N.S. Ramaswami, J.
1. The question that arises in this Civil Miscellaneous Second Appeal is whether the sum of Rs. 1,200 or any part of the same, now lying in Court deposit to the credit of the respondent herein, is attachable in execution of a decree obtained by the appellant herein. The appellant is no other than the stepson of the respondent. In an original petition under the Hindu Marriage Act between the respondent herein and her husband (father of the appellant), the Court ordered the husband to pay periodically a certain sum to the respondent towards her future maintenance. In pursuance of that decree, the husband of the respondent had deposited a sum of Rs. 1,200 in Court, representing the maintenance due to the respondent accrued up to a particular date. There was another litigation between the appellant and the respondent in which the appellant has been awarded costs as against the respondent. For realising the said costs, the appellant attached the abovesaid sum of Rs. 1,200 lying in Court deposit to the credit of the respondent. The respondent filed E.A. No. 895 of 1973, out of which the present Civil Miscellaneous Second Appeal arises, for raising the attachment on the ground that the said sum of Rs. 1,200 or any part thereof, is not attachable by virtue of Section 60 (1) (n) of the Code of Civil Procedure. This contention of the respondent has been accepted by the executing Court as well as the appellate Court. The Courts below based their conclusion on the decision of this Court by Ganesan, J., in Swaminathan v. Annammal (1970) 83 L.W. 767. That decision was between the same parties herein. There, the appellant herein sought to attach the interim maintenance that had been awarded to the respondent herein and deposited in Court during the pendency of the original petition under the Hindu Marriage Act. The learned Judge held that that amount was not attached as in his view that came under Section 60 (1) (n) of the Code of Civil Procedure. But with respect to the learned Judge, I am unable to agree with his view in the abovesaid decision, and it is not in consonance with the Bench decisions of this Court.
2. Section 60 (1) (n) of the Code of Civil Procedure, says that a right to future maintenance is not attachable This is analogous to Section 6 (dd) of the Transfer of Property Act, which says that a right to future maintenance cannot be transferred. The question is whether the appellant in the present case is attaching a 'right to future maintenance'. As already seen, the husband of the respondent has deposited in Court, maintenance accrued upto a particular date and that amount is now lying to the credit of the respondent. There can be no dispute that the money lying in Court is that of the respondent and not that of her husband. Undoubtedly the respondent is entitled to get payment out of the said amount and equally she would be entitled to transfer the same to a third party. I do not think there can be any controversy that the money lying in Court to the credit of the respondent' is property of the respondent which is alienable and heritable. Supposing the respondent died without getting payment out of the abovesaid sum which is now lying in Court, her legal representatives would certainly be entitled to claim that amount. Equally, the respondent during her lifetime can alienate the same. Once the maintenance amount has accrued, and especially when the same is deposited into Court, the money so accrued or deposited does not remain a mere right to future maintenance. It has to be noted that both under Section 60 (1) (n) of the Code of Civil Procedure and Section 6 (dd) of the Transfer of Property Act, what is not attachable or transferable as the case may be, is not ' future maintenance ' but a 'right to future maintenance.' Once the right is exercised and the same fructifies into a quantified amount which has actually come into Court, I fail to see how it could be called a mere right to future maintenance. In such a contingency, the right transforms into cash. Once that stands to the credit of the respondent, it is difficult to understand as to why that is not attachable. There can be no dispute that if the cash is property and is transferable it would be attachable at the instance of a creditor.
3. The learned Judge who decided Swaminathan v. Annammal (1970) 83 L.W. 767, has in fact observed that it is difficult to say that the sum lying in Court deposit is a mere right to future maintenance. The learned Judge also says that the amount having been deposited, into Court, the right to future maintenance is transformed into cash. The difficulty arises only in the further conclusion of the learned Judge which is to the effect that in spite of such transformation, the amount in deposit will not lose the immunity from attachment. The learned Judge has not considered the question whether the amount in Court deposit is property or not and whether it is transferable or not.
4. In Muthalammal v. Veeraraghavalu : AIR1953Mad202 , a Division Bench of this Court held that the right of a Hindu widow to claim maintenance out of her husband's estate when it has not crystallised into a definite sum is an inchoate right which cannot be transferred or assigned. It also observes that her claim for maintenance is personal and therefore if she dies pending a suit for maintenance against the estate of her husband in the hands of the coparcener the claim does not survive to her legal representatives. This decision implies that if during the lifetime of the widow there had been a decree for maintenance and it had crystallised into a definite sum, the same can be transferred or assigned and upon her death, the crystallised amount shall go to her legal representatives.
5. Dhanapala Chettiar v. Krishna Chettiar : AIR1955Mad165 , is another Bench decision which is directly to the point. There in a suit for partition, the preliminary decree for partition was passed on 10th January, 1942 declaring that the third defendant (who was the mother of the plaintiff in the suit was entitled to maintenance from out of the family properties and that she was entitled to arrears of maintenance from 1934 onwards. The third defendant died on 17th July, 1945 very much prior to the passing of the final decree. The final decree came to be passed only on 6th February, 1948. In the final decree proceedings, the quantum of maintenance due to the third defendant was fixed at Rs. 40 per mensem and the total amount that was due to the third defendant was determined at Rs. 5,000 odd. This amount was for the period from, January, 1934 to 17th July, 1945, the date on which the third defendant died. The question was whether defendants-4 and 5 in the suit who were the daughters of the third defendant were entitled to inherit the abovesaid sum of Rs. 5,000 odd. It was held that a claim for maintenance prior to decree is no doubt not assignable or heritable but after the decree, it ceased to be a claim and therefore assignable. It was pointed out that in so far as arrears of maintenance accrued due, it would be in the nature of property which is assignable and is heritable, but a right to future maintenance is, however, not property which could be transferred by virtue of Section 6 (dd) of the Transfer of Property Act. The Bench held that what was claimed by defendants 4 and 5 as legal representatives of the third defendant is not a right to future maintenance but the arrears of maintenance accrued due on the date of the third defendant's death, and that the same cannot be negatived. It was point-ed out that it was neither a case of right to future maintenance nor a mere right to sue but a decree for maintenance, though the amount remained to be ascertained (when the third defendant died).
This is what the Bench said at page 77:
In so far as arrears have accrued due, it would be 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 future maintenance that is claimed by defendants 4 and 5, but the arrears of maintenance accrued due on the date of 3rd 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.
This would a fortiori apply to a case as the present one. Here the amount of maintenance due to the respondent had not only been ascertained but the accrued amount had in fact been deposited into Court. It is impossible to hold that the same still remained to be only a ' right to future maintenance.'
6. What is future maintenance at a particular time would become arrears of maintenance at a later point of time. Maintenance which has accrued and is in arrears can never be described as a mere right to future maintenance. The amount now in Court deposit is undoubtedly to the credit of the respondent herein. She can get a payment out of the same. As I said she can also dispose of it otherwise and if she dies intestate before getting payment of the amount, it would go only to her legal representatives.
7. The learned Judge who decided the case reported in Swaminathan v. Annammal (1970) 83 L.W. 767, relied on the decision of the Punjab High Court reported in Shiela Rani v. Durga Pershad . There in pursuance of an order for maintenance made under Section 488, Criminal Procedure Code, the accrued arrears had been deposited in Court. When that was sought to be attached the learned Judge of the Punjab High Court held it was not attachable. It was observed that the maintenance granted by the criminal Court was a purely personal right created by the order of the criminal Court and therefore not liable for attachment.
8. Nobody can dispute the proposition that the right of maintenance granted either by a criminal Court or by a civil Court is a purely personal right to the person to whom it is granted. There fore , the right to get future maintenance cannot be transferred or assigned and equally it cannot be attached. But the question-is what about the arrears of maintenance-which had accrued as per the order or the decree for maintenance as the case may be. At page 80, column 1, the Punjab High Court observed:
When the maintenance has not been realised by the person held entitled to it, it still remains a right for future maintenance and it has not become attachable merely because the arrears have-not been realised.
With respect, I am unable to agree with the above observation. It is no doubt true that the person who was entitled to maintenance had not got payment out of the amount from the Court. The amount was lying in Court deposit. Even so it is not a mere ' right to future maintenance' but accrued arrears of maintenance which were lying to the credit of the maintenance holder.
9. The learned Judge of the Punjab High Court has referred to two judgments of the Calcutta High Court in support of his view. One of those decisions is reported in Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146. But that decision does not in any way support the said observations of the learned Judge of the Punjab High Court. In that Calcutta case, a father executed a gift deed in favour of his daughter providing that a sum of Rs. 600 per annum should be paid to her towards maintenance from out of the income of two specified properties. The question was whether the daughter's right to get maintenance amount at Rs. 600 per annum was attachable. The Calcutta High Court held that the right being a personal one cannot be attached. It was pointed out that as far as the maintenance amount of Rs. 600 per annum is concerned, the daughter did not get any interest in the properties themselves (properties out of which the maintenance was to be paid) and therefore the right for maintenance created in favour of the daughter was a purely personal right. That was not a case where the accrued arrears of maintenance were sought to be attached. What was sought to be attached Was only future right to get the maintenance amount. The Calcutta High Court rightly pointed out, if I may say so with respect, that the said right being a purely personal one was not alienable property and hence the same cannot be attached. This decision in no way supports the view of the Punjab High Court referred above which has been followed by the learned Judge of this Court in deciding the case reported in Swaminathan v. Annammal (1970) 83 L.W. 767.
10. The other Calcutta case referred to ,in the Punjab decision is Girabala Debi v. Nirmalabala Debi : AIR1935Cal578 . That decision itself purports to follow the decision reported in Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146 But the facts of the case in this latter decision are different. There, the arrears of maintenance granted under Section 488 Criminal Procedure Code, had accrued and they were in the hands of the person liable to pay the same. It was held that the right of the maintenance-holder being only a personal right, the abovesaid arrears in the hands of the person liable to pay the maintenance was not attachable. There is nothing in Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146, to support the view taken by the same Court in Giribala Debi v. Nirmalabala Debi : AIR1935Cal578 . As a matter of fact it is against the view of the same High Court in an earlier case, that is, the one reported in Asad Ali Mollan v. Haider Ali I.L.R. (1911) Cal. 13 : 69 I.C. 826.
11. That was a case where there was a decree for maintenance in favour of a Mohamadan lady for a sum of Rs. 5 per month. She assigned the decree for consideration and later died. The assignees sought to bring themselves on record and asked for leave to execute the decree. The Calcutta High Court held that such leave should be granted on the ground that the assignment undoubtedly operated to transfer title in respect of the arrears of maintenance which had accrued due up to the date of assignment. It should be remembered that in that case also the arrears of maintenance accrued was still in the hands of the person liable to pay maintenance. But the Court was of the view that the decree to realise the above-said accrued arrears of maintenance was assignable. This is undoubtedly on the basis that the arrears of maintenance which had accrued though under a decree for payment of future maintenance is property which is transferable. If that be so, the same can be attached as well. In fact in order to hold that the arrears of maintenance is transferable, the Calcutta High Court draws analogy from cases which have held that such arrears are attachable. At pages 18 and 19, it is observed:
It may be conceded that there is authority for the proposition that, if a person is entitled to a monthly maintenance allowance under a deed, the allowance can be attached by an execution creditor only after it has become due ; in other words, that it cannot be attached prospectively before it has become due ; Kasheeshuree Debia v. Greesh Chunder Lahiree (1865) 6 W.R. Mis. 64, and Haridas Acharjia v. Baroda Kissore Acharjia I.L.R. (1899) Cal. 38. These decisions are based on the principle that arrears of maintenance may be attached, but not the right to future maintenance, because such right is not assignable.
The fact that a right for maintenance is only a personal right to the person on whom the right is conferred either by a decree of Civil Court or order of a Criminal Court or otherwise has nothing to do with the question whether maintenance which had accrued and is in arrears is property of the person who is entitled to get the maintenance. Such arrears are attachable. A similar view, as the one which I am taking, has been expressed by Mack, J., in Venkataraju v. Sathiraju : AIR1954Mad946 , though the observation there is in the nature of obiter. That was a case where a will provided that the trustees of a particular choultry to which properties had been bequeathed by the testator shall pay the testator's son a sum of Rs. 60 per month towards his maintenance. What was sought to be attached in that case was undoubtedly the right to get future maintenance and not any particular amount of arrears of maintenance accrued up to a particular date. The question considered was whether the sum of Rs. 60 per month provided under the will was towards maintenance pure and simple or anything in excess of maintenance. The Court Was prepared to order attachment of even future payments if the provision of Rs. 60 per month was not merely towards maintenance but something in excess of the same. Ultimately it was held that the sum of Rs. 60 per month was only towards maintenance and therefore the future right to get maintenance cannot be attached. In the course of discussion the learned Judge observed at page 325 that Section 60 (1) (n) of the Code of Civil Procedure exempts from attachment a right to future maintenance and there is a difference between selling a right to future maintenance and attaching such maintenance when it becomes payable, which is out of the category of future maintenance.
12. Under the above circumstances, particularly in view of the Bench decisions of this Court referred above, Swaminathan v. Annammal (1970) 83 L.W. 767, cannot be considered to be good law.
13. The Civil Miscellaneous Second Appeal is allowed. The orders of the Courts below are set aside. There will be no order as to costs. No leave.