1.This second appeal arises out of a petition filed to execute a decree of the Madras City Civil Court. The decree-holder is the appellant. The decree was transferred for execution to the Court of the District Munsif of Sholinghur. The Plaintiff was the wife of the first defendant and she had obtained a decree for maintenance prior to the suit and for future maintenance at the rate of Rupees 200/- per month against her husband. The second defendant in the suit was her mother-in-law and she was directed, along with her son, the first defendant, to return the jewels of the Plaintiff. The execution petition sought only recovery of the past maintenance and arrears of maintenance subsequent to the suit, and the cost of the suit, in all amounting to a little over Rs. 12,500/-. Execution was sought by attachment and sale of the interest of the two defendants in the suit properties. Though three items were initially mentioned, execution was sought only of the first item, which is a house in Arkonam Town.
2. A counter affidavit was filed on behalf of both the judgment-debtors. So far as the second defendant was concerned, it was pointed out that she was not liable to pay the maintenance portion of the decree in respect of which alone execution was sought. It was further pleaded that under a settlement deed dated 25-11-1940 neither respondent had any power of alienation over the properties, and that they were given only a life interest each in the properties. Further, the first Respondent had been given only a half share in the properties under the said document.
3. To appreciate these contentions in the counter, it is necessary straightway to make a reference to the terms of the settlement deed under which alone the respondent derived some interest. A registration copy of the settlement deed has been marked as Ex. B-1. The Arkonam house is one of the items in the settlement deed, it being, in fact, Item 1 in the A Schedule thereto, valued at Rs. 11,000/-. It mentions the door Nos. 47, 48 and 49, which are repeated in the present execution petition. The boundaries also are mentioned. There is no doubt about the identity of the property. Kuppuswami Mudaliar, the settlor, was the paternal grandfather of the first respondent and the father-in-law of the second respondent Ponnammal, the father of the first respondent, Appasamy Mudaliar being dead at the time of the settlement. The settlement deed recites inter alia the fact that Appasamy Mudaliar died leaving two minor sons, Paramasivam aged 10 and Subramaniam aged 7 (first respondent herein). The properties were the self-acquired properties of the settlor. Ponnammal is mentioned as settlee No. 1, Paramasivam as settlee No. 2 and Subramaniam as settlee No. 3. So far as the A Schedule properties are concerned, it recites that they are settled for the maintenance of the minors, settlees Nos. 2 and 3, and for that purpose they had been handed over to No. 1, Ponnammal. She was to utilise only the income of the properties for the maintenance and education of the children, maintaining proper accounts, and she had no power of alienation. After the minors attained majority, she should hand over the properties to them and they, in their turn, had no power of alienation and were entitled only to enjoy the income therefrom and after them their issues should enjoy the properties with absolute powers of alienation. The relevant portion is,
[Original in Tamil omitted. Ed. ]
4. The record contains an affidavit dated 15-10-1968 of the decree-holder's father, that Paramasivam, the elder grandson died young without even getting married. Hence the disposition in favour of Paramasivam's sons failed, and, since the settlor Kuppusamy Mudaliar, seems to have been alive then, that portion reverted to the settlor.
5. We next find another settlement deed dated 17-5-1949 (registration copy is Ex. B-2) executed by the said Kuppuswamy Mudaliar. It is really a trust deed settling the properties mentioned therein in favour of the three adult sons of the settlor in trust for a school at Arkonam. The first property mentioned in that deed is the Arkonam house which is the subject-matter of the present execution petition. The exact recital is:
[Original in Tamil omitted. Ed. ]
This recital is not clear, but it seems to mean that a half of it belonged to himself and his grandson and the other half to himself and that it was the other half belonging to him which was settled under the trust deed. The grandson referred to must, in the context, be taken to refer to Subramaniam, son of his deceased son Appasamy Mudaliar, that is to say, the first respondent in the present proceedings. As I pointed out, the half share settled on the progeny of the elder grandson, Paramasivam, failed and that half reverted to Kuppuswamy Mudaliar. Hence be had power to settle that half share in trust. But, so far as the other half share was concerned, it is not quite evident how he also claimed to be jointly entitled to it with his second grandson, the first respondent. It seems to me, however, that a possible explanation is that at the time of Ex. B-2, the second grandson was still a minor and unmarried and the progeny had not come into existence and therefore till it came into existence the settlor probably considered himself as joint owner with his grandson.
6. In the execution petition no witnesses were examined on behalf of the decree-holder; only an extract from the house tax payment register of the Arkonam Municipality was filed as Ex. A-1 and it showed that the house in question stood registered in the name of the first defendant Subramania Mudaliar, her husband.
7. The learned District Munsif, who enquired into the petition, held that the petition was not maintainable against the mother-in-law. That decision is obviously correct, because she was not liable to pay the maintenance portion of the decree. That finding has not been questioned.
8. As regards the husband, the learned District Munsif, however, took the curious view that under Ex. B-1, the first respondent and his brother got the properties absolutely on their attaining majority and that, since the other brother, Paramasivam, was dead, the first respondent became entitled to the whole. The learned District Munsif also pointed out that under Ex. A-1, the house stood registered only in his name. As regards the contention based on Ex. B-2, the learned District Munsif observed that the trustees of the school were not before him, that though the attachment had taken place as early as on 4-5-1968, they had not intervened and that their interest to a half share could not be put forward by the first Respondent. The first respondent had not paid even a single pie to his wife and was only trying to prolong the proceedings. The learned Munsif consequently ordered sale of the house.
9. The first respondent filed an appeal to the District Court of North Arcot. The learned District Judge, differing from the learned District Munsif held that the two minor grandsons, settlees under Ex. B-1, got only a life interest in the settled properties, but he committed a mistake in thinking that Ex. B-1, was dated 25-11-1960 and he proceeded on the basis that a half had already been settled in favour of the school under Ex. B-2, dated 17-5-1949. On that basis he thought that only a half of the property was the subject-matter of the settlement Ex. B-1. This mistake on his part arose from a printer's devil in the printed copy of the judgment of the learned District Munsif which wrongly mentioned the date of Ex. B-1 as 25-11-1960 instead of 25-11-1940. The learned District Judge assumed that in respect of the other half (not settled in favour of the school) the first respondent had the entirety of the property.
10. He then took into account the restrictions on alienation imposed under Ex. B-1 on the first respondent and held that he had no disposing power over the property within the meaning of Section 60 of the Civil Procedure Code. The learned District Judge quoted three decisions: Basangowda Bin Virupaxagowda v. Irgowdatti, : AIR1923Bom276 ; Thakur Khitanarain Sahi v. Surju Seth, : AIR1931Pat364 and Janaki Ammal v. Marudai Chetti : AIR1937Mad864 and observed that, according to those decisions, since the first Respondent had only a life interest, the decree-holder was not entitled to bring the property to sale and would only have a right to have a Receiver appointed in respect of the income of the property. He further thought that it had to be one in a separate proceeding and dismissed the petition which had been filed for the sale of the property.
11. Aggrieved by the above judgment, the decree-holder has filed the present appeal.
12. The argument of Thiru V. Srinivasan, the learned counsel for the appellant before me is that under Ex. B-1, the first Respondent had a life interest in the half share of the Arkonam house, that he had a disposing power over that half share for his own benefit within the meaning of Section 60, C. P. C. and that consequently that life interest could be attached and sold, though the sale would not enure beyond the life time of the first respondent. So far as the prohibition against alienation imposed under Ex. B-1, was concerned, the learned counsel interpreted it as meaning only that no sale could be effected of the corpus so as to be valid beyond the lifetime of the first respondent and that it meant nothing more. In support of his contention the learned counsel referred to Thimmi Ammal v. Venkatarama Chetty, : AIR1960Mad347 and incidentally to Sundarajulu Naidu v. Papiah Naidu : AIR1938Mad623 . On the other hand, Thiru K. Raman, the learned counsel for the respondent-debtor, contends that under Ex. B-1, the first respondent could only enjoy the income from the house that it did not amount to a life interest, that the right of enjoyment of the income could not be validly attached and sold under Section 60, C. P. C. and that at the most only a receiver could be appointed to collect the income.
13. Before deciding which of these contentions is correct, it is necessary to refer to the previous decisions on the point. In Diwali v. Appaji Ganesh, ILR (1886) 10 Bom 342, the question was whether the respondent in the appeal before the High Court, who had obtained a money decree against the appellant, a Hindu widow, was entitled in execution of the decree, to sell the interest which she had acquired, under a compromise in an earlier suit, in certain lands. That earlier suit had been brought by the widow against her adopted son, a minor, and the administrators of his estate to enforce her claim to maintenance out of the estate of her deceased husband. The compromise stated that it was agreed to assign to her for her maintenance the income of a field land sufficient to give her an amount of about Rs. 33/- every year; and it stated:
'The applicant should take into her possession the above-mentioned land and enjoy the same for her maintenance. And she should also pay the Government Assessment for the land. The applicant is not to mortgage, make a gift of, sell, or assign the said land in any way to any person. Should the applicant bring about an opportunity of her ownership over the land being terminated, owing to the non-payment of the Government assessment of the said land, the opponent is to take the land into his possession. And, then, the applicant shall have no claim for maintenance.'
14. The question had to be decided under Section 266 of the Civil Procedure Code of 1882 (Act XIV of 1882) which was practically identical on this point with Section 60 of the present Civil Procedure Code, the question being whether over the land in question or the profits thereof the widow had a disposing power which she might exercise for her own benefit.
15. The Courts below ordered sale. In appeal by the widow the decision was reversed by the Bench. Sargent C. J., observed:
'Now, by the terms of that agreement, the usufruct of the field was assigned to the appellant for her maintenance.......
The assignment of the usufruct in the present case contains a proviso that the appellant 'should not mortgage, make a gift of, sell or assign the said land in anyway to any person', and we think that the very general terms in which it is couched coupled with the special object for which for appellant was to be put in possession of the filed, show an intention to prevent the appellant's doing any act by which any stranger might acquire a right of any description over the land and it is plain that by a transfer of her own interest the transferee would acquire the right to enter on the land. The usufructuary interest intended to be assigned to the appellant was, therefore, one over which she had no power of disposal, and, consequently, could not be attached and sold in execution of a money decree.'
Thus the Bench held that the widow did not have a disposing power even over the income, that is to say, the profits from the land. The learned Judges further say that they left open the question which might arise in another case, whether the maintenance would have the same incidents, as property, inherited by her as a widow's estate and would consequently be transferable. They made it clear that, having regard to their view on the actual terms of the document, that wider question did not arise.
16. This decision was followed by a Bench of our Court (Subramania Aiyar, and Boddam, JJ.) in Munisami Naidu v. Ammani Ammal, : (1905)15MLJ7 . The question there was whether the interest of the first defendant (respondent in the appeal) in certain lands could be attached and sold under Section 266 of the Civil Procedure Code of 1882. The instrument in question stated:
'The lands.... described in Sch. IV hereunto annexed shall be enjoyed by our mother Ammani Ammal during her lifetime by her enjoying their income only for her living and all other expenses without the right to make any alienation by way of sale etc.'
The learned Judges observed that those terms were almost identical with the provisions of the instrument in ILR (1886) 10 Bom 342 and held that the interest was incapable of being sold in execution of the decree. At the end they pointed out that the question was whether though the transaction was in respect of maintenance, the right created was a transferable one, as it might well have been, or a personal and an untransferable one. The decision was that it was an untransferable one.
17. The above two decisions were followed by a Bench of the Bombay High Court (Marten and Fawcett JJ.) in : AIR1923Bom276 . There also the question was whether the interest of a Hindu widow (Irawa) which she obtained under a compromise (Ex. 28) could be attached in execution of a decree obtained against her. The compromise stated:
'I have taken for myself the property for the period of lifetime....... I shall not sell or mortgage or give it on self-reducing mortgage or give it as present or in any manner give it into the possession of others. If I do so it will not be valid... After my death, the said minor alone is owner of the said property.'
The circumstances under which the compromise came into operation were these. The widow had been claming a Hindu widow's estate in all the lands on the allegation of a separation of interest. The minor, on the other hand, claimed that she was only entitled to maintenance, because the lands had remained joint. The compromise arrived at was that the widow was to enjoy a restricted life interest in certain lands and the minor to take the rest of the lands and the reversion in the former lands. The executing Court following the decision in ILR (1886) 10 Bom 342, upheld the contention of the widow that her interest could not be attached under Section 60 of the Civil Procedure Code of 1908. The decree-holder appealed. The appeal was dismissed. Marten J., following the decisions in : (1905)15MLJ7 , pointed out that the restriction on alienation prevented the judgment-debtor from having a disposing power within the meaning of Section 60. He went on to point out that Section 10 of the Transfer of Property Act, which forbids restriction on alienation, could not be invoked by the decree-holder. In the first place, he pointed out that Section 10 had to be read with the other sections of the Transfer of Property Act, such as Section 6(d) which says that an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. Secondly, he pointed out that there was no transfer at all in the case within the meaning of Section 10 of the Transfer of Property Act and that the compromise settled conflicting claims. He then pointed out that the interest which she took in the property under the compromise was restricted in its enjoyment to herself personally, that, therefore, it was an interest not transferable under Section 6(d), and that it was less than that of a Hindu widow's estate which she claimed, but more than a bare right to maintenance which was all that the minor was prepared to allow her. In that view of the matter he stated that it was unnecessary to consider whether the document was merely a right to future maintenance within the meaning of Section 60(n), C. P. C.
18. Fawcett, J., delivered a concurring judgment and pointed out that the settlement was a reasonable one, that the minor had reversionary rights under Ex. 28 and that it was proper to restrict the widow from alienating or parting with possession which might entail litigation after her death. He observed:
'I think, therefore, the lower Court rightly held that defendant No. 2, had no power of disposal over the usufructuary interest of the lands. At most all that she can dispose of is actual usufruct in hand (e. g. a standing crop) and she has no power to dispose of future usufruct, which would in effect, be a disposal of the corpus of the property. Consequently she has no disposing power over the lands sought to be attached or the future profits thereof which it is impliedly sought to attach by the attachment of the lands.
I think also that the reasoning in the penulimate paragraph of the judgment in ILR (1886) 10 Bom 342, applies exactly to this case, and should be followed. That case was also one of compromise.'
19. These three decisions, viz. : (1905)15MLJ7 , proceed on the basis that on the terms of the document concerned in each of those cases, the judgment-debtor did not have a disposing power even over the profits of the property within the meaning of Section 266 of the Civil Procedure Code of 1882 of Section 60 of the Civil Procedure Code of 1908. The execution petition in each case was only for attachment and sale of the interest of the judgment-debtor and it was not considered whether a receiver could be appointed.
20. That question, however, was decided by their Lordships of the Privy Council in Rajindra Narain Singh v. Sundara Bibi . There the respondent had obtained a money decree against the appellant and in execution sought to attach and sell certain zamindari properties in 16 villages. The interest of the appellant in those villages arose under a deed of 1915, made in compromise of a suit which he had brought to eject his brother from a zamindari estate. The compromise provided that the appellant, and after his death his male issue in the male branch should hold and possess'the villages' yielding a profit of Rs. 8000/- a year in lieu of his maintenance without power of transfer during the life time of his brother. After his brother's death the properties were to become the absolute property of the appellant and his descendants, but were not to be transferred so long as heirs of the brother were in existence.
21. The learned Subordinate Judge dismissed the execution petition on the ground that the appellant's interest was a right to future maintenance within the meaning of Section 60(1)(n), C.P.C. of 1908 and therefore not liable to attachment and sale. The High Court reversed the decree observing that they were of the view that Section 60(1)(n) applied only to a bare right to maintenance and in that to a bare right to maintenance and in that particular case they expressed the view that the proper method of execution would be by the appointment of a receiver, but they did not appoint any receiver.
22. In the appellant's appeal their Lordships of the Privy Council differed from the High Court and observed:
'Their Lordships are of opinion that the right of maintenance is in point of law not attachable and not saleable. They think that Section 60 of the Civil Procedure Code, head (n) precludes an application for tat purpose.'
They then proceeded to observe:
'The proper remedy lies, in a fitting case, in the appointment of a receiver for realizing the rents and profits of the property, paying out of the same a sufficient and adequate sum for the maintenance of the judgment-debtor and his family, and applying the balance, if any, to the liquidation of the judgment-creditor's debt. The High Court point out in their judgment 'the appropriate remedy is what is known as equitable execution or indirect execution--namely, by the appointment of a receiver who takes the place of the debtor and acts as an officer subject to the directions of the execution Court in collecting and disbursing the debtor's income in accordance with the directions of the execution Court towards the discharge of the claim 'of the decree-holder'. These views appear to the Board to be sound.
Their Lordships think that the judgment of the High Court should be modified in the sense described and that the case should be remitted to the High Court to make the appointment of the Receiver on the terms just quoted.'
23. This case therefore is authority for the proposition that even in a case where a person is given only a right of bare maintenance, and the interest of the debtor is only a right to future maintenance and could not therefore be attached and sold under Section 60 of the Civil Procedure Code, a receiver could be appointed for realising the rents and profits of the property. In that particular case provision was made in an adequate sum for the maintenance of the judgment-debtor and his family. That seemed to be the proper course, since the property had been given for the purpose of maintenance, and as for the surplus, there seemed to be no reason in law why the surplus should not be made available to the creditor.
24. The next case decided by the Privy Council, to which reference may be made for our purpose, is Nawab Bahadur of Murshidabad v. Karnani Industrial Bank Ltd. . There the appellant as Nawab Bahadur of Murshidabad had succeeded to the benefit of a settlement of immoveable properties contained in an indenture of 1891 (made by the Secretary of State), which was confirmed by an Act to which it was scheduled. The Respondent bank in execution of money decrees which it had obtained against the appellant applied to the High Court to appoint a receiver of the rents, issues and profits of properties included in the settlement. The settlement had been made by the Secretary of State for India for the due maintenance and support of the titles of Newab Bahadur of Murshidabad and to pay to the Nawab Bahadur and his lineal heirs male in perpetuity an annual sum of Rs. 2,30,000 by monthly instalments of Rs. 19,166.10.8 and it was further agreed and declared that the immoveable properties mentioned in the schedules to the indenture should 'henceforth and forever he bend and enjoyed by the said Nawab Bahadur and his lineal heirs subject, however, to the limitations and conditions as to inalienability and otherwise' contained in the indenture. The first condition was this:
'The said Nawab Bahadur shall not nor shall pay any of his successors in the said titles sell, mortgage, devise or alienate the said properties respectively or any of them otherwise than by lease or demise for a term not exceeding 21 years and under a rent without bonus or salamee.'
Lort-Williams. J. dismissed the application on the ground that to appoint a receiver would defeat the intention of the Government as expressed in the statute and indenture by depriving the Nawab Bahadur pro tanto of income designed for the maintenance of his exalted position and would be against public policy. Another ground was that the appointment of a receiver might prove embarrassing and place the Court in an invidious position in the event of the exercise by the Secretary of State of his power of entering into possession of the properties and applying the rents for the Nawab's benefit. The decision of Lort-Williams, J. was reversed in Letters Patent Appeal by Rankin, C. J. and Ghose, J., who appointed a Receiver. On further appeal by the judgment-debtor, their Lordships of the Privy Council confirmed the decision of the High Court. They referred in the first place to S. 51. Civil P. C. which permitted execution by appointment of a receiver and they observed:
'Now while the Moorshedabad Act renders the immoveable properties to which it relates inalienable except to the limited extent permitted, it imposes no restriction on the enjoyment of the rents by the Nawab Bahadur for the time being. So long as he is entitled to draw the rents he may dispose of them as he pleases. It is true that the income of the properties was conferred on him to enable him to maintain his dignity and station, but should he fail so to apply it, the Secretary of State is given the special power of stepping in and drawing the rents himself and applying them for the Nawab's benefit. Unless and until the Secretary of State intervenes the Nawab may employ his income as he chooses, nor is there any restraint on anticipation imposed by the statute or the indenture. The Nawab therefore has a disposing power over the income. Once this is established no question of public policy is involved, and their Lordships are unable to see that either the terms of the statute or the indenture are contravened by aiding the creditors of the appellant to effect payment out of his income of the debts which he has incurred. The appointment of a receiver in the present case is, of course, subject to the special powers of the Secretary of State and should the latter at any time decide to intercept the rents the receiver's powers will be superseded. This is fully recognized by the Appellate Court's judgment.'
25. It may be noted that their Lordships held that the Nawab had a disposing power over the income. It could perhaps have been urged that under Section 60, Civil P.C. attachment and sale of the property could be effected even if the judgment-debtor had a disposing power only over the profits of the property, but the prayer in the execution petition itself was only to appoint a receiver, and the actual question whether the power of disposal over the income was sufficient to justify attachment and sale did not arise for decision.
26. In : AIR1931Pat364 it was held that the interest of the judgment-debtors in the village of Chakla in Chota Nagpur area could not be validly attached and sold under Section 60, Civil P.C. The village had been administered under the provisions of the Chota Nagpur Encumbered Estates Act, 1876, and in 1920 it was released from the provisions of the Act except S. 12-A and possession was restored to the judgment-debtors. Section 12-A of the Act made it incompetent for them without the previous sanction of the Commissioner (a) to alienate such property or any part thereof in any way, or (b) to create any charge thereon extending beyond their lifetime. Such sanction of the Commissioner had not been obtained. It was held that the execution sale would consequently be void. The reasoning was:--
'Without the sanction of the latter (Commissioner) he cannot alienate the property or any part of it in any way nor create any charge upon it extending beyond his own lifetime and any such alienation or charge made or attempted is void. Manifestly the intention of the Legislature was that the property should reach the heir of the holder intact and should do so unencumbered as it had been released to the holder himself. The object of the enactment is the protection of the property itself. The disposing power of the holder is taken away entirely except in respect of the usufruct during his lifetime. To employ the language of Section 60 of the Code of Civil Procedure, he no longer possesses over the property a disposing power which he may exercise for his own benefit; he retains a power only over the profits from the property during his lifetime.'
It was observed that though the sale was prohibited, the remedy against the judgment-debtor, if any, perhaps, was the appointment of a receiver of the usufruct of the property during the holder's lifetime. Lower down they observed:
'To my mind the Legislature provided in the earlier sub-sections of S. 12-A against such a sale by reasonable and necessary implication and in view of Section 60 of the Code of Civil Procedure it was superfluous to provide specifically against an indirect sale of the property. Property is not liable to sale by the Court unless the judgment-debtor has a disposing power over it for his own benefit. The measure of liability to involuntary alienation is the power of voluntary transfer. The latter is taken away from the holder by the statute so far as sale or attempted sale of the property is concerned and the exercise of it is rendered void. Full ownership is cut down the holder's power of disposition for his own benefit is restricted to the profits accruing within his lifetime. There is, as already indicated, ample precedent in Chota Nagpur in the enactments prohibiting on grounds of public policy the transfer, save in exceptional circumstances of raiyati holdings, and in the law governing ghatwali tenancies which also cannot be sold on a decree against the incumbent for his debt. Then the whole purpose of the enactment would be frustrated if by indirect means--it would ordinarily be collusively--the holder could effect the alienation which he is forbidden to make directly.
It may be pointed out in addition that there is of course no equity in favour of creditors who know quite well how little security the statute leaves them in respect of advances to disqualified borrowers definitely subject to S. 12-A.'
27. The decision proceeded expressly on the footing that the holder for the time being did not have disposing power over the corpus of the property itself and though it was recognized that he had power of disposition over the profits, still it was not held that even that limited power would justify attachment and sale under Section 60, Civil P.C. The reason appears to have been that the policy of the enactment would be frustrated by such a sale.
28. In : AIR1937Mad864 (decided by Beasley, C. J.) the question again was whether the property of a certain woman (Janaki Ammal) could be attached and sold under Section 60, Civil P.C. The property had been settled on her by her husband. Out of the income she had to maintain her husband, his mother and child and also any future born children. The wife was not to alienate the property. The husband died; so did his mother. No further children were born. Only Janaki Ammal and her daughter were alive. Janaki Ammal became a judgment-debtor and her creditor sought to attach the property. She contended that she got only a right of maintenance and that therefore the property was not attachable under S. 60(n), Civil P. C. That contention was repelled by the executing court. She filed a revision petition. Beasley, C. J. concurred with the executing court by observing that Section 60(n) could not be invoked by her. He observed:
'Therefore what was sought to be attached here was not her right to maintenance. What was sought to be attached was her property out of which she was to pay the maintenance of other persons. The position in my opinion therefore is that the settlement gave to the widow a life interest in the property. There is a provision for the property going subsequent to her death to 'our heirs.' I take this to mean the heirs of the settlor and the settlee. I cannot spell out of this document anything more than the provision for a life estate and since there clearly is a restraint on alienation imposed, it seems to me that this property was not property over which the petitioner judgment-debtor has a disposing power and upon this point I agree with the observations of Macpherson, J. in : AIR1931Pat364 , where he says:--
'Property is not liable to sale by the Court unless the judgment-debtor has a disposing power over it for his own benefit. The measure of liability to involuntary alienation is the power of voluntary transfer.' Therefore this property was not liable to attachment. There is, however another remedy open to the decree-holder the respondent, namely the relief of indirect execution, that is to say, he is entitled to have a receiver of the income of the property, although he cannot bring that property to sale. I therefore modify the lower Court's over by giving him that relief and in order to save expenses, as this is a small estate, I appoint him, viz., the decree-holder, receiver. There must however be a condition imposed upon his appointment and that is that the directions of the lower Court must be taken as to the payment of some allowance to the judgment-debtor in order to maintain her.'
29. It may be noted that the only criterion applied by the learned Chief Justice was that the widow had no power of disposal over the corpus of the property. He does not specifically discuss the question whether she had a disposing power over the profits of the property. He apparently assumed that she had a disposing power over the profits, but still thought that the proper remedy was only to appoint a receiver.
30. In : AIR1938Mad623 the question again was whether the interest of the appellants in a jagir could be attached and sold. The jagir had been granted to the predecessors of the appellants in 1802 by Lord Clive, with the condition-
'You are to understand that the said village is not alienable by gift, sale or otherwise, but in default of legal heirs the said village shall revert to the Honourable Company.'
The contention of the judgment-debtors that it could not be attached and sold was overruled by the learned Subordinate Judge. The appeal came up before Burn, J. and Abdur Rahman, J., Burn, J. took the view that the Government could not issue a declaration having the force of law that the village could never be transferred by the operation of law. Abdur Rahman, J. held that the provision against alienation was valid under S. 3 of the Crown Grants Act and that therefore the corpus of the property could not be sold. He observed:
'But, under the terms of the grant, the right to enjoy the rents and profits during the time of their natural lives has been given to the grantee and his heirs and the judgment-debtors have a disposing power over the rents and profits of the village which they may exercise during their lifetime for their own benefit. Not having the power of disposal over the corpus of the property, they cannot be held to have any power to deal with its income beyond the period of their natural lives. Their Lordships of the Privy Council, while construing similar terms contained in the Murshadabad Act (XV of 1891), which was enacted only with the object of confirming and giving effect to an indenture between the Secretary of State for India and the then Nawab Bahadur of Murshidabad, arrived at the same conclusion . Following the principles laid down in this case, I hold that although the corpus of the village now proposed to be sold is neither attachable nor saleable, yet its profits and income are so during the principal judgment-debtors' lifetime. The next question then is as to what order would be most appropriate in these circumstances. In an other case which was brought to our notice by the counsel for the appellants the Judicial Committee of the Privy Council took the view that although the appellant's interest in the villages, being a right to future maintenance, was exempted under Section 60(1), Civil Procedure Code, from attachment and sale, yet a receiver could be appointed to realise the rents and profits with a direction to pay a sufficient and adequate sum for the maintenance of the appellant and his family and to apply the balance to the liquidation of the decree. It is true that the rents and profits of the village over which the judgment-debtors are held to have a disposing power could be sold for the period during which the judgment-debtors are alive. But the better relief in the circumstances of this case appears to be that a receiver be appointed in this case for the purpose of collecting the rents and profits of the village until such time as the debt is paid off or the judgment-debtors are alive.'
He was therefore of the opinion that the order for sale should be vacated and a receiver should be appointed, to collect the share of income of defendants 1 and 4 during their lifetime.
31. Because of the difference of opinion, the matter was placed before a third Judge, Venkataramana Rao, J. Venkataramana Rao, J., agreed with Abdur Rahman, J., and pointed out:
'I am therefore of opinion that the interest possessed by defendants 1 and 4 in the property is only the right to enjoy the rents and profits during their lives and they are attachable and saleable; but the proper order in such cases is that passed by my learned brother Abdur Rahman, J. I accordingly agree with him and hold that the appropriate order to be passed in this case is to direct the appointment of a receiver to be in possession and management of the property who will collect the rents and profits thereof and pay the share of the net profits of defendants 1 and 4 in satisfaction of the decree and the share of the net profits appertaining to the deceased father of defendants 5 to 7 to the guardian of defendants 5 to 7'.
32. It may be noted that though Abdur Rahman, J. observed that the rents and profits of the village over which the judgment-debtors were held to have a disposing power could be sold for the period during which the judgment-debtors were alive, he proceeded to indicate that the proper order to make was to appoint a receiver. Venkataramana Rao, J. agreed with him.
33. Thimmi Ammal v. Venkatarama Chetty, : AIR1960Mad347 (decided by Rajamannar, C. J. and Basheer Ahmed Sayeed, J.) was a simple case where the question was whether the right of a Hindu widow in the property of the joint family of which her husband was a coparcener, devolving on her under Section 3(2) of the Hindu Women's Rights to Property Act, 1937 was liable to be attached and sold in execution of a decree obtained against her. The question was answered in the affirmative. The learned Judges observed:--
'Sub-section (3) declares that any such interest shall be the limited interest known as a Hindu Woman's estate provided however that she shall have the same right of claiming partition as a male owner. We have no hesitation in holding that the interest which is conferred by Section 3(2) of the Act on the widow is an interest over which she has a disposing power. It is not necessary to go into the question whether she is a coparcener along with the other coparceners. It is sufficient to hold that the interest which devolves on her is an undivided interest but an interest which can be worked out by means of a partition. Such a right as her husband had devolved upon her. The only limitation is as regards the amplitude of the estate. It is a limited interest known as the Hindu Woman's Estate. In Saradambal v. Subbarama Ayyar, : AIR1942Mad212 a learned Judge of this Court held that the undivided share obtained by a Hindu widow under Section 3(2) of the Act is liable to be attached by her husband's creditors. This decision has been consistently followed in this Court and we are in respectful agreement with the principle land down in the decision. In the case before us, the creditor is not the widow's husband's creditor, but her own creditor. But on principle, that could not make any difference'.
34. It is in the light of these decisions that the question before us has to be decided. I have already indicated that under the original of Ex. B-1 dated 25-11-1940 Kuppuswamy Mudaliar conferred on his two grandsons. Paramasivam and Subramaniam, the right to enjoy the income of the house in question without any power of alienation of the corpus and after them the property was to be inherited by their heirs absolutely. Paramasivam died issueless and therefore the further disposition in favour of his progeny failed and to that extent the half share reverted to the settlor and he settled it in favour of the school under Ex. B-2 dated 17-5-1949. In respect of the other half, however, Subramaniam had some interest. What is the nature of that interest is the question before us, in particular, whether it could be attached and sold under Section 60, Civil P. C. It seems to me that the terms of the settlement are practically indistinguishable from the terms of the instrument concerned in : (1905)15MLJ7 . The latter is a Bench decision and is biding on me. According to that decision I have to hold that the right conferred on him could not be transferred and could not be attached and sold under Section 60, Civil P.C. Even if it is to be considered that the interest which was conferred on Subramaniam was a life interest with a power of disposal over the usufruct, the decision of Bealsey, C.J. in : AIR1937Mad864 and those of Abdur Rahman, J. and Venkataramana Rao, J. in ILR (1938) Mad 767 : AIR 1938 Mad 623 show that, though legally such an interest could be sold to ensure for the lifetime of the first respondent, still the proper course would be only to appoint a receiver. The decision of Abdur Rahman, J. and Venkataramana Rao, J. is equivalent to that of a Bench and is binding on me. Hence, it is clear that, so far as the terms of Ex. B-1 go the relief of attachment and sale which the decree-holder seeks in this case cannot be granted to her. The decision in : AIR1960Mad347 is distinguishable, because, what was concerned there was the interest which devolved on a Hindu widow under Section 3(2) of the Hindu Women's Right to Property Act. Even before that Act, where a Hindu widow inherited her husband's estate, it was settled law that the interest was alienable during her lifetime, and in fact, she was the owner of the Estate, though subject to some restrictions and the reversioners would have no interest till succession opened out on her death. But the position of the first defendant Subramaniam under Ex. B-1 is different and similarly the position of his progeny would also be different. As soon as the progeny were born, the estate would become vested in them and they cannot be assimilated to the reversioners of a Hindu widow's estate. Hence the above decision cannot be invoked by the appellant.
35. The next question is whether a receiver can be appointed. Thiru K. Raman for the judgment-debtor himself has not taken any objection that a Receiver could not be appointed. It seems to me that a receiver can be appointed on the authority of the decision of the Privy Council in . I refer to that in particular, because, though their Lordships held that the case fell within Section 60(n), Civil P.C. (right to future maintenance) and that therefore the property could not be attached and sold, still they held that a receiver could be appointed, and it may be noted that, though there was no prayer for the appointment of a receiver and the prayer was only for attachment and sale, their Lordships held that a receiver could be appointed in that execution petition itself. Similarly in : AIR1937Mad864 , Beasley, C. J. directed the appointment of a receiver. The earlier cases : (1905)15MLJ7 cannot be considered as standing in the way of the appointment of a receiver, because that question was not considered there. Of course, in ILR (1938) Mad 767 : AIR 1938 Mad 623 also a receiver was appointed. It seems to me that in this case also a receiver can straightway be appointed. If the first respondent is already in possession of a portion of the house, he need not be disturbed from that; but if he is not in possession, the entire rents may be collected by the receiver and after the payment of the taxes due to the municipality and provision for repairs, if any the rest should be made available for the satisfaction of the decree of the appellant, and no provision need be set apart for the maintenance of the respondent, as was done in : AIR1937Mad864 .
36. In the document was construed as conferring only a right to future maintenance and therefore attracted Section 60(n). I apprehend that that was the reason why first, provision for the maintenance of the judgment-debtor was made and only the balance was made available to the creditor. But Ex. B-1 cannot be construed as conferring a bare right to maintenance under Section 60(n). In any case the facts of this case do not justify only leniency being shown to the respondent. He has not paid even a pie to his wife and there is no reason why provision should be made for his maintenance out of the income of the property. If he happens to be residing in the house, he need not be evicted, but that is all the benefit he could have. Further, he cannot also claim to occupy the whole house. He can only occupy a reasonable portion of the house, so that the remaining portion of the house could be let out. The execution petition is remanded to the executing court with a direction to appoint a receiver in accordance with the terms of this judgment. The appellant will have the costs of the two courts below, but the parties will bear their own costs in this court. Leave refused.
37. Order accordingly.