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Sheikh Asad Ali Molla and anr. Vs. Sheikh Haider Ali and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in6Ind.Cas.826
AppellantSheikh Asad Ali Molla and anr.
RespondentSheikh Haider Ali and ors.
Cases ReferredAshutosh Bannerjee v. Lukhimoni Debya
civil procedure code (act xiv of 1882), section 232 and (act v of 1908), order xxi, rule 16 - execution--decree for maintenance--assignee of decree--right to execute. - .....of a decree for maintenance to execute it against the judgment-debtor in the same manner as the original decree-holder. the circumstances, under which, the present dispute has arisen between the parties, have not formed the subject of controversy before us. on the 18th april, 1900, one banu bibi commenced an action for partition of movable and immovable properties jointly owned and possessed by her along with her co-sharers. on the 18th april 1901, a decree was made by consent, the effect of which was that the plaintiff relinquished her claim to the properties in suit, and the defendant undertook to pay her rs 5 per month for her maintenance during her life-time; they also undertook to continue the maintenance to the sons and daughters born of her womb; and the sum payable was made a,.....

1. The substantial question of law, which calls for decision in this appeal, relates to the right of an assignee of a decree for maintenance to execute it against the judgment-debtor in the same manner as the original decree-holder. The circumstances, under which, the present dispute has arisen between the parties, have not formed the subject of controversy before us. On the 18th April, 1900, one Banu Bibi commenced an action for partition of movable and immovable properties jointly owned and possessed by her along with her co-sharers. On the 18th April 1901, a decree was made by consent, the effect of which was that the plaintiff relinquished her claim to the properties in suit, and the defendant undertook to pay her Rs 5 per month for her maintenance during her life-time; they also undertook to continue the maintenance to the sons and daughters born of her womb; and the Sum payable was made a, charge upon certain specified properties. The decree provided lastly that if the money was not paid for two consecutive months, the arrears would carry interest at 6 per cent, per annum from the date of default till that of leatigation. On the 25th August, 1905, Banu Bibi assigned all her rights under this decree (sic) favour of Asad Ali and Maharaj Mandal, who are now the appellants before this Court. On the 12th December, 1905, the assignees applied to be substituted, on the record, and asked for leave to execute the decree This application was refused by the Subordinate Judge on the ground that no interest had passed under the deed of assignment, as a right to future maintenance was not assignable under the law. The assignees then appealed to this Court. The order of the Subordinate Judge was reversed by Sir Francis Maclean, C.J., and Coxe, J., on the ground that the assignment undoubtedly operated to transfer title at least in respect of the arrears which had accrued due up to the date of the assignment, and consequently it could not be affirmed that the assignees were not entitled to be substituted as such on the record, and to execute the decree. The learned Judges expressly left undecided the question whether, by virtue of the assignment, the assignees would be entitled to recover sums which had accrued due after the assignment in their favour had been made. The result was that on the 3rd June, 1908, the assignees again applied for substitution of their names, and for leave to execute the decree. The Subordinate Judge held that the assignment was operative in respect of the sum which had accrued due on the 25th August, 1905, but that, in so far as the assignment was intended to transfer to the assignees the right of the original decree-holder to realize arrears of maintenance as they fell due from time to time, it was inoperative in law. It may be stated here that the assignor, upon whom notice had been served and who was a party to the proceedings, did not take any exception to the execution of the decree by the assignees in respect of the arrears subsequent to the date of assignment; the objection was taken by the judgment-debtors alone and was allowed to prevail. The assignees, have now appealed to this Court, and on their behalf it has been contended that the assignment was valid and operative and effectively transferred to them all the rights of the decree-holder, inclusive of the right to realise from the judgment-debtors by execution the amount of monthly allowance as it fell due. In support of this proposition, reference has been made to the cases of Harris v. Brown 28 C. 621, Haridas Acharjia Chowdhry v. Baroda Kishore Acharjia Chowdhry 27 C. 38 : 4 C.W.N. 87, Uday Kumari v. Hari Ram 28 C. 483 Salamat Hossein v. Luckmi Ram 10 C. 521 and Abdul Lateef v. Doutre 12 M. 250. This position has been contested on behalf of the (judgment-debtors defendants; and it has been argued on their behalf that a light to future maintenance is not assignable and that a decree obtained for the enforcement of a claim to future maintenance, stands in this respect on the same footing.

2. In support of this proposition, reference has been made to the cases of Tuffluzal v. Raghu Nath 14 M.I.A. 40 : 7 B.L.R. 186, Maniswar v. Beer Pertab 15 W.R. 188 : 6 B.L.R. 646 and Sher Singh v. Sri Ram 30 A. 246 : 5 A.L.J. 251 : A.W.N. (1908) 101 : 4 M.L.T. 10. Reference has also been made to the observations in Tadman v. Depinuil (1882) 20 Ch. D. 758 : 47 L.T. 157 : 30 W.R. 702, that a charge cannot be validly created so as to be operative on undefined property not belonging to the mortgagor at the date of the execution of the deed and it has been suggested that this dictum is not affected by the reversal of the decision itself in Tailby v. Official Receiver (1888) 13 A.C. 523 : 58 L.J. Q.B. 75 : 60 L.T. 62 : 37 W.R. 513. After careful consideration of the arguments advanced to us on both sides, we are of opinion that the view taken by the Court below is erroneous and cannot be supported.

3. 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. Kasheshuree Debia v. Greesh Chunder Labooree 6 W.R. Mis. 64 and Haridas v. Baroda Kishore 27 C. 38 : 4 C.W.N. 87. 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. It cannot, however, be affirmed as an inflexible rule that a right to receive maintenance is, under no circumstances, assignable and in the case of Harris v. Brown 28 C. 621, the Judicial Committee upheld a sale by a widow, though not a Hindu widow, of her monthly allowance. Cases are also to be found in the books, where maintenance grants have, by custom, acquired the incident of alienability Rameshwar Singh v. Jibender Singh 32 C. 683 : 9 C.W.N. 567, Ram Charan v. Mudeswara 10 C.W.N. 978 : 33 C. 1158, Durgadut Singh v. Rameswar Singh 86 I.A. 176 : 13 C.W.N. 1013 : 11 Bom. L.R. 901 : 6 M.L.T. 68 : 10 C.L.J. 233 : 6 A.L.J. 817 : 33 C. 943 : 19 M.L.J. 567 : 4 Ind. Cas. 2. The case of Vaidijanatha Sastrial v. Eggia Venkatarama Dikohitar 30 M. 279 : 17 M.L.J. 373 : 2 M.L.T. 338 also shows that a hereditary grant of an allowance out of specified lands is not a right to future maintenance which is inalienable by its nature, and as such, exempt from attachment. There are moreover cases in which it has been held that an annuity, the payment of which is a charge upon an estate, is property which is alienable and can be attached Encet Hossain v. Nujeeboonissa Begum 11 W.R. 138, Mahtab Chand v. Dhun Coomari 17 W.R. 254, Maniswar v. Beer Pertab 15 W.R. 18 : 6 B.L.R. 646, and Har v. Baijnath 23 A. 164. We are not prepared, therefore, to lay it down, as an inflexible rule of law, that a maintenance grant is, under no circumstances, alienable. It is not necessary for us, however, to consider in the present case the precise nature of the right of the assignor to receive a maintenance allowance or an annuity from her co-sharers, in whose favour she relinquished her interest in the joint property, because even if we assume that such right was inalienable, there can be no question that the right given to her by the decree is alienable. It is well-settled that in reference to the assignability of a judgment, the cause of action, on which it is founded, is not generally material, and it has been repeatedly affirmed that a judgment recovered for a tort is assignable to the same extent as one based on a contract. To take an illustration, in the case of Palmer v. Cohen (1831) 2 B. & Ad. 966, it was ruled that an executor could enter up judgment after verdict in an action of tort and the same view was adopted in Kramer v. Waymark (1866) L.R. 1 Exch. 241 : 4 H. & C. 427 : 35 L.J. Ex. 148 : 12 Jur. (N.S.) 395 : 14 H.T. 368 : 14 W.R. 659. It may be observed, however, with reference to this particular point, that there has been some divergence of judicial opinion, and it has sometimes been maintained that the character of a chose in action is not changed by a verdict. So that in an action in tort though a verdict has been returned in favour of plaintiff, his cause of action remains unassignable, and an attempted assignment thereof made prior to the rendition of the judgment, is void, and neither transfers the cause of action nor the judgment when subsequently entered therein. On this principle, it has been ruled that, if the plaintiff in an action for malicious prosecution after obtaining a verdict in his favour, but before the entry of the judgment thereon, assigns the verdict and the cause of action, such assignment is a nullity. Consequently, the judgment, when entered, will not belong to the assignee, because if the cause of action was not assignable, its transfers pendente lite could not effect an assignment of the judgment subsequently recovered thereon Expirte Charles (1811) 14 Mast. 197, Bass v. Gilbert ((1813) 2 M. & S. 70 : 14 R.R 691, Scott v. Ambrose (1814) 3 M. & S. 326 : 15 R.R. 504, Walker v. Barnes (1814) 5 Taunt 788 : 15 S.R. 656 : 1 Marsh 346, and Gamble v. Central Railway Co. (1888) 80 Georgia 595 : 12 Am. St. Rep. 276. Whatever difference of opinion there may, however, be upon the question of the assignment of an unalienable chose in action pendente lite before the judgment is perfected, there is no difference of judicial opinion that, when the claim has been merged in an actual judgment, the right under the judgment is assignable and the nature of the chose in action is immaterial; Comegys v. Vasse (1828) 1 Peter 193 : 7 Law. Ed. 108, where Mr. Justice Story pointed out that while mere personal rights, which die with the party and do not survive to his personal representative, are incapable of assignment, vested rights, ad rem, and In re possibilities coupled with an interest and claims growing out of and adhering to property, may pass by assignment. See also the notes to Dugas v. Mathews (185l) 9 Georgia 510 : 54 Am. Dec 361, where illustrations are given of valid assignments of judgments when the original cause of action was inalienable. Similarly in Charles v. Haskins (1860) 11 Iowa. 329 : 77 Am. Deo 148, Baldwin, J. observed that when a judgment is entered, the cause of action is merged therein, and loses most of its pre-existing characteristics, so that, even if the cause of action was not assignable, the judgment is assignable and may be enforced by the assignee in his own name. [Freeman on Judgments, Volume II, Section 425 and Black on Judgments, Volume, II, Section 924, where reference is made to Moore v. Howell (1886) 94 N.C. 265 and Stewart v. Lee (1900) 70 N.H. 181 : 46 All. 31; in this latter case, the judgment which was held assignable had been recovered in a breach of promise suit.] We refer to these English and American decisions, not as authorities in any way binding upon this Court, but merely be-, cause they embodied principles based not upon any technical rules peculiar to those systems, but upon grounds consistent with the rules of equity, justice and good conscience. It is conceded that there is no statutory provision in this country which is directly applicable to this matter. Section 6 of the Transfer of Property Act and Section 232 of the Civil Procedure Code of 1882 obviously do not conclude the matter. On the other hand, Section 232 of the Code of 1882 or Order XXI, Rule 16, of the Code of 1908, does not specifically lay down any restriction upon the assignment of a decree. It may, indeed, be added that while under the old Code, the Court had a discretion whether it would allow execution to proceed at the instance of, the assignee, under the new Code, his right of execution does not depend upon the discretion of the Court. It has been argued, however, by the learned Vakil for the judgment-debtors that an assignment of a decree, where the original cause of action was personal to the plaintiff and not assignable, ought not to be allowed on grounds of public policy. We are unable to accept this contention as well-founded. When the cause of action is merged in the decree, there has been an adjudication by a competent Court upon the rights of the parties and the liability of the defendant has been completely defined It is immaterial to the defendant whether he satisfies the judgment for the benefit of the plaintiff or for that of his representative by assignment. In the case before us, for instance, it ought to be of no consequence to the defendants whether they pay the money into the hands of the original plaintiff or into those of the persons in whose favour she has transferred all her rights under the decree. Under that decree, a certain sum is periodically payable by them, and it is difficult, to appreiate on what grounds the defendants car avoid payment to the appellants, who acquired the rights of the original decree-holder for valuable consideration. It has been faintly suggested that the value of the interest of the decree-holder is uncertain, contingent upon the length of her life and consequently a sale thereof is likely to be of a speculative character, and should on this ground be discouraged as contrary to public policy. This contention is obviously unsound, because, if this view were maintained, we must hold that no valid transfer could be effected of any life-interest in property or of the interest of a Hindu female, such as a widow, a daughter or a mother in possession of the estate of the last male owner. It has also been suggested that the conveyance in this case did not effect a transfer of all the rights of the original decree-holder, inclusive of her right to realize by execution the successive instalments of the annuity as they fall due. There is, in our opinion, no force in this contention. The. decree in I his case is in the form recognised in the Pull Bench decision of Ashutosh Bannerjee v. Lukhimoni Debya 19 C. 139 and the, decree-holder was entitled to recover in execution, without further suit, the allowance as it accrued due. When the transfer was effected, the allowance for four years was in arrears. It is inconceivable that a specific sum like this, could have been alienated for a much larger sum. When the value of the interest was fixed at Rs. 785, there can be no doubt that the interest, sought to be transferred, was the entire interest of the original plaintiff in the decree obtained by her. We must consequently hold that the plaintiff intended to transfer the aggregate of her rights under the decree; that such transfer was validly effected and that the effect thereof is to entitle the assignees to execute the decree from time to time precisely in the same manner as the original decree-holder might have done. The objection taken by the judgment-debtors to the execution of the decree is of an unsubstantial character and cannot be sustained. We may add that, in our opinion, there would have been a failure of justice, if we had been constrained by any inflexible rule of law to hold that the rights of the decree-holder in the case before us were not assignable in their entirety. There is not room for controversy that the defendants have strenuously endeavoured to avoid payment of the decretal sum, and the original decree-holder, a purdahnashin lady, has consequently been obliged to part with all her interest in the decree in favour of the present appellants.

4. The result, therefore, is that the appeal must be allowed, and the order of the Court below discharged. The appellants will be entitled to realize by execution whatever sum is leviable under the decree. The appellants are entitled to their costs both here and in the Court below. We assess the hearing fee in this Court at five gold mohurs, and in the Court below at three gold mohurs.

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