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Sivaji Govinda Rao Mohitay Rao Saheb Vs. N.N.C.T.C.V. Firm by Its Partner Chidambaram Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1935Mad815; 158Ind.Cas.170; (1935)69MLJ264
AppellantSivaji Govinda Rao Mohitay Rao Saheb
RespondentN.N.C.T.C.V. Firm by Its Partner Chidambaram Chettiar and ors.
Cases ReferredPadmanand v. Rama Prasad
Excerpt:
- - clearly no creditor can prevent any person who is thus under an obligation to maintain his debtor from doing so. now no doubt in three of these cases, the parties were rich men and the allowances were large, but there is nothing in these decisions which confines the right of attachment to a portion only of the allowances. 507 the judgment of the privy council is a difficult one to interpret, and there is no clearly-expressed finding that the brother's property was a right to future maintenance. 6. upon a consideration of all the cases cited before me it will be seen at once that the only cases which really form anything like a close parallel to the facts with which i have now to deal were har shankar prasad singh v......on the other hand the view taken by the learned district judge is that there must first exist the right to maintenance independently of contract, a right derived from the personal law and personal relationship of the parties, and only when such a right has been commuted can protection be afforded. where the right is created for the first time by contract it is always alienable and subject to attachment. it seems to me from a study of the authorities that of these two views the latter must prevail.3. that the former view is too comprehensive becomes clear from an examination of the cases in which it has been held that allowances are not exempt from attachment. in har shankar prasad singh v. baijnath das i.l.r.(1901) 23 all. 164 a vendor sold all his property to the court of wards. the.....
Judgment:

King, J.

1. The appellant in this case mortgaged all his properties to a usufructuary mortgagee in 1918, and as one of the terms of that transaction is entitled to receive from him an allowance of Rs. 100 a month. He claims that this allowance, which he says is subject to a very large deduction on account of rent due to the mortgagee is paid to him specifically for his maintenance and is his sole means of support. In E.P. No. 242 of 1932 a creditor of the appellant sought to attach his right to the allowance. Appellant contended that it was exempt from attachment under Section 60(n), Civil Procedure Code. The first Court upheld this contention but on appeal the learned District Judge rejected it and ordered execution to proceed.

2. The determination of this question depends upon the meaning of the expression 'right to future maintenance'. In its primary sense that expression means simply the right of one person to receive from another board, lodging, clothing and the other necessaries of life. Clearly no creditor can prevent any person who is thus under an obligation to maintain his debtor from doing so. It is only when this obligation is so to speak, not met in kind, but in some commuted form that difficulties arise. The debtor is now entitled by agreement to receive periodical money payments with which to procure for himself the necessaries of life. Can those payments be attached? Appellant's learned advocate contends that so long as the allowance is not excessive that is, is not more than is required for maintenance, due regard being had to the status in life of the recipient, it is always protected no matter how the right first arose. On the other hand the view taken by the learned District Judge is that there must first exist the right to maintenance independently of contract, a right derived from the personal law and personal relationship of the parties, and only when such a right has been commuted can protection be afforded. Where the right is created for the first time by contract it is always alienable and subject to attachment. It seems to me from a study of the authorities that of these two views the latter must prevail.

3. That the former view is too comprehensive becomes clear from an examination of the cases in which it has been held that allowances are not exempt from attachment. In Har Shankar Prasad Singh v. Baijnath Das I.L.R.(1901) 23 All. 164 a vendor sold all his property to the Court of Wards. The sale-price was paid partly in cash and partly in the form of an annuity. In Gopal Lal Seal v. Marsden (1906) 10 C.W.N. 1102 an annuity was bequeathed by will. Neither of these annuities was held to be exempt. In Padmanand v. Rama Prasad (1912) 16 Cal. L.J. 354 a father sold property to his son and as part of the transaction it was provided that the son should pay his father an allowance of Rs. 4,000 a month. In Rajah of Ramnad v. Subramaniam Chettiar I.L.R.(1928) 52 Mad. 465 the Rajah of Ramnad mortgaged his zamindari, and covenanted with the mortgagee that he should receive an allowance of Rs. 5,000 a month. These allowances also were held not to be exempt. Now no doubt in three of these cases, the parties were rich men and the allowances were large, but there is nothing in these decisions which confines the right of attachment to a portion only of the allowances. Nor is there anything in Section 60 itself which provides that every judgment-debtor is entitled to retain a certain minimum income free from attachment. Special provisions are no doubt made for Government pensioners and certain salaried officials but any judgment-debtor who, for instance, depends solely for his income upon investments is liable under Section 60 to have all his securities sold and so lose all his income.

4. I come then to an examination of the other class of cases where allowances have been held either inalienable as personal property under Section 6(d) of the Transfer of Property Act (and therefore not liable to attachment) or exempt under Section 60(n), Civil Procedure Code. In Subraya v. Krishna : AIR1924Mad22 a widow surrendered her life-interest in her husband's estate to the nearest reversioner in return for a right of residence and the receipt of a certain quantity of paddy every year. This right was held to be inalienable. In Palikandy Mammad v. Krishnan Nair : (1916)30MLJ361 the karnavan of a Malabar tarwad who was deposed from his managership was allotted properties and granted a cash allowance by the terms of a family agreement for his maintenance. The allowance was held to be protected from attachment under Section 60(n). In Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146 what was considered was a deed of gift by a father to his daughter by which Rs. 6,000 was paid in a lump sum, and an annual allowance of Rs. 600 was granted. This allowance was held to be personal and inalienable property exempt from attachment. The decision depended upon the facts of the case, and particularly the intention of the grantor, who it appeared, wished to compensate his daughter financially for marrying her to a husband with inadequate means.

5. Now it is clear from an analysis of these three cases that all are concerned with family relationship, and the allowances in all of them were granted in recognition of some pre-existing' right. There remains only one case to be considered, which is reported in Sundar Bibi v. Raj Indar Narain Singh I.L.R.(1921) 43 All. 617 and again after appeal to the Privy Council in Rajindra Narain Singh v. Sundara Bibi I.L.R.(1925) 47 All. 385. There a younger brother was by a family arrangement granted certain villages 'in lieu of maintenance' with the life-interest in the income, and the right to full ownership if he should survive his elder brother. The High Court held that his property in the villages was saleable and was not a right to future maintenance. It then, however, proceeded to give practical directions for the carrying out of the execution by a Receiver, and suggested that provision should be made from the income of the villages for the maintenance of the debtor. In appeal the Privy Council appears in one passage to hold that the brother's right to maintenance was not legally attachable under the Civil Procedure Code though it might be attached by way of equitable execution, but as is pointed out by Beaumont, C.J. in Secretary of State for India v. Bai Somi I.L.R.(1933) 57 Bom. 507 the judgment of the Privy Council is a difficult one to interpret, and there is no clearly-expressed finding that the brother's property was a right to future maintenance. Even however if all doubts were removed on this point, this is still a case of a family agreement in which the undoubted rights in the family property which the younger brother possessed were provided for by the grant of a particular income. It is not a case of a right arising for the first time out of contract.

6. Upon a consideration of all the cases cited before me it will be seen at once that the only cases which really form anything like a close parallel to the facts with which I have now to deal were Har Shankar Prasad Singh v. Baijnath Das I.L.R.(1901) 23 All. 164, Rajah of Ramnad v. Subramaniam Chettiar I.L.R.(1928) 52 Mad. 465 and in a lesser degree Padmanand v. Rama Prasad (1912) 16 C.L.J. 354. In all those cases the provision for an annuity or allowance was made by a vendor or a mortgagor as part of the transaction by which he sold or mortgaged his property, and as I have said, in all the cases the annuity or allowance was held not to be exempt from attachment. I can see no reason why I should not follow those decisions in disposing of the present case, and I accordingly agree with the view of the learned District Judge and dismiss this appeal with costs.


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