Sankaralinga Mudaliar and Others vs The Official Receiver of Tinnevelly

Madhavan Nair, J.—This is an appeal against the order of the District Judge of Tinnevelly in C.M.P. No. 566 of 1918 on his file in which

the Official Receiver of Tinnevelly was the petitioner. The appellants, who were respondents Nos. 1 to 3 in the lower Court had brought a suit,

O.S. No. 206 of 1913, in the District Munsif''s Court of Ambasamudram against seven defendants, all members of a joint Hindu family. Pending

the suit they applied for and got an attachment before judgment of the joint family properties. The suit was compromised and a razi decree Ex. I,

was passed on the 23rd of September 1914 which provided that the defendants therein should pay into Court Rs. 2,100 with interest within the

15th of April 1915 and that, in default, the attached properties might be sold and the amount realised. It also provided that the attachment before

judgment which has already been made would continue until the amount fixed by the decree was paid. Defendants Nos. 1 and 7 in that suit died

subsequent to the decree. After their deaths an execution application was filed in the District Munsif''s Court by the decree-holders, the present

appellants, and an order for sale of the attached properties was made. Defendants Nos. 2 to 6 in the suit were also ordered as the legal

representatives of the deceased defendants Nos. 1 and 7. A petition for adjudicating defendants Nos. 2 to 6 as insolvents was presented to the

District Court of Tinne-velly on the 31st of January 1917 and they were adjudicated insolvents by order of that Court dated the 23rd of March

1917. The attached properties were sold in Court-auction on the 28th of June 1918 in pursuance of the orders of the District Munsif and were

purchased by the 4th respondent in the lower Court. The Official Receiver who was not a party to the sale proceedings, filed the petition out of

which this appeal arises, saying that as the insolvents'' assets had vested in him on the order of adjudication, the subsequent sale is not valid and

binding on him and that the sale should, therefore, be set aside. There was also an alternative prayer to the effect that, if for any reason the sale

could not be set aside, the decree-holders should be compelled to refund to him the amount they realised in execution.

The District Judge on the first occasion held that he, sitting as a Judge exercising insolvency jurisdiction, had no power to examine the validity or

otherwise of an execution sale held by another Court, and, therefore, dismissed the petition. On appeal, however, by the Official. Receiver to this

Court (C.M.A. No. 128 of 1919) this decision was set aside and the petition was remanded to the lower Court for fresh disposal. The District

Judge has now held that the sale itself could not be set aside as the auction-purchaser, 4th respondent in the lower Court purchased the property

bona fide and was, therefore, entitled to the protection given to bona fide purchasers by Section 34(3) of the Provincial Insolvency Act, III of

1907, but he has granted the alternative prayer referred to above, i.e., he directed the decree-holders, the present appellants, to refund to the

Official Receiver, the respondent before us, for the benefit of the whole body of creditors the sum of Rs. 3,153-2-0 realised by them in execution.

He also gave them leave to rank as unsecured creditors in the subsequent insolvency proceedings before the Official Receiver. Against this order

of the District Judge the decree-holders have filed the present appeal; the Official Receiver has filed a memorandum of objections stating that the

sale should also have been set aside as the auction-purchaser could not in the circumstances of this case be considered to be a bona fide

purchaser.

Two points have been urged before us by Mr. S.T. Srinivasagopalachariar, the learned Counsel for the appellants, viz., (1) that on a proper

construction of Ex. I, the razi decree, a charge has been created on the attached properties in his clients'' favour and that, therefore, the properties

vest in the Official Receiver only subject to his clients'' rights under the decree and (2) that even if there is no such charge, inasmuch as two out of

seven judgment-debtors had died after the attachment before judgment and also after the decree such prior attachment followed by the decree

prevents the shares of the two deceased co-parceners from surviving to the rest and that, therefore, those shares do not vest in the Official

Receiver on the insolvency of the remaining co-parceners as they had never vested in the insolvents themselves. He urges, therefore, that the

Official Receiver had not rights at least as regards two-sevenths of the properties sold and that his clients were entitled to retain at least two-

sevenths of the purchase-money realised.

As regards point No. (1), Ex. I only states that the defendants should pay into Court within a prescribed time the decree amount with interest

and that, in default of paymerit, the plaintiffs should recover the amount ""from the defendants and also by the sale of the properties now under

attachment before judgment by the Court without having any necessity for re-attachment and from the defendants'' other properties, and that the

attachment before judgment should continue in force until the whole amount is paid according to this compromise decree"". These provisions do

not, in our opinion, constitute a charge on the properties and do not confer on the decree-holders any higher rights than those of money-decree-

holders who have effected an attachment of those properties for executing their decrees.

As regards point No. (2) the learned Counsel for the appellants has strongly relied upon a decision of the Privy Council reported as Suraj Bunsi

Koer v. Sheo Persad Singh 2 Ind. Dec. 705 in support of his argument that the attachment before judgment in this case followed as it was by the

decree prevented the shares of the deceased co-parceners from surviving to the rest. As it appears to us that the answer to the question now

raised depends really upon a correct understanding of the principle laid down by the Privy Council in the above case, it is necessary to consider the

exact scope of that decision and to examine how the principle indicated therein has been understood and applied in subsequent decisions. In that

case the father had executed a mortgage of properties belonging to the joint family consisting of himself and his two sons. The mortgagee brought a

suit on his mortgage against the father and got a decree ordering the sale of the property. In execution of the decree the property was attached and

an order to carry out the sale was made. Subsequent to this but before the date fixed for the sale, the father died and the execution proceedings

were thereafter continued against the sons who objected to the sale putting forward their claims as co-parceners under the Mithakshara Law. The

Executing Court referred them to a separate suit and the properties were sold. In the suit by the sons to set aside the sale it was found that the

nature of the debt was such as not to be binding on them. The Privy Council set aside the sale as regards the sons'' two-thirds share but sustained

the sale to the extent of one-third which on a partition in. his lifetime would have fallen to the share of the father. It may be stated that the reason for

upholding the sale with regard to the one-third share was not that the mortgage executed by the father could be held to be binding on the estate to

the extent of his own share because their Lordships expressly leave this point open. In their Lordships'' own words the reason for the decision was

that ""at the time of Adit Sahai''s (father''s) death, the execution proceedings under which the mouza 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."" It is true that in the Privy Council case there were not only a

decree and an attachment in execution of the decree but also an order for sale of the properties before the death of the judgment-debtor; but in the

very next sentence their Lordships state that ""they are aware that this opinion is opposed to that of the High Court of the North-Western

Provinces, in the case of Goor Pershad v. Sheodeen 4 N.W.P.H.C.R 137."" In that case there was only a decree and an attachment in execution of

the decree but no order for sale before the judgment-debtor''s death and it was held that the judgment-debtor ""had no property in the house in suit

available after his death in execution of decree for the satisfaction of the judgment debt."" The Privy Council in expressly dissenting from this

decision must, we think, be considered to have in effect held that an attachment in execution of a decree before the judgment-debtor''s death

would prevent his share from-surviving to his other co-parceners though no order for sale had been made prior to his death. That this is the true

scope of the Privy Council decision has been recognised by more than one decision of this Court vide Bailur Krishna Ran v. Lakshmana

Shanbhogue 4 M. 302 and Thadi Ramamurthi v. Moola Kamiah 21 Ind. Cas. 667 : 16 M.L.T. 123 : (1914) M.W.N. 733. It may be mentioned

that in Bailur Krishna Rau v. Lakshmana Shanbhogue 1 Ind. Dec.1046, also there was not only an attachment in execution of the decree but an

order for sale before the judgment-debtor''s death, but the learned Judges indicate that the decision of the Privy Council would cover even a case

where there was no such order, for they state at page 307 Page of 4 M.--[Ed.], ""in declaring that the ruling they were pronouncing was opposed

to that of the High Court in the case cited, the Privy Council in effect pronounced that the interest of the judgment-debtor had, by the attachment,

been brought under the control of the Court for the purpose of executing the decree so as to preclude the accrual of a title by survivorship in the

event of the death of the judgment-debtor before an order for sale was made. In the case before the Court it appears the order for sale was made

before the death of the judgment-debtor, but, whether this be so or not, we feel ourselves bound by the ruling of the Privy Council."" In Thadi

Ramamurthi v. Moola Kamiah 21 Ind. Cas. 667 there was only an attachment in execution of the decree but no order for sale before the

judgment-debtor''s death. The lower Court in that case had dismissed the suit on the ground that, as the judgment-debtor who was an undivided

co-parcener died before the order for sale was made, his interest survived to the defendant and was not available to the plaintiff for sale. The High

Court in allowing the second appeal refers to Suraj Bunsi Koer v. Sheo Persad Singh 2 Ind. Dec.705 (P.C); Bailur Krishna Rau v. Lakshmana

Shanbhogue 1 Ind. Dec. 1046 and Lakskmana Aiyar v. Srinivasa Aiyar 8 M.L.J. 64 and states that the question was concluded by authority.

Regarding the Privy Council case the learned Judges observe thus : ""In the case before the Privy Council it is true that not only was there an

attachment but also an order to carry out the sale before the death of the co-parcener. But in the course of their judgment, the Judicial Committee

expressed their dissent from a judgment of the North-West Provinces High Court in which it was held that, while the coparcener had died after his

interest in the property was attached but before an order for sale was made, there remained no interest in the judgment-debtor which could be

brought to sale."" In Muthusami Chetty v. Chunammal 24 Ind. Cas. 320 : 26 M.L.J. 517 it is stated that ""It has been repeatedly decided by this

Court, that attachment alone without an order for sale precludes the accrual of the title by survivorship in the event of the death of the judgment-

debtor after attachment and before the order for sale.

It has been brought to our notice that the learned Judges in Zemindar of Karvetnagar v. Trustee of Tirumalai Tirupati etc., Devastanam 2 Ind.

Cas. 18 : 19 M.L.J. 401 state at page 442 Page of 32 M.--[Ed.] that the decisions in Bailur Krishna Rau v. Lakshmana Shanbhogue 1 Ind. Dec.

1046 and Lakshmana Aiyar v. Srinivasa Aiyar 8 M.L.J. 64 cannot be relied upon in view of the decision of the Privy Council in Moti Lal v.

Karrabuldin 24 I.A. 170 : 1 C.W.N. 639 : 13 Ind. Dec. 121 (P.C) to the effect that an attachment merely prevented alienation and did not give

title. They also state that the same view was taken in Sankaralinga Reddi v. Kandasami Thevan 17 M.L.J 334 : 2 M.L.T. 365. These observations

have been noticed and commented upon in two later cases of this Court reported as Murugaiya Mudaliar v. Ayyahorai Mudaliar 9 Ind. Cas. 286 :

9 M.L.T. 96 and Thadi Ramamurthi v. Moola Kamiah 21 Ind. Cas. 667 : 16 M.L.T. 123 : (1914) M.W.N. 733. These decisions, with which we

respectfully agree, render it unnecessary for us to discuss the matter afresh. In Thadi Ramamurthi v. Moola Kamiah 21 Ind. Cas. 667 : 16 M.L.T.

123 : (1914) M.W.N. 733 which has already been noticed above, the learned Judges state: ""In Sankaralinga Reddi v. Kandasami Thevan 17

M.L.J 334 : 2 M.L.T. 365 the decision in Bailur Krishna Rau v. Lakshmana Shanbhogue 1 Ind. Dec. 1046 was not dissented from, but it was

expressly pointed out that under that decision the attachment has the effect of preventing the property passing by survivorship, and the fact that the

attaching creditor does not, by attachment, create such a charge on the property as to acquire priority over other creditors coming in, is in no way

opposed to this view. This also is what was decided in Zemindar of Karvetnagar v. Trustee of Tirumalai Tirupati, etc., Devastanam 2 Ind. Cas. 18

: 19 M.L.J. 401 wherein it was held that no charge was created by the attachment in favour of the creditor as against a subsequent creditor. There

is, no doubt, an observation in Zemindar of Karvetnagar v. Trustee of Tirumalai Tirupati, etc., Devastanam 19 M.L.J. 401 that the decision in

Bailur Krishna Rau v. Lakshmana Shanbhogue 1 Ind. Dec. 1046 is opposed to this view. But whether that is so or not, no dissent was expressed

from the decision to the effect that the attachment precludes the accrual of title by survivorship. The observation of their Lordships of the Privy

Council in Moti Lal v. Karrabuldin 24 I.A. 170 : 7 Sar. P.C.J. 222 : 13 Ind. Dec. 121 (P.C) relied upon in Zemindar of Karvetnagar v. Trustee of

Tirumalai, Tirupati, etc., Devastanam 2 Ind. Cas. 18 : 19 M.L.J. 401 has no reference to this question. That such is the effect of this decision

seems to be borne out by the judgment in Murugaiya Mudaliar v. Ayyathorai Mudaliar 9 M.L.T. 96 in which the learned Judges say that the case

of Zemindar of Karvetnagar v. Trustee of Tirumalai, Tirupati etc., Devastanam 2 Ind. Cas. 18 19 M.L.J. 401 had reference to the question

whether in the circumstances of that case the judgment-creditors who had obtained orders of attachment were in a stronger position than those

who had not obtained such orders."" In the light of the above remarks, the observation in Subrao Mangesh v. Mahadevi Bhatta 15 Bom. L.R. 848

that the proposition laid down in Bailur Krishna Ran v. Lakshmana Shanbhogue 1 Ind. Dec. 1046 has no longer the support of the Madras High

Court is not correct. In this connection we would only add that, having regard to the decision of the Privy Council in Motilal v. Karrabuldin 24 I.A.

170 : 1 C.W.N. 639 : 7 Sar. P.C.J. 222 : 13 Ind. Dec. 121 (P.C) it must now be taken that the words ""charge"" used by their Lordships in Suraj

Bunsi Koer v. Sheo Persad Singh 6 I.A. 88 : 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 4 C.L.R. 226 : 2 Shome L.R. 242 : 2 Ind. Dec. 705 in the

passage extracted by us must be understood only in a general and not in the strictly legal sense (see also Mayne''s Hindu Law, para. 332 9th

edition).

Thus it will be seen that the decision in Suraj Bunsi Koer v. Sheo Persad Singh 6 I.A. 88 : 4 Sar. P.C.J. 1 : 4 C.L.R. 226 : 2 Ind. Dec. 705

(P.C) and the later decisions of this Court establish the position that an attachment in execution of the judgment-debtor''s interest in joint family

property will, in the event of his death subsequent to such attachment preclude the accrual of title by survivorship as against the attaching creditor.

In the present case, the attachment was before judgment. The judgment-debtor died after the decree but before any order for sale was made.

The question is whether the fact that the attachment was before judgment makes any difference as regards the application of the above principle.

There is a direct authority in Muthusami Chetti v. Chinnammal 24 Ind. Cas. 320 : 26 M.L.J. 517 that it does not make any difference. In that

decision it was held that an attachment before judgment has the effect of preventing the interest of the deceased judgment-debtor from passing by

survivorship in a case where the judgment-debtor dies after the decree. The reason is thus stated by the learned Judges: ""When a decree is passed

subsequently it is unnecessary to attach the property again and the prior attachment renders the property available for sale in execution. An

attachment followed by a decree, therefore, preculdes the accrual of the title by survivorship for the same reasons as an attachment after decree

It has, however, been argued by the learned Vakil for the respondent that the decisions in Subrao Mangesh v. Mahadevi Bhata 15 Bom. L.R.

848 and Sunder Lal v. Raghundndan Prasad 83 Ind. Cas. 413 5 P.L.T. 135 : AIR (1024)(Pat) 465 take a contrary view and that they should be

followed in preference to the Madras cases. Subrao Mangesh v. Mahadevi Bhatta 21 Ind. Cas. 330 15 Bom. L.R. 848 is, no doubt, a direct

decision in his favour, but with all respect we feel unable to follow that decision. In that case the learned Judges begin their judgment by stating that

the determination of the case before them depends on the correct construction of the Privy Council judgment in Suraj Bunsi Koer v. Sheo Persad

Singh 4 C.L.R. 226 : 2 S L.R. 242 : 2 Ind. Dec. 705 (P.C). They then distinguish that case by saying that there, there had been not a mere

attachment before judgment but an attachment in execution and an order for sale. They also seem to think that their Lordships of the Privy Council

use the word ""charge"" in the passage extracted by us in its strict legal significance vide page 107 Page of 38 B--[Ed.]. We have already stated that,

in our opinion, their Lordships in effect held that an order for sale was not essential for defeating the survivorship and that it is not right to

understand the word ""charge"" as having been used in the strict legal sense. The learned Judges seem to deduce from the Privy Council decision that

some step should be taken in execution which will have the effect of defeating the survivorship but what that step exactly is, in a case where there

has already been an attachment before judgment and a decree following it prior to the judgment-debtor''s death, they do not state. If as we have

shown above a mere attachment in execution is, according to the Privy Council, enough to defeat the survivorship, and if in a case where there has

been an attachment before judgment and a decree follwing it there need not be any further attachment after the decree-vide Order XXXVIII, Rule

2 of the C.P.C. we fail to see what further step such a decree-holder should take in order to bring matters to the stage where a mere attachment in

execution has been made. The learned Judges then rely on a decision of this Court in Ramanayya v. Rangappagya 6 Ind. Dec. 90 for the position

that an attachment before judgment has not the effect of defeating the survivorship and observe that though in that case the defendant had died

before the decree, it does not make any difference whether he dies before or after the decree. This observation does not seem to us to be sound.

It is true that until a decree is passed an attachment before judgment could not operate to render the attached property available for sale in

execution, but if a decree is also passed before the defendant''s death, it is unnecessary to attach the property again and the prior attachment

renders the property available for such sale. The decision in liamanayya v. Jiangappayya 6 Ind. Dec. 90 has been referred to and distinguished in a

later case in Muthusami Chetty v. Chunammal 24 Ind. Cas. 320 : 26 M.L.J. 517 which has not been noticed by the Bombay High Court. In

Ramanayya v. Rangappayya 6 Ind. Dec. 90 itself the learned Judges clearly indicate that an attachment before judgment would become operative

as soon as a decree is passed and that, if the defendant had died subsequent to the decree, they would have held that such prior attachment would

defeat the survivorship.

We might also notice that it has been held in Ganu Singh v. Jangi Lal 13 Ind. Dec. 941 that the effect of an attachment of property under the

C.P.C. whether made before or after decree is the same, provided that in the former case a decree is made for the plaintiff at whose instance the

attachment takes place, see page 533 Page of 26 C.--[Ed.]. In the same judgment it has been observed that ""the main object of an attachment

before judgment is to enable the plaintiff to realise the amount of the decree, supposing a decree is eventually made, from the defendant''s

property"".

For the above reasons we must hold, dissenting from Subrao Mangesh v. Mahadevi Bhatta 21 Ind. Cas. 330 15 Bom. L.R. 848 and following

Muthusami Chetty v. Chunammal 24 Ind. Cas. 320 : 26 M.L.J. 517, that 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 co-parceners. The decision discussed above should, in our

view, be only taken to mean that the other co-parceners take the property subject to the claims of the attaching creditor.

With regard to the decision in Subrao Mangesh v. Mahadevi Bhatta 21 Ind. Cas. 330 : 15 Bom. L.R. 848 it might also be mentioned that,

while discussing the Privy Council case, the learned Judges seem to make a point of the fact that in the case before them there was no actual sale

of the property even after the judgment-debtor''s death and seem to indicate that, if there was such a subsequent sale, the prior attachment might

preclude the operation of survivorship vide page 109 Page of 38 B.--[Ed.]. We do not think that the Privy Council decision justifies the drawing of

such a distinction; but, in view of the fact that in the present case there has been an actual sale after the judgment-debtor''s death, it is not necessary

to discuss the matter any further.

The other case relied upon by the respondent is the one in Sunder Lal v. Raghunandan Prasad 83 Ind. Cas. 413 : 5 P.L.T. 135 which follows

Subrao Mangesh v. Mahadevi Bhatta 21 Ind. Cas. 330 : 15 Bom. L.R. 848 In that case it was found as a fact that there was no attachment before

judgment and also that the defendant died just after the hearing of the suit and before the judgment, see page 256 Page of 3 Pat.--[Ed.]. The

occasion, therefore, for considering the question as regards the effect of an attachment before judgment in a case like the present did not actually

arise though the learned Judge states that an attachment before judgment does not rank in the same position as an attachment after judgment. They

simply follow the decision in Subrao Mangesh v. Mahadevi Bhatta 21 Ind. Cas. 330 :15 Bom. L.R. 848 and this case, therefore, does not carry us

any further.

In the result, the lower Court''s decree will be modified by a direction that the appellants are entitled to retain two sevenths of the purchase-

money realised by the sale of the properties and are bound to refund only the balance to the Official Receiver for the amount that they have thus to

refund and for any further claims that they may have, as regards interests and costs, they will rank as unsecured creditors in the insolvency

proceedings before the Official Receiver The parties will receive and pay proportionate costs throughout.

Wallace, J.

I am in general agreement with my learned brother as to the conclusion to be properly deduced from the case-law quoted before us, viz., that

an attachment before judgment, when followed by a decree passed prior to the death of the judgment-debtor co-parcener prevents, as against the

rights of the attaching creditor the accrual of the survivorship right to the surviving co-parceners. But I should like to say, though it is not necessary

for the present disposal of this case, that I consider that the language used in cases, Bailur Krishna Rau v. Lakshmana Shanbhogue 4 M. 302 ;

Thadi Ramamurthi v. Moola Kanniah 21 Ind. Cas. 667 : 16 M.L.T. 123 : (1914) M.W.N. 733 and Muthusami Chetti v. Chunammal (6) on which

we rely, is too broad if interpreted literally. I do not think that these cases intended to lay down more than that, so far as concerns the attaching

decree-holder''s right to hold the share of the deceased co-parcener liable for his debts, it is not defeated by the survivorship right, and not any

general principle that whenever there is an attachment of co-parcenery property followed by, or preceded by a decree, the survivorship right of

co-parceners to that property is barred. Obviously, for example, if the attaching decree-holder''s debt, and the debts of other decree-holders who

are entitled in law to take; advantage for themselves of the attachment made by another decree-holder are satisfied and there remains a surplus out

of the share of the deceased judgment-debtor co-parcener, that surplus will accrue by survivorship to the other co-parceners. The proposition that

an attachment plus decree will in all cases and until the cessation of the attachment prevent the accrual of the survivorship right does not, I think,,

necessarily follow from the cases quoted and is a proposition which leads to many practical difficulties in partition and other proceedings. I think

the correct way of stating the law is that the accural of survivorship is not prevented but operates subject to the prior rights of the attaching decree

holder and other decree-holders who are entitled to take advantage of their attachment to have their decree debts satisfied in execution

proceedings against what was the share of the deceased judgment-debtor co-parcener. The control over that share which the Court has by virtue

of the attachment will be used by it for that end and will not be related until the end is attained. It is this exercise of this control which, in my view,

constitutes the ""valid charge over the property of which the Privy Council speaks in the Suraj Bunsi Koer v. Sheo Persad Singh 2 S L.R. 242 : 2

Ind. Dec. 705 (P.C) case which ""charge"" must spring out of the attachment which puts the property under control of the Court and not out of any

subsequent step in execution; only the attachment, if before judgment must have been followed up by a decree passed before the death of the

judgment-debtor co-parcener since it is the decree which declares the extent of the right which the attaching creditor has against the property.

I agree in the order proposed by my learned brother.