MATHEVAN PILLAI Vs. NEELAKANTA PILLAI BHAGAVATHI PILLAI THANKACHI

JUDGEMENT

(1.) This second appeal is directed against an appellate order of the Nagercoil District Court raising an attachment effected in execution of a decree of the Padmanabhapuram Munsiffs Court over two items of immoveable properties. The execution court overruled the objection of the legal representative of the deceased defendant that the properties were not liable to attachment; but her appeal before the District Court was successful. The legal heirs of the assignee decree holder at whose instance the attachment was effected have brought this second appeal against the learned District Judges order.

(2.) The relevant facts of the case are as follows. The decree directed the realisation of the amounts due thereunder by sale of the hypotheca and personally from the defendant. The defendant who was a junior member of a Nair tarwad, had while the tarwad remained undivided acquired two mortgage rights over the attached properties and under the tarwad partition evidenced by Ext. 1 dated 20.3.1102 these rights together with other properties were set apart to a group composed of himself and the respondent, a grand niece of his. After the division a further mortgage right over the same properties was acquired in the name of the defendant. The defendant died before the decree was satisfied and it was after some abortive attempts to realise the amounts due as per the decree by execution that the attachment in question was effected. The partition deed provides that the properties mentioned in B Schedule thereof shall be jointly enjoyed by the defendant and his grand niece and that on the death of the defendant the latter will become the absolute owner of all the B schedule items. The partition deed does not specifically refer to the three mortgage rights; but it is the properties comprised in the mortgages that are mentioned instead in the B schedule as items 4 and 5. The respondents mother had other children besides the respondent. In Ext. 1 while the defendant and the respondent took for themselves B schedule properties jointly the mother and some of her other children took the G schedule properties and the remaining children were allotted H and I schedule properties.

(3.) The objection the respondent raised before the execution court was that the properties in B schedule belonged to a sub-tarwad composed of the defendant and the respondent and that as the former had no alienable or heritable interest in the properties they were not during his life time or thereafter liable to be proceeded against for his personal or separate debts. Both the lower courts overruled this claim. It is an impossible position that a thavazhi or a sub-tarwad as such can be formed by mere agreement of parties. It was freely conceded by the respondents learned Counsel that Marumakkathayam law does not countenance the formation of such a unit capable of holding properties with the incidents attaching to marumakkathayam properties. Also it was so held recently by a Full Bench of this Court in Kallianikutty Amma v. Devaki Amma 1950 KLT 705 . On this identical ground it was that the lower courts repelled the objection that the attached properties formed sub-tarwad properties. The execution court however thought that as the original acquisitions viz., the three mortgage rights stood in the name of the defendant whatever interest the respondent derived in the properties under the partition arrangement or by the death of the defendant was subject to the liability of those properties for the debts of the defendant. This view as pointed out by the lower appellate court is to ignore the effect of the rights attached having been brought into the hatch pot at the time of the partition. Whether the two mortgages that were in existence when the partition arrangement was come to really belonged to the defendant alone, or they were tarwad assets which happened to stand in his name the effect of the arrangement was to admit the respondent to equal ownership with the defendant in those two rights as in all the other items included in the B schedule. The defendant renounced his rights in his separate properties to the extent of an half share in them in favour of the respondent. The terms of partition deed are clear and unequivocal that during their life time both the defendant and the respondent shall have equal rights in the B schedule properties and that after the defendant died the respondent shall be the absolute owner of the entire (B schedule) items. It is therefore clear that on the true construction of the partition deed the defendant and the respondent took the B schedule properties as tenants-in common and that by no stretch of imagination can the respondents half share in them be held to be liable to be proceeded against for the defendants personal or separate debts. The lower appellate court had so construed the partition deed but its decision went differently for a different reason.