MUTTATHIL DAMODARA MENON Vs. RAMAKRISHNA AIYAR

JUDGEMENT

(1.) The only question argued in this Second Appeal is that the plaintiff acquired no right to the plaint properties under his sale-deed Ex. B. In order to understand this contention, it is necessary to mention a few facts, A Malabar Tarwad consisting of three Tavazhis agreed to divide the properties belonging to the tarwad for purposes of convenient management and enjoyment and embodied the arrangement in Ex. I, called Nischayapatram or Karar. Under the terms of Ex. I the 2nd defendant's tavazhi was to enjoy certain properties and the other two tavazhis were to enjoy some other items of property; and some properties set out in Schedule D to the Karar were to be kept in common for meeting common expenses of all the three tavaghis. The plaintiff obtained a decree against the karnavan of the tavazhi in Small Cause Suit No. 1347 of 1907 and attached some of the items and brought them to sale and purchased them himself. He now suea for possession of these items. The contention of the first defendant, who is the lessee of the plaint items, is that no saleable interest was given to the tavazhi under Exhibit I and therefore the plaintiff could not get possession of the properties. The 2nd defendant, who is the karnavathi of the tavazhi put forward the same contention. The District Munsif gave a decree in favour of the plaintiff and on appeal, the Subordinate Judge confirmed the decree of the District Munsif, with a slight modification as to the amount of mesne profits. The 1 defendant has preferred this Second Appeal.

(2.) Mr Sivarama Menon contends that under Exhibit L, the tavazhi did not get a saleable interest in the properties. He relies upon the terms of the document in support of his contention. His main argument is that it was a maintenance arrangement and the tavazhis were put in possession of the properties under the arrangement and therefore the tavazhis did not get any iaterest in the properties and the plaintiff did not get any right to the properties under the sale certificate Exhibit E. In the English translation, Exhibit 1 is described as a deed of settlement. Whatever the name of the document is, settlement, agreement or karar, we have to see what the arrangement really is. The properties of the tarwad were divided among three tavazhis composing it. It was no doubt for convenient management and enjoyment; but the arrangement was to be of some duration, as it is distinctly stated that members 1 to 5 and their future Santhanams in their tavazhi should enjoy Schedule A properties. Similarly, the members of the 2nd tavazhi 6 to 18 and their Santhanams should enjoy B Schedule properties and the 3 tavazhi composed of members 19 to 41 and their future Santhanams should enjoy C Schedule properties. The recitals show clearly that the arrangement was to last for a considerable period. It is urged by Mr. Sivarama Menon that no power was given to the tavazhis, to raise any new debts, charging the properties set apart for them. He also relies upon paragraphs 36 and 41 in support of his contention, that the power of alienation was taken away and that there is a restraint on alienation. What the karar provides is against the tavazhi, charging the properties with any debt so as to bind the tarwad. The tarwad is the owner of the property and the tavazhis have been given the possession and enjoyment of the property and they are restrained from encumbering the property so as to bind the tarwad. There is no restraint against the tavazhi, alienating their right in the properties derived under Exhibit I, in favour of a third parson; and even if such restraint is contained in Exhibit I, that would not stand in the way of the tavazhi alienating its interest for its debts; for under Section 10 of the Transfer of Property Act, such a restraint on alienation is void.

(3.) The plaintiff does not claim any Jenmam right in the property, or the right of the tarwad in the property. The plaintiff claims only the right of the tavazhi under the karar. There is nothing in the karar itself to support the contention, that the tavazhi could not alienate their right under the karar in favour of a third person, or encumber that right with their debts. Even granting for argument's sake, that Exhibit I evidences a maintenance arrangement, that would not prevent the plaintiff claiming the possession of the properties under Exhibit E. It was held by Oldfield and Seshagiri Aiyar, JJ., in a case repotted in Kothal Mammad Haji v. Pydal Nair (1915) 29 I.C. 578, that where properties were given to a member of a Malabar tarwad, in lieu of maintenance under a karar, which prohibited alienation except by way of lease, his interest in them was not exempt from attachment, under Section 60 of the Civil P. C.. In that case, a Malabar tarwad gave some properties to the defendant's tavazhi, in lieu of maintenance. A money- decree was obtained against the defendant and execution was sought against the properties. The Court held that the creditor could proceed against the interest of the tavazhi in the property. With regard to the contention, that the properties were the properties of the tarwad and therefore they could not be brought to sale, the learned Judges observed that the tarwad was entitled to object to attachment, if its right was in any way jeopardised but the tavazhi itself could not raise such an objection. In Govinda Pillai V/s. Meenatchi Achi (1911) 22 M.L.J. 204, Abdur Rahim and Spencer, JJ., held that Section 60, Clause (n) of the Civil P. C., was no bar to the attachment and sale of the crops standing on the land given to a widow for maintenance. The learned Judges observe at p. 206: The crops are her property and as such roust be available to answer her debts-What is interdicted by the legislature is attachment of a mere right to future maintenance and not of a debtor's property or any interest in property, though such property or interest might have been granted to him or her for maintenance.