The main legal point established is the alteration made by Section 38 of the Marumakkathayam Act, conferring the right of partition upon individual members and the creditor's entitlement to seize and sell the separated interest of junior members.

Venkataramana Rao, J.

1. This is an appeal against the order of the learned Subordinate Judge of South Kanara directing attachment of the shares of the petitioners in the property of the tarwad of which they are the junior members in execution of a decree in O.S. No. 37 of 1931 on the file of the same Court obtained against them for their personal debts. The learned Subordinate Judge took the view that whatever might have been the law before the passing of the Marumakkathayam Act of 1933, after the passing of that Act, their interest is attachable by virtue of Section 38 of the said act. This view is canvassed by Mr. Kuttikrishna Menon. His contentions are that under the Marumakkathayam law, by which the appellants are governed, there was no interest of the appellants in the property capable of attachment, that the Act has not in any way effected an alteration of the law in this respect, that the only right which a junior member has is a claim for partition under Section 38 if he fulfils the conditions but not otherwise, and that unless that right is exercised and he obtains the property by virtue thereof, he has no disposable interest therein. To appreciate the contentions, it is necessary to define precisely what the interest of a junior member is in the property of the tar wad to which he belongs and how the Act has effected an alteration in regard to his rights in the said property. Under the Marumakkathayam law no member of a Malabar tarwad has got any definite share but the property of the tarwad is vested in all the members comprising the tarwad. The tarwad is impartible except with the consent of all the members or probably with the consent of the adult members of the family and by reason of this limitation no individual member can alienate the property nor can his interest therein be seized and sold in execution by a creditor for his personal debt. 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 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 and the relevant portion, so far as is applicable to the present case, runs thus:

Section 38. (1) Any tavazhi 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 tavazhi shall claim to be divided from the tarwad during the lifetime of an ancestress common to such tavazhi and to any other tavazhi or tavazhis of the tarwad, except with the consent of such ancestress, if she is a member of the tarwad.

(2) The share obtained by the tavazhi shall be taken by it with the incidents of tarwad property.

Explanation. - For the purpose 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 tavazhi if he or she has no living, female ascendant who is a member of the tarwad.

2. It will thus be seen that a male or female member of a tarwad constituting a tavazhi within the meaning of the explanation is entitled to claim partition and separate from the tarwad. The right of partition is therefore in unambiguous terms conferred upon an individual member who constitutes a tavazhi and it is conceded in this case that appellants 1 and 2 fulfil the conditions imposed by the Explanation and constitute a tavazhi. Therefore on the date of the attachment in question, appellants 1 and 2 were entitled to claim their shares in the proper