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Yeddula Chinnabbi and ors. Vs. Yeddula Venkata Subbamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad507; (1941)1MLJ123
AppellantYeddula Chinnabbi and ors.
RespondentYeddula Venkata Subbamma and anr.
Cases ReferredCherutty v. Nagamparambil Ravu
Excerpt:
.....of the new clause (dd) by the amending act of 1929, all proceeded on the assumption that such a right is 'property,'for, the wording of clause (d) clearly postulates that the right or interest which is made inalienable thereunder is 'an interest in property'.in ranee annapurni nachiar v. alimony, as is well known, is an allowance which the court orders to be paid for the maintenance of the wife in consequence of a judicial separation, and depends from time to time on the discretion or approval of the court which 'may alter it or take it away whenever it pleases'.even in england such allowance has been distinguished from an annual sum secured to the wife by an order of court under section 32 of the divorce and matrimonial causes act, 1857, which has been held to be property--see..........swaminatha chettiar : (1910)20mlj785 , however, a bench of this court took the view that a widow's right to maintenance from her husband's estate where the amount is fixed by agreement or by decree is not property at all and that therefore, section 6(d) did not affect an assignment of such right which they accordingly upheld. but this view has not been, generally accepted and in the full bench case subraya v. krishna : air1924mad22 , oldfield, j., remarked with reference to that decision: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.....
Judgment:

Patanjali Sastri, J.

1. This is an appeal brought by the judgment-debtors from an order of the District Court of Cuddapah refusing to scale down the decree in O.S. No. 17 of 1936 on the file of that Court on the ground that the debt due to the respondents is excluded from the purview of the Agriculturists' Relief Act by Section 4, Clause (h) thereof.

2. The appellants contend that the exemption under that clause does not apply to the respondents as they own 'other property,' inasmuch as each of them is entitled under the decree in O.S. No. 20 of 1935 on the file of the Subordinate Judge's Court of Cuddapah to an allowance of Rs. 10 per mensem for her maintenance. The only question for determination is whether the right to receive this allowance can be regarded as 'property'.

3. The respondents are the daughters by the second wife of one Chinna Venkatasubba Reddi who gave a third share of his properties by his will to his daughter by the first wife, and died intestate in respect of the rest of his properties which were inherited by his third wife who survived him. The devisee brought the O.S. No. 20 of 1935 referred to above for partition and delivery of possession of her third share of the properties against the surviving widow and her daughter, and the respondents were also impleaded as defendants 3 and 4 as being in possession of some of the assets of their father. A decree for partition was duly made and paragraph 6 of that decree provided that:

Defendants 3 and 4 by guardian will be given Rs. 240 per annum as maintenance at Rs. 120 each till each of them is married and joins her husband's family, from the date of plaint, that is, 24th July, 1933, in proportionate shares.

and liberty was reserved to the parties in paragraph 9 to apply for further directions in the matter. It is now admitted that the first respondent is married and has joined her husband and, for that reason, is no longer entitled to the allowance payable under the decree. As she has not been proved to own any other property, she is clearly entitled to the immunity provided under Section 4(h) of the Act and the appeal must fail so far as she is concerned. The question arises therefore only with reference to the claim of the appellants to have the decree scaled down against the second respondent.

4. It is argued on behalf of this respondent that the right to receive the allowance under the decree cannot be regarded as 'property' as such right being no more than a right to future maintenance is neither heritable nor transferable having regard to Section 6, Clause (dd) of the Transfer of Property Act. Our attention was also drawn to Section 60(1)(n) of the Code of Civil Procedure which provides that a right to future maintenance is not liable to attachment and sale in execution of decrees. These statutory provisions, however, do not, in our view, conclude the point at issue, for rights are readily conceivable which are neither transferable nor attachable but which are undoubtedly in the nature of property--see for instance Section 6(d) of the Transfer of Property Act and Section 60(1), (a)(b) and (c) of the Code of Civil Procedure. Still less is non-heritability a test, as a life estate or a widow's estate in immovable property is a well-known species of property. The term 'property' is not defined in the Transfer of Property Act but it is one of very wide import, and there seems to be no obvious reason why the right of the second respondent to a monthly allowance of Rs. 10 payable under the decree should not be held to be' property'. In Harries v. Brown the Privy Council upheld an assignment of a monthly allowance of Rs. 50 bequeathed by a father to his daughter for her maintenance, and the numerous decisions in this country which had to consider the question whether the right to future maintenance is alienable, and, if so, under what circumstances, having regard to Section 6(d) of the Transfer of Property Act before the introduction of the new Clause (dd) by the Amending Act of 1929, all proceeded on the assumption that such a right is 'property,' for, the wording of Clause (d) clearly postulates that the right or interest which is made inalienable thereunder is 'an interest in property'. In Ranee Annapurni Nachiar v. Swaminatha Chettiar : (1910)20MLJ785 , however, a Bench of this Court took the view that a widow's right to maintenance from her husband's estate where the amount is fixed by agreement or by decree is not property at all and that therefore, Section 6(d) did not affect an assignment of such right which they accordingly upheld. But this view has not been, generally accepted and in the Full Bench case Subraya v. Krishna : AIR1924Mad22 , Oldfield, J., remarked with reference to that decision:

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.

5. And Schwabe, C.J., observed:

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.

6. The learned Chief Justice drew a distinction between a right to future maintenance properly so called, that is, 'the right to be maintained by the supply of clothing, board and lodging' and the right under a contract to receive a specified amount in cash or kind by way of maintenance, and expressed the view that the latter right was property, remarking that there was a divergence of opinion as to whether the former was property or not. In Asad Ali Molla v. Haidar Ali I.L.R.(1910) Cal. 13, Mookerjee, J. delivering the judgment of the Court held that where a claim to maintenance had been merged in a decree which also fixed the amount payable in that behalf, the decree was assignable whether the original claim was personal or not, and throughout the discussion it was assumed that such a right was in the nature of property. As already observed, the decisions which discuss whether the right to receive defined amounts periodically under a contract or a decree is one restricted in its enjoyment to the owner personally within the meaning of Section 6(d) of the Transfer of Property Act, proceed on the same assumption, as no question under that clause could otherwise arise. The new Clause (dd), No. doubt, specifically provides that 'a right to future maintenance, in whatsoever manner arising, secured ' or determined, cannot be transferred.' But as already remarked,, this does not affect the question whether such a right is in the nature of property or not. We are aware that in Subraya v. Krishna : AIR1924Mad22 , the allowance in question was actually charged on 'immovable property, but the nature of the right was discussed in general, no point being made of the charge. Indeed, as pointed by Mookerjee, J., in Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146, the existence of a charge has not much bearing on the question:

Because, if the allowance is regularly paid by the person liable, no question of enforcement of a charge upon any interest in immovable property arises; unless a default has been made, and arrears are due, there is no charge to enforce.

7. Reference was also made in the course of argument to the English case in In re Robinson (1884) 27 Ch. D. 160, where it was held that alimony payable to a wife under a decree for judicial separation was:

Not in the nature of property but only money paid by the order of the Court from time to time to provide for the maintenance of the wife.

8. We do not think that English cases relating to alimony are of much assistance in the determination of the question before us. Alimony, as is well known, is an allowance which the Court orders to be paid for the maintenance of the wife in consequence of a judicial separation, and depends from time to time on the discretion or approval of the Court which 'may alter it or take it away whenever it pleases'. Even in England such allowance has been distinguished from an annual sum secured to the wife by an order of Court under Section 32 of the Divorce and Matrimonial Causes Act, 1857, which has been held to be property--see Harrison v. Harison 28 L.J. New Series P.D. and Ad. Dn. 28. There is not much similarity between alimony which the Court allows or withdraws at its discretion during judicial separation and the right of an un-married daughter of a Hindu to maintenance out of his estate in the hands of his devisees or heirs. A Full Bench of this Court has held in Subbayya v. Anantaramayya (1928) 57 M.L.J. 826 : I.L.R. 53 Mad. 84 that even against the father the daughter's right to maintenance is not based merely on his natural obligation to maintain his children, but is based on her right or interest in the family property. After an elaborate examination of the original texts and decisions bearing on the subject, Ramesam, J., came to the conclusion that:

The right of the daughter for maintenance up to the going to the husband's house and for marriage expenses is a present remnant of the right to a share. Therefore the right of the daughters in the father's lifetime, however much it cannot be enforced by partition, must still be described as a right or interest in the property. (See also Cherutty v. Nagamparambil Ravu : AIR1939Mad513 .)

9. If such is the nature of the daughter's right to maintenance during her father's lifetime, her right on his death against persons who take his property must partake still more of the nature of an interest in property; for, then there is no question of personal relationship involving an obligation to maintain. We are therefore of opinion that English cases relating to alimony bear no analogy to the maintenance allowance decreed to a Hindu daughter against the heirs or devisees of her father.

10. We therefore hold that the second respondent owned 'other property' on the material date within the meaning of Section 4, Clause (h) of the Madras Agriculturists' Relief Act and is not entitled to the immunity afforded by that provision. The appeal is allowed as against the second respondent and the application is remitted to the lower Court for disposal in the light of this judgment. The appellant will have his costs of the appeal against that respondent. As against the first respondent the appeal is dismissed with costs. The Civil Revision Petition is dismissed without costs.


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