Rama Asra and Others vs The Official Receiver of South Kanara and Others

Frederick William Gentle, C.J.—In 1932, one, Vasudeva Patteri, obtained a decree against one, Rama Asra, personally and as the manager

of an undivided family for a sum of money. Previously, and pending the suit, there was an attachment of the properties belonging to the family of

which the kartha was a member. In pursuance of the decree and by arrangement with the Canara Land Investments, Ltd., that company, on behalf

of the decree-holder, issued an execution application which remained undisposed of until the 28th November, 1938, when it was directed to be

struck off; but the attachment, which had first been effected in 1932, before judgment, was directed to continue for the space of one year. The

year ended on the 28th November, 1939. The judgment-debtor Rama Asra died in the year 1934 at a time when the attachment was in force and

the execution petition, to which reference has been made and which was instituted by the Canara Land Investments, Ltd, was against Rama Asra''s

legal representatives, viz., the remaining members of his family. The attachment, effected before the decree, having come to an end and having

ceased to be effective in November 1939, there was no attachment in respect of the family property until October 1940 when fresh execution

proceedings were instituted and further attachment was directed. These are all the facts to which reference need be made for the present

consideration, although there are further complications and developments which have been cited, save that in 1944 the Official Receiver in the

insolvency of the decree-holder, issued an execution petition seeking to have recourse in respect of the judgment obtained against Rama Asra in

respect of his one-sixth share in the family properties which was his during his lifetime. The learned Subordinate Judge of South Kanara directed

that the Official Receiver should be at liberty to proceed against the interests of the deceased Rama Asra in the properties of the family in which he

was a coparcener during his lifetime. This is an appeal by some members of Rama Asra''s family challenging the correctness of the decision of the

learned Subordinate Judge.

Firstly, it was argued that the attachment effected in the year 1932 was against the whole, of the family property and not against the one-sixth

share of Rama Asra ; consequently no right whatever with regard to Rama Asra''s share can have accrued or can be obtained, in respect of the

attachment, against the whole of the family property. In my view, the whole includes a part and, if there are any rights arising out of the attachment,

they enure in respect of Rama Asra''s one-sixth share. The first contention is one which has no basis.

Secondly, it was contended on behalf of the appellants that, since the attachment before judgment terminated in November 1939, the members

of the family who survived Rama Asra and on whose death became entitled to his share in the property had no longer any clog upon the property

to which they had survived ; while an attachment was subsisting, the survivorship was subject to the attachment but, when it came to an end, there

existed no longer any clog upon their survived property.

It is not in dispute that when family property, or the share of one member thereof, is attached and that member dies, nevertheless the survivors

become en- titled to his share but their right of survivorship is subject to the attachment. If thereafter, proceedings are taken in respect of the

attached property by which, subsequently, it is sold and realised in execution, the members of the family cannot be heard to say that their

survivorship is not subject to the attachment and the subsequent proceedings. There is an observation in Sankaralinga Mudaliar (dead) and Others

Vs. The Official Receiver of Tinnevelly, which is in point. It appears at page 625 of the judgment of Madhavan Nair, J., as he then was. It is as

follows:

An attachment before judgment followed by a decree prior to the judgment-debtor''s death has the effect of precluding the accrual of title by

survivorship as against the attaching creditor in the same way as an attachment after decree. This, however, should not be interpreted to mean that

the operation of survivorship is altogether stopped by reason of the attachment whether before or after decree for, if the attaching creditor does not

execute his decree, or if the entire property is not needed to satisfy the decree, then the property or the surplus, as the case may be, Will go to the

other coparceners...The other coparceners take the property subject to the claims of the attaching creditor.

Those observations are relevant in respect of the period from 1934, when Rama Asra died, until the 29th November, 1939, when the attachment

came to an end. The question is, has the attachment any effect so as to render the survivorship, to Rama Asra''s share by the other members of his

family, subject to the attachment ?

Learned counsel for the respondents places considerable reliance upon a decision of the Judicial Committee in (1879) L.R. 6 I.A. 88 (Privy

Council) in which an observation is found at page 109. It is as follows:

(Their Lordships) think that at the time of Adit Sahai''s death, the execution proceedings under which the mowzah had been attached and ordered

to be sold had gone so far as to constitute, in favour of the judgment-creditor, a valid charge upon the land, to the extent of Adit Sahai''s undivided

share and interest therein, which could not be defeated by his death before the actual sale.

In that case a Hindu, governed by the Mitakshara school of Hindu law, created a mortgage over ancestral Immovable property which was owned

by himself and his two sons comprising an undivided family. After decree there was an attachment and an order for sale. Thereafter the father died.

Subsequently it was held that the two sons were not in any way affected by the decree obtained and the observations were made by the Board

which have been quoted above. Learned counsel contended that in 1932, when the attachment in the present instance was effected before

judgment, a charge was created. There is abundant authority that an attachment does not create a charge ; it merely prevents and avoids private

effective alienations. The decisions upon this point are to be found at pages 261 and262, 11th edition of late Sir Dinshaw Mulla''s Code of Civil

Procedure. Learned counsel on behalf of the respondents nevertheless, relying upon the observations of the Judicial Committee quoted above,

contended that there was a charge in favour of the decree-holder in respect of the one-sixth share of the family property which was Rama Asra''s

during his lifetime and that that charge subsisted right through and was never lost. In that respect it has to be noticed that, according to the

pronouncement of the Board in Suraj Bunsi Koer''s case2, above quoted, a charge is constituted when property is attached and ordered to be

sold. That is as one reads the words used in the judgment. In the present instance nothing whatever was done apart from the attachment. There

was no order for sale either before or after Rama Asra''s death nor at any time before the attachment ceased to be operative and ceased to have

effect in November, 1939.

When Rama Asra died in 1934, the members of his family survived to his share in the property but they took it subject to the claims of the

attaching creditor and, it seems to me, it was only subject to those claims so long as an attachment lasted. When the attachment came to an end

there was, in my view, nothing which could in any way be regarded as a clog upon the absolute right of the members of Rama Asra''s family who

survived him to take his one-sixth share in the family property, and by the end of November 1939, there was complete survivorship to the

deceased coparcener''s one-sixth share. Thereafter it was too late for the decree-holder, or the Official Receiver who stood in his shoes, to seek

recourse against that part of the family property which was Rama Asra''s in his lifetime. Long before the insolvency of the decree-holder, indeed

long before the 1932 attachment came to an end, there was ample opportunity for execution to be issued and to be obtained in order to satisfy the

decretal debt; but for some reason or other the matter was delayed and became moribund and nothing was done. No one is to blame save the

decree-holder and those who were acting for him. In no sense of course can any criticism be made as against the Official Receiver.

In my view the decision of the learned Subordinate Judge was wrong. This appeal should be allowed and his decision set aside and the

execution petition dismissed with costs.

Tyagarajan, J.

I entirely agree with the reasoning and conclusions of the learned Chief Justice and having nothing to add.