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Citation Codes
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Case Number
Advocates
  • B.G Rao, Assistant Government Pleader, for the appellant.
  • K.G Dakar, for the respondent.
Judges
  • Mr. Divatia, J.
Acts
  • s. 100 of the Transfer of Property Act.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • B.G Rao, Assistant Government Pleader, for the appellant.
  • K.G Dakar, for the respondent.
Judges
  • Mr. Divatia, J.
Acts
  • s. 100 of the Transfer of Property Act.
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Smart Summary

Judgment Summary — Divatia, J.

Factual and Procedural Background

This appeal was preferred by the Secretary of State for India in Council against a decree in favour of two plaintiffs awarding arrears of maintenance and a marriage allowance out of the estate of one Gopal. Gopal's property had been attached by the Government in 1921 under s. 88 of the Criminal Procedure Code because Gopal (the absconder) was charged with a criminal offence and had absconded.

The first plaintiff was the widow of Gopal's undivided brother Dhondo (who had died in 1918) and the second plaintiff was the daughter of the first plaintiff. Their claim was that they were entitled to maintenance and marriage expenses from the joint family property that had, by survivorship after Dhondo's death, become the property of the absconder (the second defendant). Government took possession of the joint family property in 1921 and it had not been sold since.

The suit was instituted in forma pauperis in 1929 seeking eight years' arrears of maintenance (for both plaintiffs) at a stated rate and marriage expenses for the second plaintiff. Government opposed the suit, arguing that under s. 88 the property attached was at the disposal of Government and became the absolute ownership of Government, extinguishing third-party rights; that any claim should have been preferred under sub-section (6A) to the Magistrate and, because no such claim was preferred, the suit was barred; and that the plaintiffs were not entitled to the amounts claimed. Both lower Courts decreed the plaintiffs' claims, and Government appealed, relying particularly on sub-s. (7) of s. 88.

Legal Issues Presented

  1. Whether the wording of s. 88 (and in particular sub-s. (7)) of the Criminal Procedure Code makes the property under attachment the absolute ownership of Government and extinguishes the rights of persons claiming interests in that property.
  2. Whether a person claiming an interest in property attached under s. 88 must first prefer a claim before the Magistrate under sub-s. (6A) or whether an independent civil suit is maintainable without such prior Magistrate proceeding.
  3. Whether the plaintiffs (the widow of a deceased coparcener and her daughter) have an interest in the attached property under Hindu law and whether that interest is liable to attachment by Government acting under s. 88.
  4. Whether arrears of maintenance due to the first plaintiff (who died after the suit was filed) could be recovered by her heir (the second plaintiff).

Arguments of the Parties

Appellant (Government)

  • Relied on sub-s. (7) of s. 88, contending that the phrase “the property under attachment shall be at the disposal of Government” means the property becomes the absolute ownership of Government and rights of persons interested are extinguished.
  • Argued that the plaintiffs' failure to prefer a claim under sub-s. (6A) before the Magistrate barred their present suit.
  • Disputed the particular amounts claimed by the plaintiffs.

Respondents (Plaintiffs)

  • Asserted entitlement to maintenance and marriage expenses from the joint family property, on the ground that the property taken by survivorship by the absconder carried with it the burden of maintaining the widow and unmarried daughters of the deceased coparcener.
  • Proceeded by civil suit (in forma pauperis) praying for arrears of maintenance for eight years and the marriage allowance for the second plaintiff.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Narbadabai v. Mahadeo Narayan Treatment of a widow's right of maintenance as a burden on the inheritance (i.e., a right to follow inherited property). Placed among authorities showing that maintenance rights attach to the property taken by survivorship and are treated as a burden on the inheritance.
Kashinath Narayan and Shamabai Same principle — right of maintenance as a burden on inherited property. Used with other cases to demonstrate the established treatment of widow's maintenance as a charge on the inheritance.
Adhibai v. Cursandas Nathu Same principle — widow's maintenance treated as a burden on inheritance. Referenced as part of the line of authority supporting that maintenance rights follow the property.
Yamunabai v. Manubai Same principle — maintenance as burden on the inheritance. Included in the authorities relied upon for the proposition that the widow can follow the property.
Devi Persad v. Gunwanti Koer Same principle — maintenance rights as burden on inherited estate. Referentially applied to support the court's view that maintenance obligations attach to property obtained by survivorship.
Jayanti Subbiah v. Alamelu Mangamma Same principle — widow's right as burden on inheritance. Grouped with other authorities to show consistent treatment under Hindu law.
Veeranna v. Sitamma Same principle — maintenance right follows inherited property. Used as one of several precedents supporting the proposition that the widow's right is a burden on the inheritance.
Hemangini Dasi v. Kedarnath Kundu Chowdhry (Privy Council) Under Dayabhaga, so long as estate remained joint and undivided, maintenance of widows/mothers remained a charge on the whole estate. Relied upon as an authority showing maintenance obligations can be a charge on the estate while it remains joint and undivided.
Mussumat Goldb Koonwur v. The Collector of Benares Right of female dependent members to be maintained out of the estate prevails even against the King who succeeds to the estate by escheat. Applied to support the conclusion that female dependents' maintenance rights prevail even against Government succession and that such rights are to be respected.
Golam Abed v. Toolseeram Bera Case relied upon by appellant (specific rule not restated in the opinion). Court observed that the result it reached was not affected by this case, implying the precedent did not displace the court's analysis.
Mussammat Durgi v. Secretary of State Case relied upon by appellant (specific rule not restated in the opinion). Court noted appellant's reliance but held that this case did not alter the court's conclusion regarding maintenance rights and attachment.
Dattaji v. Narayanrao Case relied upon by appellant (specific rule not restated in the opinion). Referenced as among authorities on which appellant relied, but the court found its result unaffected by these cases.

Court's Reasoning and Analysis

The Court proceeded through the following steps in its analysis, referring closely to the text of s. 88 and to principles of Hindu law as reflected in authorities cited:

  1. Preliminary factual point: the Government had taken possession of the property in 1921 but had not sold it nor had it passed an order of confiscation or forfeiture under sub-s. (7). This factual status influenced the availability of remedies to claimants.
  2. On the contention that rights were extinguished unless a claim was preferred under sub-s. (6A): the lower Courts (and the present Court) interpreted s. 88 as not compelling an aggrieved person to prefer a claim before the Magistrate. The section provides that if a claim or objection is preferred, it shall be inquired into, and that if a claim before the Magistrate is negatived the claimant may then sue in civil Court within one year; but this does not negate the independent right to institute a civil suit without first going to the Magistrate so long as the property remains unsold.
  3. The Court read sub-s. (7) and sub-s. (6A)/(6D) together and concluded the legislative scheme contemplates that the Government's disposal by sale is subject to claims properly established: the property is not to be sold until six months have expired or until claims under sub-s. (6A) are disposed of; the order of attachment is conclusive only "subject to the result of a suit instituted by the person aggrieved." Consequently, an independent civil decree declaring rights obtained before final disposal would be binding on Government and the property could be disposed of subject to such rights.
  4. On whether the plaintiffs had an interest in the attached property: applying Hindu law principles, the Court held that when a coparcener takes property by survivorship, that property is taken subject to the burden of maintaining the widow and unmarried daughters of the deceased coparcener. The Court emphasized the distinction drawn in authorities between duties owed to one's own wife (treated as a personal obligation) and the coparcener's obligation to the widow of a deceased coparcener (an obligation which attaches to the inherited property). Therefore the plaintiffs' rights to maintenance and marriage allowance were obligations attaching to the property.
  5. On whether such interests were liable to attachment by Government under s. 88: the Court held that even if the maintenance right might not technically be a "charge" under s. 100 of the Transfer of Property Act, Hindu law regarded it as a burden on the property. Because Government taking possession under s. 88 is not in the position of a purchaser for value but is concerned with confiscating the absconder's rights, the maintenance burden could not be extinguished by mere attachment. The holders of such maintenance interests are entitled to ask the civil court to create a formal charge, and such rights cannot be disregarded until the property is sold for value; until final disposal the civil decree declaring rights would bind Government.
  6. On authorities: the Court relied on several precedents and on the Privy Council's statement in Hemangini Dasi to support the proposition that maintenance obligations can be a charge on the estate. Mussumat Goldb Koonwur was cited as proceeding on the same principle (that dependents' maintenance rights prevail even against sovereign succession). The Court considered authorities relied on by the appellant (Golam Abed, Mussammat Durgi, Dattaji) but concluded they did not affect its result.
  7. On the claim for arrears after the death of the first plaintiff: the Court agreed with the lower Court that past arrears of maintenance are a debt due to the person claiming it; thus such arrears are recoverable by her heir (the second plaintiff). The decision to allow past arrears rests in the discretion of the Court as to amount, but they constitute a debt that can be inherited.

Holding and Implications

Core Ruling: The appeal is DISMISSED. The decision of the lower appellate Court is confirmed and the decree in favour of the plaintiffs (for arrears of maintenance and the marriage allowance) is upheld; costs are awarded against the appellant.

Direct consequences:

  • The plaintiffs are entitled to recover the amounts decreed for arrears of maintenance and for the marriage allowance of the second plaintiff.
  • The civil decree establishing the plaintiffs' rights is binding on the Government so long as Government have not finally disposed of the property; the property, if disposed of thereafter, would be subject to rights established by such a decree.
  • Past arrears due to the first plaintiff (who died after the suit was filed) were rightly awarded to her heir, the second plaintiff, as a debt recoverable by the heir.

Broader implications discussed by the Court (as stated in the opinion): the Court explained the interaction between s. 88's attachment procedure and the protection of claimants' rights, holding that section does not extinguish enforceable maintenance burdens on attached property so long as the property has not been sold; beyond these points the opinion does not purport to lay down additional new legal doctrine beyond the application to the facts at hand.

Appeal dismissed.

Judge: Divatia, J.

Show full summary ...

    Secretary Of State For India In Council v. Ahalyabai

    Divatia, J.:—

    This appeal has been preferred by the Secretary of State for India in Council against a decree in favour of the plaintiffs for a certain amount claimed as arrears of maintenance and for marriage allowance from the estate of one Gopal whose property had been attached by Government under s. 88, Criminal Procedure Code, by a notification in 1921 as he was absconding after being charged with a criminal offence. The first plaintiff was the widow of Gopal's undivided brother Dhondo who died in 1918 and the second plaintiff is the daughter of the first plaintiff. Their case was that both of them were entitled to maintenance and marriage expenses respectively from the joint family property, the whole of which had become of the ownership of the absconder, the second defendant, by survivorship after the death of Dhondo; that Government had taken possession of the whole of joint family property in 1921 and it had since then remained in their possession without having been sold. The suit had been instituted in forma pauperis in 1929 and the plaintiffs claimed arrears of maintenance for eight years for both of them at a certain rate and expenses of the second plaintiff's marriage from the estate.

    Government opposed the suit on the ground that when the property was attached after defendant No. 2 had absconded, it was entirely at the disposal of Government under s. 88 of the Criminal Procedure Code, that it became of the absolute ownership of Government, and that therefore the Crown was not under any obligation to maintain the widow and the unmarried daughter of the coparcener of a person whose property had been thus forfeited to Government. It was also contended that if the plaintiffs had any claim to the property by way of maintenance, they ought to have preferred their claim as provided for in sub-s. (6A) of that section, and as that was not done, the present suit was barred. Government also disputed the plaintiffs' right to the particular amount claimed by them.

    Both the lower Courts have decreed the plaintiffs' right to recover maintenance and marriage expenses from Government, and have allowed certain amounts to the plaintiffs by way of arrears of maintenance and marriage expenses’.

    Government now appeal against that decree and reliance is placed upon sub-s. (7) of s. 88. It is contended that the words “the property under attachment shall be at the disposal of Government” mean that the property becomes of the absolute ownership of Government and that the rights of all persons interested in the property are extinguished. It is also contended that as the plaintiffs did not prefer any claim to this property, the present suit is not maintainable.

    It must be noted at the outset that the property which had been taken possession of by Government in 1921 has not still been sold by them as provided in sub-s. (7) of the section, nor have they passed an order of confiscation or forfeiture of the suit property. Government place reliance mainly on the wording of s. 88 and contend that if the plaintiffs had any interest in the property, it was extinguished on account of no claim having been preferred before the Magistrate. Now, with regard to that contention, the lower Courts have negatived it on the ground that there is nothing in this section which compels a person who claims an interest in the absconder's property to prefer his claim before the Magistrate issuing the order for attachment. All that the section says is that if any claim is preferred to or objection made to the attachment of any property, such claim or objection shall be inquired into. The right of the aggrieved person to prefer a suit without going to the Magistrate under this section has not been taken away. It is true that it is provided that if a person claiming an interest prefers a claim before the Magistrate and that claim is negatived, he can institute a suit to establish his right in a civil Court within one year from the date of the Magistrate's order. That, however, does not mean that an independent suit by that person is not maintainable. I think the lower Courts were right in taking this view, because looking to the tenor of the whole section, it seems to be the object of the Legislature that although the property was to be at the disposal of Government after it was attached, it was not to be sold until the expiration of six months from the date of the attachment or until the claim preferred under sub-s. (6A) had been disposed of under that sub-section. It is quite true that if no objection was raised before the Magistrate within six months from the date of the order of attachment or no stay order is brought from the civil Court after filing a suit, Government would be free to dispose of the property as they liked by sale or otherwise, and after Government took any such step, the party who claims interest in the property may not perhaps be able to assert any right in the property. But so long as the property has not been sold by Government or otherwise disposed of, and so long as Government have continued to remain in possession of the attached property, it would, I think, be open to any party claiming an interest in it to obtain a decree of a civil Court declaring his right in the property, and if he succeeds in obtaining such a decree before Government have finally disposed of the property, that decree would be binding against Government, and the property could be disposed of subject to the rights established under such decree. It is stated in sub-s. (6D) that the order of attachment shall be conclusive subject to the result of a suit instituted by the person aggrieved by the Magistrate's order. But that, in my opinion, does not mean that it is not open to the interested party to obtain a decree declaring his rights before Government have proceeded to sell the property. The provision in sub-s. (7), that the property shall not be sold until the claim preferred under sub-s. (6A) has been disposed of, means that the sale is to be subject to the rights of any person interested if such rights are established by a decree. If so, why should such rights be not enforceable even if they are obtained by a decree without going before any Magistrate under sub-s. (6A), so long as the property has nob been sold by Government? I, therefore, agree with the lower Courts in holding that the suit is maintainable in spite of the fact that the plaintiffs did not go to the Magistrate under sub-s. (6A), and that the decree would be binding on the Government.

    That being so, the next question is whether the plaintiffs are persons who have an interest in such property and that such interest was not liable to attachment under the section. The plaintiffs are clearly entitled under the Hindu law to have their maintenance and marriage expenses defrayed from the property attached. Under the Hindu law, if a coparcener takes the property of another deceased coparcener by survivorship, he takes it with the burden of maintaining the widow and unmarried daughters of the deceased coparcener. It cannot be said that this right of maintenance is merely personal in the sense that it has no reference to the property which he gets by survivorship. A distinction has been drawn in some cases between a Hindu's obligation to maintain his wife and his obligation to maintain the widow of his coparcener. It is said that his obligation to maintain his own wife is a personal obligation, while the obligation to maintain the widow of a coparcener is not personal. It means the husband is bound to maintain his wife even though he has not got any property from his father, and that his obligation to maintain his wife is independent of possession of any property, while the obligation of one coparcener to maintain the widow of a deceased coparcener whose share in the property he gets by survivorship is an obligation which attaches to that property. In other words, because he gets that property by survivorship and because his interest in the joint property is thus enlarged, he is bound to maintain the widow of the deceased coparcener who had a right to be maintained out of the property which he takes by survivorship. In that sense the property which he takes by survivorship is burdened with the obligation to maintain the widow. It may be that in the technical language it may not fall within the definition of “charge” under s. 100 of the Transfer of Property Act. This charge is a later creation by statute, but the Hindu law has always regarded the widow's right as a burden on the property. It has thus been held that the right of maintenance attaches to the property itself which is taken by survivorship. For example, in Narbadabai v. Mahadeo Narayan, Kashinath Narayan and Shamabai, Adhibai v. Cursandas Nathu, Yamunabai v. Manubai, Devi Persad v. Gunwanti Koer, Jayanti Subbiah v. Alamelu Mangamma, and Veeranna v. Sitamma, this right of maintenance has been treated as a burden on the inheritance with the result that the widow is entitled to follow such property in the hands of the coparcener taking it. In a case under the Dayabhaga, viz. Hemangini Dasi v. Kedarnath Kundu Chowdhry, the Privy Council has also stated that so long as the estate remained joint and undivided, the maintenance of mothers (who were widows there) remained a charge on the whole estate. The well known author Golapchandra Sarkar Shastri in his Hindu Law goes further and is of opinion that (p. 694):—

    “There cannot be any doubt that under Hindu law the wife's or widow's maintenance is a legal charge on the husband's estate; but the Courts appear to hold, in consequence of the proper materials not being placed before them, that it is not so by itself, but is merely a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree.”

    The result, therefore, in my opinion, is that the plaintiffs are persons who have got an interest in the attached property. Besides, such interest is not liable to attachment because, although it may not be a legal charge, Government acting under s. 88 are not in the same position as a purchaser for value. The holder of such interest for maintenance amounting as it does to a burden on the property is entitled as a matter of right to ask the Court to create a formal charge, and that being so, it cannot be attached by Government who are only concerned with confiscating the absconder's right, title and interest in the property. The case of Mussumat Goldb Koonwur v. The Collector of Benares proceeds on the same principle when it holds that the right of female dependent members to be maintained out of the estate prevails even against the King who succeeds to the estate by escheat. The fact that sub-s. (7) provides that the property under attachment, although at the disposal of Government, shall not be sold until the claim preferred is disposed of, would suggest that the rights of persons who claim interest in the property are to be respected. They need not have been fixed in the form of a formal charge; it is sufficient if they are such that they could be so fixed under the Hindu law and could not be extinguished till the property is sold for value. I do not think this result is affected by the cases of Golam Abed v. Toolseeram Bera, Mussammat Durgi v. Secretary of State, and Dattaji v. Narayanrao, on which the appellant relies.

    The result, therefore, in my opinion, would be that both the plaintiffs are entitled to the amount which has been decreed in their favour for arrears of maintenance as well as for the marriage allowance of the second plaintiff.

    It was sought to be urged that the arrears claimed by the first plaintiff, who died after the suit was filed, ought not to have been decreed in favour of her daughter, the second plaintiff, because they are in the nature of a personal right. But I think that argument is erroneous. As rightly observed by the lower Court, past arrears are certainly a debt due to the person claiming it, and although whether to allow past arrears or not or what amount should be allowed is in the discretion of the Court, it cannot be said that it is not a debt due to the person claiming it and not heritable by her heir. The lower Court was right in holding that the second plaintiff was entitled to recover those arrears which were due to the first plaintiff before her death.

    For these reasons, I think, the decision of the lower appellate Court is correct. It is, therefore, confirmed and the appeal is dismissed with costs.

    Appeal dismissed.
    J.G.R
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    Secretary Of State For India In Council v. Ahalyabai
    (Nov 22, 1937)