JUDGMENT 1. The plaintiff seeks to sell certain lands in execution of a decree he has obtained against the 1st defendant as the property of his judgment-debtor; the defendants contend that the 1st defendant has no interest therein liable to be attached and sold. 2. From Exhibit I, it appears that the property was originally purchased in the name of Nambi, the late Karnavan of the 1st defendants Tarwad as benamidar with the money paid to him by Parvathi, the mother of the 1st defendent. The Karnavan with the junior members assigned their interest to Parvathi and her son the 1st defendant (Exhibit I) Parvathi is dead--and the question for decision is as to the interest of the 1st defendant in the property. 3. It is contended by the defendants that the property belongs to the Tavazhi of the deceased Parvathi, as having been purchased for them (Exhibit I) and also on the ground that the members of the Tavazhi have been in adverse possession for more than 12 years before the institution of the suit. The plaintiffs case is that Parvathi and her sons were joint tenants and on Parvathis death the 1st defendant became sole owner. 4. The Judge held that the 1st defendants interest, which must be presumed to be one half, is liable to be attached and sold. Both the parties take objection to his finding. 5. The Judge has assumed that according to the defendants, Parvathis husband made her a gift of Rs. 400, the purchase money. This appears to be incorrect. He also assumed that the defendants contention was that the property was purchased also for the benefit of the other children of Parvathi whereas the defendants contention always has been that it has been purchased for Parvathis Tavazhi, i.e., Parvathis children and their descendants in the female line. This would make a material difference. If it was purchased for all the children of Parvathi who were then alive there is 110 reason why their names also should not have been mentioned in Exhibit I, whereas if the assignment was executed in favour of the Tavazhi, then the execution in. favour of the senior female and senior male is accounted for. There is no finding by the Judge whether the members of the Tavazhi have been in possession or only the 1st defendaant and his mother. favour of the senior female and senior male is accounted for. There is no finding by the Judge whether the members of the Tavazhi have been in possession or only the 1st defendaant and his mother. Further the Judge has not, in coming to his conclusion, kept in view the rules of law applicable to such cases. 6. We proceed to state them so far as they are necessary to the decision of this case. 7. In Vydinada v. Nagammal I.L.R. (1888) M. 258 a Hindu testator devised some properties to his nephew and that nephews wife. They were held to be joint-tenants and not tenants in common and it was also held that the nephew could not sever the joint-tenancy by an alienation by him alone to a creditor. Commenting on this case their Lordships of the Privy Council observe in Jogeswar Narain Deo v. Ramchandra Dutt I.L.R. (1896) C. 670 : "There are two substantial reasons why it ought not to be followed as an authority. In the first place, it appears to their Lordships that the learned Judges of the High Court of Madras were not justified in importing into the construction of a Hindu will, an extremely technical rule of English conveyancing. The principle of joint-tenancy appears to be unknown to Hindu Law, except in the case of co-parcenary between the members of an undivided family. In the second place, the learned Judges misapprehended the law of England, because it is clear according to that law that a conveyance or an agreement to convey his or her personal interest by one of the joint-tenants operates as a severance." 8. Thus the questions for decision, whether Chandu has an alienable interest and whether he took by survivorship his mother Parvathis interest in the property, have to be decided according to the Marmakkatayam law, not according to the principle of joint-tenancy as known to English law. 9. Co-parcenary exists among the members of an undivided Malabar Tarwad. If therefore the Tarwad to which Parvathi and the 1st defendant belonged had acquired the property under Exhibit I, then, all the other members of the Tarwad, and not the 1st defendant exclusively, would have taken by survivorship the interest of the deceased Parvathi. But all the parties to this suit are agreed that the property was not purchased for the Tarwad. 10. But all the parties to this suit are agreed that the property was not purchased for the Tarwad. 10. The property, according to the defendants witnesses, was purchased with the sum of Rs. 400 given to Parvathi by her father, and the recitals in Exhibit I apparently show that the amount was advanced by her alone. If the property for that or any other reason belonged exclusively to Parvathi, and the name of the 1st defendant was inserted in Exhibit I to enable him to represent the estate before public officials, then, on her death, the property lapses according to the decisions (it is now too late to depart from those decisions) not to the Tavazhi, i.e., her descendants, but to the Tarwad who take it as her heir subject to the liability of discharging her debts.--Rayarappan Nainbiar v. Kelu Kurup I.L.R. (1882) 150. But as the debt for which the property is now attached is not alleged to have been contracted by her, and the 1st defendant would in that case have no alienable interest therein, it cannot be attached to discharge his debt and the plaintiffs suit will, in that event, have to be dismissed. 11. If, as contended by the appellants before us, the property was purchased for the benefit of the Tavazhi, i.e., Parvathi, her children and their descendants in the female line, then it would depend upon the constitution of the Tavazhi whether the 1st defendant has any alienable interest or not. If the Tavazhi forms a distinct branch from the main Tarwad with separate properties, and its own Karnavan as the manager of its property aud the guardian of the minor members, then, in a Court of law, it forms a Tarwad though popularly called a Tavazhi and th incidents of Tarwad property will apply to it and the plaintiffs suit must fail as the 1st defendant has no interest to be attached and sold. (See Korappan Nayer v. Chenen Nayar (1871) 6 M.H.C. 411 and Kenath Puthen Vittil Thavashi v. Narayanan (1905) l J.R. 28 M. 182. (See Korappan Nayer v. Chenen Nayar (1871) 6 M.H.C. 411 and Kenath Puthen Vittil Thavashi v. Narayanan (1905) l J.R. 28 M. 182. But if Parvathi and her descendants, or her Tavazhi, have not separated themselves from the main Tarwad either by taking their share of the Tarwad property or by renouncing their interest therein, then the minor members of this Tavazhi or branch would still continue under the guardianship of the Karnavan of the main Tarwad, Nambi, executant No. 1 in Exhibit I or whoever has succeeded him, whose liability to maintain them out of the Tarwad property would remain unaffected, though the branch may have private property. They would continue to be the members of the main Tarwad of which the executants of Exhibit I are members. The fact that Parvathi and her descendants forming a Tavazhi have acquired property by purchase or gift will not by itself deprive Natnbi, the Kamavan of the Tarwad, of his lights or discharge him of his obligations towards them; and they will not for that reason alone constitute themselves into a Tarwad with its incidents of imparti-bilityand uncontrolled management by Kamavan. It is Tarwad property alone that is impartible. This property which a Tavazhi or members thereof may acquire will be their separate property without the incident of impartiality. The members will be equally entitled to it. The senior male or any other manager will not obviously have the right of uncontrolled management which a Kamavan has over Tarwad property. The interest of the 1st defendant as in the case of an ordinary Hindu family will therefore be liable to sold. 12. But if any member dies without his interest in the Tavazhi property being alienated during his life-time, then according to the Full Bench decision in Kunhacha Umma v. Kutti Mammi Haji I.L.R. (1892) 16 M.201 his interest lapses to the other members of the Tavazhi and it cannot be sold. This decision as well as that in Vydinada v. Nagammal I.L.R. (1888) M 258 above referred to, was based upon a rule of construction laid down in Mahommed Shamsool v. Shewukram (1875) L.R. 2 IndAp 7. 13. This decision as well as that in Vydinada v. Nagammal I.L.R. (1888) M 258 above referred to, was based upon a rule of construction laid down in Mahommed Shamsool v. Shewukram (1875) L.R. 2 IndAp 7. 13. As in both the Hindu as well as the Marumakkatayam law joint-tenancy appears to be unknown except in the case of the undivided members of the family, whether this decision is consistent with the later decision of the Privy Council in Jogeswar Narain Deo v. Ram Chandra Dutt I.L.R. (1896) C. 670 it is unnecessary now to consider as the 1st defendant and not the deceased Parvathi is the plaintiffs debtor; and the question whether the interest of a member of a Tavazhi can be attached and sold before his death was not in that case raised or decided. 14. But if the property was acquired, as the plaintiff contends, solely for the benefit of the deceased Parvathi and the 1st defendant, then the interest of the 1st defendant therein is clearly liable to be sold. But as the deceased Parvathi and the 1st defendant alone never formed a branch or could form one to the exclusion of Patvathis children, there can be no survivorship to the 1st defendant alone. They must be treated as tenants in common. The heir of Parvathi would take her interest. The preponderance of authority is in favour of the Tarwad (which includes the Tavazhi) being the heir, though there are also decisions that the Tavazhi is the heir. But in either view, as the 1st defendant does not take it exclusively, the plaintiff cannot proceed against Parvathis interest unless the rule of joint tenancy according to English Law is applicable, and the case in Jogeswar Narayan Deo v. Ram Chandra Dutt I.L.R. (1896) C. 670 is an authority that it ought not to be so applied. 15. We shall ask the Judge to submit a revised finding on the following issues with reference to the above observations: 1. Whether the property belongs exclusively to the 1st defendant. 2. Whether he has any interest liable to be attached and sold, and if so, what is that interest? 16. Fresh evidence may be received. Findings should be submitted in six weeks, and seven days will be allowed for filing objections. [In compliance with the above order the District Judge submitted the following 17. 2. Whether he has any interest liable to be attached and sold, and if so, what is that interest? 16. Fresh evidence may be received. Findings should be submitted in six weeks, and seven days will be allowed for filing objections. [In compliance with the above order the District Judge submitted the following 17. FINDING:--That the property did not belong exclusively to 1st defendant and that he had no interest liable to be attached and sold.--Ed.] 18. This second appeal and the memo of objections coming on for hearing after the return of the above finding : upon perusing the affidavit filed by the 1st respondent to the effect that in consequence of the case not having been put down for Judgment in the cause list of 3rd March 1908 given to his vakil, he had no information about the order calling for a finding and that consequently the finding happened to be recorded and returned by the District Judge in his absence, the Court made the following ORDER 19. On payment by the 1st respondent to the appellants of the costs of the hearing in the District Court and, of the application to this Court the case will go back to the District Court for fresh findings. 20. The findings should be submitted in six weeks from the re-opening of the District Court after recess, and seven days will be allowed for filing objections. 21. In compliance with this order, the District Judge submitted the following 22. FINDING:--"Certain findings were called for by the High Court on 3-3-1908 and submitted by this Court on 21-4-08. On plaintiff-appellants affidavit to the effect that in consequence of the case not having been put down for judgment in the cause list of 3-3-1908 he had no information about the order calling for a finding and that consequently the finding happened to be recorded and returned by the District Judge in his absence, the case has been remanded for fresh findings after taking additional evidence. Plaintiff-appellant has again failed to instruct his vakil to adduce fresh evidence, and respondents do not wish to examine any further witnesses. 23. In my original finding I remarked (para 2) that plaintiffs vakil has no instructions, but I did not mean by that that the case was not argued by plaintiffs vakil, but rarely that plaintiff had not asked him to adduce fresh evidence. 23. In my original finding I remarked (para 2) that plaintiffs vakil has no instructions, but I did not mean by that that the case was not argued by plaintiffs vakil, but rarely that plaintiff had not asked him to adduce fresh evidence. The case was fully argued and I submitted my finding. There is still no further evidence before me, nor any further observations by the High Court to guide me to a different decision, so I again find both the issues in the negative for the reasons given in my finding of 21-4-1908." The Court delivered the following JUDGMENT 24. On the finding which we accept, the decree of the District Court is set aside, and the suit is dismissed with costs throughout. 25. The memorandum of objections is dismissed.