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Janaki Ammal Vs. Marudai Chetti - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai
Decided On
Reported inAIR1937Mad864
AppellantJanaki Ammal
RespondentMarudai Chetti
Cases ReferredKhitnarain Sahi v. Surju Seth
Excerpt:
- - 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......order must be modified very materially. i find that the settlement deed in question settled the property sought to be attached on the settlor's widow, the judgment-debtor, and out of its income she had to maintain the settlor himself, his mother and the child then born and it had in view the maintenance also of subsequent born children. the settlor died and so did his mother and, contrary to anticipations, there were no further children. therefore the only child alive is the one in existence at the date of the settlement --a daughter--who is now of age. the settlement contains the all-important provision that the widow was not to alienate the property. she became a judgment-dabtor and the plaintiff sought to execute his decree on that property and the point was raised that it was not.....
Judgment:
ORDER

Beasley, C.J.

1. The petition must be dismissed with costs, though the lower Court's order must be modified very materially. I find that the settlement deed in question settled the property sought to be attached on the settlor's widow, the judgment-debtor, and out of its income she had to maintain the settlor himself, his mother and the child then born and it had in view the maintenance also of subsequent born children. The settlor died and so did his mother and, contrary to anticipations, there were no further children. Therefore the only child alive is the one in existence at the date of the settlement --a daughter--who is now of age. The settlement contains the all-important provision that the widow was not to alienate the property. She became a judgment-dabtor and the plaintiff sought to execute his decree on that property and the point was raised that it was not attachable under Section 60(n), Civil P.C., it being a right to maintenance.

2. As has been very properly pointed out by the learned counsel for the respondent, there is no provision whatsoever in the settlement deed for the maintenance of the widow. 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 Khitnarain Sahi v. Surju Seth : AIR1931Pat364 at

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.

3. 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 order by giving him that relief and in order to save expense, 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. Subject to these observations, as I have stated before, this civil revision petition is dismissed with costs.


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