Research › Browse › Judgment

Kerala High Court · body

1984 DIGILAW 65 (KER)

JANAKI v. RAGHAVAN

1984-02-24

PARIPOORNAN

body1984
Judgment :- 1. The appellants herein are claimants in E P. No. 101 of 1981 in O. S. No. 335 of 1975 on the file of the Munsiff's Court, Kozhikode-11. They filed an application under 0.21 R.58 of the Code of Civil Procedure and prayed for release of 4 items of petition scheduled properties from attachment and sale in pursuance of a personal decree debt contracted by the 2nd respondent. The appellants are wife and children of the 2nd respondent. According to them, the petition scheduled properties are joint family properties of the appellants and the 2nd respondent and so cannot be sold in satisfaction of a personal debt contracted by the 2nd respondent. The courts below negatived the plea of the appellants. Hence this appeal. 2. It is conceded that the parties are Thiyyas and are governed by Hindu Mitakshara Law. Claimants 1 to 5 are females. Claimant 6 is a male and his right has been upheld by the courts below. Claimant No. 7 was born subsequently on 21-5-1976. 3. The only plea raised by counsel for the appellants, Mr. Ramkumar at the time when the appeal came up for admission was that the undivided interest of the 2nd respondent in the joint family properties cannot be attached and in that view of the matter the proceedings by way of attachment and sale of the properties are illegal. This point was not specifically raised in the courts below. I should state, that the appellants cannot be allowed to raise this plea for the first time at the second appellate stage. Even so, on the merits also, the appellants have no case. 4. Counsel relied on the decisions reported in Raman Menon v. Chathunni (ILR.17 Madras 184) and Ammalu Amma & Others v. Lakshmy Amma & Others (1966 KLT 32) in this connection. It is settled law that under Hindu Mitakshara Law, the undivided interest of a coparcener can be taken in execution under a judgment against him at the suit of his personal creditor. The only qualification is, the interest should be attached during his lifetime in execution of the decree. The 2nd respondent is still alive. (Vide N. R. Raghavachariar's Hindu Law 7th Edn. Volume I-Pages 291 and 317). If this position is well settled, there is no reason why it cannot be applied to the appellants, who are Thiyyas governed by Hindu Mitakshara Law. The 2nd respondent is still alive. (Vide N. R. Raghavachariar's Hindu Law 7th Edn. Volume I-Pages 291 and 317). If this position is well settled, there is no reason why it cannot be applied to the appellants, who are Thiyyas governed by Hindu Mitakshara Law. In Balakrishnan v. Chittoor Bank (AIR 1936 Madras 937) speaking for the Bench, Varadachariar, J. after referring to the decision reported in ILR.17 Madras 184 and other decisions held "we see no warrant for introducing the portion of the Hindu Law without taking along with it the other portions which form an integral part of the whole system." This decision was approved by the Supreme Court in the decision reported in Aathony Swamy v. Chinnaswamy (AIR 1970 SC. 223). The quest ion at issue in the Madras decision as well as before the Supreme Court, was as to whether Ezhavas or Thiyyas, following Makkathayam Law (Hindu Mitakshara Law), are liable for the debts of their father, under the doctrine of pious obligation. The doctrine of pious obligation was found to be an integral part of the Mitakshara School of Hindu Law and also in consonance with justice, equity and good conscience. The entire case law on the subject including the Madras High Court decision and the Supreme Court decision aforesaid was reviewed in Rohini v. Sethumadhavan (1978 KLT 470(FB)). In so far as it is conceded that Thiyyas are governed by Hindu Mitakshara Law, I see no reason to hold that the ordinary rules of Hindu Law, whereunder the undivided interest of a coparcener can be attached, can be said to be inapplicable in the case of Thiyyas. There is no merit in the second appeal. The question raised is governed by the decision of the Supreme Court of India reported in AIR. 1970 SC. 223 and the decision of the Full Bench of this Court. 1978 KLT 470. The decisions cited by the appellants' counsel are distinguishable and will not apply to the facts of this case. The Second Appeal is without merit. It is dismissed in limine. Dismissed.