Krishnaswami Nayudu, J.
1. This is an appeal against the final decree in a partition suit. The second defendant is the appellant himself and the first defendant are the sons by the first wife of one Muthu Chetti, the plaintiff being the only son of Muthu Chetti by his second wife, who is the third defendant. Defendants 4 and 5 are the daughters of the third defendant and sisters of the plaintiff. Defendants 6 and 7 are the daughters by the first wife Muthu Chetti was doing business in cloth and in money lending and also owned a rice mill. When Muthu Chetti died on 22nd June 1933 the first defendant as the only major member of the family being the eldest took possession of the estate and managed the same. The suit for partition was necessitated by reason of the extravagant and wasteful life led by the first defendant, who has been found to have neglected the business and lived a fast life keeping concubines and spending recklessly.
The preliminary decree for partition was passed on 10th January 1942 and the third defendant was declared entitled to maintenance during her lifetime and defendants 4 and 5 to suitable marriage provision and for maintenance till their respective marriages. The third defendant died after the preliminary decree on 17th July 1945, The preliminary decree further provided that the plaintiff was entitled to an account of the income of the family from the first defendant from the date of the death of his father till January 1934, since the plaintiff was found to have been excluded from participation in the income of the properties. The properties were divided and allotted by the Commissioner.
2. On a taking of accounts it was found that the value of the Joint family properties at the time of the death of Muthu Chetti in 1933 was Rs. 1,38,685-3-0; but the value of the properties that were available on the date of the suit was Rs. 99,677-13-3. The first defendant was therefore held liable to account for the difference of Rs. 38987-5-9 and he was directed to make good to the plaintiff and the second defendant one third of it, namely, Rs. 12,662-7-3. The value of each sharer was worked out at Rs. 18425-10-8 and the plaintiff and the second defendant were in addition found entitled to get Rs. 12662-7-3 each from the first defendant. It was also found that the non-agricultural income from January 1934 upto the date of the suit, namely, March 1940, was Rs. 43,166-10-8 and the agricultural income for the same period was Rs. 5635 making a total of Rs. 48,801-10-8. In view of the finding in the preliminary judgment that the plaintiff had been excluded from participation of the family income he was held entitled to recover an one-third share of the income, viz., Rs. 16,267-3-10 from the first defendant. The first defendant therefore as a result of the final decree was liable to pay Rs. 12,662-7-3 each to the plaintiff and the second defendant and Rs. 16267-3-10 to the plaintiff.
All these payments were charged on the properties allotted to the first defendant. The maintenance for defendants 3 to 5 was fixed at the rate of Rs. 40 per month per head. The third defendant was found entitled to the arrears of maintenance from January 1934 to 17th July 1945 and the amount payable to her was found to be Rupees 5542-10-8 and the maintenance amount payable to the fourth and fifth defendants till the date of the order in the final decree proceedings, namely, 6th February 1948, was fixed at Rs. 5110 and Rs. 6768 respectively. It may be mentioned that both the fourth and fifth defendants have since been married and therefore there is no question of providing for their maintenancefor the future.
These three sums were charged on the shares of the plaintiff, first and second defendants in the family properties. The third defendant having died, fourth and fifth defendants were brought on record as her legal representatives and they claimed to be entitled to the sum of Rs. 5542-10-8, the arrears of maintenance accrued due to her mother. It was contended before the learned Subordinate Judge that since the third defendant had died before ascertainment of the maintenance amount due to her, defendants 4 and 5 could not inherit it as heirs. But the contention was overruled and a decree was passed in favour of the fourth and fifth defendants for the said amount.
3. The main objections raised by the appellant relate to the reasonableness of the amount of maintenance fixed for defendants 3, 4 and 5 as also the right of the fourth and fifth defendants to the arrears of maintenance found payable to their mother. As regards the first of the objections, the learned Subordinate Judge fixed the annual income of the family at Rs. 7800 relying on the Commissioner's report and also on an order of his predecessor dated 12th March 1946 on the basis of which a sum of Rs. 40 for month per head was fixed as the maintenance. The Commissioner found that the cloth trade of the father was only carried on for some time after his death by the first defendant, and while finding that the value of the goods left by the father in the cloth trade was Rs. 7800, which was taken into account in ascertaining the value of the assets of the joint family, did not, however, attempt to fix the total income, if any, received by the first defendant from the cloth trade. In arriving at the total income of the family properties and businesses for the period from the date of the death of the father till the date of the suit the income from the cloth trade was not included, as, in spite of certain ledgers relating to the cloth trade having been filed; it was not possible to arrive at the exact income, probably for the reason that the cloth trade was not conducted effectively or for any length of time after Muthu Chetti's death.
The other businesses consisted of shroff and money-lending business as also the rice mill business. The Commissioner found that the shroff trade and the money-lending business yielded Rs. 11584-4-1 for the entire period, which works out at Rs. 1650 per annum. The Income from the rice mill was fixed at Rs. 425 per year and the income from the nanja and punja lands at Rs. 850 per year. The Commissioner relying on certain receipts for payments made towards Income-tax calculated the income of the Joint family businesses computing the income on the basis of tax at 6 1/2 pies per rupee and arrived at Rs. 49940 as the probable income for the period of seven years, working out at Rs. 7000 per annum.
4. The learned Subordinate Judge's predecessor, while considering the Commissioner's report in his order dated 12-3-1946, did not examine the findings arrived at by the Commissioner as to the actual income of the several businesses as ascertained from the material placed before him including the available account books, but preferred to base his conclusions on the probable income computed on the basis of the income-tax assessments paid from time to time. He agreed with the Commissioner that by such computation the probable income from the several businesses would be Rs. 7000 per annum. It is this estimate that was eventually accepted by the learned Subordinate Judge. It is urged no doubt with great force that when evidence as to the actual income of the several businesses was available and the commissioner had given his findings as to the actual income of the various businesses, the lower court should not have ignored the evidence of the actual income and arrived at the probable income on the basis of income-tax assessments. The learned Subordinate Judge himself realised that the assessment by the income-tax department was not based on accounts produced before the Income-tax Officer, but on the basis of non-production of accounts, but, however, chose to rely upon it.
We consider that resort to estimate of income of any business on the basis of income-tax assessment could only be had if no material is available for the purpose of ascertaining the income of any business. But, in the present case, the Commissioner has discussed the evidence mainly documentary as to the actual income from the several businesses for the period and in such circumstances the lower court should not have ignored the conclusions of the Commissioner arrived at as to the actual income of the family. We would therefore prefer to accept the Commissioner's finding in his report in order to ascertain the probable annual income of the family for the purpose of fixing the maintenance payable to the parties. The Commissioner has found that the annual income would be Rs. 850 from the land, Rs. 425 from the ricemill and Rs. 1060 from the shroff and the money lending business. The family must therefore have been getting an income of about Rs. 2500. It must further be mentioned that the first defendant was admittedly leading an extravagant life practically wasting his family fortune buying new and costly motor cars and living a life of pomp and show. He is also charged with wasting his money over concubines and in other ways and it is most unlikely that such a spendthrift as the first defendant would have paid any attention to the businesses left by the father and would have profitably conducted the same.
Taking all the circumstances into consideration,we consider it reasonable to assess the probableannual income from all sources at the sum ofRs. 4000. On this basis, the maintenance payableto defendants 3, 4 and 5 could be fixed only atabout Rupees 25 per mensem. Considering thatthe value of the estate as on the date of thedivision was only Rs. 55416-8-0 a sum of Rs. 1500for jewel and Rs. 1000 for marriage would be areasonable amount to be set apart as and formarriage expenses. Defendants 4 and 5 will therefore be entitled to get Rs. 2500 each as and formarriage expenses and jewels. As a result, theamounts payable to defendants 3, 4 and 5 as andfor maintenance and marriage, expenses wouldbecome reduced.
5. The question, however, whether the fourth and fifth defendants, who are the daughters of the third defendant and who have been brought on record as the legal representatives, could claim to be entitled to the amounts found payable to the third defendant till the date of her death, namely, 17th July 1945 remains to be considered. The contention that inasmuch as the third defendant had died before the ascertainment of the maintenance due to her, there was nothing for defendants 4 and 5, to inherit as her stridhana heirs was raised before the lower court; but the learned Subordinate Judge rejected the contention and held that defendants 4 and 5 would be entitled to inherit whatever amounts that might have accrued due to the third defendant till her death, which would be in the nature of arrears of maintenance.
The same contention is again raised before us and in support of it a decision of the Bench of this Court consisting of Govinda Menon J. and myself in -- 'Muthalammal v. Veeraraghavalu Naidu', : AIR1953Mad202 (A), is relied upon. In that case a suit was instituted for maintenance by a Hindu widow against her husband's brother for past and future maintenance at a particular rate every year to be made a charge on the family properties. She died during the pendency of the suit and her daughter was brought on record as the legal representative of her mother. But the suit was dismissed on the ground that the widow's claim for maintenance against her husband's estate in the hands of the coparcener was a personal claim which dirt not survive to her legal representative on her death. The dismissal was upheld in second appeal and it was held that a widow's right to maintenance against her husband's estate in the hands of his coparceners is not one that can be transferred or assigned. Learned counsel for the appellant relies on certain observations in the decision as supporting his contention, namely, that so long as the amount is not ascertained notwithstanding that a preliminary decree has been passed, still the decree for maintenance is in the nature of a claim which is neither assignable nor heritable.
The following are the observations in the judgment on which reliance is placed:
'The real difficulty which the appellant has to encounter is that even if the widow's right is one which arises in property or out of property, still since that amount is not ascertained, liquidated and specified, it cannot be the subject of transfer. For one thing it might be, as is contended by the respondent in this case, the widow is entitled to nothing as she has remarried or she might have become disentitled to maintenance on account of her subsequent unchastity. Therefore, it is not, In all cases, that a Hindu widow can have a defined and ascertained sum claimable from her husband's estate unless by agreement between the parties a sum of money has been specifically fixed, which has to be paid out of the estate........ Such inchoate rights which have not crystallised into a definite sum cannot be the subject of transfer.'
In that decision, during the pendency of the suit for maintenance, the widow died & her daughter claimed to be entitled to the arrears of maintenance accrued; but there was no decree recognising the widow's right to maintenance and as such that case is clearly distinguishable. But it is urged that even though a decree has been passed in the present case, it is only a preliminary decree declaring the third defendant's right to maintenance, and there being only a declaratory decree, where the amount to which the third defendant was entitled was not ascertained and before ascertainment the third defendant having died, there was nothing for her heirs to inherit.
6. Clause (c) of the preliminary decree dated 10-1-1042 says that the third defendant as the widow of Muthu Chetti is entitled to maintenance during her lifetime and to suitable provision being made for maintenance. The decree therefore appears to be purely declaratory and does not indicate that any arrears of maintenance to which the third defendant would be entitled even on the date of the preliminary decree was to be ascertained and provision made in the final decree for such sum as may be found due to her. In the judgment, however, it is found that the first defendant refused to maintain the third defendant and her children from about the beginning of 1934 and that the plaintiff was excluded from participation in the income of the properties. It may be by mistake that this finding of the learned Judge given in his judgment has not been properly incorporated in the decree which was drafted. But the parties have subsequently proceeded on the basis that the third, fourth and fifth defendants would be entitled to maintenance from 1934 onwards. The Commissioner proceeded with account taking on that basis. It was also finally accepted by the court.
Therefore, really there can be no controversy that the third defendant was intended to be provided with maintenance which was payable to her from 1934, since herself arid her children including the plaintiff were not at all maintained by the first defendant and no portion of the family income was paid to them. The position therefore is that on the date of the preliminary decree, the third defendant had become entitled to certain amount as arrears and was also declared entitled to maintenance subsequent to the preliminary decree for all of which provision has to be made in the final decree. The question is whether in such circumstances in case of the death of the third defendant, defendants 4 and 5 would not be entitled to claim as heirs the amount payable to the third defendant after ascertainment. It is necessary therefore to consider whether by reason of the preliminary decree the third defendant had not become entitled to maintenance, though unascertained, which could not be considered to be property, which is transferable and heritable.
Section 6 of the Transfer of Property Act provides that property of any kind may be transferred, except these enumerated in the section. An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. A right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred. A mere right to sue cannot be transferred. After the preliminary decree the right of the third defendant to be entitled to a particular sum has become recognised and it cannot be said that after decree, any defences which may be open against her would still be available. The right of the widow having been declared, it can no longer be said to be a mere right to sue. Once the claim has ripened into a decree, it cannot be a mere right to sue. Nor could it be a right to future maintenance as the fourth and fifth defendants only claim arrears of maintenance that had already accrued to which the third defendant was entitled on the date of her death.
It is not a mere right to sue, since after preliminary decree the further proceedings are only for working out the preliminary decree, which proceedings are not in the nature of a suit to obtain a decree. The subsequent proceedings are for ascertainment of the amount and whatever may be the amount the decree-holder would be held entitled to, and it is not a case where it could even be said that no amount would be found due on such ascertainment. She would in any event be entitled to be paid some amount. The exact amount alone has to be ascertained in order to enable the decree-holder to realise it by way of execution.
7. In -- 'Asadali Molla v. Haider Ali', 38 Cal 13 (B), a decree for maintenance in favour of a Muhammadan lady for Rs. 5 per month during their life-time was assigned by her for consideration. The assignees sought to bring themselves on record and asked for leave to execute the decree. Leave was eventually granted by the High Court in appeal on the ground that the assignment undoubtedly operated to transfer title at least in respect of the arrears which had accrued due upto the date of the assignment. But the question still arose whether by virtue of the assignment, the assignees would be entitled to recover the sum which had accrued after the assignment in their favour had been made. It was contended on their behalf that the assignment was valid and operative and effectively transferred to then all the rights of the decree-holder inclusive of the right to realise from the judgment-debtors by execution the amount of the monthly allowance as it fell due.
This contention eventually found acceptance at the hand of the learned Judges. Mookerjee and Carnduff JJ. who observed at p. 19: 'It is well settled that in reference to the assign-ability of a judgment, the cause of action on which it is found is not generally material, and it has been repeatedly affirmed that a judgment recovered for a tort, is assignable to the same extent as one based on a contract............
whatever difference of opinion there may however be upon the question of the assignment of an inalienable chose in action 'pendente lite' before the judgment is perfected, there is no difference of judicial opinion that when the claim has been merged in an actual judgment, the right under the judgment is assignable and the nature of the chose in action is immaterial.'
Reference was made to the decision in--'Charles v. Hoskins'. (1860) 11 Iowa 329 (C), where Baldwin J. observed:
'that when a judgment is entered, the cause of action is merged therein, and loses most of its pre-existing characteristics, so that even if the cause of action was not assignable, the judgment is assignable and may be enforced by the assignee in his own name.'
8. In so far as arrears have accrued due, it would in the nature of property which is assignable and heritable, but a right to future maintenance is, however, not property, which may be transferred by virtue of the amendment to Section 6 of the Transfer of Property Act by the addition of Clause (dd), where it is provided that 'a right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.' That difficulty would not arise in the present case, as it is not a right to the future maintenance that is claimed by defendants 4 and 5; but the arrears of maintenance accrued due on the date of third defendant's death. The present is neither a case of right to future maintenance nor a mere right to sue, but a decree for maintenance, where, however, the amount remains to be ascertained. A decree is neither an actionable claim nor a mere right to sue. The claim for maintenance prior to the decree was no doubt not assignable or heritable; but after decree it ceases to be a claim and it is therefore assignable.
9. In -- 'Venkatarama Aiyar v. Ramaswami Aiyar', AIR 1921 Mad 56 (D), after preliminary decree for partition one of the sharers transferred the decree and the purchaser applied to be brought on record as assignee of the decree-holder sharer and also applied under Order XX, Rule 2, to have the mesne profits ascertained, the preliminary decree being a decree for a share in the property and for mesne profits, it was held that where the right to mesne profits has been declared by a decree, but the exact amount has been left to be ascertained at a future stage, a transfer of such right is not Invalid under Section 6(e) of the Transfer of Property Act as being a mere right to sue. Sadasiva Aiyar J. observes that, a suit for mesne profits partakes more of the nature of a suit for account and such a suit has under ordinary circumstances some affinity to a suit for money had and received and that therefore a transfer of a right to claim mesne profits should not be held invalid, but, however does not express a final opinion on the question whether a claim for mesne profits which has not been declared to exist in the transferor by a decree of Court can be validly transferred or not. Where such a claim has been declared by a decree, and only the exact amount recoverable has been left to be ascertained in the future proceedings in the same suit, the transfer of such a right was held to be valla, Seshagiri Aiyar J. in the course of his judgment referred to the case in -- 'Ellis v. Torrington', 1920 1 KB 399 (E), where the exact import of the expression 'a bare right to sue' is pointed out In that decision Scrutton L.. J. at p. 411 stated. 'But early in the development of the law, Courts of Equity and perhaps the Courts of Common Law also took the view that where the right of action was not a bare right, but was incident or subsidiary to a right in property, an assignment of the right of action was permissible, and did not savour of champerty or maintenance'.
Bankes L. J. took the view that where a right to profits is appurtenant to the right to property it can be assigned, which view was also agreed to by Warrington L. J. Applying this principle, Seshagiri Aiyar J. has taken the view that the right to sue for mesne profits assigned in that case was appurtenant to the right of enjoyment of the property itself and therefore that right was an enforceable right, and that in any event such a right was no longer a bare right to sue but had become merged in the decree and the transfer was not forbidden by Section 6, Clause (e) of the Transfer of Property Act.
10. The preliminary decree in the present case is similar to a, decree for mesne profits, where also the preliminary decree provides for ascertainment of the mesne profits declaring the sharer to be entitled to such mesne profits as may be found on account taking. But it might be in some cases of accounting no amount may be found due. But, in a preliminary decree for maintenance such a contingency is not possible as whatever may be the value of the property some amount has to be paid, however small in proportion to the income, as and for maintenance of the decree-holder. There is therefore no question of no amount being found due to a maintenance decree-holder and the fact that the amount remains to be ascertained would not make the decree any less assignable as the decree vests in the decree-holder certain rights to property, in the case of a maintenance decree, to money. Such vested right to monies further chargeable on immoveable properties must be considered as property which could be transferred and inherited.
11. Mr. Thyagaraja Aiyar relies very strongly on the observations in the judgment in ' : AIR1953Mad202 (A)', that so long as the amount is not ascertained, liquidated or specified, the right to maintenance is only an inchoate right not having been crystallised into a definite sum, and therefore cannot be made the subject of transfer. We are in entire agreement with the decision. Having been a party to the decision, I now realise that some of the observations in the judgment have been rather general and what was decided in the case was that a mere right to maintenance without anything further but in the stage of a suit could not be assigned or transferred with which view we are in entire agreement. The view of Seshagiri Aiyar J., as to the nature of a right to mesne profits as a right appurtenant to property raises the further interesting question as to whether the widow's right to maintenance is a right which could be said to be appurtenant to a right to property. It is not a right which arises by reason of ownership or possession of property and as such is not a right appurtenant to it.
But still the widow's right cannot be enforced against persons who are not in possession of the estate of her husband. Where at the time of her husband's death he was a member of a joint Hindu family possessed of properties, she would become entitled to maintenance against those who get into possession of the properties after her husband's death by survivorship, she being entitled to maintenance on the ground that her husband's share is taken by survivorship by the other members of the coparcenary. Where there is no such property, she has no claim for maintenance against her husband's brother or father out of any of their separate property. The widow's right therefore to maintenance depends upon the existence of property in the hands of the surviving coparceners and it can therefore be said it is dependent upon the existence of property and could not really be held to be a right appurtenant to property. The right however cannot be entirely dissociated from the joint family property. The claim of a Hindu wife for maintenance will, however, stand on a different footing as it is only a personal claim against her husband and not against the family estate.
Where, however, the right of a widow to claim maintenance from and out of the joint family property has not been declared by any competent court notwithstanding that a right did exist, but which is liable to be defeated by appropriate defences which will be open against her such a right could not be transferred so long as it is only in the nature of a right or a claim which has not ripened into a decree, It is the preliminary decree which creates a vested right in her to such amount as may be found due recoverable from the joint family properties for which provision has to be made including a charge on the properties of the family. The preliminary, decree for partition, therefore, in our view, is transferable and heritable notwithstanding that the amount remains to be ascertained. The decree is similar to a decree for mesne profits or to a decree for costs as and when taxed, or even a decree for accounts by a principal against his agent for monies had and received, which are all transferable and assignable, and therefore heritable. In our view, therefore, the learned Subordinate Judge is correct in holding that the fourth and fifth defendants had become entitled to such amounts as may tie found due to the third defendant as and for her maintenance.
12. In the result, the decree of the lower court will be modified the amounts payable to the fourth and fifth defendants and to the plaintiff to be worked out in the light of our findings. In view of our having Varied the lower court's decree as regards the probable annual income, the amount payable as and for the plaintiff's one-third share in the agricultural and non-agricultural income from January 1934 to the date of the suit will also have to be correspondingly reduced. One-third of the amount payable to the fourth and fifth defendants will be charged on the respective shares of the plaintiff, the first defendant and the second defendant instead of a charge on all the properties or the full amount.
13. The figure will be worked out and placed before the Court on Monday the 19th inst.
14. The decree of the lower court will be modified in accordance with our Judgment and the figures worked out on a consent memo signed by both advocates. Credit would be given to payments made, if any, by the Receiver to the parties as per order In joint Memo ordered on 12-4-1940 by the District Judge and if not already adjusted. Parties will bear their respective costs.