The judgment established that the interest of a member of a Thavazhi in the Tarwad properties is a heritable right and can be attached in execution of a decree against the member.

1. The plaintiff having obtained a money decree against defendants 1 & 2 attached the second defendant's undivided one-third share in certain properties belonging to her Thavazhi consisting of herself and her two children. The respondent, who is the daughter of the second defendant, preferred a claim under Order XXI, R.58 CPC. objecting to that attachment on the ground that, the Thavazhi being undivided the second defendant has no definite share in the properties liable to be attached in execution. The decree-holder, on the other hand, contended that with the coming into force of the Hindu Succession Act, 1956, every member of a Tarwad has been conceded a heritable right in the Tarwad properties and the same is liable to attachment.

2. The learned Munsiff held:

"It is not disputed that the right of an undivided Hindu in a Hindu family whether Kshatriya or otherwise, will devolve on his heirs on his death. But, to say that the said right is now become definite and determined under the Hindu Succession Act so that he can deal with it, as in the case of tenants-in-common, cannot be accepted without hesitation. Hence, I do not think that the undivided right in the schedule property brought under attachment is alienable at present. Hence the attachment order will not be effective. It is therefore vacated".

3. It is to revise the above said order that the decree-holder has preferred the Civil Revision Petition. When it came up for hearing before a learned judge of this Court, it was referred to a Division Bench; and when it subsequently came up before a Division Bench, it was referred to a Full Bench for decision as the question involved appeared to be one of general importance.

4. It is admitted that the property concerned belongs to the Thavazhi of the second defendant, having been allotted to that Thavazhi in the partition of their tarwad, and that the parties are governed by the Travancore Kshatriya Act, 1108. S.46 of that Act provides:

"46. No alienable or hereitable right until partion. Until partition, no member of a Thavazhi or group in a Tarwad shall be deemed to have a definite share in the Tarwad property. A demand under S.43 or 45, as the case may be, will also constitute a partition for the purposes of this section".

S. 7 (1) of the Hindu Succession Act, 1956, which is contended to have superseded the above provision of the Travancore Kshatriya Act, reads thus:

7 [1]. When a Hindu to whom the marumakkathayam or nambudiri law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the Marumakkathayam or Nambudiri law.

Explanation. - For the purposes of this sub-section, the interest of a Hindu in the property of a tarwad, thavazhi or illom shall be deemed to be the share in the property of the tarwad, thavazhi or illom, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the tarwad, thavazhi or illom, as the case may be, then living, whether he or she was entitled to claim such partition or not under the Marumakkathayam or Nambudiri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely".

A plain reading of the two sections together makes it clear that there is no contradiction or supersession of the former by the latter. All that is enacted in S.7 (1) of the Hindu Succession Act is that when an individual dies, a partition must be deemed to have taken place in his Tarwad immediately before his death and the share that may then be deemed to have fallen to the share of the deceased may be inherited by his heirs. It does not, in any way affect the righ