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Govinda Pillay Vs. Meenatchi Achi and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in13Ind.Cas.152
AppellantGovinda Pillay
RespondentMeenatchi Achi and ors.
Cases ReferredDiwali v. Apoji Ganesh
Excerpt:
.....her maintenance, are liable to be attached in execution of the plaintiff's decree. it may be well that the second defendant is given the land to be enjoyed by her during life in lieu of the maintenance to which she would be entitled as a hindu widow, but what she acquires under her grant is not a right to maintenance but to certain property or rather the usufruct of that property; the will is not very clearly worded, but, on the whole, we are of opinion, that the intention of the testator was that, on the death of each widow as it happens, the land given to her would pass to the daughter......decree. we shall assume, for the purpose of this argument that the clause would apply whether the right to maintenance is derived under the general hindu or muhammadan law or under an instrument in the nature of deed or will. but it seems to us that the subordinate judge is quite wrong in his view that what is attached in this case can be said to be a right to future maintenance. it may be well that the second defendant is given the land to be enjoyed by her during life in lieu of the maintenance to which she would be entitled as a hindu widow, but what she acquires under her grant is not a right to maintenance but to certain property or rather the usufruct of that property; the produce of the land, as it accrued, becomes at once her property, and the learned vakil for the respondents.....
Judgment:

1. The first question argued is whether the crops growing on one veli of the land which, under the terms of the Will, the second defendant, one of the two widows of the testator, is to enjoy for her maintenance, are liable to be attached in execution of the plaintiff's decree. The Subordinate Judge is of opinion that the crops in question are precluded from attachment by virtue of the provisions of Section 60, Civil Procedure Code, which by Clause (n), exempts a right to future maintenance from seizure in execution of a decree. We shall assume, for the purpose of this argument that the Clause would apply whether the right to maintenance is derived under the general Hindu or Muhammadan Law or under an instrument in the nature of deed or Will. But it seems to us that the Subordinate Judge is quite wrong in his view that what is attached in this case can be said to be a right to future maintenance. It may be well that the second defendant is given the land to be enjoyed by her during life in lieu of the maintenance to which she would be entitled as a Hindu widow, but what she acquires under her grant is not a right to maintenance but to certain property or rather the usufruct of that property; The produce of the land, as it accrued, becomes at once her property, and the learned Vakil for the respondents rightly contends that the second defendant might dispose of it in any way she chose. That being so, it cannot be treated as standing on the same footing as a right to maintenance. The crops are her property, and, as such, must be available to answer her debts. What is interdicted by the Legislature is attachment of a mere right to future maintenance and not of a debtor's property or any interest in property though such property or interest might have been granted to him or her for maintenance. The Subordinate Judge relies upon a case of Munisami Naidu v. Ammani Ammal 15 M.L.J. 7 which follows a decision of the Bombay High Court in Diwali v. Apoji Ganesh 10 B.P 342 in support of his view. No doubt there are words in the judgments in the two cases which might be taken to lend tome countenance to the proposition accepted by the Subordinate Judge, but, it seems to us; that both the decisions really proceed upon the particular provisions of the instruments with which the learned Judges were concerned.

2. However that may be, we have no hesitation in holding that Clause (n) of Section 60 has no application to the present case.

3. The second question relates to the proper construction on the paragraph of the Will in which the testator provides, that on the death of the two widows the land granted to them would go to his daughter. The Will is not very clearly worded, but, on the whole, we are of opinion, that the intention of the testator was that, on the death of each widow as it happens, the land given to her would pass to the daughter. The Pleader for the appellant does not press his case as regards the land which originally fell to his daughter under the Will, as the decree, in execution of which application is made for attachment, is not against the daughter.

4. The result is that the Appeal No. 150 will be allowed with costs, and Appeal No. 151 will be dismissed with costs.


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