Muthukumara Sthapathiar vs Sivanarayana Pillai (Deceased) And ... on 20 September, 1932
13. It is unnecessary to deal with the view taken herein or by the Division Bench in Sthapathiar v. Sivanarayana Pillai (1932) 64 M.L.J. 66 : I.L.R. 56 Mad.
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Haji Mohammad Afzal Khan vs Malik Abdul Rahman on 14 July, 1932
14. Mr. Govinda Menon next relies on Section 64 of the Civil Procedure Code, and on the decision of the Privy Council in Mohammad Afzal Khan v. Abdul Rahman (1932) 63 M.L.J. 664 : L.R. 59 I.A. 405 : I.L.R. 13 Lah. 702 (P.C.) and contends that the only thing prohibited by the attachment is a private transfer and that the subsequent registration of the tarwad is not affected by it. We are inclined to consider that this contention is irrelevant and unsound. Section 64, Civil Procedure Code, has in our opinion no bearing on the question under discussion. It does not say when an attachment terminates; for example, death does not terminate an attachment and after the death of a judgment-debtor, further proceedings can be had by bringing the legal representatives of the judgment-debtor on record without a fresh attachment. The question in this case is whether the subsequent registration terminates the attachment pending on the date of the registration.
Mahraja Raja Sahib Maherban Dostan Sri ... vs W.S. Venkataramanjulu Naidu And Ors. on 21 July, 1914
684 at 686 and Maharajah of Bobbili v. Venkataramanjulu Naidu (1914) 27 M.L.J. 409 : I.L.R. 39 Mad. 265 are concerned, they hold that where there is an alienation of the share of a member of a joint family, either voluntary or involuntary, the alienee does not become a tenant in common with the other members of the family and until partition is effected, he will not be entitled to claim any mesne profits from the date of the alienation.
Chinnu Pillai vs Kalimuthu Chetti on 27 January, 1911
or as on the date of the alienation as held in Chinnu Pillai v. Kalimuthu Chetti (1911) 21 M.L.J. 246 : I.L.R. 35 Mad. 47 (F.B.), because that question does not arise at present.
Section 6 in The Transfer Of Property Act, 1882 [Entire Act]
Aiyyagari Venkataramayya And Anr. vs Aiyyagari Ramayya on 28 August, 1902
12. Emphasis will have to be laid on the words "at that time". The effect of these Privy Council decisions is very clearly stated by Bhashyam Aiyangar, J., in Aiyyagari Venkataramayya v. Aiyyagari Ramayya (1902) I.L.R. 25 Mad. 690 at 716 (F.B.) thus:
Sankaralinga Mudaliar And Ors. vs The Official Receiver Of Tinnevelly on 22 January, 1925
It was on the basis of this decision our High Court took the view in Sankaralinga Mudaliar v. Official Receiver of Tinnevelly (1925) 49 M.L.J. 616, that even an attachment before judgment would prevent the right of survivorship operating to the prejudice of a creditor who had effected an attachment if a decree was subsequently obtained in the suit. In that case no doubt it was held that the share would still survive to the other members of the family but only subject to the rights of the attaching creditor. It is unnecessary to consider whether the survivorship is completely lost or lost to the limited extent indicated in that judgment. But it is clear from the Privy Council decision that the cessation of interest of a debtor in consequence of his death would not affect the right of a creditor to have the property sold for the satisfaction of the debt by virtue of the attachment effected by him, that is, the attachment confers upon him a right which could not be put an end to. If this is the view taken in relation to the cessation of interest in consequence of the death of a member, it follows that the right acquired by the attaching creditor is not a defeasible right and no act of the debtor or any other member of the family which brings about the termination of that interest would operate to the prejudice of the said right. Therefore on the date of the registration of the tarwad as impartible, the petitioner had acquired a right which would entitle him to bring the share of the respondent to sale, and the property of the tarwad in the hands of the other members can only be held by the tarwad subject to the rights of the attaching creditor. The expression 'at any time' in Clause (1) of Section 43 cannot be held to have a retrospective effect so as to defeat the rights of the attaching creditor. The said expression and Clause 4 of Section 43 must be so construed as not to defeat the rights which third parties had acquired before the registration of the tarwad was effected, at any rate, before the application for the registration was made.
Elayat Karthiyayini Kunchi Amma And ... vs Minakshi Amma And Ors. on 18 October, 1935
In Kunchi Amma v. Minakshi Amma (1935) 70 M.L.J. 114 : I.L.R. 59 Mad. 693, the view was expressed that if a member of a family expresses his intention to become separated from the family the intention so expressed would operate as severance of status from the family and the subsequent registration of the tarwad as impartible would not prevent the disposal of his interest by him as his separate property; otherwise the construction of Section 43 would render the right granted under Section 38 illusory. The language of Section 43, Clause 4 lends support to this view. What it says is, it is only on registration that the provisions of Ch. VI will not apply, that is, until registration the rights of a tavazhi under Section 38 would not be affected and if such rights were exercised and the law attaches to such exercise certain legal consequences, they cannot be rendered nugatory by the subsequent registration.
C.K. Ramaswami Goundan vs Muthu Velappa Gounder And Ors. on 18 September, 1922
2. A preliminary objection has been taken by Mr. Govinda Menon that this order is not liable to be revised under Section 115, Civil Procedure Code, on the ground that no question of jurisdiction is involved in the case. It seems to us that the lower Court acted illegally in declining to exercise its jurisdiction by refusing to further proceed with the execution and order sale in pursuance of the attachment. Both the lower Courts fell into error in thinking that by virtue of Section 46 once the registration of the tarwad is effected, the Court has no jurisdiction to proceed with the execution. The petitioner was not questioning the finality of the order of registration. The question is whether in spite of registration the creditor in pursuance of the attachment is not entitled to bring the property to sale. Where a Court taking a wrong view of the law assumes jurisdiction or declines to exercise jurisdiction, it will be a matter for interference under Section 115, Civil Procedure Code. Vide Ramaswami Goundan v. Muthu Velappa Gounder (1922) 44 M.L.J. 1 : I.L.R. 46 Mad. 536 .