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Amarsang Mavsang Vs. Jethalal Maganlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 599 of 1907
Judge
Reported in(1908)10BOMLR1201
AppellantAmarsang Mavsang
RespondentJethalal Maganlal
Excerpt:
.....decree holder in execution of his decree applied for the attachment and sale of a toda giras allowance which the imlgment-debtor was entitled to receive periodically from the govermnent treasury, and which was to become payable to him during the twenty years following the application. the lower courts held that the life-interest of the holder, computed at its valuation for twenty years, could be attached and sold in execution of the decree :-;reversing the order, that it is clear from the language of p. 5 of bombay act vii of 1887, that it is not the life interest of the judgment-debtor in a toda giras allowance but something short of it that is allowed by the'act to be attached.;the words ' money likely to become due ' must be restricted to the case where, for instance,..........having obtained a decree for money against the appellant, applied for its execution by sale of the toda giras allowance which the appellant was entitled to receive periodically from the mamlatdar's cutcherry at mehmadabad. the specific prayer in the application was the attachment and sale of the allowance which was to become payable to the appellant during the twenty years following the application. the appellant resisted the prayer upon the ground that the allowance could nut be attached and sold, whether under section 266 of the code 0f civil procedure or under section 5 of bombay act no. vii of 1887. this objection to the attachment and sale has been disallowed by both the courts below.2. section 5 of bombay act vii of 1887 enacts that ' no toda giras allowance shall be liable to.....
Judgment:

Chandavarkar, J.

1. The respondents, having obtained a decree for money against the appellant, applied for its execution by sale of the toda giras allowance which the appellant was entitled to receive periodically from the Mamlatdar's Cutcherry at Mehmadabad. The specific prayer in the application was the attachment and sale of the allowance which was to become payable to the appellant during the twenty years following the application. The appellant resisted the prayer upon the ground that the allowance could nut be attached and sold, whether under Section 266 of the Code 0f Civil Procedure or under Section 5 of Bombay Act No. VII of 1887. This objection to the attachment and sale has been disallowed by both the Courts below.

2. Section 5 of Bombay Act VII of 1887 enacts that ' no toda giras allowance shall be liable to attachment or sale in execution of a decree, provided that any money due or likely to be come due to a judgment debtor on account of a toda giras allowance may be attached in execution of the decree against him but such attachment shall not affect any money which becomes due on account of such allowance after such judgment-debtor's death.' The words ' likely to become due' in this section have been construed by both the lower Courts to apply to the life-interest of the holder of a toda giras allowance. Accordingly they have held that such life-interest, computed at its valuation for twenty years, can be attached and Bold in execution of a decree against the holder.

3. The difficulty in accepting this view of the lower Courts lies in the difference in point of language between Section 5 and the preceding section The latter (Section 4 of the Act) provides that 'no mortgage, charge or alienation of a toda giras allowance, or any part thereof, or of any interest therein, by any recipient of the same, shall be valid as to any time beyond such recipient's natural life.' That is, a private alienation by the recipient shall be valid to the extent of his life-interest but not beyond it. If the Legislature had intended the same to be the case as regards an alienation by way of attachment and sale in execution of a decree, similar phraseology would have been used in Section 5. Nothing could have been simpler in that case than for the Legislature to have said in Section 5 that such attachment and sale shall not be valid beyond the natural life of the holder of the allowance. But so far from using any such language, which would have been apt to show that that was their intention, the Legislature have used language in the enacting part of Section 5 which prohibits in absolute terms the attachment and sale of a toda giras allowance in execution of a decree; and then in the proviso which follows they make an exception in the case of ' moneys due or likely to become due' to the judgment-debtor. But even as to such moneys the groviso says that the right to attach and sell in execution of a decree shall fail if they become due on account of such allowance ' after such judgment-debtor's death.' The meaning of this is obvious. Suppose, to take one of several cases that might be put in illustration, during the life-time of the judgment debtor, a sum of money is directed by the Collector to be paid to him on account of a toda giras allowance not immediately but on a date subsequent to the date of the order of direction; the judgment-debtor, however, dies before that date. Now, under the ordinary law, notwithstanding the death, when the date fixed for payment arrives, the money would become payable to the estate of the deceased as part of his assets, and it could be attached in execution of a decree against him, as a portion of his life-interest in the allowance. But the proviso to Section 5 alters the ordinary law and provides that even in such a case there shall be no attachment.

4. It seems clear from this language of Section 5 that it is not the life-interest of the judgment-debtor in a toda girae allowance but something short of it that is allowed by the Act to be attached. The words ' money likely to become due' must, therefore, be restricted to such a case as the one we have mentioned above in illustration and other cases of a similar character. Under what circumstances money is likely to become due on account of a toda giras allowance is a question which cannot be answered exhaustively and must depend on the facts of each case as it arises.

5. For these reasons we must reverse the decree appealed from and remit the present darkhast for disposal according to law with reference to the forgoing observations. Costs to abide the result.


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