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Official Receiver, Nellore Vs. Chepur China Venkayya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. No. 75 of 1956
Judge
Reported inAIR1960AP353
ActsProvincial Insolvency Act, 1920 - Sections 28(5); Code of Civil Procedure (CPC) , 1908 - Sections 60(1)
AppellantOfficial Receiver, Nellore
RespondentChepur China Venkayya
Appellant AdvocateJ.V. Suryanarayana, Adv.
Respondent AdvocateI. Panduranga Rao, Adv. for ;R. Venkatasubba Rao and ;P.R. Madhava Rao, Advs. and ;I.V. Butchiramayya, Adv.
DispositionAppeal dismissed
Excerpt:
.....60 (1) (n) of code of civil procedure, 1908 - rights in property granted to maintenance holder in lieu of maintenance of respondent - whether property subject to attachment under section 28 (5) of act of 1920 or exempted under section 60 (1) (n) of code - legislature intended to ensure certain minimum property and income while enacting section 60 of code - attachment will defeat very purpose of section 60 - held, property exempt from exemption. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi..........regard to the language of section 60, sub-section (1) clause (n).it only refers to the right to future maintenance without any reservation in the case of that right when it is based on contract, as distinguishable from a light based on the personal law of the individual.i regret i am unable to accept that the distinction sought to be relied on by that decision could make any difference. on the other hand, in the decision reported in air 1935 mad 848, i find observations to the effect that when sub-section (d) of section 6 of the transfer of property act is read in conjunction with section 60 c. p. c. it will be seen that any such interest cannot be the subject of an attachment.the right that came up for consideration was the widow's right to live in a portion of the family house which.....
Judgment:

Sanjeeva Row Nayudu, J.

1. This appeal is directed against the judgment and order of the District Judge's Court, Nellore dated 11-11-1955 confirming the judgment and order, of the Subordinate Judge's Court, Nellore, which dismissed the application, filed by the appellant herein, claiming to set aside the relinquishment deed executed by the insolvent in the case under Section 53 of the Provincial Insolvency Act.

2. The learned Subordinate Judge took the view that the property covered by the relinquishment deed as well as the portion of the family house which was given to her as her residence did not vest in the Official Receiver, as it is an exempted item under Section 28, clause 5 of the Provincial Insolvency Act, read with Section 60 C. P. C. as the property was given to the insolvent in lieu of maintenance. This decision was confirmed on appeal by the District judge of Nellore, who took the view that the property given in lieu of maintenance is exempt from attachment and that even otherwise, the relinquishment in favour of the respondent by the insolvent could not have been in fraud of the insolvent's creditors.

In support of the first proposition he placed reliance on the decisions in Mumsami Naidu v. Animani Animal, 15 Mad LJ 7 and Karupatti v. Singaravelu Piilai, AIR 1935 Mad 848 which lay down that the immovable property given for the maintenance of a Hindu woman is restricted to the enjoyment of the income alone and that such a right could not be alienated by way of sale etc., and that consequently the same is not liable to be attached in execution of 8 personal decree against a maintenance holder.

3. The learned counsel for the appellant placed reliance on two decisions ; Covinda Pilfai v. Meenat-chi Achi, 22 Mad LJ 204 and Govinda Rao v. N. N. C.T.C. V. Firm, AIR 1935 Mad 815. In the former case, it was held that the land that was given to the second defendant in that case was to be enjoyed by her during her life in lieu of maintenance to which she would be entitled as a Hindu widow, but that what she acquired under her grant was not a right to maintenance but to certain property, or rather the usufruct of that property.

They further held that the produce of the land as it accrued, became at once her property, which she could dispose of in any way she chose, and that being so, it could not be treated as standing on thee same fooling as a right to maintenance, and the crops being her property must be available to answer her debts. It is rather surprising that the learned Judges who decided this case did not discuss in so many terms the scope and application of the earlier decision of a Division Bench of that Court reported in 15 Mad LJ 7 which they may have done, having regard to their consciousness that the judgment in that case lent countenance to the proposition that was accepted by the Subordinate Judge.

They merely distinguished that, stating that that case must be deemed to have been decided on the particular provisions of the instrument that came up for consideration. The decision in AIR 1935 Mad 815 drew a distinction between a personal light of maintenance based on the personal law of the maintenance holder, and the right of maintenance based on a contract. It is not however clear from the decision how that would make any difference, having regard to the language of Section 60, Sub-section (1) Clause (n).

It only refers to the right to future maintenance without any reservation in the case of that right when It is based on contract, as distinguishable from a light based on the personal law of the individual.

I regret I am unable to accept that the distinction sought to be relied on by that decision could make any difference. On the other hand, in the decision reported in AIR 1935 Mad 848, I find observations to the effect that when Sub-section (d) of Section 6 of the Transfer of Property Act is read in conjunction with Section 60 C. P. C. it will be seen that any such interest cannot be the subject of an attachment.

The right that came up for consideration was the widow's right to live in a portion of the family house which she had obtained by decree against the creditor purchaser of the house. In Venkataiaju v. Sathiraju, AIR 1954 Mad 946 a distinction was sought to be drawn between the selling of a right to future maintenance and the attachment of such maintenance when it became payable, the latter having been regarded in that decision as distinguishable from the category of future maintenance.

The decision seems to proceed on the assumption that right to maintenance should be equated to salary drawn by an officer, which, in part, is exempt from attachment under Section 60, C. P. C. J regret I am unable to subscribe to the proposition laid down in this case that the right to obtain maintenance could be equated, to the right to obtain salary and that the principle that is applicable to attachment of salaries should be applied to payments in lieu of maintenance. In my opinion, these two stand on an entirely different footing, and had the Legislature intended that the same principle that applied to the attachment of salary also applied to cases of future maintenance that accrued, and became maintenance due, they would have expressed so.

The simple point that arises for consideration in this case is whether the property which is granted to a maintenance holder merely in lieu of maintenance with control over the power of disposition thereon, and which property is relinquished in favour of the grantor or his heirs or successors in lieu of payment of maintenance, is subject to attachment and could vest in the Official Receiver, having regard to the provisions of Section 28(5) of the Provincial Insolvency Act read with Section 60(1), (n) of the Code of Civil Procedure.

The mere fact that future maintenance accrues by lapse of time, and becomes, as it were, maintenance due, would not in my opinion become liable for attachment as what is exempted under the Civil Procedure Code is certain property or right, as in this case, the right of future maintenance. Merely because that right develops into a claim, to say that that claim is subject to attachment, would undoubtedly have the result of defeating the very purpose of granting exemption under the section. The principle on which exemption is granted in regard to the rights of future maintenance is that a person who is depending on that right for her maintenance should! not be deprived of that maintenance, as such deprivation would result in starvation. The general policy underlying exemption in Section 60 clearly indicates the anxiety on the part of the Legislature to ensure a certain minimum income or property to the person concerned, so as not to interfere with what is needed for his existence in this world.

4. Having regard to the fact and circumstances of the case, I am satisfied that the judgments of the courts below are correct and the property has been rightly held not to have vested in the appellant so as to be available for distribution to the creditors of the insolvent In this case. The appeal therefore fails and is dismissed with costs. No leave.


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