1. The question on this first appeal is whether the interest o! Irawa, a Hindu widow, under the agreement, Exhibit 28, can be attached in execution of the decree against her and others in this suit. The learned Judge following the decision of Sir Charles Sargent and Mr. Justice Nanabhai in Diwali v. Apaji Ganesh (1886) 10 Bom. 342 has held it cannot be attached. The appellants seek to distinguish that decision, because it was before the Transfer of Property Act came into operation in this Presidency. Alternatively they say it was wrong.
2. Now Section 60 of the Civil Procedure Code states what property is liable to attachment of sale in execution, viz., 'lands...and, save as hereinafter mentioned, all other saleable property...belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit.... Provided that the following particulars shall not be liable to such attachment or sale, viz...(n) a right to future maintenance'.
3. In Diwali v. Apaji Ganeh (1886) 10 Bom. 342 which was also the case of a Hindu widow, it was held in effect that the restriction on alienation contained in. the document of compromise then under consideration prevented her having a disposing power, and that consequently her interest could not be attached. It was, therefore, unnecessary to consider whether her interest under that document amounted to a 'right to future maintenance' within the meaning of Sub-section (n).
4. In the present document of compromise, Exhibit 28, the restriction on alienation is equally if not more emphatic than in Diwali v. Apaji Ganesh (1886) 10 Bom. 342. It runs:
I have taken for myself the property for the period of my life-time. I alone shall pay Judi...and I shall go on making Vahivat. I shall not sell or mortgage or give it on self-reducing mortgage or give it as present or in any manner give it into the possession of others. If I do so, it will not he valid.... After my death, the said minor alone is owner of the said property.
5. In my judgment, this restriction on alienation prevents the judgment-debtor from having a 'disposing power' within the meaning of Section 60, and consequently, if that restriction is valid, the property cannot be attached.
6. Stopping there, therefore, I am of opinion that the learned Judge was right in following Diwali v. Apaji Ganesh (1886) 10 Bom. 342. I may add that this decision was followed, in Munisami Naidu v. Ammani Animal (1904) 15 M.L.J. 7 where by a slip the word ' not ' has been omitted from the head-note.
7. Turning next to the Transfer of Property Act, the appellant contends that under Section 10 in Chapter II the above restriction on alienation is invalid. The respondent relies on Clause 6(d) which enacts that 'an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him'. He also relies on Section 2(d) which provides that 'nothing in the second Chapter...shall he deemed to affect any rule of Hindu...law '.
8. It is stated in Shepherd and Brown's Commentary (7th Edition) on the Transfer of Property Act at page 42:
It may in some instances he difficult to mark the distinctions between holdings to which...[Section 6 (()] may apply and Cases falling under Section 10, in which it is attempted to fetter the transferee's power of alienation. A right to future maintenance cannot be attached in execution of a decree. And it seems clear that such a right enjoyed by a Hindu widow cannot be made the subject of a sale or other transfer by her, since the right exists for her personal benefit only. It may be doubted even whether she can effectually transfer her interest in property allotted to her for maintenance.
9. In my opinion it is clear that Section 6(d) recognises that an interest in property may be validly created which is restricted in its enjoyment to the owner personally. The Act says the owner cannot transfer such an interest; but if the restriction 'was invalid, it would follow that he would be able to do so. Accordingly in considering Section 10, one has to see that it clearly applies to any particular document. Have we then in the present case any property 'transferred subject to a condition or limitation absolutely restraining the transferee...from disposing of her interest '? Section 5 defines 'transfer of property' as meaning 'an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and to ' transfer property is to perform such act'.
10. Now in the present case one must bear in mind the circumstances under which Exhibit 28 came into operation. The widow was claiming a Hindu widow's estate in all the lands on the allegation of a separation of interest. The minor on the other hand claimed that she was only entitled to maintenance because the lands had remained joint. The compromise arrived at was that the widow was to have a restricted life interest in certain lands, and the minor was to take the rest of the lands and the reversion in the former lands. Prima facie, therefore, it would seem quite natural to restrict the widow's power of alienation and so prevent the possession or management passing out of the family.
11. But where do we find in this document a transfer from A to B What the widow says is that she has taken for herself the suit property for the period of her lifetime; and the subsequent covenants by her make it clear that all she is intended to have is an interest in the property restricted in its enjoyment to herself personally. Bat that is the very type of interest referred to in Section 6(d). The deed does not expressly purport to transfer or convey anything. Nor does it decide the original point in dispute. She is to have the lands for a certain limited interest. This interest is less than that of a Hindu widow's estate, which she claimed, but it is more than the bare right to maintenance which was all the minor was prepared to allow her. In my opinion, therefore, there was no such 'transfer' here as is mentioned in Section 10.
12. Nor is this any fanciful distinction. In English law, for instance, there is a clear distinction drawn between an absolute gift followed by an attempted restriction on alienation, and a gift to a man of an interest determinable on alienation. The distinction between these two classes of cases is set out in Wace on Bankruptcy, pp. 182 and 188, the latter class of interest being a valid one. The learned author proceeds at p. 183:
But a proviso for cesser on bankruptcy or alienation, without an express gift over, may be part of the original gift ; and there are numerous decisions, chiefly on wills, that a gift of real or personal estate to A for life, with remainder over arid a proviso that if A should attempt to assign, &c;, his life interest should cease, in read as a limitation to A during his life, or until he should attempt to assign, and upon that event over, and is valid accordingly.
13. Similarly in In re Detmold (1889) 40 Ch. D. 585 Mr. Justice North at p. 588 said:
It is said that a gift over of a man's own property in the event of Ins bankruptcy is void, and no doubt that is so. But it has been held that a gift over in the event of a voluntary assignment by him is valid. This was established by Brooke v. Pearson (1859) 27 Beav. 181 and Knight v. Browne (1861) 9 W.R. 515 and I think the principle of those decisions applies to an involuntary alienation by operation of law in favour of a particular creditor.
14. Or again in the Transfer of Property Act itself we find in Sections 12 and 31 instances of invalid and valid limitations on a transfer of a particular interest. I only quote these instances to shew that Section 10 cannot be taken merely by itself, but must be construed strictly, and that it must not be used to defeat well-recognized provisions. In the present case I am dealing with a Hindu widow, and it seems to me that the restrictions placed upon her powers in the present case were very natural ones.
15. In Kuldip Singh v. Khetrani Koer (1898) 25 Cal. 869 there was a compromise of a dispute between a Hindu widow and other members of the joint family. Under the compromise she was given possession for her life on account of maintenance of her husband's share in the property, and then followed a clause which I construe as a restriction on alienation. It provided that if the widow took or executed any sort of a document, it would be null and void. It further provided that both parties might execute a document, but any document not consented to by both parties should be null and void. Subsequently the lady alone executed a lease for eleven years, and it was claimed that the execution of that lease was a breach of the covenant. The Court of first instance held that the covenant was Invalid, but on appeal this decision was set aside, and the judgment of the High Court proceeded (p. 871):
We are unable to follow the reasoning upon which he [the Judge] comes to that conclusion. Admittedly there is nothing in any statute law which renders such a provision inoperative'. Sections 10 and l5 of the Transfer of Property Act have no application here ;' and we are unable to see any principle underlying those sections which can be applied to the present case, or that there was any sort of absence of equity in an arrangement of this kind. This was a settlement of a dispute, and effect should be given, as far as possible, to every portion of it. It is not at all an unreasonable provision that reversioners giving up their claim and allowing a Hindu widow to remain in possession of their property should wish to retain supervision over it and to prevent any acts on her part which might cause injury to their reversionary rights. A provision of this kind is not only not contrary to law, but is one which might reasonably be made in common prudence by reversioners. There being admittedly nothing in law to show that this covenant is illegal, effect must lie given to it.
16. It was contended before ns that the covenant in that case did not amount to a restriction on alienation, but in my opinion that argument is erroneous.
17. The distinction between a compromise and an alienation or transfer is further exemplified by Lord Moulton in Musammat Hiran Bibi v. Mnsammat Sohan Bibi 18 C.W.N. 929 to which my learned brother has drawn my attention.
18. In the result, therefore, I am of opinion that Exhibit 28 was a compromise under which the widow was to remain in the personal enjoyment of Certain lands for the term of her life, and that it did not amount to a 'transfer of property' within the meaning of Section 10 of the Transfer of Property Act.
19. In that view of the ease, it is unnecessary for me to consider whether the compromise is not also protected by Clause 2(d) of the Transfer of Property Act, which provides that nothing in the second Chapter of the Act is to be deemed to affect any rule of Hindu law. Nor need I consider whether the document is merely a right to future maintenance within the meaning of Section 60(n) of the Civil Procedure Code, or whether as indicated in Govinda Pillai v. Meenatchi Achi (1911) 22 M.L.J. 204 what the widow acquired was a right not to maintenance but to certain property or rather the usufruct of that property. In this latter case the property attached consisted of standing crops only and not of an interest in future as well as present income as in the present case. So, too, Sundar Bibi v. Rajinder Narain Singh (1921) 19 A.L.J. 648 depends on the effect of Section 60(n).
20. Another authority cited to us is Gulab Knar v. Bansidhar (1893) 15 All. 371 where Mr. Justice Knox held that the interest of a widow in certain lands assigned to her in lieu of her maintenance allowance could not be attached. But on appeal in Bansidhar v. Gulab Kuar (1894) 16 All. 443 the point was left open, (see p. 449), as it was held that no appeal lay.
21. In my judgment, therefore, on the true construction of the particular document we have to deal with, viz., Exhibit 28, there is nothing in the Transfer of Property Act or otherwise which invalidates the restriction on alienation. Consequently, in my opinion, the decision of the learned Judge was right and this appeal ought to be dismissed with costs.
22. In this appeal two points have been urged:
(1) that defendant No. 2 had a power of disposal over the usufructuary interest of the lands, within the meaning of section GO, Civil Procedure Code, and that Diwaii v. Apaji Ganesh (1886) 10 Bom. 342 does not apply or in any case was wrongly decided;
(2) that the case does not fall under Clause (n) of Section 60, viz., a right to future maintenance.
23. As to (1) it is urged that the restrictions against alienation in Exhibit 28 are void under Section 10 of the Transfer of Property Act, and that this section applies (notwithstanding the last para. of Section 2 of the Act) because there is no rule of Hindu law against a widow alienating her life-interest, as is indeed recognised by Sargent C.J. in Diwali v. Apaji Ganesh (1886) 10 Bom. 342 where he says a Hindu widow's estate has long been held to be trausferable.
24. In my opinion, the answer to this is that Exhibit 28 'is not a 'transfer' of property as defined in Section 5 of the Act, so as to fall under Section 10, but is a compromise or family arrangement to which the Courts should give effect, notwithstanding that a party may thereunder receive a less interest than he or she would ordinarily have under Hindu law.
25. The basis of defendant No. 2's title under Exhibit 28 is not a conveyance by a person having an admittedly good title to convey, but a compromise of conflicting claims. The distinction is pointed out by Lord Moulton in Musammat Hiran Bibi v. Musammat Sohan Bibi 18 C.W.N. 929 where the compromise was held not to be an alienation but a family settlement, in which each party took a share of the family property by virtue of independent title which was to that extent and by way of compromise admitted by the other parties.
26. As instances, where the Privy Council have recognised the validity of such compromises in spite of their deviating from the strict rights of the parties, I may refer to Khunni Lal v. Gobind Krishna Narain (1911) 33 All. 356 where the High Court wrongly held there was an alienation; Lekhraj Kunwar v. Harpal Singh (1911) 34 All. 65 where there was a change of the impartible character of the estate; Brijraj Singh v. Sheodan Singh (1913) 35 All. 3337 where the compromise was upheld though there was an. unequal partition among three sons; and Kanhai Lai v. Brij Lal (1918) 40 All. 487 where the compromise was upheld, though the last male owner deprived himself: of his right to claim as a reversioner against a Hindu widow.
27. The Courts lean in favour of such family arrangements (Halsbury's Laws of England, Vol. XIV, Article 1230, p. 546; Chabildas v. Ramdas (1909) 11 Bom. L.R. 606; Ramdas v. Chabildas : (1910)12BOMLR621 As long ago as 1869, this Court acted on the same principle: see Abubekar Hagada Hajisaba v. Maibibi and Sidi Saheb (1869) 6 Bom. H.C. 77.
28. Therefore, I agree with my learned brother that Section 10 oE the Transfer of Property Act does not apply to the case: cf. Kuldip Singh v. Khetrani Koer (1898) 25 Cal. 869.
29. The settlement was a reasonable one. The minor had reversionary rights under Exhibit 28, and it was proper to restrict the widow from alienating or parting with possession, which might entail litigation after her death. Nor has the widow herself objected to this restriction. On the contrary she relies on it in her opposition to the Darkhast.
30. I think, therefore, the lower Court rightly held that defendant No. 2 had no power of disposal over the usufructuary interest of the lands. At most ail that she can dispose of is actual usufruct in hand (e.g. a standing crop), and she has no power to dispose of future usufruct, which would, in effect, be a disposal of the corpus of the property. Consequently she has no disposing power over the lands sought to be attached, or the future profits thereof winch it is impliedly sought to attach by the attachment of the lands.
31. I think also that the reasoning in the penultimate para, of the judgment in Diwali v. Apaji Ganesh (1886) 10 Bom. 342 applies exactly to this case, and should be followed. That case was also one of a compromise.
32. It is unnecessary to go into the question whether the interest sought to bo attached is 'a right to future maintenance' within the meaning of Section 60(n).
33. I concur, therefore, that the appeal should be dismissed with costs.