Kalianna Goundan vs Masayappa Goundan

Alfred Henry Lionel Leach, C.J.—In Ramanayya v. Rangappayya ILR (1893) Mad. 144 this Court held that where there is an attachment

before judgment of family property in a suit against a member of an undivided Hindu family who is not sued as the representative of the family, and

the defendant dies before the decree is passed, the right of the survivor in the property is not affected. The basis of this decision is that in such a

case the attachment is merely intended to protect the property from alienation by the defendant pending the decision of the suit. Until the decree is

passed the attachment cannot operate to render the property attached available for sale in execution. This judgment has been accepted as correctly

interpreting the law for nearly fifty years, but the learned advocate for the appellant suggests that the decision is wrong and that the law should be

restated.

In the present case two brothers Muthu Goundan and Masayyappa Goundan were joint. On the 21st of October, 1930, Muthu Goundan

executed a promissory note in favour of Thanda Goundan the father of the appellant. In 1932, Thanda Goundan filed a suit against Muthu

Goundan to enforce payment of the amount due on the promissory note. '' On the 18th of July, 1932, Thanda Goundan obtained an order of

attachment before judgment in respect of Muthu''s share in the joint family properties. On the 31st of October, 1932, Muthu died and his widow

was made the defend-ant as the representative of his estate. On the 8th March, 1933, the Court granted the plaintiff the decree which he sought

and on his death his son, the appellant, instituted proceedings in execution. In those proceedings it was ordered that the property should be sold on

the 4th of November, 1936. On the 12th of October, 1936, Masayyappa Goundan, the respondent in this appeal, filed a petition asking for the

discharge of the order of attachment. He claimed that he was joint with his brother and that on his brother''s death the whole estate became his by

reason of the rule of survivorship. This claim was allowed and the consequence was that on the 21st of March, 1938, the appellant filed the suit out

of which this appeal arises to establish his rights to attach Muthu Goundan''s share in the family properties. The appellant denied that Muthu and

Masayyappa were joint, but this issue was decided against him by the Subordinate Judge and the District Judge concurred on appeal. As it was

established that the brothers were joint the case was governed by Ramanayya v. Rangappayya ILR (1893) Mad. 144. Consequently the suit

failed. This appeal is from the decree passed by the District Judge in the appeal from the decree of the Subordinate Judge.

In Krishnarao v. Lakshmana Shanbogue ILR (1881) Mad. 302, this Court held that where the interest of an undivided member of a Hindu

family in the joint property has been attached in execution of a decree passed against him personally and the judgment-debtor dies pending the

attachment a valid charge is created in favour of the plaintiff and this prevents the accrual to the other coparceners of the right of survivorship. This

decision was followed in Lakshmana Aiyar Vs. Srinivasa Aiyar, , K. Krishnamachariar Vs. Veeravalli Krishnamachariar, and Sankaralinga

Mudaliar (dead) and Others Vs. The Official Receiver of Tinnevelly, . It is said that this principle should apply in a case where there has been an

attachment before judgment and the defendant dies before the passing of the decree. There is, however, a very great difference between an

attachment before judgment and attachment after judgment. As pointed out in Ramanayya v. Rangappayya ILR (1893) Mad. 144, until a decree

has been obtained the attachment cannot operate to render the property available for sale in execution. The Court merely holds the property

pending the decision of the suit. Where the attachment has taken place after judgment the decree-holder has what amounts to a charge.

The decision in Krishnarao v. Lakshmana Shanbogue ILR (1881) Mad. 302, which is followed in the other cases to which reference has been

made, was based on the judgment of the Privy Council in (1879) L.R. 6 I.A. 88 (Privy Council) . In that case the father''s share in the family estate

was attached in execution proceedings and the properties were ordered to be sold. He died after the order for sale had been passed. The Judicial

Committee held that in these circumstances the creditor had obtained a valid charge upon the land to the extent of the father''s undivided share and

interest therein which could not be defeated by his death before the actual sale. This decision was reaffirmed by the Privy Council in

Anantapadmanabhaswami v. Official Receiver of Secunderabad (1933) 64 M.L.J. 562 : L.R. 60 IndAp 167 : ILR 56 Mad. 405 (P.C.).

The learned advocate for the appellant has not been able to refer us to a single case in which the correctness of the decision of Ramanayya v.

Rangappayya ILR (1881) Mad. 302 has been questioned, excepting Muthayya Chettiar v. Lakshmanan Chettiar (1931) 34 L.W. 1001. In that

case it was suggested that Ramanayya v. Rangappayya ILR (1893) Mad. 144 should be reconsidered, but Krishnan Pandalai, J., did not agree.

He rightly pointed out that he would not be justified in attempting to cast doubt upon a doctrine which had then been accepted in this Court for

practically forty years. We go further and say that we see no reason to criticise the decision in Ramanayya v. Rangappayya ILR (1893) Mad. 144.

The learned advocate for the appellant has in the cause of his arguments quoted Sankaralingam Reddi v. Kandaswami Thevar (1907) 17 M.L.J.

334 : ILR 30 Mad. 413, Ayyappa Naicker Vs. Kasiperumal Nayakar and Others, and Kaza Parandhamayya Vs. Surapaneni Veerayya and

Others, , but these cases have obviously no bearing on the question raised in this appeal, except in so far as Anantapadmanabhaswami v. Official

Receiver of Secunderabad (1933) 64 M.L.J. 562 : L.R. 60 IndAp 167 : ILR 56 Mad. 405 (P.C.) reaffirms the decision in (1879) L.R. 6 I.A. 88

(Privy Council) .

The appeal fails and will be dismissed with costs.