Kunhappa Nambiar and Another vs Shridevi Kettilamma

The appellants'' vakil has brought to our notice the decision in Krishnan Nambiar v. Krishnan Nair[1] in which it was held that the state of things

at the time when the debt was contracted must be looked to, and that a creditor cannot be affected by any subsequent arrangement in the family to

which he was not a party; and that consequently subsequent partition in a tarwad is no ground for holding the divided members and their property

not liable for the decree obtained against the karnavan, as such, prior to the partition. We see no reason to doubt the correctness of the above

decision. But it is no authority for holding to be valid the sale of partitioned property in the absence of the parties to whom it has been apportioned.

For a sale to be binding on such persons, they should be expressly included as parties to the execution proceedings in which case they will have

an opportunity of paying the debt and thus saving the property from sale. As they have ceased to be members of the tarwad, the original karnavan

can no longer be held to represent them. The decision above referred to and relied on for appellants is therfore reconcilable with that in Sankara v.

Kelu ILR 14 Mad. 29 which the Judge has followed.

This appeal fails and is dismissed with costs.

[1]

Second Appeal No. 1323 of 1894 (unreported):

In this case the plaintiff, who was the appellant in the High Court, sued for a declara-

tion that certain property was not liable to be attached in execution of a decree obtained

in 1880. His case was that the judgment-debtor had not been sued in his capacity as karnavan

of the plaintiff''s tarwad so as to render the decree binding on the plaintiff as alleged by

the defendants, that the debt for which the decree was passed had been incurred in 1878 for

purposes not binding on the tarwad, that under a razinamah, dated 1877, and a karar or parti-

tion-deed, dated March 1882, the lands of the tarwad had been divided and the lands now in

question had been allotted to the plaintiff''s branch of the tarwad.

The second appeal came on for hearing on the 10th of December 1894 before Muttusami

Ayyar and Best, JJ.:

JUDGMENT

It is not denied that first defendant was the karnavan when he was sued.

The description of him as Valia Nambiar is sufficient for holding that he was sued

as karnavan. The Judge has also found that the debt was a tarwad debt.

It is contended that the evidence on which this finding is come to is contradictory.

This is an objection we cannot allow in second appeal, the Judge''s opinion being conclusive

as to the weight due to evidence.

It is next argued that, though the karar B is subsequent to the date on which the debt

was contracted, the razi J is prior to it, and it shows that the parties agreed in 1877 to

a division to be effected within two months and that the community of interest between the

tarvaries was to cease. We find, however, that the razi remained incomplete and the karnavan

declined to act upon it. In consequence of which there was a fresh suit which resulted in the

karar B.

Moreover, there is nothing to show that the creditor knew of the razi J; nor is it

referred to in the plaint.

Under these circumstances, we are unable to say that the Judge is not warranted in

holding that the razi J did not alter the status of first defendant as karnavan.

It is further argued that even though razi J were incomplete, as the attachment was

subsequent to karar B and the debt is due under a money decree merely, the property cannot be

held liable.

We do not consider this contention to be valid. We have to look to the state of things

at the time when the debt was contracted and at that time first defendant as karnavan was

competent to bind all his anandravans. Any subsequent arrangement in the family cannot affect

their obligation to the creditor who was no party to it.

This appeal fails and is dismissed with costs.