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Nageshwar Prasad Singh Vs. Chhotey Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1944All91
AppellantNageshwar Prasad Singh
RespondentChhotey Lal and ors.
Excerpt:
- - although he mentioned his allowance in his list, he clearly stated that it was not liable to attachment, and therefore it should have been excluded from the list altogether. the allowance was to be paid after the death of ram chander singh to his male progeny generation after generation provided they were of good conduct and fine character. this allowance was an annuity like any other and there was no reason why it should not be transferred......the right was heritable, but it cannot be deduced from the fact that a heritable right cannot be a right to maintenance that a right which is not heritable must necessarily be a right to maintenance. the real question is what 'maintenance' means. i think it means the provision of reasonable food, clothing and shelter. a right to receive an allowance is not strictly speaking a right to maintenance although an allowance may be paid in lieu of a right of maintenance. in my judgment if any person has a right of maintenance against another he has a right to demand from that other all reasonable food, clothing and shelter. he may accept an allowance in lieu of this right so as to provide himself with these necessities, but there must be a right to be maintained before an allowance can be.....
Judgment:

Allsop, J.

1. We have before us two connected appeals, one of which purports to be a first appeal from an order, No. 90 of 1941 and the other a regular first appeal, No. 65 of 1942. The two appeals arise out of proceedings under the Encumbered Estates Act. The applicant under the Act was Thakur Nageshwar Prasad Singh. He was required under the provisions of Section 8 of the Act to give a list of his property including property which was liable to attachment and sale under Section 60, Civil P.C., 1908. He mentioned in his list that he was entitled to receive an allowance of Rs. 500 a month from certain trustees appointed under the will of his mother's father but appended a note that this property was not liable to attachment under the provisions of Section 60, Civil P.C., because it amounted to a right to future maintenance. It appears that part of the landed property belonging to the applicant had been mortgaged to Rai Bahadur Chhotey Lal. The application under the Encumbered Estates Act was filed on 26th October 1936. On 23rd December 1936, Rai Bahadur Chhotey Lal transferred his mortgagee rights to his son. The son made an application on 18th December 1939, under Section 10, Encumbered Estates Act, in which he alleged that he was the creditor entitled to receive the amount due from the applicant under the terms of the mortgage and also asserted that the allowance to which I have already referred was attachable under the provisions of Section 60, Civil P.C. The son made another application, No. 109 C, on 31st July 1940, in which he asked the Court to publish in the gazette a notice to the effect that this allowance was attachable. This application and the reply to it were placed before the Court on. 19th September 1940, together, it appears, with the applications of the various creditors under Section 10, Encumbered Estates Act. The Court framed two issues, namely, (1) whether this allowance was attachable and (2) what amounts the applicant was liable to pay to the various creditors. The learned Judge directed that issue 1 should be tried as a preliminary issue because, if it was decided in favour of the creditors, it would be necessary to publish a notice in the gazette that the allowance was attachable. This issue was decided on 8th November 1940. The learned Judge held that the allowance was attachable and consequently directed that a notice to that effect should be published in the gazette. The notice was in fact published on 7th December 1940 and the case came before the Court again in March 1941. The Court then mentioned that there had been no claims under Section 11, Encumbered Estates Act, that issue 1 had already been decided by him on 8th November 1940 and that he found that certain sums were due to various creditors including the son of Rai Bahadur Chhotey Lal. Kunwar Nageshwar Prasad Singh had already by that date filed the appeal which is F.A.F.O. No. 90 of 1941, against the order of 8th November 1940. After the final order was passed he filed the other appeal, namely, First Appeal No. 65 of 1942, against that order. In both appeals he raised the question whether the allowance was attachable.

2. Rai Bahadur Chhotey Lal's son has raised a preliminary objection to first appeal from order No. 90 of 1941 upon the ground that he has not been impleaded as a respondent in that appeal. His contention is that the order operated as a decision under Section 11, Encumbered Estates Act, in his favour and that the period of limitation for an appeal against him has expired. He has urged that the decision is now final in so far as he is concerned and that it is no longer open to the Court to decide that the property is not attachable under Section 60, Civil P.C., because such a decision could not operate against him and consequently could have no effect in the proceedings before the Collector for the attachment and sale of property. It is admitted that Rai Bahadur Chhotey Lal's son is a party to the other appeal in which the same point is raised. It is also urged that the question about the liability of the allowance to attachment could not be raised in First Appeal No. 65 of 1942, because that is an appeal against a decision about the debts under Section 14, Encumbered Estates Act, and has nothing to do with the question about the property which was liable to attachment, a question which should be decided under the provisions of Section 11, Encumbered Estates Act.

3. If the learned Judge of the Court below had properly understood the provisions of the Encumbered Estates Act, I think he would have decided the question whether the allowance was attachable under the provisions of Section 11 of the Act. The applicant under the Act had to give a list of his property which a was liable to attachment. Although he mentioned his allowance in his list, he clearly stated that it was not liable to attachment, and therefore it should have been excluded from the list altogether. It was then open to any creditor to make an application under Section 10 of the Act and to state in that application that the property should be included in the list. Rai Bahadur Chhotey Lal's son did comply with this provision of the Act in his application of 18th December 1939, but no notice under Section 11 was in the first place issued in accordance with that application as it should have been. The learned Judge seems to have decided to consider first in a preliminary way whether there was any force in the claim that the allowance was attachable. He considered the matter and gave his opinion in his order of 8th November 1940. It was only after he had come to this preliminary decision that he published a notice in the Gazette that this property was liable to attachment and thereafter it appears that no claim was under Section 11 by the applicant under this Act, that is, the appellant before us. Strictly speaking, the appellant should have put in a claim that the property was not liable to attachment, but it is clear that he had raised the issue and that it was the intention of the learned Judge to decide it. In the circumstances there was no necessity for the appellant to file F.A.F.O. No. 90 of 1941, against the decision on what the Judge obviously considered was a preliminary issue. He was entitled to wait till the matter was finally decided. Strictly speaking, the present appellant should, as I have said, have made a formal claim after the issue of the notice in the Gazette on 7th December 1940, but the parties and the Court were aware that the present appellant and some of the creditors were in issue upon this point. In these cir-circumstances, I think that we should hear the appeal upon the merits and that the preliminary objection should be overruled.

4. The substantial question whether the allowance is attachable and consequently is part of the property against which the Collector can proceed depends upon the questions whether the allowance is saleable and whether it is exempted from attachment on the ground that it is paid in consideration of a right to future maintenance. The questions are substantially the same because it has been urged that the allowance is not transferable under the provisions of Section 6(dd), T.P. Act, which says that a right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred. The question then in issue before us is whether the right to get this allowance amounts to a right to future maintenance. The appellant's maternal grandfather transferred his property by will to certain trustees and directed them to pay his wife during her lifetime a sum of Rs. 200 per month for her expenses and after her death to pay that sum to the appellant whose other name is Ram Chander Singh. By a subsequent codicil he directed that this allowance should be fixed at Rs. 500 a month instead of Rs. 200 a month. The allowance was to be paid after the death of Ram Chander Singh to his male progeny generation after generation provided they were of good conduct and fine character. In the original will the allowance to Ram Chander Singh was to be decreased to Rs. 50 a month if he indulged in loose living, but it is not certain whether that provision would be operative after the execution of the codicil. Learned Counsel for the appellant has alleged that the allowance was intended entirely for the maintenance of Ram Chander Singh. He relies upon the preliminary observations in which the testator stated that it was necessary for him to provide for the maintenance of his wife and Nageshwar Prasad Singh alias Ram Chander Singh and has argued that no allowance which is intended for the maintenance of any person is liable to attachment. The learned Judge of the Court below held that this allowance was liable to attachment because it was to be inherited by the appellant's male progeny. Learned Counsel for the appellant replies that there was no question of inheritance but that the trustees were to pay the allowance to Ram Chunder Singh and afterwards to his male progeny quite in-dependently. It does not seem to me that this question of inheritance is of much importance. It was held in Ashfaq Mohammad Khan v. Mt. Nazir Banu ('42) 29 A.I.R. 1942 Oudh 410 and in Chuni Lal v. Jai Gopal ('36) 23 A.I.R. 1936 Lah. 55 that the right to receive an allowance did not amount to a right to future inheritance because the right was heritable, but it cannot be deduced from the fact that a heritable right cannot be a right to maintenance that a right which is not heritable must necessarily be a right to maintenance. The real question is what 'maintenance' means. I think it means the provision of reasonable food, clothing and shelter. A right to receive an allowance is not strictly speaking a right to maintenance although an allowance may be paid in lieu of a right of maintenance. In my judgment if any person has a right of maintenance against another he has a right to demand from that other all reasonable food, clothing and shelter. He may accept an allowance in lieu of this right so as to provide himself with these necessities, but there must be a right to be maintained before an allowance can be claimed in lieu of it. There is nothing in the will which suggests that the trustees were under any obligation to maintain Ram Chander Singh. They were under an obligation merely to pay him a fixed allowance from month to month. Learned Counsel has referred to the case in Anirudha Mitra v. Official Receiver : AIR1942Cal241 . If the learned Judge in that case meant to hold that the question whether the right to receive an allowance was a right to future maintenance depended upon the intention of the person granting the allowance that it should be spent on the upkeep of the person receiving it I am with the greatest respect unable to agree. The amendment to4he Transfer of Property Act by the insertion of Clause (dd) in Section 6 makes it clear that the right of maintenance mentioned therein is not a right which accrues merely under some personal law but there must still be a right of maintenance if the provisions of the sub-section are to apply. It does not appear from the will that the trustees were under any obligation to maintain Ram Chander Singh and therefore in my opinion no question of a right to future maintenance arises. This allowance was an annuity like any other and there was no reason why it should not be transferred. In the same way it does not seem to me that it can be included within the exemption provided by Clause (m) of Section 60, Civil P.C. I consider that there is no force in these appeals and I would dismiss them with costs.

Hamilton, J.

5. I agree.

6. These appeals are dismissed with costs.


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