1. The question referred to the Full Bench is 'Whether the interest of a widow who has obtained by a registered deed a right to future maintenance during her life-time even if charged upon specified immoveable property is capable of being transferred when the transfer is attempted to be effected at a time before the maintenance has become due.' I do not think that it is possible to give a general answer to this question, and I will confine myself to considering whether the assignment in this case is valid. By a document called a general power-of-attorney, the widow surrendered all her interest in her late husband's property in favour of the nearest reversioner of her husband in consideration of his agreeing to pay some debts of the husband and to maintain her during her life-time. The document then continues (according to a corrected translation) 'Besides maintaining me by giving me food and clothing, etc., until my lifetime, you should also perform my obsequies, etc., after my death. Henceforward, you should also perform the Sraddhas of my husband, father-in-law and mother-in-law, making the necessary expenses therefore.... If it is not convenient for me to live jointly with you, I should remain in the building where I now reside. In that event, except that for my food and clothing you should pay yearly 33 muras of kuchlu rice and 12 muras of beltige rice charged on the following properties, I have no right to contract any debts as a charge on the said properties or have any claim to the return of the property.'
2. Whether the right to future maintenance, apart from a contract, or under a contract to provide clothing, board, and residence in the house of the other contracting party is property at all, within the meaning of Section 6 of the Transfer of Property Act, is a matter upon which there has been considerable divergence of opinion, but it is unnecessary to consider that here as in my judgment, it is purely personal right and is clearly inalienable.
3. The right under a contract to a defined amount in cash or kind for future maintenance is, in my judgment, property under the enabling words of Section 6 of the Transfer of Property Act of 1882. But the question remains whether it is an interest in property restricted in its enjoyment to the owner personally, such an interest under Clause (d) of the section being inalienable. This must depend on the facts of each particular case and must be ascertained by the ordinary rules of the interpretation of the contract; the question being, whether the intention of the parties was that the right should be personal and therefore inalienable. That intention is to be ascertained from the language of the document itself and the surrounding circumstances at the time of its execution. It must be considered as a contract to come into operation at once, and in the light of the surrounding circumstances as they then stood. What has in fact happened since is not a relevant consideration, except perhaps as an illustration of what may possibly have been in the contemplation of the parties at the time of this contract. The widow was surrendering her life-interest in the property in exchange for the agreement for maintenance, and it seems to have been quite clear in the contemplation of the parties that the reversioner should continue in possession of the property and of the family house, and the fact that he has since sold the property does not help us to arrive at the true interpretation of the contract.
4. Examining the contract itself, we find that the first alternative form of maintenance provided was by residence in the house and by sharing the meals of the family. The second alternative was that, if she chose to live apart, she should receive definite amounts of paddy secured by a charge on the land. There is no provision for an election once and for all, and I see no reason why she should not at her will at one time live in the house, and at another live away and receive the paddy. This leads me to the conclusion that the intention of the parties to be derived from the document was that the rights under the contract should be personal and inalienable; for, she could not give to another the right of living and feeding with the reversioner's family.
5. I think that the view expressed above that this question must turn on the intention of the parties reconciles most, if not all, of the apparently conflicting decisions on this question.
6. The right to further maintenance properly so called, by which I mean the right to be maintained by the supply of clothing, board and lodging is inalienable, and so I understand the statements in the text-books, Trevelyan's Hindu Law, II Edition, page 80, West and Buhler's Hindu Law, page 253 and Shepherd and Brown Transfer of Property Act, page 209, and so, I think, may be explained the decision in Rajatkamini Debi v. Raja Satya Niranjan Chakrabarty (1912) 23 C.W.N. 824, where, on facts somewhat similar to these, it was held that a widow who released her life-interest in return for an agreement to pay her Rs. 100 per annum and supply her with 39 maunds of rice per annum could alienate her interest under the agreement; for, in that case, it was no part of the agreement that she should be clothed, fed or housed and therefore there was nothing personal about the contract at all. This too, was, I think the view of Mookerjee, J., who in two cases decided in the same month held that the widow's right to. maintenance under one contract could be taken in execution and under another it could not. Asad Ali Molla v. Haider Ali (1910) 12 C.L.J. 130 and Tara Sundara Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146. The right to attach is governed by the Code of Civil Procedure, but in his judgments he discussed fully the inalienability of such right. In Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146, in which he held the right inalienable and, therefore, not attachable, the payments were not to be made until the donee lived separately from the family, and he distinguishes between cases where the provision of land, money or goods is taken in lieu of maintenance without any restraint upon alienation where the land, money or goods are alienable, and cases where the right is purely personal. If the latter, he considers that, even when the fight is merged in a decree, it is not alienable Bhyrub Chunder Ghose v. Nubo Chunder Gooho (1866) 5 W.R. 111, Enaet Hossein v. Nujeeboonissa Begum (1869) 11 W.R. 138 and Maharajah Dheraj Mahtab Chand Bahadur v. Sreemuttee Dhun Coomaree Bibee (1872) 17 W.R. 254, I think, may be reconciled on the same ground Ranee Annapurni Nachiar v. Swaminatha Chettiar I.L.R. (1910) M. 7 : 20 M.L.J. 785, and the explanation of it in Palikandy Mammad v. Krishnan Nair 30 M.L.J. 361, by Sadasiva Ayyar, J. do not assist me in arriving at the principle to be applied. The remarks of Seshagiri Ayyar, J., in Seshappa Heggade v. Chandayya Heggade : (1919)37MLJ402 on this point were purely obiter but can properly be explained by limiting their application to cases of maintenance properly so called. I do not think that any useful purpose will be served by going in further detail into any of these cases or others to which our attention was drawn.
7. I answer the question referred by saying that this widow's right to future maintenance was inalienable.
8. The question referred is stated in general terms, which, as the referring order of Spencer, J., and the argument before us show, are liable to be applied to interests of different kinds and subject to different legal incidents. Some confusion has again been introduced by reliance on the exemption under Section 60, C.P.C. of a right to maintenance from attachment. But that exemption is inconclusive, when, as here, a transfer by act of parties is in question and when some of the descriptions of property enumerated in the section certainly are not, and it is to be assumed that maintenance right is, exempted from attachment. Authorities relating to attachment are accordingly irrelevant, except in so far as they deal with the only provision of law at present material. Section 6(d), under which property cannot be transferred, if it 'restricted in its enjoyment personally to the owner.' And on this account Palikandy Mammad v. Krishnan Nair 30 M.L.J. 361, one of the decisions of this Court regarded as conflicting in the reference, is not of assistance, the prohibition against attachment having been relied on directly. The other Ranee Annapurni Nachiar v. Swaminatha Chettiar 20 M.L.J. 785, proceeds on the view that a right to future maintenance is not property within the enabling words or an interest in property contemplated by paragraph (d) of Section 6. But, with all respect, we have not been shown that this view has been taken elsewhere; it is inconsistent with the statutory exclusion of such a right from property liable to attachment; and, if it were acceptable, explanation would still be necessary as to the law, by which the validity of a transfer of what is not property is recognised or can be tested at all.
9. Authority need not be cited to show that Section 6(d) requires more than the termination of the interest in question with the life of its owner. But in the present case that requirement is complied with. For it is not conceivable that Exhibit B was meant to enable the widow to have some other person clothed or to introduce any stranger she might nominate to the family meals. The rights conferred on her are clearly personal; and it is therefore unnecessary to follow Mookerjee, J., in his exhaustive discussion in Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146, of the questions (i) whether an interest created in lieu of and in discharge of a right to maintenance is assignable and (2) whether it is material that the right is enforceable by a charge on immoveable property. For as regards the first I agree that there is no question of a discharge in Exhibit B, the widow's option to return at any time to actual maintenance instead of a periodical allowance having been preserved (and as regards the second the only substantive right under transfer is the right to future maintenance already considered and no question of an impersonal interest in land available for the enforcement of that right can arise, except incidently and in case a default takes place.
10. I concur in the opinion expressed by my Ford.
Coutts Trotter, J.
11. I am of the same opinion and have nothing to add.