JUDGMENT C.A. Vaidialingam, J. 1. Subject to what is stated by me, regarding my views about the interpretation to be placed on the relevant provisions of the Madras Marumakkathayam Act, 1932 (Act No. XXII of 1933) hereinafter referred to as the Madras Act, arising for decision in C.R.P. No. 619/63, I agree with the majority view, just now expressed regarding their decision in C.R.P.Nos. 1075/62,1120/62 and A.S. 179/63, which arise under the Travancore Nayar Act, (Act II of 1100), the Travancore Ezhava Act (Act III of 1100) and the Cochin Nayar Act (Act No.XXIX of 1113) respectively. But with regard to the majority decision, on the question of the right of a member of a Marumakkathayam tarwad governed by the Madras Act, to alienate his undivided interest, or the right of a creditor to attach the undivided interest of such a member of a Marumakkathayam tarwad, governed by the provisions of the Madras Act, with respect, I regret, I am not inclined to agree. 2. With reference to the decision of the majority expressed under the other three enactments, referred to earlier, I am agreeing with the opinion expressed by them only because of certain special provisions contained in those statutes, to which I will make a reference immeditely, before I discuss the question arising for consideration in C.R.P. 619/1963. 3. In C.R.P. 1075/62 the order, which is under attack, is one passed by the learned Munsiff of Haripad, overruling the objections raised in a claim petition filed under O.XXI, r. 58, C.P.C., regarding an attachment effected by the decree-holder, of the undivided interest of defendants 1 and 3 in their tarwad property, in execution of a decree obtained by him, against those defendants personally. The respondent decree-holder in that case, had obtained a decree in O.S. 368/1952 on the file of the Court of the Munsiff, Haripad, against the defendants therein; and in execution of that decree, attached their undivided interest in their tarwad property. Those defendants are governed by the Travancore Nayar Act (Act II of 1100). One of the members of the defendants tarwad filed in a claim petition, the order in which is under attack in this revision petition, under O. XXI, r. 58, C.P.C, objecting to the attachment on various grounds. Those defendants are governed by the Travancore Nayar Act (Act II of 1100). One of the members of the defendants tarwad filed in a claim petition, the order in which is under attack in this revision petition, under O. XXI, r. 58, C.P.C, objecting to the attachment on various grounds. One of the objections raised by the claimant was that inasmuch as the judgment-debtors, who are members of the tarwad, had not made any claim for partition, their undivided individual interest in the tarward property cannot be attached. The learned Munsiff overruled those objections, holding that the decree-holder is entitled to attach the interest of defendants 1 and 3 in the tarwad property and the question as to what exactly is the extent of the interest that could be attached and brought to sale can be considered more appropriately when the decree-holder files a suit for partition. 4. It is only necessary to note two sections of the Travancore Nayar Act which are material for the present purpose, namely sections 33 and 39. Sections 33 and 39 occur in Chapter VII, relating to the 'Partition of tarwad property'. Section 33 which relates to the right to claim partition, is as follows : "33. Right to claim partition. Subject to the provisions of sections 34, 35 and 36, every adult member of a tarwad shall be entitled to claim his or her share of the properties of the tarwad." It will be seen that the right to claim partition under the above section is made subject to the three sections mentioned therein. Section 39, which relates to the nature of the right to tarwad property before partition, is as follows : "39. Nature of right to tarwad property before partition. Until partition, no member of the tarwad shall be deemed to have a definite share in tarwad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein." It will be seen that though a right is given under section 33 to every adult member of a tarwad to claim his or her share of the properties of the tarwad, nevertheless section 39 makes it very clear that until partition, no member of the tarwad can be considered to have a definite share in the tarwad property liable to be seized in execution. It also makes it very clear that no member of the tarwad, until partition, shall be deemed to have any alienable or heritable interest therein. So far as the prohibition placed upon heritable interest under section 39 is concerned, that must be considered, to have been abrogated by the provisions made in sections 7 and 30 of the Hindu Succession Act, 1956 (Central Act 30 of 1956). Therefore, in view of the specific provisions contained in section 39 of the Travancore Nayar Act, it must be held, in this case, that inasmuch as there has been no claim for partition made by defendants 1 and 3, no execution can be levied as against their undivided interest in the tarwad properties. It is because of this specific provision contained in section 39 of the Travancore Nayar Act, that I agree with the majority view just now expressed. 5. C.R.P. 1120/62 arises out of an order passed by the learned Munsiff of Vaikom accepting a claim made under order XXI, rule 58, C.P.C., objecting to an attachment made in execution of a decree obtained by the respondent, as against the undivided interest of the judgment-debtor in the tarwad properties, in execution of the decree in O.S. 139/1957. The claimant and the defendants are governed by the Travancore Ezhava Act (Act III of 1100). The claimant, who is the respondent herein, is the karnavan and manager of the Ezhava tarwad. According to him, item No. 1 which was attached belongs to him exclusively, and the decree-holder is not entitled to attach the undivided interest of the judgment-debtor in item No. 2, inasmuch as the judgment-debtor has not made any claim for partition. So far as item No. 1 is concerned, the learned Munsiff has accepted the claim of the karnavan, and has held that the said item cannot be attached by the decree-holder in execution of the decree obtained against the claimant's brother. But regarding item No. 2, the learned Munsiff has held that it belongs to the branch family property of the claimant, the judgment-debtor and their mother, who are governed by the Travancore Ezhava Act. The learned Munsiff further held that the judgment-debtor is only a junior member of the family, who has not claimed his share and therefore his undivided interest cannot be attached. The learned Munsiff further held that the judgment-debtor is only a junior member of the family, who has not claimed his share and therefore his undivided interest cannot be attached. Though the decree-holder relied upon the Full Bench decision of this Court reported in Bank of New India, Ltd. v. Ponnamma I.L.R. 1960 Kerala 906 (F.B.) in support of his contention that the undivided share of a Hindu in his family can be attached, the learned Munsiff distinguished that ruling on the ground that the said decision applies only to Kshatriyas who are governed by the Travancore Kshatria Act (Act VII of 1108), wherein the provisions are materially different. I will have to revert to this Full Bench decision in the latter part of this judgment, when I discuss the points arising for decision under the Madras Marumakkathayam Act. Ultimately the learned Munsiff held that under the Travancore Ezhava Act, there is no right of individual partition, but only thavazhi partition and that no individual junior member has got any definite or specific share in the family property during his life-time. Therefore the court ultimately held that the attachment of the judgment-debtor's one-fourth share in item No. 2 of the properties mentioned in the execution petition cannot be allowed. The result was that the claim petition filed by the respondent was allowed in toto. 6. In this revision petition, the decree-holder challenges the order of the trial court and urges that, in any event, the decree-holder's right to levy execution against the undivided interest of the judgment-debtor in the tarwad properties should have been allowed and the decree-holder permitted to pursue his further rights on the basis of such attachment. 7. Section 28 of the Travancore Ezhava Act, which occurs in Part VII, dealing with partition, relates to the right to claim partition and is as follows : "28. Right to claim partition. Except as hereinafter provided, no person shall claim or be compelled to divide from any other member of such person's own thavazhee." But sections 29 and 30 state certain circumstances under which, and the period when alone, the right given under section 28 can be put into operation. Sections 29 and 30 are as follows: "29. Partition not allowed during lifetime of female ascendant. Sections 29 and 30 are as follows: "29. Partition not allowed during lifetime of female ascendant. Except as hereinafter provided, no person shall claim or be compelled to divide from any other member of the thavazhee of such person's lineal ascendant in the female line during the lifetime of such ascendant. 30. Who may claim partition and when. After the death of the lineal ascendant referred to in section 29, or with her consent, (1) each collateral thavazhee represented by the majority of the adult members thereof, or' (2) the male children or female children without issue of such lineal ascendant and who are not included in the thavazhee referred to in clause (1), may claim an outright partition of property over which the tarwad has the power of disposal." It will be seen that the right to partition is hedged in by several conditions precedent. 8. In this case, no controversy is raised that the circumstances, under which alone a partition can be claimed do not exist. Therefore, in view of the special provisions contained in section 28, read with sections 29 and 30 of the Travancore Ezhava Act, it will have to be held that the order of the lower court accepting the claim of the respondent is correct. 9. In A. S. 179/63, the order of the learned Subordinate Judge, Ernakulam, declining the request of the decree-holder in O.S. 78/1951 to levy execution, by way of attachment of the undivided interest of the judgment-debtor in the tarwad properties, is under attack. The undivided interest that was sought to be attached, there is no controversy, is that of a junior member of the tarwad, against whom the appellant had obtained a decree. That claim was opposed on the ground that the judgment-debtor is a member of an undivided Nair tarwad, governed by the provisions of the Cochin Nayar Act (Act No- 29 of 1113). Apart from the fact that no claim for partition has been made by that junior member, the provisions of section 62 of the said Act were relied on, in support of the plea that the undivided interest of the judgment-debtor cannot be seized in execution. Apart from the fact that no claim for partition has been made by that junior member, the provisions of section 62 of the said Act were relied on, in support of the plea that the undivided interest of the judgment-debtor cannot be seized in execution. On the other hand, the decree-holder-appellant contended, that inasmuch as an absolute right to claim partition has been conferred on every member of the tarwad, under section 59 of the Act, the decree-holder is entitled to levy execution, as against the judgment debtor's undivided interest, and work out his rights, by instituting a suit for partition. It was also urged that by virtue of the right to partition conferred on a member, his position becomes assimilated to that of a co-parcener of a Hindu Mithakshara family. In this connection, the appellant appears to have relied upon the Full Bench decision of this Court in Bank of New India Ltd. v. Ponnamma I.L.R 1960 Kerala 906 (F.B) as well as certain decisions of the Madras High Court rendered under the Madras Act. On the other hand, the objector respondent relied upon the decisions of the Cochin Chief Court and the Cochin High Court, taking a different view. 10. The learned Subordinate Judge, while recognising that a Full Bench decision of this Court has permitted attachment of an undivided share of a member, governed by the Travancore Kshathriya Act, and that the Madras High Court has permitted similar attachment of an undivided share of a member of a tarwad, governed by the Madras Act, has nevertheless taken the view that as the question arising in the case is one under the Cochin, Nayar Act, the decision of the Cochin High Court will have to be preferred. On this basis, the learned Judge rejected the plea of the decree-holder, and has held that the judgment-debtor's undivided interest in the tarwad property is not liable to be attached. 11. The material provisions of the Cochin Nayar Act that have to be referred to are sections 59 and 62, occurring in Chapter VII, relating to partition. Section 59, which gives every member a right to claim partition, is as follows: "59. Any member can claim partition. Every member of a tarwad shall be entitled to claim his share of the properties of the tarwad. Section 59, which gives every member a right to claim partition, is as follows: "59. Any member can claim partition. Every member of a tarwad shall be entitled to claim his share of the properties of the tarwad. Such share shall be so much of the properties as will fall to him if a division per capita were made among all the members of the tarwad at the time." Section 62, which again specifies the nature of the right in tarwad property, before partition, is as follows: "62. Nature of right to tarwad property before partition. Until partition, no member of the tarwad shall be deemed to have a definite share in the tarwad property liable lo be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein." It will be seen that section 62 of the Cochin Nayar Act is in pari materia with the provisions of section 39 of the Travancore Nayar Act. For the same reasons given by me, while dealing with C.R.P. 1075/62, it follows that in view of the specific provisions contained in section 62 of the Cochin Nayar Act, the appellant is not entitled to levy execution, as against the undivided interest of the 1st defendant in the tarwad properties. Quite naturally, it also follows, that so far as the heritable interest provided for under section 62 of the Act is concerned it must be considered to have been abrogated by sections 7 and 30 of the Hindu Succession Act, 1956 (Central Act 30 of 1956). 12. Therefore, in view of the special provisions noted in the three enactments discussed above, I agree with the view, expressed by the majority, regarding the orders proposed by them, in C.R.P. Nos. 1075/62, 1120/62, and A.S. 179/63. 13. As mentioned earlier, regarding the view expressed by the majority, on the question about the right of an undivided member of a Marumakkathayam tarwad, governed by the provisions of Madras Act to alienate his share, or the right of a creditor to proceed, in execution, by way of attachment and sale of such an undivided interest, with respect, I differ. 14. 14. In CR.P. No. 619/63, the order of the learned Munsiff of Payyoli, holding that the undivided interest of a member of a Marumakkathayam tarwad, governed by the Madras Act, can be attached and sold in execution by the decree-holder, is under attack. In this case, it will be seen that the 1st respondent had obtained a money decree in O.S. 441/50 on the file of the Payyoli Munsiff's Court, against the 2nd respondent herein, who was a junior member of a Marumakkathayam tarwad governed by the Madras Act. The decree-holder, in execution of the decree, attached the undivided 1/17th share of the 2nd respondent and attempted to bring the same to sale. The petitioner intervened by a claim petition under O. XXI, r.58, C.P.C., and objected to the attachment. As to whether the petitioner was the karnavan or only a junior member of the thavazhi concerned, is not clear. Anyhow, so far as items 2 and 5 are concerned, she raised a contention that they belonged to her absolutely, and that claim was accepted by the lower court. But the controversy relates to items 1, 3 and 4. The petitioner objected to the attachment, on the ground that the decree-holder is not entitled to levy attachment, as against the undivided share of a member of the thavazhi, and that the 2nd respondent has not claimed partition of the share due to her. The petitioner also urged that the 2nd respondent has only an 1/17th undivided interest in the properties belonging to the thavazhi, of which the petitioner and the 2nd respondent were members. The 1st respondent decree-holder, opposed the claim made by the petitioner on the ground that she is entitled to levy execution against the undivided interest of the 2nd respondent, on the basis of the decision of the Madras High Court reported in Subramanyan v. Naraina A.I.R. 1938 Madras 553 and the decision of the Full Bench of this Court reported in Bank of New India Ltd. v. Ponnamma I.L.R 1960 Kerala 906 (F.B). 15. The learned Munsiff, has on the basis of the said rulings, accepted the claim of the 1st respondent to attach the undivided interest, on the ground, that those decisions are authorities for the proposition that the undivided interest of a member of a Marumakkathayam tarwad or thavazhi can be attached by a decree-holder. 15. The learned Munsiff, has on the basis of the said rulings, accepted the claim of the 1st respondent to attach the undivided interest, on the ground, that those decisions are authorities for the proposition that the undivided interest of a member of a Marumakkathayam tarwad or thavazhi can be attached by a decree-holder. Another Full Bench decision of this Court, reported in Antherman v. Kannan 1960 K.L.T 1313 was distinguished by the learned Munsiff on the ground that it related to a case of voluntary alienation by a member of the tarwad of his undivided interest, which alienation was not unheld. Ultimately the learned Munsiff, rejected the objections raised by the petitioner, in respect of the attachment of the l/17th undivided share of the 2nd respondent in items 1, 3 and 4. This is the order that is attacked by Mr. T. Chandrasekhara Menon learned counsel for the petitioner in the said revision petition. 16. According to Mr. Chandrasekhara Menon, it cannot be stated that a junior member of a Marumakkathayam tarwad can be considered to have any separate interest, until he has made a claim for partition in a manner known to law, and therefore the decree-holder is not entitled to attach the undivided interest of the 2nd respondent. The learned counsel has also urged that the right conferred by section 38 of the Madras Act, as it now stands, is an individual right given only to a member of the tarwad or tavazhi to claim partition and that right can only be exercised by the individual concerned in his own volition, and not by others. The learned counsel also pointed out that it has been held by decisions, that before a person can be considered to have become divided, it is necessary that there must be an unequivocal declaration to that effect and such a declaration must have been brought home to the other members who are to be affected thereby. Such an unequivocal intention has not been made by the 2nd respondent in this case, and a creditor, according to the learned counsel, cannot certainly exercise that right, which is purely personal to the member concerned. The learned counsel no doubt referred to certain decisions as to how exactly the right to claim partition is to be exercised and as to when it becomes effective. The learned counsel no doubt referred to certain decisions as to how exactly the right to claim partition is to be exercised and as to when it becomes effective. The learned counsel also pointed out that till a claim for a share has been made by a member of the tarwad, it cannot be said that he has got any separate interest in the tarwad or thavazhi property. Even under strict Hindu Mitakshara law, learned counsel pointed out, a private alienation by an undivided member of his share, or the attachment of such an undivided interest has not been recognised, and those principles have been recognised only by judicial decisions making, so to say, an inroad on the strict principles laid down by Hindu Law texts. Therefore the learned counsel pointed out that the Madras decisions, to which reference will be made by me later in this judgment, recognising such a right, even with respect to properties, owned by parties governed by Marumakkathayam law, must be considered to be erroneous inasmuch as under the customary law obtaining among Marumakkathayees no such rights have been recognised. In this connection the learned counsel referred to the provisions contained in section 50 of the Madras Act, which according to him, specifically save rules of Marumakkathayam law, custom or usage, except to the extent expressly laid down in the Madras Act. No express provision, the learned counsel points out, has been made in the Madras Act, enabling a member of a tarwad to voluntarily alienate his undivided interest, nor has any provision of the statute recognised the right of a decree-holder to proceed against the undivided interest of his debtor, in the tarwad properties. No express provision, the learned counsel points out, has been made in the Madras Act, enabling a member of a tarwad to voluntarily alienate his undivided interest, nor has any provision of the statute recognised the right of a decree-holder to proceed against the undivided interest of his debtor, in the tarwad properties. The learned counsel, in consequence, pointed out that a member of a tarwad who has not claimed partition cannot be considered to have any separate interest in tarwad properties, and therefore it cannot be stated that such a member has a disposing power, over any part of the tarwad properties which he may exercise for his own benefit, in which case alone the decree-holder can levy attachment, as provided under section 60 C.P.C. In this connection, the learned counsel also placed, quite naturally, considerable reliance on the later Full Bench decision of this Court reported in Antherman v. Kannan 1960 K.L.T 1313 wherein the various decisions of the Cochin Chief Court, and the Cochin High Court have been quoted with approval; and those decisions have uniformly laid down that an undivided interest of a member of a Marumakkathayam tarwad, cannot be alienated or proceeded against in execution. The learned counsel also relied upon the said Full Bench decision of this Court, viz., Antherman v. Kannan wherein the learned Judges have, after a consideration of section 38 of the Madras Act, as it originally stood, declined to recognise the right of a junior member to voluntarily alienate his undivided share in tarwad properties. Quite naturally The implication of this argument advanced by learned counsel is, that the earlier decision of the Full Bench of this Court in Bank of New India v. Ponnamma I.L.R 1960 Kerala 906 (F.B.) though not expressly dissented from by the later Full Bench, is no longer good law. 17. On the other hand, Mr. Quite naturally The implication of this argument advanced by learned counsel is, that the earlier decision of the Full Bench of this Court in Bank of New India v. Ponnamma I.L.R 1960 Kerala 906 (F.B.) though not expressly dissented from by the later Full Bench, is no longer good law. 17. On the other hand, Mr. Achuthan Nambiar, learned counsel for the decree-holder respondent, has urged that, at the time when the Madras Act was passed, the Madras High Court has consistently recognised the right of a junior member of a Hindu Mitakshara family to alienate his undivided interest, as well as the right of a decree-holder to proceed against the undivided interest of his debtor, who is a member of the family; and this principle which has been adopted by the Madras High Court for a long time, has been approved by the Judicial Committee of the Privy Council. In fact the learned counsel pointed out that the right of a decree-holder to proceed against the undivided interest of his judgment-debtor in the family properties, has been recognised by all the British Indian High Courts; though, so far as Bengal alone is concerned, that High Court was not prepared to recognise the right of a voluntary alienation in a junior member of the family. At the time when the Madras Act was passed, learned counsel pointed out, this was the state of the law in Madras, and the Madras Legislature intended to bring the members of Marumakkathayam tarwads also more or less on a par with the members of a coparcenary under Hindu Mitakshara law; and therefore the legislature recognised the right of partition which could be exercised irrespective of the willingness or otherwise of the other members of the tarwads- Learned counsel also pointed out that there is no provision in the Madras Act, similar to section 39 of the Travancore Nayar Act or section 62 of the Cochin Nayar Act. The absence of such a provision in the Madras Act, learned counsel points out, is not without significance. Once an absolute right, to convert a joint estate into an individual estate is granted by the legislature, as has been done by enacting section 38 in the Madras Act, learned counsel urged that all the other incidents recognised by courts as attaching to the properties owned as coparceners in a Hindu Mitakshara family will follow. Once an absolute right, to convert a joint estate into an individual estate is granted by the legislature, as has been done by enacting section 38 in the Madras Act, learned counsel urged that all the other incidents recognised by courts as attaching to the properties owned as coparceners in a Hindu Mitakshara family will follow. The learned counsel therefore urged that the interpretation placed upon section 38 of the Madras Act by the Madras High Court in Subramonian v. Naraina A.I.R 1938 Madras 553 recognising the right of a decree-holder to attach and bring to sale the undivided interest of a junior member of a Marumakkathayam tarwad, is consistent with the view taken by the Madras High Court from very early times; and therefore that view is correct and should be adopted by this court also, especially when dealing with a Madras enactment. Learned counsel also pointed out that section 50 of the Madras Act, on which considerable reliance has been placed by the petitioner, is of no assistance to the claimant, because the only custom that was in force prior to the passing of the Madras Act, was that there was no individual right to separate from the tarwad, and there can be a partition only by common consent of all the members of the tarwad; whereas the Act has conferred an individual right of partition which could be exercised without reference to the wishes of others, and that right carries with it, all the other incidents. Therefore the recognition of such a right as has been done by the Madras High Court, is not in any manner contrary to the provisions of section 50 of the Madras Act. The learned counsel pointed out, that after the formation of Kerala State, the Kerala Legislature amended the Madras Act, by the Madras Marumakkathayam (Amendment) Act, 1958, Kerala Act 26 of 1958, whereby certain amendments to the parent Act, have been made. Most of the amendments, the learned counsel points out, are with a view to bring the Madras Act on a par with the enactments already in force in the Travancore and Cochin areas. But so far as section 38 of the parent Act is concerned, the amending Act has enlarged the right to claim partition. Most of the amendments, the learned counsel points out, are with a view to bring the Madras Act on a par with the enactments already in force in the Travancore and Cochin areas. But so far as section 38 of the parent Act is concerned, the amending Act has enlarged the right to claim partition. Whereas under the original Act, a right to Partition was given only to a thavazhi represented by the majority of its members, the amending Act has conferred such a right on any individual to claim to take his or her share of all the properties of the tarwad or thavazhi. While so enlarging the right by substituting a new section, namely section 38 as it now stands, the legislature has not in any manner introduced in the Madras Act, provisions like either section 39 of the Travancore Nayar Act or section 62 of the Cochin Nayar Act. Therefore the learned counsel points out that so far as Marumakkathayees governed by the Madras Act are concerned, the intention of the Kerala Legislature also is that the decisions rendered by the Madras High Court recognising the right of an undivided member to voluntarily alienate his interest or the right of a creditor to proceed in execution against the undivided interest of a member of the tarwad, must be allowed to stand. In this connection, it may be stated that while the decision in Subramonian v. Naraina A.I.R 1938 Madras 553 recognises the right of a decree-holder to attach the undivided interest of a junior member in the tarwad properties, the decision reported in Kunhikrishnan v. Anantharaman 1959 K.L.T 1160 recognises the right of an undivided member of a tarwad to alienate his undivided interest in the tarwad properties. This latter decision, though reported in the Kerala Law Times volume in 1959, is really one rendered by the Madras High Court, as early as 1953, and the Kerala Legislature must have been well aware of both these Madras decisions at the time when the amending Act, namely Kerala Act 26 of 1958, was enacted. The learned counsel pointed out that if the undivided interest of a member of a tarwad in the tarwad properties can be attached by a decree-holder, a fortiori a member of a tarwad or thavazhi can also voluntarily alienate his undivided interest in the tarwad properties. The learned counsel pointed out that if the undivided interest of a member of a tarwad in the tarwad properties can be attached by a decree-holder, a fortiori a member of a tarwad or thavazhi can also voluntarily alienate his undivided interest in the tarwad properties. Therefore, inasmuch as there is such a right, the learned counsel pointed out, there is no bar under section 60, C.P.C., to his client proceeding to execute the decree, as against the 2nd respondent, in the manner he has done. 18. Now, coming to the Madras Act, it will be seen that it was enacted in 1932. In the Statement of Objects and Reasons, published in the Fort St. George Gazette, dated 18th August 1931, Part IV, at page 248, it is stated that the right of partition has not been recognised by courts of law, in Marumakkathayam tarwads and that there is a feeling in the country that there should be such partition. It is further stated that the evils due to the absence of that right, and the absolute power of the karnavan for management, have been set out in the report of the Malabar Marriage Commission and that people in the country require that they should be given that right of partition. The preamble to the Act states that it has been found expedient to define and amend, among various other matters, the law relating to partition applicable to persons governed by the Marumakkathayam law of inheritance". Section 3, clauses (e) and (f) define "Marumakkathayam" and "Marumakkathayee" respectively. Section 3 clause (i) defines ' tarwad' as follows: "(i) 'tarwad' means the group of persons forming a joint family with community of property governed by the Marumakkathayam law of inheritance." It is significant to note that the definition refers to a group of persons forming a joint family with community of property. The expression 'joint family' occurring in this definition, so far as I could see, is not to be found in section 2(6) of the Travancore Nayar Act, which defines the expression 'tarwad'. But it must be stated that section 3 of the Cochin Act defines 'tarwad', and that definition is in accordance with the Madras definition- In my view, that definition itself recognises an existing right to tarwad properties, in all the members of the tarwad. But it must be stated that section 3 of the Cochin Act defines 'tarwad', and that definition is in accordance with the Madras definition- In my view, that definition itself recognises an existing right to tarwad properties, in all the members of the tarwad. Section 35 gives a right to a member of the tarwad, whether living in the tarwad house or not, of being paid maintenance consistent with the income and the circumstances of the tarwad. Chapter VI deals with partition. Section 38 which deals with the right of a thavazhi to claim partition, is as follows: "38. (1)Right of thavazhi to claim partition. Any thavazhi represented by the majority of its major members may claim to take its share of all the properties of the tarwad over which it has power of disposal and separate from the tarwad: Provided that no thavazhi shall claim to be divided from the tarwad during the lifetime of an ancestress common to such thavazhi and to any other thavazhi or thavazhies of the tarwad, except with the consent of such ancestress, if she is a member of the tarwad. (2) The share obtained by the thavazhi shall be takes by it with the incidents of tarwad property. Explanation. - For the purposes of this Chapter, a male member of a tarwad or a female member thereof without any living child or descendant in the female line, shall be deemed to be a thavazhi if he or she has no living female ascendant who is a member of the tarwad." Section 39 of the Act similarly gives a right to a member of a tarwad who has changed his or her religion to claim to take his or her share. That section also gives to the other members of the tarwad, a right to compel the member, who has changed his or her religion to claim to take his or her share. So far as I could see, there is no such provision in the Travancore Nayar Act or in the Cochin Nayar Act. But it must be noted that even section 38 refers to the right of thavazhi to take its share, which itself pre-supposes that it has got an antecedent right and interest in the properties of the tarwad as well a share therein. But it must be noted that even section 38 refers to the right of thavazhi to take its share, which itself pre-supposes that it has got an antecedent right and interest in the properties of the tarwad as well a share therein. Section 40 only deals with the share that is to be given to a thavazhi in cases covered by sections 38 and 39. Chapter VII and the Schedule deal with impartible tarwads. I am only referring to this aspect because Chapter VII and the Schedule to the Act have been deleted by Kerala Act 26 of 1958. Section 50 the Madras Act is as follows: "50. Savings.- Nothing contained in this Act shall be deemed to affect any rule of Marumakkathayam law, custom or usage, except to the extent expressly laid down in this Act. " 19. Some of the provisions of the Madras Act, were amended by the Kerala Legislature, by the Madras Marumakkathayam (Amendment) Act, 1958 (Kerala Act 26 of 1958). The Statement of Objects and Reasons, published in the Kerala Gazette Extraordinary No. 76, dated 19th July 1957, when this Act was in the Bill stage, refers to the fact that the Madras Marumakkathayam Act, 1932 (Madras Act XXII of 1933) in force in the Malabar area of the State gives only a right of partition to the thavazhi so as to keep the Marumakkathayam set up. It is further stated that this idea had undergone considerable changes in recent times and the modern trend of opinion is in favour of individual partition, and that Government consider that members of a tarwad or thavazhi should be entitled to claim individual partition. That clearly shows that the Marumakkathayam system was sought to be disintegrated in several respects, even by the Kerala Legislature. That may be one of the reasons why the Legislature did not introduce in the Amending Act, any provision similar to section 39 of the Travancore Nayar Act or section 62 of the Cochin Nayar Act; because the Legislature did not want any such restriction to be placed on members of the tarwad or thavazhi who have been given an absolute right to claim their share. Most of the other sections that were amended, will clearly show that the Madras Act has been brought in conformity With the Acts in force in the other areas of the State, namely Travancore and Cochin. Most of the other sections that were amended, will clearly show that the Madras Act has been brought in conformity With the Acts in force in the other areas of the State, namely Travancore and Cochin. It is only necessary to note the amendment effected to section 38 of the Madras Act. Section 9 of the Amending Act has substituted a new section 38 for the old section. The new section 38, omitting the explanations, is as follows: "38. Right of member of tarwad or thavazhi to claim partition.” Any member of a tarwad or thavazhi may claim to take his or her share of all the properties of the tarwad or thavazhi over which the tarwad or thavazhi has power of disposal, and separate from the tarwad or thavazhi." It will be seen that, while the old section 38 recognised a right to claim partition only in a thavazhi represented by the majority of its major members, the new section has recognised the right of any member of a tarwad or thavazhi to claim to take his or her share in the tarwad or thavazhi properties and separate from the tarwad or thavazhi concerned. That means, that the right originally conferred under the Madras Act has been enlarged. Section 10 of the Amending Act also introduced certain consequential changes, by also substituting the new section 39. In as much as the share that is to be given, when a partition is claimed, either under section 38 or section 39 is provided for in some of the Explanations occurring in section 38 itself, sections 40 and 41 of the original Act have been deleted by section 11 of the Amending Act. In as much as the share that is to be given, when a partition is claimed, either under section 38 or section 39 is provided for in some of the Explanations occurring in section 38 itself, sections 40 and 41 of the original Act have been deleted by section 11 of the Amending Act. Section 12 of the Amending Act omits Chapter VII and the Schedule relating to impartible tarwads-Therefore there is no question in future of any impartible tarwads governed by the Madras Act, and all tarwads are partible in the manner provided in sections 38 and 39-But the point to be noted in the Amending Act, is that while it has enlarged the right of claiming partition and has recognised such a right even in an individual under the new section 38, and while it has also amended certain other provisions, so as to bring the Madras Act, in conformity with the Travancore and Cochin Nayar Acts, no provision similar to either section 39 of the Travancore Nayar Act or section 62 of the Cochin Nayar Act has been thought fit to be introduced by the Legislature in the Amending Act. 20. In my view, that certainly is a very significant circumstance which this Court has to take into account in considering as to whether the principles laid down by the Madras High Court still hold good or not. I will later on refer to the decisions of the Madras High Court, wherein it has been categorically laid down that the object of the Madras Legislature, in enacting, not only the Madras Act, but also at the same time in enacting the Madras Nambudiri Act, 1932, (Madras Act XXI of 1933), was to correlate the members of the Illom and the Marumakkathayam tarwad, as far as possible to coparceners holding property under Hindu Mitakshara Law. At the time when the Kerala Legislature amended the Madras Act, by Act 26 of 1958, there were already decisions rendered by the Madras High Court, recognising the right of an undivided member of a Marumakkathayam tarwad to alienate his undivided interest, and the right of decree-holder to levy execution against the undivided interest of his debtor in tarwad or thavazhi property. If the Legislature wanted to overrule those decisions and place a restriction in the Madras Act, one would expect the Legislature to introduce in the Madras Act, provisions like section 39 of the Travancore Nayar Act or section 62 of the Cochin Nayar Act. The Legislature not having done so, and on the other hand having enlarged and recognised the right of individual partition, there is a clear indication in my view that Mammakkathayees governed by the Madras Act must be held bound by the decisions rendered by the Madras High Court, on this statute. 21. It is also necessary to advert to a provision in the Madras Nambudiri Act, 1932 (Madras Act XXI of 1933). No doubt I am aware of the fact that the Nambudiries are not governed by the Marumakkathayam law. The Nambudiri Act itself clearly states that it applies to all Nambudiri Brahmans in the Presidency of Madras, who are not governed by the Marumakkathayam law of inheritance. But the definition of 'Illom' in section 2 (6) of the Act is substantially in accordance with the definition of 'tarwad' occurring in section 2(i) of the Madras Act. Chapter VI of the Nambudiri Act, deals with partition. Section 23, dealing with the right of a member to claim partition, provides that any member of an Illom, male or female, may claim to take his or her share of all the properties of the Illom, over which it has power of disposal and separate from the Illom. There are certain other provisions in section 23, which do not require to be noted. But the only aspect to be emphasised, is that section 23 gives an absolute right to a member of an Illom to claim-to take his or her share in all the properties of the Illom. The effect of such a provision, has come up for consideration by the Madras High Court, and I will refer to those decisions in the latter part of this judgment. 22. As the section with which we are concerned in this case, gives the absolute right of claiming partition, it is necessary to note what exactly is meant by the expression 'partition'. In Girija Bai v. Sadashiv Dhundiraj I.L.R. 43 Cal. 22. As the section with which we are concerned in this case, gives the absolute right of claiming partition, it is necessary to note what exactly is meant by the expression 'partition'. In Girija Bai v. Sadashiv Dhundiraj I.L.R. 43 Cal. 1031 P.C. the Judicial Committee at page 1018 observes: "Partition does not give him a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition, independent of the wishes of his former co-sharers." The above definition of the expression by the Judicial Committee clearly shows that the party, who is given that right, has already a pre-existing title in the property concerned which is his own. The said decision also recognises the right of a member of a Hindu undivided family, by an unequivocal and clearly expressed intention, to separate from the rest, in the manner indicated by Their Lordships in the Judgment. The Supreme Court, in the recent decision reported in I.T. Commissioner v. Keshavlal A.I.R. 1965 S.C. 866 has also occasion to define, what is meant by 'partition Sikri, J., speaking for the Court, observes at page 868 of the report as follows: "But, is a partition of joint Hindu family property a transfer in the strict sense? We are of the opinion that it is not. This was so held in Gulta Radhakrishnayya v. Gutta Sarasamma (I.L.R. 1951 Mad. 607). Subba Rao J., then a Judge of the Madras High Court, after examining several authorities, came to the conclusion that "partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. Each one of the sharers had an antecedent title and therefore no conveyance is involved in the process as a conferment of a new title is not necessary". The above definition, is in accordance with the statement of the Judicial Committee referred to earlier. Therefore, it will be seen that according to the Supreme Court, the party, to whom a right of partition is given to get a share, has an antecedent title in the property which was so long in the joint enjoyment of himself and others. The above definition, is in accordance with the statement of the Judicial Committee referred to earlier. Therefore, it will be seen that according to the Supreme Court, the party, to whom a right of partition is given to get a share, has an antecedent title in the property which was so long in the joint enjoyment of himself and others. Therefore section 38 of the Madras Act does not, for the first time, recognise an interest or title of a member in tarwad properties; on the other hand, it gives a right to the member concerned, to have separated, as his individual share, of a property, which was so long held by him or her along with others. 23. It is necessary to note what exactly was the state of the law in the Madras Presidency, regarding persons governed by the Hindu Mitakshara law, when the Madras Act was enacted, because I will be referring later, to certain decisions of the Madras High Court, wherein it has been laid down that the object in enacting the Madras Act, was to correlate the members of a tarwad, to those of co-parceners holding property as a joint family, under Hindu Mitakshara law. In my view, by conferring and recognising a right of individual partition, as is done by the Madras Act, the members of a tarwad or thavazhi holding property jointly, have in many respects been put on a par with co-parceners holding property jointly, with all the incidents that were applicable to holders of property as co-parceners, except to the extent specifically provided for in the Madras Act itself. The right of a coparcener of a Hindu Mitakshara family to alienate voluntarily his undivided interest in joint family property, and the right of a decree-holder who has obtained a decree against a member of the family to levy execution against his debtor's undivided interest in the joint family and to work out his rights by partition, have been recognised in the Madras Province from very early times. In Deendyal v. Jagdeep Narain Singh I.L.R 3 Calcutta 198 P.C. which no doubt was a case arising from Bengal, the Judicial Committee has recognised the principle that the right, title and interest of one co-sharer of a joint family governed by Mithakshara law can be attached and sold in execution to satisfy a decree, obtained against that co-sharer personally in Bengal, Bombay and Madras. The Judicial Committee has also laid down that the purchaser at such sale, acquires merely the right to compel partition, as against the other co-sharers. In that case, it will be seen that a decree-holder obtained a decree on a mortagage executed by a member of a family governed by Hindu Mitakshara law, but he nevertheless ultimately purchased the right, title and interest of the judgment-debtor co-sharer. The Judicial Committee takes note of the fact that the decree-holder in that case cannot be taken to have acquired, by the execution sale, more than the right, title and interest of his judgment-debtor. At page 205 of the reports, Their Lordships pose the question which arose for consideration, as to whether the decree-holder, who was the appellant before them, acquired a good title even to the right, title and interest of his judgment-debtor, and as to whether under the law of Mitakshara, the share of one co-sharer in the joint family estate can be taken and sold in execution of a decree against him alone. In considering that question Their Lordships observe at page 205: ..it is settled law that the right, title and interest of one co-sharer in a joint estate may be attached and sold in execution to satisfy his personal debt; and that the purchaser under such an execution stands in the shoes of the judgment- debtor, and acquires the right as against the other co-sharers to compel a partition. That a similar view prevails in the south of India, though the law there administered is founded on the Mitakshara, is shown by two cases decided by the High Court of Madras Virasvami Gramini v. Ayyasvami Gramini (1 Mad. H.C. Rep. p. 471) and Palanivelappa Kaundan v. Mannaru Naikar (2 Mad. H.C. Rep. 416). The latter case is one in which, as here, the co- parceners were father and son. H.C. Rep. p. 471) and Palanivelappa Kaundan v. Mannaru Naikar (2 Mad. H.C. Rep. 416). The latter case is one in which, as here, the co- parceners were father and son. And that the law is to the same effect in the Presidency of Bombay was ruled in the two cases which are reported at pp. 39 and 182 of the first volume of the Bombay High Court Reports. All these cases, however, affirm not merely the right of a judgment creditor to seize and sell the interest of his debtor in a joint estate, but also the general right of one member of a joint family to dispose of his share by voluntary conveyance without the concurrence of his coparceners. This latter proposition is certainly opposed to several decisions of the Courts of Bengal." From the above extract, it is clear that all the High Courts of Bengal, Bombay and Madras are unanimous in their view that it is open to a creditor, who has obtained a decree against a member of a joint family to proceed to attach his undivided share in the joint estate and bring it to sale. It is also established that such a purchaser stands in the shoes of the judgment-debtor and acquires the right as against the other co-sharers to compel a partition. But their Lordships also emphasise, that so far as the Madras and Bombay High Courts are concerned, they have gone a step further and those Courts have recognised not merely the right of the judgment creditor to attach and sell the interest of his debtor in the joint estate, but also the right of one member of the joint family to dispose of his undivided share in the joint estate, by voluntary conveyance, without the concurrence of his co-parceners. No doubt this latter proposition, namely the right of a joint family member to effect a voluntary conveyance of his undivided interest, has not found favour in Bengal, and that is recognised by the Judicial Committee. At page 208, Their Lordships lay down that at any rate so far as execution sales are concerned, the law must be laid down also in Bengal, similar to that declared in Madras and Bombay. At page 208, Their Lordships lay down that at any rate so far as execution sales are concerned, the law must be laid down also in Bengal, similar to that declared in Madras and Bombay. That the Judicial Committee does note a distinction regarding a voluntary transfer and a purchase in an execution sale, is borne out by the following observation at page 209: "But however nice the distinction between the rights of a purchaser under a voluntary conveyance and those of a purchaser under an execution sale may be, it is clear that a distinction may, and in some cases does, exist between them. It is sufficient to instance the seizure and sale of a share in a trading partnership at the suit of a separate creditor of one of the partners. The partner could not himself have sold his share so as to introduce a stranger into the firm without the consent of his co-partners, but the purchaser at the execution sale acquires the interest sold, with the right to have the partnership accounts taken in order to ascertaine and realize its value. It seems to Their Lordships that the same principle may and ought to be applied to shares in a joint and undivided Hindu estate and that it may be so applied without unduly interfering with the peculiar status and rights of the co-parceners in such an estate, if the right of the purchaser at the execution sale be limited to that of compelling the partition, which his debtor might have compelled, before the alienation of his share took place." Therefore it will be seen that Their Lordships of the Judicial Committee lay down that the right of a purchaser at an execution sale is to be limited, to that of compelling a partition, which his debtor might have compelled, if so inclined, before the alienation of his share took place. They did not want to recognise any higher rights in the purchaser at an execution sale and the status and rights of the other co-parceners could not in any manner be disturbed by such a purchaser. Finally the Judicial Committee winds up the discussion, by holding, that the appellant, who was the purchaser at the execution sale, has acquired the share and interest of his judgment-debtor and that he is entitled to take such proceedings, to have that share and interest ascertained by partition. 24. Finally the Judicial Committee winds up the discussion, by holding, that the appellant, who was the purchaser at the execution sale, has acquired the share and interest of his judgment-debtor and that he is entitled to take such proceedings, to have that share and interest ascertained by partition. 24. In Suraj Bunsi Koer v. Sheo Pershad Singh I.L.R. 5 Calcutta 148 P.C. the question arose as to what is the position of a decree-holder who has attached the undivided share of his judgment-debtor in the joint family property, if the judgment debtor dies before the court sale actually takes place- The Judicial Committee again considers the question of a private alienation by a member of his undivided interest in the joint estate and the right of a decree-holder to attach and bring to sale the undivided interest of his debtor in the co-parcenary property. In that connection Their Lordships observe at page 166: "A distinction has been often made, both by Courts of Justice and by test-writers, between alienations by private contract and conveyance, and alienations under legal process, as in the case of joint family property seized and sold in execution of a decree against one member of the family for his separate debt. Since the decision, however, of the cases of Virasvami Gramini v. Ayyasvami Gramini (1 Mad. H.C. Rep. 471), Peddamuthulaty v. N. N. Thimma Reddy (2 Mad. H.C. Rep. 270), Palanivelappa Kaudan v. Mannaru Naikan (2 Mad. H.C. Re. 416) and J. Rayacharlu v. J. V. Venkataramaniah (4 Mad. H.C. 60), it has been settled law in the Presidency of Madras that one co-parcener may dispose of ancestral undivided estate, even by private contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his separate debt. That the same law now obtains in the Presidency of Bombay is shown by the cases of Damodar Vithal Khare v. Damodar Hari Soman (1 Bom. H.C. Re. 182), Pandurang Anandrav v. Bhaskar Shadashiv (11 Bom. H.C. Rep. 72), and Udaram Sitaram v. Rami Panduji (11 Bom. H.C.R. 76). But it appears from the case of Vrandavandas Ramdas v. Tamunabai (12 Bom. H.C.R. 229), and the cases there cited, that, in order to support the alienation by one co-parcener of his share in undivided property, the alienation must be for value. H.C. Rep. 72), and Udaram Sitaram v. Rami Panduji (11 Bom. H.C.R. 76). But it appears from the case of Vrandavandas Ramdas v. Tamunabai (12 Bom. H.C.R. 229), and the cases there cited, that, in order to support the alienation by one co-parcener of his share in undivided property, the alienation must be for value. The Madras courts, on the other hand, seem to have gone so far as to recognise an alienation by gift. There can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family; and the law as established in Madras and Bombay has been one of gradual growth, founded upon the equity which a purchaser for value has, to be allowed to stand in his vendor's shoes, and to work out his rights by means of a partition.... " Again, in the above extract the Judicial Committee has approved the decisions of the Madras, and Bombay High Courts, recognising the right of a co-parcener to dispose of his share in the undivided estate by private contract and conveyance. But the Judicial Committee no doubt takes the view that alienations, whether voluntary or compulsory, are not quite consistent with the strict theory of Hindu law. At page 167 again, the judicial Committee notes that alienations by private conveyance, which are recognised in Madras and Bombay has not been adopted in Bengal. Then again, in the same page, the Judicial Committee poses the question as to what is the consequence of a debtor dying before execution is complete and as to whether in such an event the other co-parceners take his undivided share by survivorship so as to defeat the rights of the creditor which he otherwise has. Discussing this aspect, the Judicial Committee finally holds that in the particular case before them, the execution proceedings under which the undivided share of a member was attached and sold, have gone far in favour of judgment creditor, and his right in that regard over the undivided share and interest of the debtor already attached, cannot be defeated by the death of his judgment-debtor before the sale actually takes place. Finally the Judicial Committee holds, that notwithstanding the death of the judgment-debtor before the execution sale takes place, the decree-holder is entitled to work out his rights, which he had already obtained by attachment and subsequent sale by means of partition. 25. It will again be noted that Their Lordships of the Privy Council affirm the view that has been consistently taken by the Madras High Court recognising the right of a co-parcener to dispose of his undivided estate by private contract or conveyance to the extent of his share, as also the right of a holder of a decree against a member of the family to attach and bring to sale his undivided interest in execution and work out his rights by a regular partition action. As to what exactly is the right obtained by a purchaser who has brought to sale the right, title and interest of a co-sharer in the joint family estate in execution to satisfy a decree obtained against such a co-sharer, is again dealt with by the Judicial Committee of the Privy Council in the decision reported in Hardi Narain Sahu v. Ruder Perkash Misser I.L.R. 10 Calcutta 626 P.C.In that case Their Lordships held, that the purchaser acquires merely the right of the judgment-debtor, to compel a partition against the co-sharers. Their Lordships also affirm the views expressed in their previous decisions, namely Deendyal Lal v. Jugdeep Narain Singh I.L.R. 3 Calcutta 198 P.C and SurajBunsi Koer v. Sheo Persad Singh I.L.R. 5 Calcutta 148 P.C. 26. That an attachment of a member's undivided share in execution of a decree at the instance of his creditor will be regarded as sufficient to support the alienation of the member's interest in the estate or a sale under the execution, is again reiterated by Lord Watson, in the decision reported in Madho Parshad v. Mehrban Singh I.L.R. 18 157 P.C. At page 161 of the report Lord Watson observes: "Any one of several members of a joint family is entitled to require partition of ancestral property, and his demand to that effect, if it be not complied with, can be enforced by legal process. So long as his interest is indefinite, he is not in a position to dispose of it at his own hand, and for his own purposes; but, as soon, as partition is made, he becomes the sole owner of his share, and has the same powers of disposal as if it had been his acquired property. Actual partition is not in all cases essential. An agreement by the members of an undivided family to hold the joint property individually in definite shares, or the attachment of a member's undivided share in execution of a decree at the instance of his creditor, will be regarded as sufficient to support the alienation of a member's interest in the estate or a sale under the execution. " In this case also, the Judicial Committee has reiterated the principles laid down in their earlier decisions referred to above. 27. In Girija Bai v. Sadashiv Dhundiraj I.L.R. 43 Calcutta 1031 P.C. Judicial Committee has laid down the principles governing the expressing of an " unequivocal'' intention on the part of a member of a joint family indicating his intention to separate. Their Lordships have also laid down that the expression of such an unequivocal intention will result in a severance of status. The Judicial Committee has also laid down that that intention must be intimated to his co-sharers. More or less the same principle, has been laid down by the Supreme Court in the decision reported in Lakshmi Perumallu v. Krishnavenamma A.I.R. 1965 S.C. 825, wherein Their Lordships have stated that a member of a Hindu joint family can bring about a separation in status by a definite and unequivocal declaration of his intention to separate himself from the joint family and enjoy his share in severalty by expressing such an intention even in a will and that the knowledge of the expression of an intention to separate has to be brought home to the persons affected by it; and if it is done, it relates back to the date when the intention was formed and expressed. I am particularly referring to the observations of the Supreme Court and of the Judicial Committee regarding the expression of an unequivocal intention, because of the contention raised by learned counsel for the petitioner that in order to get a division in status, the member of the tarwad in this case should have already expressed such an intention, and it is only when division in status has been caused that he can dispose of his interest by way of alienation or give a right to his creditor to attach his interest in the tarwad properties. In my view, a consideration of this question is absolutely unnecessary, if due regard is given to the principles laid down by the Judicial Committee, referred to above by me, as to what exactly is the right of a purchaser of an undivided interest of a member of a joint family either by way of voluntary alienation or by compulsory sale through court. The purchaser in such circumstances as has been held by the Judicial Committee, only stands in the shoes of his judgment-debtor and acquires the right, as against the other co-sharers to compel a partition. That right itself, in my view, is a natural corollary to the proprietary interest, which the member has in the joint family properties and which could be got separated by him without reference to the other co-sharers in the manner recognised by law. 28. Before I deal with the decisions of the Madras High Court regarding the provisions contained in the Madras Act and the Madras Nambudiri Act, it is necessary to state, that a Full Bench of five Judges of the Madras High Court, in the decision reported in Peramanayakam v. Sivaraman has considered very elaborately the question regarding the right of a member of a Hindu joint A.I.R. 1952 Madras 419. family to alienate his undivided share as well as the nature of the right acquired by the alienee. It has been held in that decision that a co-parcener of a Hindu joint family governed by Mitakshara as obtaining in the State of Madras is entitled to alienate his undivided share in the joint family properties, and in all such cases the right which the alienee acquires, is to stand in the shoes of his vendor and to work out his rights by a suit for partition. It has also been laid down by the Full Bench that neither the alienation of the entirety of the interest of a coparcener, nor an adjudication of a co-parcener as an insolvent would have the effect of disturbing the status of the family. There is a very exhaustive review of the entire case law on the subject, including the early decisions of the Madras High Court, which have been quoted with approval by the Judicial Committee of the Privy Council, in the several decisions adverted to by me already. The previous decisions of the Madras High Court, recognising a right in a co-parcener to dispose of his undivided interest in joint family property by contract or conveyance to the extent of his own share, as well the right of a creditor to levy execution, against the undivided share of his debtor, who is a member of the joint family and bring it to sale, have been reiterated and re-affirmed by the Full Bench. But there is one particular aspect dealt with by Panchapakesa Ayyar, J., who was a member of the Full Bench; that has to be referred to. The learned Judge, in considering the question of the application of equitable principles, observes that those principles are not wholly derived only from English law, an alien system, but they are deducible also from Hindu law. And the learned Judge, if I may say so with respect, has adverted, at page 472 of the report, to some of the Hindu law texts bearing on this point. 29. In my view, the law prevailing in the State of Madras, from very early times, recognising the right of an undivided member of a Hindu joint family to alienate his share, and also the right of a decree-holder to attach and bring to sale the undivided interest of his debtor who is a member of the family and work out his rights in a partition action, will have a considerable bearing, when the Legislature enacted the Madras Act in 1932, and conferred an absolute right in a thavazhi at any rate, to claim partition under section 38 of the said Act. At or about the same time, the Madras Nambudiri Act, 1932 (Madras Act 21 of 1933) was also enacted; and under section 23 of that statute, as I have already indicated an absolute right was given to a member, male or female, to claim to take his or her share in the properties of the Illom. Immediately after the passing of the Madras Act, the question as to whether the doctrine of severance of status, recognised in Mitakshara law, is applicable to thavazhies, to whom a right of partition is given under section 38 of the Madras Act, was considered by a Division Bench of the Madras High Court, consisting of Burn and Menon, JJ., in the decision reported in Kunchi Amma v. Meenakshi Amma A.I.R. 1936 Madras 155. In that case, the plaintiff had sent a registered notice demanding partition, and immediately executed a will in favour of his wife and children bequeathing to them his share in the tarwad properties. He also instituted a suit for partition and separate possession of his share. During the pendency of the partition suit, the plaintiff died, and his widow and children in whose favour, he had executed a will, applied to be impleaded as the legal representatives of the deceased plaintiff. The other members of the tarwad, who were the defendants in the action, contended that the suit had abated, on the death of the plaintiff and that no legal representatives could be brought on record. The trial court over-ruled the objections of the defendants and permitted the widow and children of deceased plaintiff to be impleaded as additional plaintiffs and to continue the action. That order was challenged by the defendants before the High Court. The contention that was taken by the defendants before the High Court that under the Marumakkathayam law, the theory of division in status being effected, either by an unequivocal declaration or by the institution of a suit, was not recognised. In that connection section 50 of the Madras Act was also relied upon as indicating that the peculiar features of Mitakshara law, regarding division in status cannot be imported in the Marumakkathayam law, inasmuch as no express provision in that regard has been made in the statute. In that connection section 50 of the Madras Act was also relied upon as indicating that the peculiar features of Mitakshara law, regarding division in status cannot be imported in the Marumakkathayam law, inasmuch as no express provision in that regard has been made in the statute. On the other hand, on behalf of the legal representatives of the deceased plaintiff, it was urged, that the law applicable, after the Madras Act was enacted in the Malabar area, is very different, inasmuch as an absolute right to claim partition has been recognised under section 38 of the Act and the quantum of the share that could be so obtained has also been indicated in section 40 of the Act. Burn, J., delivering judgment on behalf of the Bench, after stating that under the Madras Act, a thavazhi, which in some cases may be even a single person, has been given an absolute right to demand partition of the thavazhis share of the joint family properties, namely the properties of the tarwad, observes at page 157 as follows: "Apparently partition at the instance of a single individual is now permitted by law. It should follow that the doctrine of severance of status by reason of the filing of a suit for partition is equally applicable to persons governed by Marumakkathayam law. It is to be noticed that this doctrine does not depend upon any principles peculiar to Mitakshara law. It depends upon principles of quite general application." The learned Judge then refers to passages regarding the manner in which a severance of status of a joint family can be effected, occurring at page 1047 of the decision reported in Girija Bai v. Sadashiv Dhundiraj I.L.R 43 Cal. 1031 P.G. After referring to these extracts, the learned Judge again observes at page 157: "The change in the law introduced by the enactment of the Marumakkathayam Act has, we think, made the doctrine of severance of status applicable to thavazhies under the Marumakkathayam law as it is to persons under the Mitakshara and for precisely the same reason. 1031 P.G. After referring to these extracts, the learned Judge again observes at page 157: "The change in the law introduced by the enactment of the Marumakkathayam Act has, we think, made the doctrine of severance of status applicable to thavazhies under the Marumakkathayam law as it is to persons under the Mitakshara and for precisely the same reason. Under the new law every thavazhi in a joint undivided Marumakkathayam family has indefeasible right to demand partition of its own share in the joint family property, and all the other thavazhies must submit to it, whether they like it or not." These particular observations of the learned Judge, will clearly show that the Madras High Court has correlated the members of a Marumakkathayam tarwad, holding property in common, to members of a Mitakshara joint family holding property in common and they have also held that the same principles applicable to members of a Mitakshara joint family will apply to Marumakkathayees also, after an unequivocal right to claim partition, has been conferred by the Madras Act. Dealing with the contention based upon section 50 of the Madras Act, the learned Judges have held that inasmuch as a right to claim partition has been given under section 38 of the Act, the effect of a severance of status, is a natural corollary to that right, and there is nothing in section 50, which bars the recognition of such a right. 30. In the decision reported in Subramanyan v. Naraina A.I.R. 1938 Mad. 553 rendered by Burn and Venkataramana Rao, JJ., the question directly arose as to whether the undivided share of a junior member of a Marumakkathayam tarwad can be attached in execution of a decree, obtained against him, for his personal debts, after the passing of the Madras Act. In that decision, it will be seen, that the trial court had permitted an attachment of the undivided interest of the judgment-debtors, who were junior members of a tarwad, against whom the decree-holder had obtained a decree; and in execution of this decree, he had attached his judgment-debtors' undivided interest. In that decision, it will be seen, that the trial court had permitted an attachment of the undivided interest of the judgment-debtors, who were junior members of a tarwad, against whom the decree-holder had obtained a decree; and in execution of this decree, he had attached his judgment-debtors' undivided interest. The trial court had taken the view, that whatever may have been the customary Marumakkathayam law, before the passing of the Madras Act, that position had been altered and changed, after the passing of the Madras Act, and that such undivided interest can be attached by Ammai virtue of section 38 of the Madras Act. That order was Laksh. challenged before the Madras High Court by the other members of the tarwad on the ground that under the Marumakkathayam law, by which the parties were governed, there was no interest of the judgment-debtors junior members in the tarwad properties capable of attachment and that the Madras Act, has not in any manner effected alteration of the customary Marumakkathayam law. It was also urged that a junior member, has under the Madras Act only, a right to claim partition under section 38, and unless he has exercised that right and obtained property by virtue of exercise of that right, he has no disposing interest in tarwad properties. Venkataramana Rao, J., delivering judgment, on behalf of the Bench adverts to the fact that under the original Marumakkathayam law, no member of a Malabar tarwad has got any definite share in the properties of the tarwad, as the properties vest in all the members of the tarwad, and a partition can be effected only with the consent of all the members of the tarwad. In view of this limitation under the Marumakkathayam law, the learned Judge proceeds to state, that no individual member can alienate his undivided interest, nor can his undivided interest be seized and sold in execution by a creditor for his personal debts. The learned Judge states at page 553 of the report: "This incapacity is due to the fact of there being no right of compulsory partition and therefore no right to have, the interest separated for separate enjoyment. Nevertheless the interest is proprietary and a vested interest though joint. The learned Judge states at page 553 of the report: "This incapacity is due to the fact of there being no right of compulsory partition and therefore no right to have, the interest separated for separate enjoyment. Nevertheless the interest is proprietary and a vested interest though joint. It is to remedy this incapacity that an Act was passed to amend the law of partition in certain respects in order to confer a right of partition on the members of a tarwad under certain conditions and to enable them to have their interests separated so that they can deal and dispose of them subject to the conditions specified in the Act. It is to give effect to this object that section 38 was enacted." It must be noted that the learned Judge, in the above extract has emphasised, that the interest of a member, even in the tarwad properties when they are joint, is proprietary and is also a vested interest, and by the Madras Act a right to have that interest separated for separate enjoyment was recognised. The learned Judge again takes note of the fact that on the date of attachment in that case, the junior members of the tarwad were entitled to claim their share in the properties of the tarwad and separate therefrom, and then states at page 554: "If this right is thus vested in them by virtue of the Act, the creditor is entitled to seize and sell the interest which they have and which is capable of separation and definition. Under the Mitakshara law it is well settled that in certain provinces a member of a joint family is incapable of alienating his share for separate debts without the consent, express or implied, of all the other members, but this incapacity was held not to prevent a creditor from seizing and selling his share in execution of a decree obtained against him." The learned Judge then refers to the various decisions of the Judicial Committee, which have been adverted to by me earlier, and ultimately winds up the discussion on this aspect at page 554 by observing: "Thus it will be seen that the foundation of the right of a creditor to seize the share of a co-parcener rests on the fact that he has a right to claim partition and convert his share in the joint property into separate property and this position was made clear in a later decision in Madho Prasad v. Mehrban Singh (I.L.R. 18 Calcutta 157 P.C.) " The learned Judge then states that the attachment of a member's undivided share, in execution of a decree was, in the decision in Madho Prasad v. Mehrban Singh I.L.R. 18 Calcutta 157 P.C., put on the same footing, as severance effected by an agreement by the members to hold the property in definite shares for the purpose of justifying a sale by a creditor, the whole basis being rested on the undoubted right of a member to demand partition and have his demand complied with, if necessary by legal process. The learned Judge also states that section 38 of the Madras Act, having conferred in unmistakable terms, upon a member, who constituted a thavazhi, the right to demand partition and have his share in the joint estate converted into a separate estate, a creditor is entitled to attach and sell his share. The learned Judge further observes at page 555: "There has been a deliberate departure from and alteration made by the Legislature of the previous state of the law by the conferment of this right of partition, and once this right is conferred all the necessary legal consequences must follow therefrom." The learned Judge, also refers to section 50 of the Madras Act, on the basis of which also the order of the lower court, directing attachment of the undivided interest was contended to be erroneous. After quoting section 50, the learned Judge, at page 555 observes: "But the rule of Marumakkathayam law which prevented a compulsory partition has been abrogated to the extent indicated in section 38 of the Act and it is in virtue of that section a junior member of a Malabar tarwad has got the right to demand partition and a creditor acquires the right to have it enforced for his benefit." Ultimately the learned Judges upheld the order of the trial court, permitting attachment by the decree-holder of the undivided interest in the tarwad of his judgment-debtor, who is a junior member of the tarwad. This decision directly, if I may say so with respect, covers the points arising for decision, in this revision petition, and is against the contentions raised by the learned counsel for the petitioner. The learned Judges, in that decision, have categorically held that, after the conferment of an unequivocal right to claim partition, under section 38 of Madras Act, the position of members of Marumakkathayam tarwads, has become similar to that occupied by coparceners of a Hindu undivided family and that the principles laid down by the Madras High Court and recognised by the Judicial Committee regarding the right of a junior member of a Hindu joint family to dispose of his undivided interest as well as the right of a creditor to seize in execution the undivided interest of a junior member, will apply with equal force to parties governed by the Madras Act also. The learned Judges, have also held that section 50 of the Madras Act, is not a bar to recognition of such a claim. With respect, I am in entire agreement with the principles laid down by the learned Judges of the Madras High Court in this decision. 31. The nature of the tight conferred by section 23 of the Madras Nambudiri Act, 1932 (Madras Act XXI of 1933), which was also an Act enacted simultaneously with the Madras Act, came up for consideration before a Division Bench of the Madras High Court consisting of Pandrang Row and Abdur Rahman, JJ., in the decision reported in Madhavi Ammd v. Subramanian A.I.R. 1939 Mad. 584 Section 23 of the said Act has already been referred to earlier in this judgment; and it recognises a right of any member of an Illom, male or female, to claim to take his or her share in the properties of the Illom. In that decision, it will be seen that the plaintiff, who was governed by the Madras Nambudiri Act, had instituted a suit for partition under section 23 of his separate share in the properties of the Illom on 20th February 1934. On 27th February 1934 he executed a registered will leaving, among his other properties, his share in the Illom properties, to his Nair wife and children. He also died on 2nd July 1935. His Nair wife and children applied to the trial court to be brought on record as the legal representatives of the deceased plaintiff. That application was dismissed by trial court, on the ground that the right to sue did not survive, as the principle of severance of status by the filing of a suit, is not recognised in the Madras Nambudiri Act. In consequence, the suit was also dismissed as having abated. The dismissal of the suit, as having abated, as also the rejection of the application filed by the Nair wife and children of the deceased plaintiff to be impleaded as legal representatives, were attacked before the High Court. The learned Judges, refer to section 23 of the Nambudiri Act and hold that an unqualified right has been given to a member of the Illom to claim partition, and it cannot be said, under those circumstances, that till the court passes a decree in a suit, there has been no vested interest in a member which could be transmitted by him either by will or otherwise. The learned Judges also advert to the fact that it was not disputed before them that, if the plaintiff had made an alienation of his share during his life time, the alienee would be entitled to maintain the suit to recover the particular share of his alienor. The learned Judges also advert to the fact that it was not disputed before them that, if the plaintiff had made an alienation of his share during his life time, the alienee would be entitled to maintain the suit to recover the particular share of his alienor. After adverting to these aspects, the learned Judges observe at page 585: "There seems to be no particular reason why the rule of law which applies to the Hindus governed by the Mitakshara law should not apply to Nambudiris, namely that there is a division of status, and so to speak, a division of title, and a proprietary interest vested in the person concerned the moment he makes an unqualified and unambiguous declaration of his intention to claim his share and separate himself from the family even though such declaration is unilateral." The above extract again shows that the learned Judges were applying the principles applicable to Mitakshara law to the Nambudiris also. The learned Judges then refer to four previous decisions of the Madras High Court interpreting section 23 of the Madras Nambudiri Act, and at page 585 observe: "All these decisions support the view that the rule which is applied to Hindus governed by the Mitakshara law is a rule that should be applied to the Nambudiris governed by the Act even though the Mitakshara as such does not apply to the Nambudiris. It is not necessary for our present purpose to enter into a historical disquisition on the subject as to whether this rule was laid down as regards Hindus governed by the Mitakshara because of certain texts in the Mitakshara or the commentaries subsequent to the Mitakshara or because of certain legal principles which have no necessary connection with the Mitakshara and its successors. The fact remains that the rule was known to be applicable to the Hindus in this Presidency barring exceptional classes like Nambudiris and Marumakkathayees and so when the Legislature took up the question of amending the law relating to such excepted classes, it is going too far to say, in the absence of any clear statement to the contrary, that the Legislature intended that a different rule should apply to these excepted classes whose position was brought into line with that of the other Hindus in the Presidency in several respects including the right of partition." Here again it will be seen from the above extract that the Madras High Court has taken the view that the principles that have been held applicable to the Hindus in the Presidency so far, have been extended to the Nambudiris and Marumakkathayees who were so long governed by the customary law, when the Legislature took up the question of amending the law relating to such excepted classes also. Ultimately it will be seen, that the position of the Nambudiris as well as of the Marumakkathayees, after the passing of the Madras Nambudiri Act and the Madras Act respectively is the same as that of co-parceners in a Hindu joint family. 32. The question as to whether, an undivided member of a tarwad, governed by the Madras Act, is entitled to voluntarily alienate his undivided interest in the tarwad, came up for consideration before the Madras High Court. That decision, though of the Madras High Court, is reported in Kunhikrishnan v. Anantharaman 1959 K.L.T 1160 and was rendered by Venkatarama Iyer, J., (as he then was). That decision; though reported only in 1959, was rendered as early as 1953. In that case, a thavazhi, which was entitled to claim partition under section 38 of the Madras Act, alienated its undivided share in the tarwad properties. That alienation was challenged as not binding on them by the other members of the tarwad. Before the Madras High Court, it was contended that under the Marumakkathayam law, by which the parties are governed, no member has any separate interest in the tarwad properties which could be disposed of before a claim for partition has been made under section 38 of the Madras Act. Before the Madras High Court, it was contended that under the Marumakkathayam law, by which the parties are governed, no member has any separate interest in the tarwad properties which could be disposed of before a claim for partition has been made under section 38 of the Madras Act. The learned Judge refers to the fact that under the customary Marumakkathayam law, that would be the position, inasmuch as no Marumakkathayee was entitled to claim partition and separate possession, unless all the members of the tarwad agreed to a division. Under such circumstances, if a member purports to alienate his interest in the family properties, the transferee will get nothing under it and therefore a Marumakkathayee had no interest in the family properties capable of being transferred even for his own personal purposes. After stating what the position was under the customary law, the learned Judge considers the question as to how far that position has been altered or modified by the Madras Act. Reference is made to section 38, as well as to the decision of the Division Bench reported in Subramanyan v. Naraina A.I.R 1938 Mad. 553. Then the learned Judge observes at page 1164 as follows: "The rule that a Marumakkathayee had no power to dispose of his share was based not on the grounds of public policy but on the nature of the right which he had over the family properties which was only a right to be maintained with no right to demand partition. The question of inalienability is inherent in the very nature of the right which was purely personal. When, therefore, that right is modified and a right to partition and separate possession is conferred, there is no reason why a rule which was founded on the personal character of the right should be maintained even after that right had ceased to be personal cessante ratione legis cessat ipsa lex." Then the learned Judge refers to various decisions of the Madras High Court, as well as of the Judicial Committee, recognising the right of a member of a Mitakshara family to alienate his undivided share, as well as the right of a holder of a decree, to attach and bring to sale the undivided interest of his judgment-debtor who is a member of the family. The learned Judge also refers to the decision reported in Madhavi Ammal v. Subramanyan A.I.R 1939 Madras 584, rendered under the Madras Nambudiri Act, as well as to the other earlier decisions rendered under the said Act, and agrees with the proposition laid down therein that after the passing of the Madras Act and the Madras Nambudiri Act, the position of the members of these families has been correlated to that of co-parceners in a Hindu Mitakshara family; and ultimately held that the alienation of an undivided interest by a junior member of the tarwad is valid, especially when an absolute right of partition has been recognised under section 38 of the Madras Act. Here again, I may state, that I am in respectful agreement with the views expressed by the learned Judge. 33. It may also be stated that the Supreme Court, in the decision reported in Sidheshwar v. Bhubneshwar A.I.R 1953 SC 487 which was a case which went up from Bihar, has recognised that under the Mitakshara law, as administered, even in that State, it is open to a creditor who has obtained a decree against an undivided member of a coparcenary to attach and put up his undivided interest to sale. The following extracts occurring at page 490 of the report, bring out, if I may say so with respect, forcibly the view of the Supreme Court: "It is true that under the Mitakshara law, as it is administered in the State of Bihar, no co-parcener can alienate, even for valuable consideration his undivided interest in the joint property without the consent of his co-parceners; but although a coparcener is incompetent to alienate voluntarily his undivided coparcenary interest, it is open to the creditor, who has obtained a decree against him personally, to attach and put up to sale this undivided interest, and after purchase to have the interest separated by a suit for partition." It may be stated that Bihar formed part of Bengal, where the right to voluntary alienation of an undivided interest has not been recognised, and this has been referred to by the Judicial Committee. But even there, as in all the other States, including Madras, the right of a decree- holder to attach and bring to sale the undivided interest of his judgment-debtor in the family properties has been recognised. But even there, as in all the other States, including Madras, the right of a decree- holder to attach and bring to sale the undivided interest of his judgment-debtor in the family properties has been recognised. That is why that distinction has been pointed out by the Supreme Court also. In the same decision, the Supreme Court also states that all that is purchased by the decree-holder, at the execution sale, is only the undivided interest of his judgment-debtor in the joint property and he does not acquire title to any defined share in the property, nor is he entitled to joint possession from the date of his purchase. The Supreme Court also lays down that such a purchaser has to work out his rights only by a suit for partition and his right to possession would date back, from the period, when a specific allot is made in his favour. This decision of the Supreme Court, in my view, lays down unambiguously that it is open to a creditor to proceed to levy execution as against the undivided share of his debtor in the joint family estate. That principle, if I may say so with respect, will apply with equal force to parties, governed by the Madras Act also. 34. The Madras decisions referred to above had to deal with section 38 of the Madras Act, as it stood prior to its amendment by the Kerala Legislature by Act 26 of 1958. I have already indicated that the right under section 38 of the Madras Act has been enlarged by the amending Act and no provisions similar to section 39 of the Travancore Nayar Act or section 62 of the Cochin Nayar Act have been incorporated by the Kerala Legislature by the amending Act. The question as to whether an undivided interest of a debtor, who was a member of Kshatriya tarwad governed by the Travancore Kshatriya Act, 1108, came up for consideration before a Full Bench of this Court, to which I was also a party, in the decision reported in Bank of New India Ltd. v. Ponnamma I.L.R 1960 Kerala 906 F.B. There are two sections in the said Act, which have to 'be noted, namely section 43 which gives a right of partition, and section 46 which are as follows: "43. Right to partition. Right to partition. Every member of a tarwad shall have the right to divide himself or herself, as the case may be, from the tarwad, by making a demand for the purpose, and on such demand such member shall be entitled to such share in the tarwad properties as will fall to such member, if a division per capita were made among all the members of the tarwad on the date of such demand." "46. No alienable or heritable right until partition. Until partition, no member of a thavazhi or group in a tarwad shall be deemed to have a definite share in tarwad property. A demand under section 43 or 45, as the case may be, will also constitute a partition for the purposes of this section." It will be noted that section 46 does not contain some of the restrictive clauses found in section 39 of the Travancore Nayar Act or section 62 of the Cochin Nayar Act. Contentions were raised based upon section 46 of the said Act that until a partition has been effected, it cannot be said that any member of the tarwad or thavazhi has a separate interest which could be attached and brought to sale by a creditor. Madhavan Nair, J., if I may say so with respect, has dealt elaborately with all the aspects, and after quoting with approval the decisions of the Madras High Court in Subramanyan v. Naraina A.I.R. 1938 Mdras 553 and of Venkatarama Iyer, J., in Kunhikrishnan v. Anantharaman 1959 K.L.T. 1160 has held at page 702 : "Once the right to partition without the concurrence of others has been conceded to a member of a tarwad, his position becomes assimilated to that of a member of a Mitakshara Hindu family especially in States where a co-parcener is not allowed to alien his interests in the family property but has nevertheless a right to claim partition at his will. Such a member has a present vested interest in the property which may be converted into a separate and absolute estate by a partition, or, more correctly, by a mere demand for partition at his will and pleasure. Such an interest in the property is not illusory or vague. It is definite and certain. All that is uncertain about it is the time when the will is exercised and the right is converted into a separate or exclusive estate. Such an interest in the property is not illusory or vague. It is definite and certain. All that is uncertain about it is the time when the will is exercised and the right is converted into a separate or exclusive estate. But that affects only the extent of the property that may fall to his share. The right to share is always inherent in him. It can at any moment be converted into physical property. It is therefore a valuable right in the property which must be available for seizure and sale in execution by the person to whom he is indebted." 35. The question, as to whether a voluntary alienation of an undivided interest could be made by parties governed by the Madras Act, was considered by another Full Bench of this Court, whose decision is reported in Antherman v. Kannan 1960 K.L.T. 1313. No doubt, the section that the learned Judges in that decision, had to consider was section 38 of the Madras Act, as it originally stood. The learned Judges hold, that prior to the passing of the Madras Act, the undivided interest of a member of a Malabar tarwad could not have been subject of alienation, voluntary or compulsory. Then the learned Judges pose the question as to whether the Madras Act has made any difference in that state of the law. Then there is a fairly elaborate reference to the decisions rendered by the Cochin Chief Court and Cochin High Court, based upon the provisions contained in the Cochin Nayar Act. The learned Judges advert to the fact that those decisions have unanimously taken the view, that an undivided member of a tarwad has no right, either to alienate his undivided interest in the tarwad properties, nor is there a right in a creditor to levy execution against the undivided interest of his debtor, who is a member of the tarwad. The learned Judges, after referring to the decision of Venkatarama Ayyar, J in Kunhikrishnan v. Anantharaman 1959 K.L.T. 1160, held that they are not inclined to agree with the learned Judge's view that once a right to partition has been conferred, the position under the Marumakkathayam law becomes the same as that under the Hindu Mitakshara law as administered in Madras, Bombay and Madhya Pradesh in respect of voluntary alienations of undivided shares in a Hindu joint family. The learned Judges observe that the power of voluntary alienation, is not an inevitable corollary of the right to compulsory partition. The learned Judges then refer to section 50 of the Madras Act and hold that they do not find anything in the Madras Act, which alters the customary law, as regards voluntary alienations of undivided shares; and finally observe that they are not prepared to hold that such a change has been effected by implication by the mere grant of a right to partition. Ultimately the learned Judges held that there is no right, in a member of a tarwad, to voluntarily alienate his undivided interest in the tarwad properties so long as the tarwad remains joint. 36. The learned Judges in the later Full Bench, have not approved of the decision of Venkatarama Ayyar, J, whereas in the earlier Full Bench decision reported in Bank of New India Ltd. v. Ponnamma ILR 1960 Kerala 906 F.B. the views of Venkatarama Ayyar, J., have been accepted. Further, the decision of the later Full Bench, if I may say so with great respect, is largely rested on the decisions rendered by the Cochin Chief Court and Cochin High Court under the Cochin Nayar Act. No doubt the Cochin Chief Court and the Cochin High Court, have been consistently taking the view, that the undivided interest of a member of a tarwad cannot be either voluntarily alienated or attached in execution. But the significant point to be noted is, that so far as the Cochin Nayar Act of 1113, as it now stands, is concerned, it contains a specific provision, namely section 62, which has already been referred to earlier, prohibiting alienation of seizure in execution of an undivided interest, until partition. I am specially referring to this aspect, because there is a decision of the Cochin High Court itself which has held, regarding an analogical provision contained in the Madras Act, that the share of an undivided Thiyya member, governed by the Cochin Thiyya Act, can be attached and brought to sale in execution of a decree obtained against such a member. And in that decision, as I will presently show, the learned Judges, have distinguished the cases arising under the Cochin Nayar Act, on the specific ground that the Cochin Thiyya Act, VIII of 1117, does not contain a provision similar to section 62 of the Cochin Nayar Act. And in that decision, as I will presently show, the learned Judges, have distinguished the cases arising under the Cochin Nayar Act, on the specific ground that the Cochin Thiyya Act, VIII of 1117, does not contain a provision similar to section 62 of the Cochin Nayar Act. The learned Judges, in the later Full Bench of this Court referred to earlier have, if I may say so with respect, proceeded on the basis that section 38 of the Madras Act has granted a right of partition similar to the right given under the Cochin Nayar Act. But the law administered in the Madras Area, and. confirmed by the Judicial Committee regarding the right of a co-parcener, to alienate his undivided interest in the Hindu Joint Family or the right of a decree-holder to attach and bring to sale such undivided interest, which was in force at the time when the Madras Act was passed, has not been adverted to by the learned Judges. And the absence of a provision in the Madras Act, similar to section 62 of the Cochin Nayar Act, has not also been given due importance, so far as I could see. The learned Judges have also observed in the said Full Bench decision that the two important features of the Madras Act, are the enforcement of the monogamy and the conferment of a right of free divorce. If I may say so with respect, that is not all that was intended by the Madras Act. I have already referred, in the earlier part of this judgment, to the Statement of Objects and Reasons, wherein it has been clearly stated that a right of partition has been conferred under the Act. Such a right, admittedly, was not in existence prior to the Act, and that is an aspect which assumes considerable importance, in considering the question, as to whether Marumakkathayees, were not intended to be correlated to the position of coparceners under the Hindu Mitakshara law. Such a right, admittedly, was not in existence prior to the Act, and that is an aspect which assumes considerable importance, in considering the question, as to whether Marumakkathayees, were not intended to be correlated to the position of coparceners under the Hindu Mitakshara law. Further, it is seen, that there is no reference in the judgment of the later Full Bench, to the decisions of the Madras High Court reported in Kunchi Amma v. Minakshi Amma A.I.R 1936 Madras 155, Subramanyan v. Naraina A.I.R. 1938 Madras 553 and Madavi Ammal v. Subramanian A.I.R. 1939 Madras 584 wherein the Madras High Court has categorically held both under the Madras Act as well as under the Madras Nambudiri Act, that the conferment of the right of partition, under the said enactments makes a radical departure in the old system of those laws, and that by the enactments concerned, the principles applicable to owners of property under the Mitakshara law have to be applied to Nambudiris and Marumakkathayees also. As to whether that view expressed by the Madras High Court is correct or not, is a totally different point. But I am only on the limited question that this Court, now, does not have the benefit of the views of the learned Judges who decided Antherman v. Kannan 1960 K.L.T. 1313 regarding the principles laid down by the Madras decisions. Further, the decision of the Supreme Court in Sidheshwar v. Bhubneshwar A.I.R. 1953 SC 487 is adverted to by the later Full Bench only for the purpose supporting the observations made by the Judicial Committee in Deendyal Lal v. Jugdeep Singh I.L.R. 3 Cal 198 P.C. wherein Their Lordships have indicated that there is a distinction between the right of a purchaser under a voluntary conveyance, and the right of a purchaser under an execution sale. But if I may say so with respect again, the Full Bench has not adverted, to the proposition laid down by the Supreme Court, in the very same decision, that a creditor, who has obtained a decree against a member of an undivided Mitakshara family, can levy execution by way of attachment and sale of his debtor's undivided interest and work out his rights in partition. Therefore, in view of all these circumstances, with great respect, I am unable to agree with the principles laid down in the Full Bench decision of this Court in Antherman v. Kannan 1960 K.L.T. 1313. 37. As I have already indicated, the Cochin High Court itself has taken a different view, regarding the right of a creditor to attach the undivided interest of a member of a Thiyya tarwad, governed by the Cochin Thiyya Act, VIII of 1107. Section 35 of the said Act, which made the property of a Marumakkathayam Thiyya tarwad partible among the persons entitled, is as follows: "35. Properly of Marumakkathayam tarwad. The property of a Marumakkathayam tarwad will be considered to have been the property of the nearest common ancestress and to have descended according to the rules of succession contained in Chapter IV and to be partible among the persons so entitled." It will be seen that an absolute right of partition, was given to members of a Thiyya tarwad under the said section. The question as to whether the undivided interest of a member of a Thiyya tarwad, governed by the said Act, can be attached by the holder of a decree, against his judgment-debtor, who is a member of the Thiyya tarwad, came up for consideration, before a Division Bench of the Cochin High Court in the decision reported in Narayana Ayyar v. Krishnan 33 Cochin L.R. 245. On the analogy of the decisions rendered under the Cochin Nayar Act, it was contended before the Cochin High Court, that till a partition is effected, it cannot be said that a Thiyya has got a saleable interest and therefore the decree-holder cannot attach the undivided share of a member of the said tarwad. In this connection, the learned Judges take note of the specific provision contained in section 62 of the Cochin Nayar Act, Act 29 of 1113, and observe that the Cochin Thiyya Act, does not have a provision, like section 62 of the Nayar Act. The learned Judges, also refer to the fact that Marumakkathayam Thiyya Act of 1107 was passed several years after the decision was rendered in Hussan Kassam Data Sait v. Dakshayani 20 Cochin 427, and the Thiyya Act, VIII of 1107, conferred for the first time, the right of individual partition on Marumakkathayam Thiyyas under section 35 of that Act. The learned Judges, also refer to the fact that Marumakkathayam Thiyya Act of 1107 was passed several years after the decision was rendered in Hussan Kassam Data Sait v. Dakshayani 20 Cochin 427, and the Thiyya Act, VIII of 1107, conferred for the first time, the right of individual partition on Marumakkathayam Thiyyas under section 35 of that Act. But the learned Judges emphasise that when the said Act was passed, there was absolutely no reservation made in the Thiyya Act, corresponding to the one made by section 62 of the Second Nayar Act, (being the Cochin Nayar Act 29 of 1113). Ultimately the learned Judges held, that inasmuch as section 35 of the Thiyya Act, gives an absolute right of partition, without any restriction whatsoever, it is open to a decree-holder, to attach the undivided interest of his debtor, who is a member of the tarwad, in the tarwad property. The following observations of the learned Judges, contained at page 249 of the report are very significant: "What emerges from these considerations is that in the absence of any specific indications in the Act itself we shall not be justified in reading into the Thiyya Act a restrictive provision corresponding to what was enacted by section 62 of the Second Nayar Act. There is also obvious argument that such an idea was intended to be recognized or introduced into the Thiyya system of law that would and should have been expressly done as was done in the Second Nayar Act, by enacting section 62 of that Act. AS the Thiyya stands, there is absolutely no indication either in section 35 of that Act or in any other portion of it that until partition no member of the Marumakkathayee Thiyya tarward shall be deemed to have a definite share in the tarward property.� Therefore, it will be seen that the Cochin High Court itself, has been making a distinction between statutes, which contain a provision like section 62 of the Cochin Nayar Act of 1113, and statutes which did not contain such restrictive provision. In my view, the obtaining under the Cochin Thiyya Act, VIII of 1107, is one that exists, so far as the Madras Act is concerned. And this aspect, if I may say so with respect, has not been given due importance by the later Full Bench of this Court in Antherman v. Kannnan 1960 K.L.T. 1313. In my view, the obtaining under the Cochin Thiyya Act, VIII of 1107, is one that exists, so far as the Madras Act is concerned. And this aspect, if I may say so with respect, has not been given due importance by the later Full Bench of this Court in Antherman v. Kannnan 1960 K.L.T. 1313. 38. In the later Full Bench decision of this Court referred to above, there is no doubt a reference to the decision of the Cochin High Court reported in Narayana Ayyar v. Krishnan 33 Cochin 245. But, without considering the aspects referred to by me above, the learned Judges have merely observed, that the said decision has been considered and explained in Sivaramakrishna Vadhyar v. Govindan Nair 34 Cochin 522. No doubt the decision of the Cochin High Court under the Cochin Thiyya Act was distinguished by the learned Judges in Sivaramakrishna v. Govindan Nair 34 Cochin 522 but that decision was approved . The learned Judges, in that case, had also occasion to consider the various decisions of the Madras High Court, reported in Kunchi Amma v. Minakshi Amma A.I.R. 1936 Madras 155, Subramanian v. Naraina A.I.R. 1938 Madras 553, and Madhavi Ammal v. Subra-manian A.I.R. 1939 Madras 584. But the learned Judges, so far as I could see are not prepared to say that the Madras decisions interpreting the Madras Act, are in any way erroneous or wrong. But the view of the learned Judges of the Cochin High Court appears to be, that the Cochin High Court has been consistently taking the view that an undivided interest cannot, be alienated or attached. The learned Judges also place emphasis upon section 62 of the Cochin Nayar Act of 1113. Ultimately the learned Judges observe that, to differ from the view taken by the Cochin High Court for a long time, would only lead to confuse the law already laid down in the Cochin area. I am only referring to this aspect to emphasise, that even the Cochin High Court was not prepared to hold that the Madras decisions are in any manner erroneous or not warranted by the provisions of the Madras Act; and they have distinguished the decision in Narayana Ayyar v. Krishnan 33 Cochin 245 on the ground, that the Thiyya Act did not contain a provision, similar to section 62 of the Second Nayar Act. 39. 39. That closes the discussion of the several decisions having a bearing on the points arising for decision in this matter. Therefore to conclude : I am in entire agreement with the principles laid down by the decisions of the Madras High Court reported in Kunchi Amma v. Minakshi Amma A.I.R. 1936 Madras 155, Subramanyan v. Naraina A.I.R. 1938 Madras 554, Madhavi Ammal v. Subramanian A.I.R. 1939 Madras 584, and Kunhikrishnan v. Anantharaman 1959 K.L.T. 1160 which have laid down in clear and unambiguous terms, that by the absolute right of partition conferred, under section 38 of the Madras Act the position of members of a Marumakkathyam tarwad, has become analogous to members of a Hindu Mitakshara co-parcenary with all the legal incidents as interpreted by the courts in Madras flowing therefrom. If that is so, it also follows that the right of a co-parcener of a Mitakshara family, to alienate voluntarily his undivided interest, as well as the right of a holder of a decree, to levy execution as against the undivided interest of a member of a Hindu joint family apply with equal force to parties governed by the Madras Act. I respectfully agree with the Division Bench judgment of the Madras High Court reported in Subramanian v. Naraina A.I.R. 1938 Madras 553 specifically recognising the right of a decree-holder, to attach the undivided interest of his debtor, who is a member of a tarwad governed by the Madras Act in the properties of the tarwad, and bring it to sale and work out his rights by filing a suit for partition. I also respectfully agree with the decision of Venkatarama Ayyar, J., reported in Kunhikrishnan v. Anantharaman 1959 K.L.T 1160 holding that a member of a Marumakkathayam tarwad, governed by the Madras Act can effect a voluntary alienation by private conveyance, of his undivided interest in the tarwad properties. These decisions are in consonance with the decisions of the Madras High Court, which have been recognised and approved by the Judicial Committee of the Privy Council as early as 1878: Vide Deendyal Lal v. Jugdeep Narain Singh I.L.R 3 Cal. 198 P.C. 40. It must also be said that the decision of the Madras High Court, permitting attachment of an undivided interest of a member in a Marumakkathayam tarwad governed by the Madras Act, has stood the test of time for nearly 30 years now. 198 P.C. 40. It must also be said that the decision of the Madras High Court, permitting attachment of an undivided interest of a member in a Marumakkathayam tarwad governed by the Madras Act, has stood the test of time for nearly 30 years now. In this connection it must be stated that even the learned Judges of the Cochin High Court, in the decision reported in Sivaramakhhna Vadhyar v. Govindan Nair 34 Cochin 522 F.B. have stated that they do not like to create confusion by making a departure from the decision of the Cochin High Court and adopt the Madras view, though the learned Judges have not held, that the decisions of the Madras High Court are in any manner erroneous or not warranted by the provisions of the Madras Act. The same considerations, in my view, should be applied to parties governed by the Madras Act, because parties must have committed themselves, on the basis of the said decisions and there will be several creditors also who would have advanced amounts to junior members of tarwads under the impression that they could look up to the undivided interest of such members on the basis of the Madras decisions. I have already indicated that, even the Cochin High Court has recognised the right of a creditor to attach the undivided interest of a member of a tarwad governed by the Cochin Thiyya Act, wherein an absolute right to partition, as that contained in the Madras Act, has been conferred on the members. The Kerala Legislature, when it amended the Madras Act, by Kerala Act 26 of 1958, had ample opportunity, if it was so inclined, to introduce in the Madras Act, restrictions similar to those contained in section 39 of the Travancore Nayar Act or section 62 of the Cochin Nayar Act. Not only did the Legislature not choose to introduce any such restrictive provisions in the Madras Act, but on the other hand, it chose to enlarge the rights regarding partition, inasmuch as an individual right of partition has been recognised by section 38 of the Madras Act as amended by Act 26 of 1958. Not only did the Legislature not choose to introduce any such restrictive provisions in the Madras Act, but on the other hand, it chose to enlarge the rights regarding partition, inasmuch as an individual right of partition has been recognised by section 38 of the Madras Act as amended by Act 26 of 1958. The Kerala Legislature must certainly have been aware of the various decisions of the Madras High Court, wherein the right of a member of a Marumakkathayam tarwad to alienate his undivided interest in a tarwad property and also the right of a creditor to attach his debtor's undivided interest in the tarwad property have been recognised. The fact that the Legislature did not think it necessary to introduce any such restrictive provision in the Madras Act, in my view, clearly indicates that it did not want to overrule the Madras decisions recognising such a right. Here again it is pertinent to note the observations made by the learned Judges of the Cochin High Court in Narayana Ayyar v. Krishnan 33 Cochin 245, wherein they have adverted to the fact that when the Cochin Thiyya Act was passed, long after the Cochin Courts, had declined, under the Cochin Nayar Act, to recognise any such right of alienation or attachment, no such restrictive provision was introduced in the Cochin Thiyya Act. That reasoning, in my opinion, applies with full force to the Madras Act also, when the Kerala Legislature, did not choose to introduce any restrictive provision in the Madras Act, especially when it amended that Act, in certain other respects. 41. I do not see any harm even in applying equitable principles; because it is accepted at the Bar that even the Cochin, Travancore and Travancore-Cochin High Courts have recognised that severance of status by a member of a Marumakkathayam tarwad can be effected by an unequivocal expression made to that effect. So far as I could see, there is no such provision for severance of status made in the Cochin Nayar Act or in the Travancore Nayar Act. That itself is a principle evolved from the Hindu Mitakshara Law and extended to Marumakkathayam tarwad also by the Cochin, Travancore and Travancore-Cochin High Courts. So far as I could see, there is no such provision for severance of status made in the Cochin Nayar Act or in the Travancore Nayar Act. That itself is a principle evolved from the Hindu Mitakshara Law and extended to Marumakkathayam tarwad also by the Cochin, Travancore and Travancore-Cochin High Courts. Further, in my experience I have come across several decisions of the Cochin, Travancore and Travancore-Cochin High Courts wherein, in suits for partition instituted by a junior member of a tarwad ignoring an alienation made by the karnavan, the courts, while setting aside the alienation, and allowing partition, have given directions to the effect that the alienated properties, will as far as possible, be allotted to the share of the alienor. I do not see any provision in the statutes themselves, under which such directions can be given. That itself, again, is an extension by those courts of an equitable, principle even in administering the Marumakkathayam law. 42. The result of the recognising the rights, laid down by me above, in respect of persons governed by the Madras Act, will be, that different principles will apply to Marumakkathayees governed by the Cochin and Travancore Acts. To bring about uniformity in such matters, is a matter for the Legislature to consider. 43. I do not find any bar in section 50 of the Madras Act, in recognising the claim advanced by the creditor, in this revision petition- That section has also been considered by the Madras High Court, and I respectfully agree with the interpretation placed on that section. The only custom that was in vogue prior to the enactment of the Madras Act; was the absence of any right, in an individual member to claim partition, and that right has been recognised by the Madras Act, with the result that all the incidental rights and obligations flow from the conferment of such a right. 44. From what is stated above, it is clear that the judgment-debtors in this case, whose undivided interests in the properties of their tarwad were attached, must be considered to have a disposing power, which they may exercise for their own benefit. Therefore the creditor is entitled to levy execution, by way of attachment, and sale of such interests under section 60 of the Code of Civil Procedure. 45. Therefore the creditor is entitled to levy execution, by way of attachment, and sale of such interests under section 60 of the Code of Civil Procedure. 45. From the above discussion, it will follow that the principles applicable to recognising a right of a creditor to attach the undivided interest of a member of a tarwad governed by the Madras Act, will equally apply to the right of such a member, to voluntarily alienate his undivided interest in the property of the tarwad. But in my view, that principle cannot be extended so as to recognise a right in a member of the tarwad to make a gift of his undivided interest in the properties of the tarwad- No doubt there is an observation made by the Judicial Committee in Suraj Bumi Koer v. Sheo Persad Singh I.L.R. 5 Calcutta 148 P.C., to the effect that the Madras High Court has also recognised the right of such a member to make a gift of his undivided interest in the joint family properties. But it will be seen, that later decisions of the Madras High Court have not recognised any such right. Therefore my decision must be confined only to cases of alienation for consideration and attachment by holders of decrees. 46. In the result, C.R.P. No. 619 of 1963 fails and has to be dismissed. Madhavan Nair, J. On the question in issue I agree with Vaidialingam, J. and wish to add only that attach ability of property is a matter not of anybody's personal law but of Civil Procedure. I am afraid that if the declaration of law by the majority of this Bench be correct which I do not agree unattachability of one's property remains the hall-mark Madhavan of Marumakkathayam Law in spite of the progressive legislations or The Madras Marumakkathayam Acts, 1933 to 1958, The Cochin Nayar Act, 1113, The Cochin Marumakkathayam Act, 1113, The Travancore Nayar Act, 1100, The Travancore Ezhava Act, 1100, The Nanjinad Vellala Act, 1101, The Travancore Kshatriya Act, 1108, The Travancore Krishnanvaka Marumakkathayee Act, 1115, The Hindu Marriage Act, 1955, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, and The Hindu Adoptions and Maintenance Act, 1956. However, in view of the present overruling of Subramanian Thirumurupu v.Naraina Thirumurupu A.I.R. 1938 Madras 553 and Bank of New India, Ltd. v. Sukumari Ponnamma I.L.R. 1960 Kerala 906 F,B. by the majority, I can only exhort the representatives of the people to consider whether the divisible, though not divided, share of property of a person in this State also should be available for satisfaction of his obligations, as in the rest of entire India. Govindan Nair, J. 1. The question is whether the interest of a Marumakkathayi in the property of his tarwad is liable to attachment in execution of a decree for his personal debt. In C.R.P. No. 619 of 1963 this question has to be answered with reference to the provisions of the Madras Marumakkathayam Act, 1932 (Act XXII of 1933); in C.R.P. No. 1075 of 1962 with reference to those of the Travancore Nayar Act, II of 1100; in C.R.P. No. 1120 of 1962 with reference to the provisions of the Travancore Ezhava Act, III of 1100; and in A.S. No- 179 of 1963 with reference to the provisions of the Cochin Nayar Act, XXIX of 1113. 2. Justice Vaidialingam before whom C.R.P. No. 1075of 1962 came up felt that the Full Bench decision of this Court in Antherman v. Kannan 1960 K.L.T. 1313 had cast doubt regarding the correctness of the earlier Full Bench decision, in Bank of New India v. Ponnamma I.L.R. 1960 Kerala 906 F.B. In Bank of New India v. Ponnamma I.L.R. 1960 Kerala 906 F.B., this Court ruled that the undivided interest of a member of a Marumakkathayam tarwad governed by the Travancore Kshatriya Act, 11C8 was liable to be attached and sold in execution of a personal decree obtained against him. The later Full Bench decision dealt with the question whether a member of a Marumakkathayam tarward, governed by the Madras Marumakkathayam Act, 1932, was entitled to transfer his undivided interest in the tarwad property and came to the conclusion that he was not entitled to do so. 3. The later Full Bench decision dealt with the question whether a member of a Marumakkathayam tarward, governed by the Madras Marumakkathayam Act, 1932, was entitled to transfer his undivided interest in the tarwad property and came to the conclusion that he was not entitled to do so. 3. Though the question that arose for decision in the earlier case related to an involuntary alienation and the latter to a voluntary alienation, the principle that should be applied in determining the question whether a member of a Marumakkathayam tarwad has such an interest in tarwad property as is transferable, or liable to be seized in execution of a decree, is the same. 4. A distinction, no doubt, has been drawn between the rights of a purchaser under a voluntary conveyance and those of a purchaser under an execution sale. That was in case decided under the Hindu Mitakshara Law. It is the principle or principles laid down in those decisions that have been developed, and at times applied to Marumakkathayis as well. It is therefore necessary to examine them and understand the rule in those cases to determine whether what is laid down therein must necessarily apply to, or may be usefully and properly adopted, as a part of Marumakkathayam Law. It is enough to refer to two early decisions of the Judicial Committee for this purpose for there has been little or no development of the law since those pronouncements. 5. The earliest decision of the Judicial Committee brought to our notice wherein this has been emphasised is that in Deendyal Lal v. Jugdeep Narain Singh 4 Indian Appeals 247. The two learned Judges of the High Court who passed the decree therein under appeal had also decided another case, Mahabeer Persad v. Ramyad Singh 12 Beng. L.R. 90. Commenting on the decision in Mahabeer Persad's case, the Judicial Committee observed: "The Court laid down in the strongest terms the law as established by the Full Bench ruling in Sadabart's Case, and other decisions, and appears to have assumed that a title acquired by means of an execution sale stood on no higher ground than one founded on a voluntary alienation. It asserted, however, the power of imposing equitable terms upon the son, whom they held entitled to recover; and these terms were, in effect, that the property, when recovered, should be held and enjoyed by the family in defined shares; and that the share of the father, the judgment debtor, should be subject to the lien of the judgment creditor for the money advanced, with interest" 6. The learned Judges of the High Court however refused to recognise any such 'equity' in Deendyal Lal's case. This was adversely commented upon by Their Lordships of the Privy Council and the opinion was expressed that there was no justification for the refusal to give to the defendant in the one the benefit of the equity which they enforced in the other. Having said so, Their Lordships considered the effect of the decision in Mahabeer Persad v. Ramyad Singh 12 Beng. L.R. 90 and came to the conclusion: "It is a clear authority for the proposition that, although by the law as settled in that part of the presidency of Fort William which is governed by the Mitakshara, a member of a joint family cannot incumber his share in joint property without the consent, express or implied, of his co-partners, the purchaser of it at an execution sale nevertheless acquires a lien upon it to the extent of his debtor's share and interest. There appears to be little substantial distinction between the law thus enunciated and that which has been established at Madras and Bombay; except that the application of the former may depend upon the view the judges may take of the equities of the particular case; whereas the latter establishes a broad and general rule defining the right of the creditor. Their Lordships, finding that the question of the rights of an execution creditor, and of a purchaser at an execution sale, was expressly left open by the decision in Sadabart's Case, and has not since been concluded by any subsequent decision which is satisfactory to their minds, have come to the conclusion that the law, in respect at least of those rights, should be declared to be the same in Bengal as that which exists in Madras. They do not think it necessary or right in this case to express any dissent from the ruling of the High Court in Sadabart's Case as to voluntary alienations. They do not think it necessary or right in this case to express any dissent from the ruling of the High Court in Sadabart's Case as to voluntary alienations. But however nice the distinction between the rights of a purchaser under a voluntary conveyance and those of a purchaser under an execution sale may be, it is clear that a distinction may, and in some cases does, exist, between them. It is sufficient to Instance the seizure and sale of a share in a trading partnership at the suit of a separate creditor of one of the partners. The partner could not himself have sold his share so as to introduce a stranger into the firm without the consent of his co-partners, but the purchaser at the execution sale acquires the interest sold, with the right to have the partnership accounts taken in order to ascertain and realise its value. It seems to Their Lordships that the same principle may and ought to be applied to shares in a joint and undivided Hindu estate; and that it may be so applied without unduly interfering with the peculiar status and rights of the co-parceners in such an estate, if the right of the purchaser at the execution sale be limited to that of compelling the partition which his debtor might have compelled, had he been so minded, before the alienation of his share took place." 7. That the above view is inconsistent with the strict theory of a joint and undivided Hindu family, is enunciated by the Judicial Committee itself in a later ruling in Suraj Bunsi Koer v. Sheo Proshad Singh 6 Indian Appeals 88 at page 102 : "There can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family; and the law as established in Madras and Bombay has been one of gradual growth, founded upon equity which a purchaser for value has to be allowed to stand in his vendors shoes, and to work out his rights by means of a partition." 8. This gradual growth was dictated more by expediency than logic. That is doubtless why the application of the same principles of equity to the same texts of Hindu Law by the several High Courts has produced different results and I have not been able to deduce any underlying principle. This gradual growth was dictated more by expediency than logic. That is doubtless why the application of the same principles of equity to the same texts of Hindu Law by the several High Courts has produced different results and I have not been able to deduce any underlying principle. For, while all the schools of Mitakshara Law recognise a compulsory transfer of an undivided interest, the Bengal school does not recognise a voluntary transfer, and, even the Madras and Bombay schools are prepared to recognise such a transfer only if it is for consideration, although at one time Madras seems to have been prepared to go to the logical extent of recognising even a gift. 9. The above decisions of the Judicial Committee of the Privy Council have been applied by the Madras High Court to a Marumakkathayam tarwad as well. And in so doing a new principle has been enunciated. Thus in the decision in P. M. Subramanyan Thirumurupu and others v. T. E. Naraina Thirumumpu and another A.I.R. 1938 Madras 553, it is stated: "Thus the foundation of the right of a creditor to seize the share of a co-parcener rests on the fact that he has a right to claim partition and convert his share in the joint property into separate property. Section 38 having conferred in unmistakable terms upon a member who constitutes a tavazhi the right to demand partition and have his share in the joint estate converted into a separate estate, a creditor is entitled to attach and sell his share in execution of decree obtained for his personal debt.. There has been a deliberate departure from and alteration made by the Legislature of the previous state of the law by the conferment of this right of partition and once this right is conferred, all the necessary legal consequences must follow therefrom." 10. Same reasoning has been applied later by the same High Court to voluntary alienations as well in Kunhikrishnan v. Anantharaman 1959 K.L.T. 1160. This is what Justice Venkitarama Iyer observed in that case: "The rule that a marumakkathayi had no power to dispose of his share was based not on the grounds of public policy but on the nature of the right which he had over the family properties; which was only a right to be maintained with no right to demand partition. This is what Justice Venkitarama Iyer observed in that case: "The rule that a marumakkathayi had no power to dispose of his share was based not on the grounds of public policy but on the nature of the right which he had over the family properties; which was only a right to be maintained with no right to demand partition. The question of inalienability is inherent in the very nature of the right which was purely personal. * * * The position, therefore, is that a marumakkathayi has no such interest in the family properties as is capable of being transferred for his own personal purposes. Now the question is how far this has been altered or modified by the Madras Marumakkathayam Act, 22 of 1933 and It has been frequently observed that the object of the Madras Act 22 of 1933 was to assimilate Marumakkathayam law as far as possible to the position under Mithakshara law and it will be in accordance with that object to hold that a Marumakkathayi is entitled to alienate his or her share for valuable consideration when he or she has got the right to demand a partition under section 38 of the Act." 11. The earlier part of the above quotation has been relied on in the Full Bench decision in Bank of New India Ltd. v. Ponnamma I.L.R. 1960 Kerala 906 F.B. and the later part has been referred to in the later Full Bench decision in Antherman v. Kannan 1960 K.L.T. 1313 and the judgment in that case shows that this Court in clear and unambiguous terms refused to follow the reasoning. The relevant passage runs thus: "According to the learned Judge the position under the Marumakkathayam law, once a right to partition has been conferred, should be the same as under the Mithakshara law as administered in Madras, Bombay and Madhya Pradesh in respect of voluntary alienations of undivided shares in a Hindu family. We must say, with respect, that we see no warrant for this conclusion. The power of voluntary alienation is not an inevitable corollary of the right to compulsory partition. We must say, with respect, that we see no warrant for this conclusion. The power of voluntary alienation is not an inevitable corollary of the right to compulsory partition. The statement that the purpose of the Madras Marumakkathayam Act, 1932, was to assimilate the Marumakkathayam law as far as possible to the position under the Mithakshara law also does not appear to be justified either by the contents of the enactment or its objects and reasons and legislative history." 12. Can it be that a power of disposal necessarily inheres in the right to a partition? I think not, and with great respect, I think, that to say that it does, is to confuse between an incident of a right and a consequence of the exercise of that right. It is not until the joint property has become separate property held in definite shares (though not necessarily divided by metes and bounds) that the interest of an individual member becomes property capable of transfer and the member, now a divided member, acquires the power of disposal. This takes place only when there has been a division of status by an unequivocal declaration duly communicated, in other words, by a demand for partition. The right to a partition does not effect a division of status; only an exercise of that right does; and, it is as a consequence of that exercise that the member's interest becomes property over which he has a disposing power. If a right to partition by itself confers a power of disposal it must necessarily follow that the undivided member should be able to transfer his interest without any limitation, whether voluntarily or compulsorily, whether for value or gratuitously. But that, as noticed above, is not so. 13. Can it be that what is sold is the right to demand a partition? That cannot be so, for, that is a right restricted in its enjoyment to the member personally and cannot be subject of transfer. And if it is the right to ask for a partition that is sold, it should follow that the share which the purchaser gets will be the share to which the member is entitled at the time the purchaser demands the partition. But it is settled law that that is not so and that the share is the share to which a member is entitled at the time of the sale. 14. But it is settled law that that is not so and that the share is the share to which a member is entitled at the time of the sale. 14. Does a sale by a member of his undivided share or of a particular item of joint family property, or an attachment by the court in execution of a decree against him, amount to a demand for a partition thus effecting a severance of status? Here again it is settled law that it does not. Aga Mirza Ahmad v. Bhudar Chandra A.I.R. 1952 Calcutta 23 seems to be the only decision to the contrary. There it was held that an attachment effects a severance of status. But, if a sale implies a demand for a partition, why should not a gift do so, and, if attachment effects a severance of status, should not the share passing in the execution sale be the share of the member at the time of the attachment and not, as it is the settled law, at the time of the sale? 15. Excepting the three decisions referred to above, Subramanyan Tiramuruppu and others v. Naraina Tirumurupu and another A.I.R. 1938 Mad. 553, Kunhikrishnan v Anantharaman 1959 K.L.T. 1160 and Bank of New India v. Ponnarnma I.L.R. 1960 Kerala 906 F.B., no other case has been brought to our notice wherein the same rule has been held to be applicable to Marumakkathayis. In the Travancore and Cochin areas of the State it has never been doubted that the undivided share of a member of a Marumakkathayam tarwad is not liable to be attached and sold in execution of a personal decree obtained against that member. Marumakkathayam tarwads were partible, before statutes conferred on individual members or groups of members the right to claim partition, only by general consent of all the members. Before a disruption occurred it was never even thought of that an undivided share could be transferred either voluntarily or involuntarily. The rule of Marumakkathayam law was therefore that the undivided interest of a member in tarwad property is neither alienable by him nor attachable in execution of a personal decree obtained against him. Before a disruption occurred it was never even thought of that an undivided share could be transferred either voluntarily or involuntarily. The rule of Marumakkathayam law was therefore that the undivided interest of a member in tarwad property is neither alienable by him nor attachable in execution of a personal decree obtained against him. When the Madras Marumakkathayam Act, 1932, the Travancore Nayar Act, II of 1100 and the Cochin Nayar Act, XXIX of 1113 conferred the right to claim partition on the members of the tarwad express provisions were made by section 50 (b), section 44 (a) and section 74 (b) respectively of the three statutes saving all the rules of Marumakkathayam law except to the extent expressly laid down in the Acts. There was there-.fore no scope at any time for the gradual growth referred to in paragraph 8 above and it has been consistently held that the member of a Marumakkathayam tarwad has no alienable or heritable interest in tarwad property. The question has specifically arisen in more than one Full Bench case before the Cochin High Court and the argument that the undivided share can be attached and sold has always been negatived. These decisions have been referred to in the Full Bench case in Antherman v. Kannan 1960 K.L.T. 1313. Those are the decisions in Paru Chettichiyar v. Suppu Panikkar 19 Cochin 207, Sivaramakrishna Vadhyar v. Govindan Nair and others 34 Cochin 522. and Mohammath Ismal Ravuthar v. Samuhutta Menon and others 37 Cochin 294. Section 38 of the Madras Marumakkathayam Act, 1932, came up for specific consideration in Sivaramakrishna Vadhyar v. Govindan Nair and others 37 Cochin 294 and the Cochin High Court refused to follow the view expressed by the Madras High Court. There is not a single decision of the Travancore High Court wherein it has been held that the undivided share of a member of a Marumakkathayam tarwad is capable of being attached and sold in execution of a decree obtained personally against that member. 16. There is not a single decision of the Travancore High Court wherein it has been held that the undivided share of a member of a Marumakkathayam tarwad is capable of being attached and sold in execution of a decree obtained personally against that member. 16. The decision in Narayana Ayyar and another v. Krishnan and others 33 Cochin 245 was referred to and was relied on in support of the contention, that when there is no provision corresponding to section 62 in the Cochin Nayar Act, XXIX of 1113, and section 39 of the Nayar Act II of 1100 which expressly declare that until partition the interest of a member in the property of his tarvad is not liable to seizure in execution it has been ruled that the principles laid down in the two Madras decisions will apply to Marumakkathayis governed by the Cochin Thiyya Act, VIII of 1107. I do not think that any such general rule has been laid down in that case. The decision is based on the wording of section 35 of the Thiyya Act, VIII of 1107, reading as under "The property of a Marumakkathayam tarwad will be considered to have, been the property of the nearest common ancestress and to have descended according to the rules of succession contained in Chapter IV and to be partible among the persons so entitled." and the conclusion reached by the Court: "The general presumption with regard to property commonly owned is of the existence of joint tenancy among the common owners rather than of joint tenancy excepting the case of the communities governed by the Mitakshara law and the strict Marumakkathayam law. We have endeavoured to show above that in spite of its name the Marumakkathayee Thiyya community of Cochin is not governed by strict Marumakkathayam law." The decision in Narayana Ayyar and another v. Krishnan and others 33 Cochin 245 was considered by a later Full Bench, Sivaramakrishna Vadhyar v. Govindan Nair and others 34 Cochin 522. The learned Judge who wrote the judgment in Narayana Ayyar and another v. Krishnan and others 33 Cochin 245 was also a party to the later Full Bench decision in which there is the following observation: "The language of the section is entirely different from the corresponding provision conferring right of partition under the Nair Act. The learned Judge who wrote the judgment in Narayana Ayyar and another v. Krishnan and others 33 Cochin 245 was also a party to the later Full Bench decision in which there is the following observation: "The language of the section is entirely different from the corresponding provision conferring right of partition under the Nair Act. Property is declared to be divisible by the Thiyya Act and the share is to be determined as provided in Chapter IV. Mr. Krishna Ayyar vehemently argued before us that this decision in Narayana Ayyar and another v. Krishnan and others is in conflict with the earlier decisions under the Cochin Nair Act and that we should follow the 9 Cochin Law Journal 178 case. For the reasons we have already indicated we hold that that decision is not applicable." Is it in the light of the above that this Court in Antherman v. Kannan 1960 K.L.T. 1313 commented as follows regarding the above Cochin decisions: "Counsel for the appellant drew our attention to 33 Cochin 245, a case under the Cochin Thiyya Act, VIII of 1107. That case was fully discussed in 34 Cochin 522 (F.B.) and the discussion shows that it was based solely on the wording of that Act. Manjooran, J. who "delivered the judgment on behalf of the Division Bench in 33 Cochin 245, was also a member of the Full Bench in 34 Cochin 522." I do not think that the decision in Narayana Ayyar and another v. Krishnan and others 33 Cochin 245 has accepted any general principle as contended by counsel. 17. The provisions in section 62 of the Cochin Nayar Act, XXIX of 1113 and section 39 of the Travancore Nayar Act, II of 1100, do not represent any change in the law obtaining in the community but are merely declaratory of the law. In the earlier Cochin Act, the Cochin Nayar Act, XIII of 1095, there was no provision similar to section 62 of the Cochin Nayar Act, XXIX of 1113. And under section 40 of the earlier statute, in certain defined circumstances, a member could claim to be divided from his tarward. Even so a Full Bench of the Cochin High Court in Paru Chettichiyar v. Suppu Panickar 19 Cochin 207 had no hesitation in holding that the undivided share was not liable to attachment. And under section 40 of the earlier statute, in certain defined circumstances, a member could claim to be divided from his tarward. Even so a Full Bench of the Cochin High Court in Paru Chettichiyar v. Suppu Panickar 19 Cochin 207 had no hesitation in holding that the undivided share was not liable to attachment. By passing section 62 of Act XXIX of 1113 the legislature only affirmed what had been declared by the judicial dicisions to be the law. 18. Section 50 (b) of the Madras Marumakkathayam Act, 1932, runs thus: "Nothing contained in this Act shall be deemed to affect any rule of Marumakkathayam law, custom or usage, except to the extent expressly laid down in this Act." And there is similar provision in section 74 (b) of the Cochin Nayar Act, XXIX of 1113, in section 44 (a) of the Travancore Nayar Act, II of 1100 and section 3 (b) of the Travancore Ezhava Act, III of 1100. When the severed statutes conferring a right of partition on members of Marumakkathayam tarwads came into force, it was a settled rule of Marumakkathayam law as already pointed out that the interest of a member in the property of his tarwad was not property capable of being transferred and that he had no power of disposal whatsoever over the same. No judicial inroads into this rule like those made into the similar rule of the strict Mitakshara law were even attempted. As we have seen, a right to partition does not of its own force confer a power of disposal, and there being nothing in the several statutes expressly conferring a power of disposal, it follows that the rule, despite the conferment of a right to partition, is expressly saved, by statute from any judicial inroads on principles of 'equity' by section 50 (b) of the Madras Marumakkathayam Act, and the corresponding provisions of the other statutes. Section 39 of the Travancore Nayar Act, and section 62 of the Cochin Nayar Act (which are unaffected by the provisions of the Hindu Succession Act so far as the nature of the interest of a Marumakhathayi in the property of his tarwad during his life time is concerned and its immunity from transfer inter vivos whether voluntary or compulsory See Bank of New India Ltd v. I.L.R. 1960 Kerala 906 F.B. and Dhanalakshmi Bank Ltd, Trichur v. Neelakantan Nambudiripad 1964 K.L.J. 42 are only declaratory of the law, and the absence of similar provision in the Madras Marumakkathayam Act makes no difference. The Madras decisions are clearly opposed to the express provisions of section 50 (b) of the Madras Marumakkathayam Act, 1932, and that being so, the mere omission to introduce provisions similar to section 39 of the Travancore Nayar Act when the Kerala Legislature amended the Madras Marumakkathayam Act, 1932, cannot be regarded as statutory approval of those decisions. The statutory provision in section 50(b) of the Madras Marumakkathayam Act, 1932, and similar provisions in the other statutes can neither be ignored, abrogated, or obliterated by the extension of principles which at best are doubtful, developed out of expediency and on equitable considerations. The law being that an undivided share is not attachable, no principle of equity can be pressed into service to override it. It has been so held in Trilok Singh v. Dwarka Prasad Gupta and others A.I.R. 1958 Patna 262 which has been quoted with approval by this Court in the Full Bench ' decision in Antherman v. Kannan 1960 K.L.T. 1313 The rule, that a purchaser at the execution sale of a partner's interest in a firm will have the rights to have the partnership accounts taken in order to ascertain and realise its value, relied on in Deendyal Lal v. Jugdeep Narain Singh 4 Indian Appeals 247 by the Privy Council, is not a general principle which should or could be applied to other or all branches of law. So, there is no scope for any "gradual growth inconsistent with the theory of Marumakkathayam law that alienations voluntary or compulsory are not permissible. The right to alienate an undivided share and the liability to attachment and sale in execution of that share is not a necessary or inevitable corollary of the right of members of a joint Hindu family to claim partition. The right to alienate an undivided share and the liability to attachment and sale in execution of that share is not a necessary or inevitable corollary of the right of members of a joint Hindu family to claim partition. If that be so, there was no necessity or occasion for the "gradual growth" referred to in the judgment of the Privy Council in Suraj Bunsi Koer v. Sheo Proshad Singh 6 Indian Appeals 88 which I extract again: "There can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family; and the law as established in Madras and Bombay has been one of gradual growth, founded upon the equity which a purchaser for value has to be allowed to stand in his vendor's shoes, and to work out his rights by means of a partition." This means that it is only by the application of the principles of equity relied on by the Judicial Committee of the Privy Council that a liability to attachment, and the right to transfer in certain jurisdictions, of an undivided interest in a joint family property, became available. The members of a joint Hindu family always had the right to claim partition. If transferability and liability to attachment stemmed from that right, there was, no necessity at all to apply any further principle of equity. So I must conclude that the right to claim partition always inherent in every member of a Hindu joint family does not carry with it a right to transfer or a liability to attachment of the undivided share. The rule must be the same so far as the Marumakkathayis are concerned though section 38 of the Madras Marumakkathayam Act 1932, and similar provisions in the other statutes confer on members of a Marumakkathayam tarwad a right to claim partition. And this rule as I have already said, is expressly saved by section 50(b) of the Madras Marumakkathayam Act, 1932, and the similar provisions in the other statutes. 19. The decisions of the Madras High Court in Subramanyan Tirumurupu and others v. Naraina Tirumurupu and another A.I.R. 1938 Mad. And this rule as I have already said, is expressly saved by section 50(b) of the Madras Marumakkathayam Act, 1932, and the similar provisions in the other statutes. 19. The decisions of the Madras High Court in Subramanyan Tirumurupu and others v. Naraina Tirumurupu and another A.I.R. 1938 Mad. 553 and in Kunhikrishnan v. Anantharaman 1959 K.L.R. 1160 being opposed to the provisions in the statute cannot be relied on even in support of the argument that the principle of stare decisis should deter this Court from upsetting the rule in those decisions. Section 50 of the Madras Marumakkathayam Act, 1932, was referred to in Surbramanyan Tirumurupu and others v. T. E. Naraina Tirumurupu and another A.I.R. 1938 Mad. 553 but was brushed aside with the observations. "But the rule of Marumakkathayam law which prevented a compulsory partition has been abrogated to the extent indicated in section 38 of the Act and it is in virtue of that section a junior member of a Malabar tarwad has got the right to demand partition and a creditor acquires the right to have it enforced for his benefit." With the utmost respect this is clearly wrong. The right to claim partition which is a personal right cannot confer any right on a creditor. And the rule of Marumakkathayam law regarding inalienability and non-attachability has not been expressly altered by statute. So the section (sec. 50) must apply and there is no escape from it. The Supreme Court in The Bengal Immunity Company Limited v. The State of Bihar and others 1955 2 S.C.R. 603 has pointed out that : "If on a re-examination of the question we come to the conclusion, as indeed we have, that the previous majority decision was plainly erroneous then it will be our duty to say so and not to perpetuate our mistake" 20. Section 39 of the Travancore Nayar Act and section 62 of the Cochin Nayar Act in terms prohibit the seizure of the interest of an undivided member in execution, and to suggest that the process for effecting the very thing prohibited, namely, the seizure, could effect the partition necessary for making the seizure permissible, would make the prohibition meaningless. 21. Section 39 of the Travancore Nayar Act and section 62 of the Cochin Nayar Act in terms prohibit the seizure of the interest of an undivided member in execution, and to suggest that the process for effecting the very thing prohibited, namely, the seizure, could effect the partition necessary for making the seizure permissible, would make the prohibition meaningless. 21. In V.K.K.V. Gopala Nair and others v. V. K. V. Raghava Nair and others 1964 K.L.J. 42, Madhavan Nair, J., said:” "It seems to me that Malabar law being essentially customary law, the process of solving questions, as they arise for decision, by extending the operation of a custom by analogy, or by applying ' inferences ' from the Hindu Law, unless in the utter absence of evidence, as regards custom, is bound to create a divergence between the Court-made law and the customary law, as observed by the people." Judges should not change the law whatever be their individual views or dispositions induced by ideas of progress, uniformity in law, and economic concepts. These matters of changes in law must necessarily and properly be left to the Legislature. 23. Further in deciding the question whether the undivided interest of a member in his tarwad property is attachable and saleable pursuant to a personal decree against him the provision in section 60 of the Civil Procedure Code must be considered. Property attachable must be saleable by the judgment-debtor or over which he has a disposing power which he may exercise for his own, benefit. The undivided interest of a member in tarwad property is not saleable and the member has no disposing power either, in regard to that interest- To hold that such interests are attachable is therefore clearly against the provision in section 60 of the Code of Civil Procedure. This was pointed out by this Court in Dhanalakshmi Bank Ltd., Trichur v. Neelakantan Nambudiripad and another 1964 K.L.J. 42. The following passage is relevant: "Under section 60 of the Code only saleable property belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit is liable to attachment. The following passage is relevant: "Under section 60 of the Code only saleable property belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit is liable to attachment. If, before the attachment, the interest of a member in his tarwad property is not property answering to this description it is difficult to see how the fact that the result of an attachment would be to convert the interest into such property can justify the attachment." But it is suggested that it must be taken that section 60 of the Civil Procedure Code has been interpreted to mean that the interest of a member in his tarwad property is property which is saleable or over which he has disposing power. This reasoning is fallacious. The rule that has been developed in the Law of Mitakshara is a rule of equity which allowed the purchaser for value to work out his rights in a suit for partition. To that extent it must be taken that a member of a joint family governed by the Law of Mitakshara had a disposing power so far as his interest in the joint family property is concerned. This is a rule of Mitakshara Law developed and established in the manner and for the reasons already pointed out. But for this development section 60 of the Code of Civil Procedure which prohibits the attachment of property over which the judgment-debtor has no saleable interest or disposing power would have stood in the way of any attachment being effected on the undivided interest of a member in his joint family property. Referring to the definition of' power ' in Salmond on Jurisprudence, Eleventh Edition at page 274 reading as Under:- A power may be defined as ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons." It was further suggested that a member by his own will directed to that end, can alter the situation and hence it is clear that he has a disposing power over the undivided interest. With great respect this reasoning too is misleading. With great respect this reasoning too is misleading. By exercising his 'power' to claim partition which is a separate and distinct power from the power to dispose of his undivided interest a member becomes divided and what he disposes of thereafter is not his undivided interest in tarwad property. The question whether he has a power to dispose of his undivided interest cannot be answered by stating that he can exercise a different power, viz., the power to claim partition and get himself divided and thereafter transfer his divided interest which is of course an alienable interest. 24. Before closing the discussion we must refer to the argument of Sri K. N. Narayanajn Nair, counsel for the respondent in C.R.P. No. 1075 of 1962 which run as follows: Section 2 (6) of the Travancore Nayar Act, II of 1100 (like the corresponding provisions of the other statutes) defines a 'tarwad ' as "Tarwad means and includes all the members of a Marumakkathayam family, with community of property". "Marumakkathayam" is defined in section 2 (2) as "Marumakkathayam means the system of inheritance in which descent is traced in the female line" which of course means exclusively in the female line. After the coming into force of the Hindu Succession Act inheritance is no longer so traced in respect of property of any kind and no one is therefore any longer governed by the Marumakkathayam law of inheritance. Hence there is no longer any tarwad or any tarwad property and all properties jointly held by the groups of persons which were formerly tarwads must be regarded as held by them as tenants-in-common which, apart from a coparcenary, is the only form of joint owner-recognised by Indian Law- I do not think the argument is sound. Although on the death of a member his interest becomes divided and descends on his personal heirs so that with each death the tarwad property suffers a diminution, still inheritance (in the sense of natural transmission from or through ancestors, or hereditary descent, which is the sense in which the statutes use the word) by descent in the female line is not at an end and that is the only mode of descent by which new members with joint ownership of the tarwad property are added to the tarwad. The Hindu Succession Act does not do away with the Marumakkathayam system or with tarwads though that will doubtless be its ultimate result, and none of its provisions affects the way in which the members of a tarwad hold the joint property during their life time. 25. The only matter remaining to be noticed is the suggestion that the question is concluded by the decision in Sidheswar Mukherjee v. Bhubneshwar Prasad Narain Singh and others A.I.R. 1953 S.C. 487.If the question has been answered by the Supreme Court, it of course goes without saying, that this Court must follow it. But I do not think that the question discussed here, has either been considered, adverted to or answered by the Supreme Court in the above decision. The question that arose therein was formulated by the learned Judge B. K. Mukherjea thus: "Whether the sons of defendant No. 1 were legally liable to pay the decretal debt due by their father and could this liability be enforced by attachment and sale of their undivided coparcenary interest in the joint family property along with that of their father? If the liability did not exist, no other question would arise ; but if it did exist, a question of procedure would still have to be considered as to whether the sons' interest in the coparcenary could be attached and sold without making the sons parties to the suit and the execution proceedings." Both the above questions were answered in the affirmative and in the course of the discussion the following observations, on which reliance was particularly placed, were made: "It is true that under the Mitakshara law, as it is administered in the State of Bihar, no coparcener can alienate, even for valuable consideration, his undivided interest in the joint property without the consent of his coparceners; but although a coparcener is incompetent to alienate voluntarily his undivided coparcenary interest, it is open to the creditor, who has obtained a decree against him personally, to attach and put up to sale his undivided interest, and after purchase to have the interest separated by a suit for partition." I do not find in this passage anything more than the well accepted rule applicable to Hindus governed by the Mitakshara law, laid down as long ago as 1877 when the Judicial Committee decided Deendyal Lal v. Jugdeep Narain Singh 4 Indian Appeals 247. It is hardly possible to say that this is a general rule that must apply to Marumakkathayis as well, and that, notwithstanding the specific statutory provisions saving the usages, custom and law of Marumakkathayis. 26.It follows that the undivided interest of a member of a Marumakkathayam tarwad governed by the Madras Marumakkathayam Act, 1932 is not liable to be attached in execution of a decree obtained against him personally. 27. In the light of the above I set aside the order sought to be revised in C.R.P. 1075 of 1962 and allow the Revision Petition. The question has to be decided in this case with reference to the provisions in the Trawad Travancore Nayar Act, II of 1 ICO. Apart from the general principle enunciated in this judgment that the undivided interest of a Marumakkathayi in his tarwad property is not liable to be attached in execution of a personal decree obtained against him there is also the express prohibition contained in section 39 of Act II of 1100. I therefore hold that defendants 1 and 3 in O. S. 368 of 1952 of the Haripad Munsiff's Court have no attachable interest in the tarwad properties. 28. For the reasons stated above the appeal, A. S. 179 of 1963, questioning the order allowing the claim petition of a person governed by the Cochin Nayar Act, XXIX of 1113, is dismissed. 29. In C R.P. No. 1120 of 1962 the question arises under the Travancore Ezhava Act (Act III of 1 100) and the order passed by the Vaikom Munsiff's Court in 0. S. No. 139 of 1957 allowing the claim petition has to be upheld and the Revision Petition dismissed. I do so. By virtue of sections 28,29 and 30 of Act 111 of 1100, only when certain conditions are satisfied, can partition be , allowed. There is no case that such conditions have been satisfied. That is an additional reason for rejecting the Revision Petition. 30.For the reasons stated in this judgment I also set aside the order sought to be revised in C.R.P. 619 of 1963 and allow that Revision Petition. The question arises here under the Madras Marumakkathayam Act and the view taken by the court below that a Marumakkathayi governed by the Act has an attachable interest in his undivided tarwad property is not sustainable. 31. The question arises here under the Madras Marumakkathayam Act and the view taken by the court below that a Marumakkathayi governed by the Act has an attachable interest in his undivided tarwad property is not sustainable. 31. I direct the parties in all the cases to bear their respective costs. M. S. Menon, C. J I agree. I have nothing to add. Raman Nayar. J. I agree. Briefly, this is how I look at the matter. Under the strict Mitakshara, as under the Marumakkathayam law, the interest of a member in the property of his joint family is not saleable property over which he has a disposing power, and alienation, whether of his volition, or under compulsion of court, was not permitted. But, so far as the Mitakshara was concerned, the courts, in course of time, came to recognise an equity in favour of a purchaser for value in Northern India only if he was a court-auction purchaser by which he was allowed to stand in the shoes of his vendor and work out his rights in a partition. Thus they evolved a new rule of Hindu law endowing the member with a limited (and rather peculiar) power of disposal, limited because a transfer could only be for value, and, even so, in Northern India only when compelled by court, and also because what the purchaser got was not an immediate interest in the property but only what was called the equity of enforcing the partition his vendor could have enforced and ascertaining and securing his interest in the partition. Without the right to a partition available to a Mitakshara coparcener, this new rule would have been useless and might not have been evolved, at any rate not in its present form, but, as my learned brother has so clearly demonstrated, it is fallacious to assume that the power of disposal was derived from the power to compel a partition. None of the decisions which established the new rule put it on that footing; on the contrary it would appear that the power to compel a partition was only the means by which the new rule was made effective. None of the decisions which established the new rule put it on that footing; on the contrary it would appear that the power to compel a partition was only the means by which the new rule was made effective. Once a power of disposal, however restricted, is found, section 60 of the Civil Procedure Code which permits the attachment only of saleable property belonging to the judgment-debtor, or over which or the profits of which, he has a disposing power which he may exercise for his own benefit, would be out of the way indeed all the decisions, having found a power of disposal, I take that for granted. But, the customary Marumakkathayam law allowed only partition by consensus and no member could compel a partition. Therefore, the courts had no opportunity, even if they were so minded, to not develop a rule of alienability similar to that developed by the courts administering Mitakshara law; and, when the statutes conferring a right of partition on members or of members came to be enacted, the rule of Marumakkathayam law that the interest of a member was not transferable in any manner was in full force, unimpaired by any judicial inroads founded on principles of equity. And the very statutes giving this right of partition expressly forbade any subsequent judicial inroads by enacting, as in section 50 (b) of the Madras Marumakkathayam Act, that nothing contained in the Act shall be deemed to affect any rule of Marumakkathayam law, custom or usage except to the extent expressly laid down in the Act. There being no provision in the Act expressly affecting the rule of non-transferability, it follows that to derive a power of disposal from the power to compel a partition conferred by the statute is forbidden even if otherwise, that could properly be done. Section 39 of the Travancore Nayar Act and section 62 of the Cochin Nayar Act lay down no new principle and are only declaratory of the law. The decisions in Subramanyan v. Naraina A.I.R. 1938 Mad. Section 39 of the Travancore Nayar Act and section 62 of the Cochin Nayar Act lay down no new principle and are only declaratory of the law. The decisions in Subramanyan v. Naraina A.I.R. 1938 Mad. 553, and Kunhikrishnan v. Anantharaman 1959 K.L.T. 1160, are in the teeth of section 50(b) of the Madras Marumakkathayam Act the former also of section 60 of the Civil Procedure Code, because, the fact that the result of the exercise of the power to compel a partition would be to give the member concerned a power of disposal over his (now) divided share which becomes saleable property, does not mean that a member who can, but has not chosen to exercise the former power has the latter over his undivided share, however desirable it might be that he should have such a power so that his creditors may not go unpaid and with great respect I do not think we would be justified in preferring those decisions to what seems to me the clear language of the statute. The principle of stare decisis can hardly be invoked and I take leave to doubt whether anybody has ever been persuaded by those decisions to lend money to a Marummakkattayi for his personal use looking to his joint family property for repayment. If what is laid down in those decisions ought to be the law, it is, I should think, for the legislature to make it the law.