Muttathil Damodara Menon vs Ramakrishna Aiyar and Another

Devadoss, J.—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 1st defendant has preferred this Second Appeal.

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 3rd 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 u/s

10 of the Transfer of Property Act, such a restraint on alienation is void.

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, u/s 60 of the Code of Civil Procedure. 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. Meenatchi Achi (1911) 22 M.L.J. 204

Abdur Rahim and Spencer, JJ., held that Section 60, Clause (n) of the Code of Civil Procedure, 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.

Section 60, Clause (n) of the Code of Civil Procedure, prohibits the attachment of right to future maintenance. If a person is granted

maintenance payable from month to month, the right to get such maintenance cannot be attached. But if the sum of money which is given as

maintenance is actually in the hands of the maintenance-holder, that can be attached and if instead of money payment, immovable property is given

to a person, the crops on it or the income from it can be attached and the right of the maintenance-holder in the property, of which be has been put

in possession oan also be attached and sold'' In Sundar Bibi v. Baj Indar Narain Singh AIR 1921 All. 120 a Bench of the Allahabad High Court

held that property given to a member of a Hindu family, in lieu of maintenance, was not exempt from process in execution of a decree against him.

The principle of these decisions is that the quantum of interest of the person, who is in possession of the property, can be alienated. Whatever

that quantum of interest may be, it is not exempt from the process of Court in execution of a decree against the parson who has such interest. In the

case of tenants, the thing would be different. If there is a restraint on alienation and if the terms of the lease prohibit the lessee from alienating his

right, the landlord would be entitled to re-enter on the breach of the condition, provided there is a forfeiture clause in lease deed. But in the case of

an ordinary maintenance arrangement, under which property is placed in the possession of the maintenance holder a person obtaining a decree

against him can proceed against the interest of the maintenance holder in the property. The arrangement under the karar, Exhibit 1, can be varied,

by a subsequent arrangement between the members of all the tavazhis. But so long as the arrangement under the karar is in force, the right of the

tavazhi under the karar is alienable. It is quite open to all the members of all the tavazhis to put an end to the karar, in which case an alienee of the

right of the tavazhi would have delivered up possession of the property alienated, as the alienor''s interest in it has ceased. The contention that there

is no saleable or transferable interest in the karar is not sustainable.

The Second Appeal fails and is dismissed with costs.