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Mohini Debi Vs. Purna Sashi Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal451
AppellantMohini Debi
RespondentPurna Sashi Gupta and ors.
Cases ReferredKishan Lal v. Gang
Excerpt:
- .....a merely contractual right, but an obligation embodied in a decree. that was also a case where the widow's right to maintenance was enforcible under a decree obtained under a previous agreement.10. we have authorities of this court for the view that the charge is not enforcible against a purchaser for value without notice, because it does not create any interest such as a mortgage does: royzuddi sheikh v. kali nath [1906] 33 cal. 985 and akhoy kumar v. corporation of calcutta [1915] 42 cal. 625. no doubt the observations made in those cases were not necessary on the facts found, but the reasons given by mukerjee, j., appear to me to be sound in spite of the criticisms made by the madras high court in srinivasa raghava aiyangar v. k.r. ranganatha aiyangar [1918] 51 i. c. 963. the same.....
Judgment:

Suhrawardy, J.

1. In this appeal the respondent is unrepresented before us. We have given our best consideration to this case, especially in view of the fact that we have received no help from the respondent.

2. The facts giving rise to the suit are that one Keshab Chandra Roy was the owner of a share in Touzi No. 33, Pabna Collectorate, and he died leaving the plaintiff as his widow, and two sons, one by the plaintiff and the other by a predeceased wife, who is defendant 1, Dinesh Chandra Roy. While the property left by Keshab was in possession of his two sons, the plaintiff's son died leaving her as his heir, with the result that the plaintiff and Dinesh became entitled each to an eight anna share of the property and were in such possession. In 1300 B.S. the plaintiff executed a deed of relinquishment in favour of Dinesh, by which she gave up her possession of the property left by Keshab to Dinesh on the ground that she was old and infirm and was unable to manage it. In that document there was no reservation of any right by the plaintiff. It was intended to accelerate the succession of the reversioner Dinesh. In 1301 B.S. Dinesh executed a document termed ' ekrarnama for maintenance ' by which after reciting the relinquishment of the plaintiff's share in the property under the deed of 1300 B. S., Dinesh promised to pay to the plaintiff a mashohara or allowance of Rs. 10 a month for her life. Some time after 1314 B.S. Dinesh transferred a portion of the property, Touzi No. 33, left by the plaintiff's husband, to the appellant, defendant 6. The present suit was instituted by the plaintiff in 1925 for recovery of the amount fixed by the ekrarnama of 1301 B.S. from Dinesh as well as from the appellant. Both the Courts below have decreed the plaintiff's suit. Defendant 6, the purchaser, appeals and two points have been urged on her behalf. The first is that the transaction as evidenced by the documents of 1300and 1301 B.S. did not create a charge on the property in the hands of the appellant, which is not, therefore, liable for the plaintiff's claim; and the second is that even if the plaintiff's claim constitutes a charge, the appellant being a purchaser for value without notice, took the property free of such claim.

3. As regards the first point, the deed of relinquishment does not mention any consideration. The ekrarnama of 1301, after mentioning that the plaintiff had by the deed of 1300 B.S. relinquished her interest in Touzi No. 33, proceeds to say:

Now besides the abovementioned property, you have also relinquished in my favour other immovable properties which you owned and possessed. For this I do hereby promise by this deed of agreement to pay you Rs. 10 per month as desired by you in lieu of all those properties for your maintenance....If I do not pay the, maintenance money amicably you will be entitled to realize the same-by a regular suit by putting in auction all those properties and, in case the entire amount in arrear is not realized therefrom, by the sale of my other properties moveable and immovable.

4. The document purports to be an agreement to pay a sum of money monthly and it has been stamped as such. It does not contain any schedule or description of the properties relinquished by the plaintiff in favour of the defendant except mentioning as one of them, Touzi No. 33 which however has not been more particularly described. It says generally that in the event of the executant not paying the fixed allowance, the executee will have the right to sell ail the properties relinquished by her in favour of the executant. No particular or specific property is mentioned as liable for the claim for the allowance. 'What it purports to say is that the obligor is liable to pay Rs. 10 to the obligee every month and in default of payment the obligee may proceed in the first instance against those properties which she has relinquished in favour of the obligor and in case she is unable to realize the arrears from those properties, she may have recourse to his other properties, A document like this is not, in my opinion, calculated to create a charge on any immovable property. Charge ' has been defined in Section 100, T. P. Act, thus:

Where immovable property of one person is by act of parties or operation of law made security for the payment of money 'to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property.

5. The ekrarnama does not make the property, Touzi No. 33, or any other property, security for the payment of the allowance fixed by it. It enables the promisee to proceed against certain properties of the promisor in case of default of payment. In order to make the property security for payment of money, there should be some expression to signify that the property is liable for such payment and for that purpose the property must be specified and not described in such general terms as in the present case. The ekrarnama does not say that the properties mentioned therein remain liable for the allowance from the date of the execution of the document. It says that if the allowance remains in arrear in future the properties may be sold for the realization of the same. A charge cannot be created on a future contingency. The case is very similar to Madho Misser v. Sidh Binaik Upadhya [1887] 14 Cal. 687. It is true that whether a transaction creates la charge or not is to be gathered from the intention of the parties as expressed in the contract. Reading both the documents together it seems to me that it was never in the contemplation of the parties that the properties which the lady relinquished in favour of Dinesh would remain liable for her maintenance. If that were the intention, some indication ought to have been present in the first document created, namely, the deed of relinquishment of 1300 B.S. It appears that after the plaintiff had relinquished all her claim in Touji No. 33 she gave some more properties to Dinesh and in consideration of this act of hers Dinesh promised to pay her an allowance. On the construction of the transaction the Courts below have also differed. The trial Court held that it did not create a charge, but was of opinion that, according to the Hindu law, the maintenance of a widow became a charge as soon as it was fixed by agreement. The learned District Judge on appeal however was of opinion that the ekrarnama, Ex. 1, created a charge, and the ground upon which he based his opinion is that there is a specific provision to the effect that the properties could be sold for realization of the maintenance if in arrears. The learned Judge, in support of his view, relied on the case Maina v. Bachchi [1906] 28 All. 655. But there it was laid down that where immovable property of one person had been made security for the payment of money to another, whether the transact ion created a charge on such property is a question which must depend upon the construction to be placed upon the document. In that case the widow had brought a suit for her maintenance and it resulted in a decree incorporating a compromise, by which it was provided that the defendant in the suit would pay her a certain sum monthly and that in default of such payment at the end of each month, the defendant would have power to recover the monthly sum with interest at 1 per cent per mensem from the property decreed by instituting a suit. The words 'from the property' appear in italics in the report. From the nature of the suit brought by the widow and the compromise arrived at, the learned Judge concluded that the transaction created a charge. That case has no application to the facts of the present case.

6. Let us concede that the transaction created a charge in favour of the plaintiff. The question that next arises is as to whether such charge is enforceable against the property in the hands of the appellant. Before considering this question it must be borne in mind that both the Courts below have emphatically found that the appellant is a bona fide purchaser for value without notice. The position therefore is to be considered from this standpoint. The learned District Judge has relied upon certain Allahabad cases. Ram Kunwar v. Ram Dai [1900] 22 All. 326 The Bharatpore State v. Gopal Dei [1901] 24 All. 160 and Maina v. Bachchi [1906] 28 All. 655 for holding that the appellant, though a purchaser for value without notice, is bound by the charge created in favour of the plaintiff. The view taken in those cases in Allahabad started virtually from the Full Bench case of that Court, Shamlal v. Bauna [1882] 4 All. 296 where it was held that the maintenance of a Hindu widow is not, until it is fixed and charged on her deceased husband's estate by decree or by agreement, a charge on such estate which can be enforced against a bona fide purchaser of such estate for value without notice. The facts of the Full Bench case have not been stated in the report, but all the cases cited by the learned Judge deal with decrees obtained by the widow for her maintenance, though in all those cases it was repeated that the maintenance of the widow would be a charge upon her deceased husband's estate if fixed by decree or by agreement. The learned Judge thinks that in this case the charge has been fixed by agreement, namely, the ekrarnama, Ex. 1. In none of those cases however it has been said as to what sort of agreement is necessary to bind the estate in the hands of the bona fide purchaser. But in Juggernath Sawunt v. Adhiranee Narayan Kumari [1873] 20 W.R. 126 Sir Richard Couch, C. J., indicated the kind of agreement necessary to bind the property in the hands of a bona fide purchaser. Ho said:

Where the estate is inherited by the eldest member until the maintenance of the widow has become a specific charge upon the property which it might, by a decree of a Court making provision for the payment of the maintenance and declaring that a part of the property should be a security for it, or by a contract between the parties charging the property with a certain sum for maintenance, we do not see how it can be a charge upon the estate in the hands of the bona fide purchaser for consideration:' see Mayne's Hindu Law, Edn. 9, p. 663 at seq.

7. The agreement therefore in order to create a charge, must be such as to make a property security for the payment of the maintenance thereby creating an interest in the property. The case of decree of Court is different as it binds the property.

8. There is another difficulty in the plaintiff's way. If she bases her claim on the ground of the maintenance due to a Hindu widow, she is confronted with Section 39, T. P. Act (before its amendment in 1929) which says that the right to receive maintenance cannot be enforced against the transferee for value without notice of the right, unless the transfer was made with the intention of defeating such right and the transferee took it with knowledge of such intention. These elements have not been found in the case. If she relies upon the agreement as shown by the document of 1301 B. S., she is met by para. (2), Section 40, which says:

Whore a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immovable property but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof, or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands.

9. The agreement in this case does not create an interest in the property. It only creates, if it does, an obligation arising out of a contract annexed to the ownership of immovable property. Such obligation cannot be enforced against a bona fide purchaser without notice. This difficulty was perceived by the Judges of the Allahabad High Court in Mahadeo Prosad v. Anandi Lal : AIR1925All60 , where it was observed that the right in that case was not a merely contractual right, but an obligation embodied in a decree. That was also a case where the widow's right to maintenance was enforcible under a decree obtained under a previous agreement.

10. We have authorities of this Court for the view that the charge is not enforcible against a purchaser for value without notice, because it does not create any interest such as a mortgage does: Royzuddi Sheikh v. Kali Nath [1906] 33 Cal. 985 and Akhoy Kumar v. Corporation of Calcutta [1915] 42 Cal. 625. No doubt the observations made in those cases were not necessary on the facts found, but the reasons given by Mukerjee, J., appear to me to be sound in spite of the criticisms made by the Madras High Court in Srinivasa Raghava Aiyangar v. K.R. Ranganatha Aiyangar [1918] 51 I. C. 963. The same view also was expressed in Allahabad in Kishan Lal v. Gang- ram [1890] 13 All. 28. We have to consider this question on the law as it stood before the amendment of Section 100, T. V. Act, in 1929 which has now set the controversy at rest.

11. Giving my anxious consideration to the points raised in this case, I am of opinion that the appeal ought to succeed. The appeal is accordingly allowed with costs except the hearing-fee, as the respondent has not appeared before us, and the decrees of the Courts below are set aside with costs to defendant 6.

Graham, J.

12. I agree.


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