to be attached and sold [see Korapen Nayar v. Chenen Nayar
(1871) 6 M.H.C. 411 and Kenath Puthen Vittil Tavazhi v. Narayanan ILR (1905) Mad. 182]. But if Parwathi and her descendants or her Tavazhi
have not separated themselves from the main Tarwad either by taking their share of the Tarwad property or by renouncing their interest therein,
then the minor members of this Tavazhi or branch would still continue under the guardianship of the Karnavan of the main Tarwad Nambi,
executant No. 1 in exhibit I or whoever has succeeded him whose liability to maintain them out of the Tarwad property would remain unaffected
though the branch may have private property. They would continue to be the members of the main Tarwad of which the executants of exhibit I are
members, The fact that Parwathy and her descendants forming a Tavazhi have acquired property by purchase or gift will not by itself deprive
Nambi, the Karnavan of the Tarwad, of his rights or discharge him of his obligations towards them; and they will not for that reason alone
constitute themselves into a Tarwad with its incidents of impartiblity and uncontrolled management by Karnavan. It is Tarwad property alone that is
impartible. This property which a Tavazhi or members thereof may acquire will be their separate property with-tout the incident of impartibility,
The members will be equally entitled to it. The senior male or any other manager will not obviously have the right of uncontrolled management
which a Karnavan has over Tarwad property. The interest of the first defendant as in the case of an ordinary Hindu family will there- fore be liable
to be sold.
12. But if any member dies without his interest in the Tavazhi property being alienated during his life-time, then according to the Full Bench decision
in Kunhaaha Umma v. Kutti Mammi Hajee ILR (1893) Mad. 201 his interest lapses to the other members of the Tavazhi and it cannot be sold.
This decision as well as that in Vydi-nada v. Nagammal ILR (1888) Mad. 258 above referred to was based upon a rule of construction laid down
in Mahommed Shumsool v. Shewukram (1874) 2 I.A. 7.
13. As in both the Hindu as well as the Marumakkatayam Law the joint-tenancy appears to be unknown except in the case of the undivided
members of the family, whether this decision is consistent with the later decision of the Privy Council in Jogeswar Narain Deo v. Bamchandia Dutt
ILR (1896) Cal. 670 it is unnecessary now to consider as the first defendant and not the deceased Parwathy is the plaintiff''s debtor; and the
question whether the interest of a member of a Tavazhi can be attached and sold before his death was not in that ease raised or decided.
14. But if the property was acquired as the plaintiff contends solely for the benefit of the deceased Parwathy and the first defendant, then the
interest of the first defendant therein is clearly liable to be sold. But as the deceased Parwathy and the first defendant alone never formed a branch
or could form one to the exclusion of Parwathy''s children, there can be no survivorship to the first defendant alone. They must be treated as
tenants in common. The heir of Parwathy would take her interest The preponderance of authority is in favour of the Tarwad (which includes the
Tavazhi) being the heir, though there are also decisions that the Tavasshi is the heir. But in either view as the first defendant does not take it
exclusively the plaintiff cannot proceed against Parwathy''s interest unless the rule of joint tenancy according to English Law is applicable, and the
case in Jogeswar Narayan Deo v. Ram Chandra Datt ILR (1836) Cal. 670 is an authority that it ought not to be so applied.
15. We shall ask the Judge to sumbit a revised finding on the - following issues with reference to the above observations:
(1) Whether the property belongs exclusively to the first defendant?
(2) Whether he has any interest liable to be attached and sold and if so, what is that interest?
16. Fresh evidence may be received. Findings should be submitted in six weeks, and seven days will be allowed for filing objections.
17. In compliance with the above order the District Judge submitted the following
18. FINDING.--This appeal has been remanded for a finding on the following issues:
Whether the property belongs exclusively to the first defendant?
Whether he has any interest liable to be attached and sold and if so, what is that interest?
19. The District Judge found both issues in the negative.
20. This Second Appeal and the Memorandum of Objections coming on for hearing after the return of the above finding: upon perusing the
affidavit filed by the first respondent to the effect that in consequence of the case not having been put down for judgment in the cause list of 3rd
March 1908 given to his vakil, he had no information about the order calling for finding and that consequently the finding happened to be recorded
and returned by the District Judge in his absence, the Court made the following
ORDER
21. On payment by the first respondent to the appellants of the costs of the hearing in the District Court and of the application to this Court the
case will go back to the District Court for fresh findings.
22. The findings should be submitted in six weeks from the reopening of the District Court after recess, and seven days will be allowed for filing
objections.
23. In compliance with this order, the District Judge submitted the following
FINDING.--Certain findings were called for by the High Court on 3rd March 1903 and submitted by this Court on 21st April 1908. On plaintiff-
appellant''s affidavit to the effect that in consequence of the case not having been put down for judgment in the cause list of 3rd March l908 he had
no information about the order calling for a finding and that consequently the finding happened to be recorded and returned by the District Judge in
his absence, the case has been remanded for fresh findings after taking additional evidence. Plaintiff-appellant has again failed to instruct his vakil to
adduce fresh evidence, and respondents do not wish to examine any further witnesses.
2. In my original finding I remarked (paragraph 2) that plaintiff''s vakil has no instructions, but I did not mean by that that the case was not argued
by plaintiff''s vakil, but merely that plaintiff had not asked him to adduce fresh evidence. The case was fully argued and I submitted my finding.
There is still no further evidence before me, nor any further observations by the High Court to guide me to a different decision, so I again find both
the issues in the negative for the reasons given in my finding of 21st April 1908.
24. This Second Appeal and the Memorandum of Objections coming on for final hearing after the return of the second finding of the lower
Appellate Court, the Court delivered the following
JUDGEMENT
25. On the finding which we accept the decree of the District Court is set aside, and the suit is dismissed with costs throughout.
26. The Memorandum of Objections is dismissed.
