Harnam Singh, J.
1. By this order I dispose of Regular First appeal no. 195 of 1951 and the cross-objections arising therefrom.
2. Shrimati Santi instituted Civil Suit No. 147 of 1948 on the 1st of April, 1948. In that suit Shrimati Santi claimed possession of shop No. 148 situate in Bartanganj, Moga Mandi, and for the recovery of rupees 2,400/- on account of arrears of maintenance for the past year. In the alternative Shrimati Santi claimed in that suit maintenance at the rate of rupees 200/- per mensem for life and a charge on shop No. 148 for the -payment of that maintenance.
3. In resisting the suit the defendants raised pleas which gave rise to the following issues on merits:
'1. Was Budh Rani not a member of the joint Hindu family of the defendants at the time of his death?
2. Is the shop in dispute joint family property?
3. Did Ganga Ram create a charge on the shop for the maintenance and residence of the plaintiff?
4. What is the amount of the maintenance due to the plaintiff per mensem?
5. Is the plaintiff erxtitled to a charge for that maintenance on the shop in suit and is she entitled to residence in the shop?
6. Is the plaintiff entitled to arrears of maintenance and at what rate?
7. Did Ganga Ram execute a Will and a mortgage with regard to the shop in dispute?
8. Can the plaintiff challenge the Will and the mortgage?
9. If so, were the Will and the mortgage valid so as to defeat the right of the plaintiff for maintenance and residence?
10. Are the defendants liable for payment of maintenance to the. plaintiff, if issue No. 1 is proved and issue No. 2 not proved?
11. Otherwise are the defendants not liable for the payment of the plaintiff's maintenance?
12. Was the Will made when he was of sound disposing mind?'
4. In deciding civil suit No. 147 of 1948 the Court of first instance has found:
(a) that Budh Ram was member of the joint Hindu family at the time of his death;
(b) that the shop in dispute was joint family property;
(c) that Ganga Ram had not created any charge for the plaintiffs maintenance on shop No. 148;
(d) that the maintenance fixed for the plain-,tiff should be a charge on shop No. 148;
(e) that the sum of rupees 480/- was payable to the plaintiff on account of arrears of maintenance;
(f) that the sum of rupees 480/- payable to the plaintiff on account of arrears of maintenance;
(g) that in view of the admission of the defendants that they were liable to maintain the plaintiff it was not necessary to give a finding whether the will, Exhibit D. 2, was made by Ganga Ram when he was of sound disposing mind;
(h) that the plaintiff has right to challenge the factum and validity of the Will and the mortgage;
(i) that the mortgage deed, Exhibit D. 1, was valid and binding; and
(j) that neither the Will nor the mortgage were effected with the intent on to defeat the plaintiff's right of maintenance or residence.
5. In dismissing the plaintiff's suit with regard to the possession of the shop the Court of first Instance has awarded maintenance to the plaintiff at rupees 40/- per mensem and granted her decree for rupees 480 on account of arrears of maintenance charging future maintenance on the shop in suit. In the decree it is stated that the charge of Shrimati Santi on the shop would be subject to the mortgage, Exhibit D. 1 made by Ganga Ram.
6. From the decree passed in civil suit No. 147 of 194S Shrimati Santi appeals under section 96 of the Code of civil Procedure while the 'defendants cross-object.
7. In order to appreciate the points that arise for decision, it is necessary to set out the pedigree-table of the parties. That pedigree-table is as under:
| | | |
Budh Ram = Sudh Ram Bansi Ram Kanshi Ram
(Defdt. No. 1) (Defdt. No. 2) (Defdt. No. 3)
Mst. Santi | |
widow | |
| | |
Banarsi Das Lal Chand |
Defdt. 4 Defdt. 5 |
| | |
Nauhria Mal Lahori Mal Kehar Chand minor
(Defdt. 6) (Defdt. 7) (Defdt. 8)
8. Mr. Madan Lal Sethi appearing for the plaintiff-appellant urges that the Court of first instance was in error in dismissing the suit of the plaintiff for possession of shop No. 148. In arguments reliance is placed on the memorandum, Exhibit P. 17, made on the 4th of June 1925, by Ganga Ram.
9. Now, the memoradum, Exhibit P. 17, so far as material to the question that arises for decision in Regular First Appeal No. 195 of 1951 reads:
'I and Mussummat Santi, widow of Budh Ram shall remain in possession of shop No. 148, situate in Moga Mandi, in equal shares. After my and Mt. Santi's death, it shall be jointly owned by the three brothers, namely, Sudh Ram, Bansi Ram and Kanshi Ram. When any one of us dies, the other shall receive the rent. The brothers shall not hold any share therein till any one of us remains alive.'
10. In -- 'Sailendra Nath v. Hade Kaza', AIR 1932 Cal 356 (A), Mukherji and Guha JJ. said:
'Immovable property as defined in the Registration Act, Section 2, Clause (e) includes 'any other benefit to arise out of land. The assignment of future rents, that is to say, of rents to arise in future and not of rents which had already accrued due: see -- 'Mangalaswaml v. Subbiah Pillar, 34 Mad 64 (B), and consequently registration of the assignment was compulsory.'
11. In -- 'Bai Parsan v. Lallunbi Vandra-bandas', AIR 1932 Bom 217 (C), Beaumont C. J. (Nanavati J. concurring) said;
'That a deed purporting to bestow residence in the house and food from the rent of the house is not a declaration of an existing right of a person in respect of that house but a declaration of what his interest in that house is to be in future and therefore prima, facie it requires registration under Section 17(1)(b) of the Indian Registration Act'.
12. In plain words, memorandum, Exhibit p. 17, purports to declare what the interest of the plaintiff in the shop is to be in future. If so, registration of the memorandum. Exhibit P. 17, was compulsory.
13. Mr. Madan Lal Sethi basing himself on the provisions of Section 53A of the Transfer of Property Act, then urges that the memorandum, Exhibit P. 17, was admissible in evidence notwithstanding that the document was required to be registered. From a perusal of Section 53A of the Transfer of Property Act it is plain that the right conferred by that section is only available to a defendant to protect his possession.
14. Finding as I do, that the memorandum, Exhibit P. 17, was not admissible in evidence for want of registration I confirm the finding given by the Court of first instance on issue No. 3
15. Then it is said that defendants No. 1, a and 5 being parties to the family partition the right of maintenance of Shrimati Santi was enforceable against them on the principle underlying Section 39 of the Transfer of Property Act.
16. Section 39 of the Transfer of Property Act provides 'inter alia' that where a third person has a right to receive maintenance from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.
17. In explaining the scope of Section 39 of the Transfer of Property Act Mr. M. R. Jayakar said In -- 'Mt. Dan Kuer v. Mt. Sarla Devi', AIR 1947 PC 8 (D), at page 14:
'The true rule of Hindu Law in such matters would appear to be as follows: Two obligations confront a joint Hindu family (1) the obligation to pay the debts (for instance, of the father) binding on the family; and (2) the moral obligation to provide maintenance to the widows of the family. The latter obligation would, under certain circumstances, ripen into a legal obligation, as, for instance, when a charge is created on specific property of the family either by agreement or a decree of the Court; that, so long as neither of these two obligations has taken the form of a charge on the family property, the obligation to pay the binding debts will have precedence (as for Instance, in the course of the administration of the estate) over mere claims of a female member's maintenance; but, if either of these two obligations assumes the shape of a charge, it would take precedence over the other. This rule of Hindu Law is thus in accord with the principle underlying Section 39 of the Transfer of Property Act: See -- 'Somasundaram Chetty v. Unnamalai Ammal', AIR 1920 Mad 722
18. For the reasons given hereinbefore, I have found that the memorandum, Exhibit P. 17, is not admissible in evidence for want of registration. If so, the plaintiff has failed to bring the case within Section 39 of the Transfer of Property Act.
19. Again it is said that the amount of maintenance was much too inadequate.
20. In determining the amount of maintenance, the Court proceeds on the following circumstances:
(1) the value of the estate, taking the debts for which it is liable also into consideration;
(2) the position and status of the deceased husband and of the widow;
(3) the reasonable wants of the widow including not only the ordinary expenses of living but what she might reasonably expend for religious and other due duties incident to her station in life; and
(4) the past relations between her and her husband.
21. In fixing maintenance the Court was of the opinion that in 1926 the total value of the joint family property was not more than rupees 40,000/-. That finding is not challenged in appeal.
22. (After discussing the evidence on this point His Lordship proceeded). On the evidence given in Civil Suit No. 147 of 1948 I find that th maintenance fixed is adequate.
23. Mr. Madan Lal Sethi urges that the court fee payable on the plaint cannot be first charge on the amount of future maintenance. In this connection reliance is placed on the provisions of Section 60(1)(n) of the Code of Civil Procedure.
24. Section 60(1)(n) of the Code of Civil Procedure exempts 'right to future maintenance' from attachment and sale in execution of a decree. In the recovery of court-fee from the subject-matter of the suit the judgment-debtors have no interest. Plainly, Section 60(1)(n) of the Code of Civil Procedure does not control the provisions of Rule 10 of Order XXXIII of the Code, of Civil Procedure.
25. In closing the arguments Mr. Madan Lal Sethi points out that the court-fee payable on the plaint has not been correctly assessed.
26. In the plaint maintenance at the rate oil rupees 200/- per mensem was claimed in the alternative. If so, court-fee was payable on the relief for the possession of the shop which was valued at rupees 30,000/- and not on the sum of rupees 2,4007- claimed on account of arrears of maintenance for one year. Indisputably, in a suit where reliefs are claimed in the alternative the court-fee is payable in respect of the relief which carries the highest court-fee. In these proceedings it is common ground that the court-fee payable on the plaint was rupees 1680/-.
27. For the foregoing reasons. I maintain the judgment and decree under appeal on merits. In the matter of court-fee I find that the court-fee payable on the plaint was rupees 1,680/- and nob rupees 2,972/8/- as assessed in the decree under appeal.
28. In the result I allow the appeal by directing the amendment of the decree under appeal so far as the Court-fee payable on the plaint is concerned. In all other respects the appeal falls and is dismissed.
29. Cross-objecions preferred by the defendants Jail and are dismissed.
30. Parties are left to bear their own costs in Regular First Appeal No. 195-51 and the cross-objection arising therefrom.
31. I agree.