Tara Sundari Debi v. Sarada Charan Bandopadhya

1. We are invited in these appeals to consider the legality of an order made by the Court below upon an application for execution of a decree obtained by one Sarada Charan Banerjee against Tara Sundari Debi. The circumstances, under which the order in question, against which, both the decree-holder and the judgment-debtor have appealed, was made, have not formed the subject of controversy before us. In execution of a decree for money obtained by Sarada Charan against Tara Sundari, he applied for attachment and sale of the rights of the latter under a deed of gift executed in her favour by her father on the 6th September, 1372. The judgment-debtor objected on the ground that her interest was not liable to be attached under Section 266 of the Code of 1882, which corresponds with Section 60 of the Code of 1908. Her contention, in substance, was that the interest created in her favour by the deed of gift, was not saleable property over which she had a disposing power which she might exercise for her own benefit. The Subordinate Judge held that the interest which the judgment-debtor took under the deed of gift was a two-fold character, and was attachable as to one portion, thereof, and not attachable as to the remainder. Each party has appealed against the decision of the Subordinate Judge in so far as it gives effect to the contention of his opponent, and the question before us relates to the true nature of the interest taken by Tara Sundari under the deed of gift executed by her father.

2. It appears that Ishan Chandra Banerjee, father of Tara Sundari, had given her in marriage to a Kulin Brahmin, with the usual result that she and her children had to be maintained by him. The deed recites that it was the duty of the grantor to hear the burden of maintaining his daughter, the grantee, and her children, and that a similar liability rested upon the son of the grantor, Umesh Chandra, according to the family custom. The deed then recites that, to make some provision for the maintenance of the grantee with her children, the grantor gave her annual sum of Rs. 600, and a lump sum of Rs. 1,000, for the acquisition of a suitable site, and Rs. 5,000 for the construction of a house. As regards the first of these sums, namely, the annual maintenance, the deed states expressly that the sum was to be paid out of the income of two specified properties owned by the grantor. As regards the second it was made payable out of the estate. Neither of these two gifts, however, vested immediately in the donee. On the other hand, it was laid down that the lump sum granted, as also the annual payment, was not to be made till, by reason of disagreement between the grantee and the members of the family of the grantor, the former found it necessary to become separate in mess from them. This deed was executed by the father of Tara Sundari and his son, Umesh Chandra, affixed his signature to it in. token of his consent. Ishan Chandra died many years ago, and it is alleged on behalf of the judgment-debtor that she received in due course from the holders of the estate of her father, the sum of Rs. 6,000, with which she purchased land and built a house. The execution-creditor now seeks to attach and sell her interest under this deed of gift, both in respect of the house and the monthly allowance. Her objection is that neither of these is liable to be attached in execution of the decree. The Subordinate Judge has held that her interest in the house is liable to be attached but her right to receive the monthly allowance is not so liable. In the appeal of the judgment-debtor it has been argued that her interest in the house and land is not liable to be attached as it is not property over which she has a disposing power for her own benefit. In the appeal of the decree-holder, it has been argued, on the other hand, that the right of the judgment-debtor to receive the monthly allowance is liable to be attached and sold.

3. In so far as the appeal of the judgment-debtor is concerned, we are of opinion that the order made by the Court below is correct and ought not to be disturbed. From the terms of the deed it is clear that there was a gift of Rs. 6,000 to Tara Sundari. No doubt, the intention of the grantor was that the money should be applied by her for the purchase of land and the construction of a house, but there is no foundation for the suggestion that when the money should be converted into immovable property, she was to have a mere right of residence therein. The learned Vakil for the judgment-debtor has contended that the sum of Rs. 6,000 was given to her children as well as herself and that the intention of the grantor was that the children should be the ultimate owners of the property. No such direction, however, is given in the deed, either expressly or by necessary implication. Reference has also been made to the decision of their Lordships of the Judicial Committee in Rabutty Dasi v. Shib Chunder Mullick 6 M.I.A. 1. There a deed of arrangement and release between the members of a Hindu family, in respect of a certain joint estate claimed by a childless Hindu widow of one of the coheirs in her character of heiress and legal personal representative of her deceased husband, declared that she was entitled to the sum therein mentioned as the share of her deceased husband for her sole, absolute use and benefit. These words were construed to mean that, as a Hindu widow, she had only a life-estate in the corpus, which at her death devolved as assets of her deceased husband upon his personal representative in succession. The principle of the decision is that the interest of the widow was not enlarged by the transformation of the estate of her husband from land into money, and her position in relation to the fund she received, was identical with what would have been her relation to the immovable property if it had come into her hands. This doctrine is obviously of no assistance to the judgment-debtor in the present case. The question before us is, whether the interest Tara Sundari took in the sum, which she received under the deed of gift, is of such a character as to entitle her to alienate it. It is not necessary for us to consider whether she took an absolute interest therein or whether she was given an estate for life with a remainder over to her children. Even if we hold, as was done by the Judicial Committee in the case of Radha Prasad Mullick v. Ranee Mani Dasee 35 C. 896 : 12 C.W.N. 729 (P.C.) : 10 Bom. L.R. 604 : 8 C.L.J. 48 : 5 A.L.J. 460 that the intention of the grantor was that his daughter should have a life-interest, and that upon her death it would vest absolutely in her children, it is clear that she had something more than a mere right of residence. The children are not parties to the present proceedings and the Court cannot properly be invited to determine the precise quantum of interest, if any, taken by them in the land and house alleged to have been purchased out of the sum received by their mother as a gift from their maternal grandfather. That there may be room for controversy in a question of this character, is clear from the cases of Mahomed Sumsul Huda v. Sevok Ram 2 I.A. 7 : 22 W.R 409 : 14 B.L.R.

226 Suraj Mani v. Rabi Nath Ojha 35 I.A. 17 : 5 A.L.J. 67 : 18 M.L.J. 7 : 12 C W.N. 231 (P.C.) : 10 Bom. L.R. 59 : 7 C.L.J. 131 : 3 M.L.T. 144, Sambasiva Ayyar v. Visvam Ayyar 30 M. 356 : 17 M.L.J. 243 : 2 M.L.T. 316 : 31 M. 179 : 3 M.L.T. 369 but, whatever the precise nature of the interest of the grantee may be, whether it is treated as a life-estate or as an absolute interest, it is clearly an interest over which she has a disposing power. It will be observed that the fund was placed at her disposal; there was no express direction that it should be applied in the purchase of land and house, though the grantor stated that his intention was that the fund should be utilised for this purpose. Under these circumstances, it is impossible to hold that she had a mere right of residence which cannot be attached and sold in execution of a decree. It was open to her not to apply the fund for the purpose of land and house for many years, and the view cannot be sustained that the interest acquired by her when the grant was made was diminished when the money was converted into immovable property. We must consequently hold that the interest of the judgment-debtor in the land and house is liable to attachment and sale; but we do not decide, in fact, we cannot decide in the absence of the children, whether or not they have a present right o£ residence therein. In so far, therefore, as the appeal preferred by the judgment-debtor is concerned, the order of the Court below must be affirmed.

4. In so far as the appeal preferred by the decree-holder is concerned, the question arises whether the right of the judgment-debtor to receive an annual sum from the representative of her father, is a right to future maintenance within the meaning of Section 266 of the Code of 1882, and consequently not liable to attachment or sale. The learned Vakil for the decree-holder has contended that it is a substantial interest in land, and it is liable to attachment and sale. It has been argued, on the other hand, that it is a right merely to receive a specified sum from year to year, and, therefore, essentially a right to future maintenance. It has further been argued, on behalf of the judgment-debtor, that the allowance was intended, as maintenance not merely for herself, but also for her children, and that, as they are all jointly entitled to be maintained out of this sum, it cannot be attached and sold in execution of a decree against the mother alone. Our attention has been invited by the learned Vakils on both sides to numerous decisions in this Court as well as in the Superior Courts in the Presidencies, most of which are reviewed in the recent, judgment of this Court in Asad Ali Molla v. Haider Ali 6 Ind. Cas. 826 : 14 C.W.N. 918, where the question was raised whether an assignee of a decree for maintenance can execute it against the judgment-debtor in the same manner as the original decree-holder. The cases to be found in the books are, by no means, easy to reconcile upon any intelligible principle. But there is a well marked distinction between two classes of cases, namely, those in which the right is merely to receive an allowance by way of maintenance periodically, and those in which the right relates to immovable property granted and accepted in lieu of a periodical allowance for maintenance. In one of the earliest cases in this Court, Bipro Protab v. Deo Narain 3 W.R. Mis. 16, it was ruled that an execution-creditor cannot attach the right of his judgment-debtor to appeal to His Majesty in Council in another suit, or the right to future maintenance declared in his favour in that suit. Again in the cases of Koomaree Debi v. Greesh Chunder Lahory 1862 Marshall 200, 1 Hay 583 Bhyrub Chunder v. Nubo Chunder 5 W.R 111 Duloon Koonwar v. Sungum Singh 7 W.R. 311; Monessur Das v. Beer Protap 6 B.L.R 646 : 15 W.R. 188 and Monessur Sur v. Kishen Protab 23 W.R. 427, it was ruled that a right to receive maintenance is a purely personal right, and ought not to be , treated as property liable to attachment and sale [see also the observations of Sir Barnes Peacock in Ashutosh Dutt v. Doorga Churn Chatterjee 6 I.A. 182 at p. 183 : 5 C. 438 : 5 C.L.R 296]. On the other hand, in the case of Enaet Hossein v. Nujeeboonissa Begum 11 W.R 138, where the earlier decisions were apparently not brought to the notice of the Court, it was ruled that, when a deed is executed stipulating the grant of regular maintenance payable from the grantor's estate and recoverable, in the event of non-payment, from that estate, the allowance so granted is not merely a right to receive future maintenance but is property which may be attached and sold in execution. A similar view was adopted in Mahtab Chand v. Dhun Coonaree 17 W.R. 254, where, however, the case presented the distinctive feature that the execution-creditor was the representative of the grantor and was personally liable to pay the annuity. Again in Salamat Hossein v. Luckhi Ram 10 C. 521, where the property sought to be attached and sold in execution was a heritable right to receive a monthly allowance originally assigned in lieu of a share of landed property, the view was maintained that it was not a mere right to maintenance. But here again the case presented the distinctive feature that the person entitled to the maintenance had mortgaged his right to receive the allowance, and, when the mortgagee sought to enforce his security, objected that the mortgagee had acquired no title; in view of the mortgage, it was not competent to him, of course, to deny that the right was assignable and could be seized and sold in execution. In two later cases, Sreenath v. Brojendra 10 C.W.N. 1102 (Note) and Gopal Lal v. Marsden 10 C.W.N. 1102 it was held that a right to receive an annuity given by a Will may be attached and sold in execution of a decree, but the decision was rested on the ground that annuity is distinct in its nature from maintenance, which it was conceded, is not assignable. It was pointed out that there was a difference between a right to maintenance and a right to receive an annuity of which a gift has been made by the testator's bounty. Reference was made to the case of Dambar Koeri v. Sham Kissen 9 C.W.N. 703, where the allowance was not only made a charge upon specific property, but shown to have been granted for an antecedent obligation, and was on this ground treated, not as maintenance, but as a debt capable of attachment.

5. In the case of Harris v. Brown 28 C.621 at p. 637 there was a transfer by a lady, but not a Hindu lady, of her right to receive an allowance, and no question appears to have been raised as to the validity of the assignment, which was treated by the Judicial Committee as operative. The only other cases in this Court, to which reference need be made, are those of Rameswar v. Jibender Singh 32 C. 683 : 9 C.W.N. 567; Ram Chandra Marwari v. Mudeshwar Singh 33 C. 1158 : 10 C.W.N. 978 and Durgadut Singh v. Rameshwar Singh 36 C. 943 : 10 C.L.J. 233 : 13 C.W.N. 1013 : 4 Ind. Cas. 2 in each of which the question related to the nature of interest acquired by a grantee in immovable property which had been granted and accepted in lieu of a right to receive maintenance, and it was ruled that such interest was liable to be seized and sold in execution of a decree. This class of oases, in fact, does not present, any difficulty; when property has been received in lieu of a claim for maintenance and the grantee has, in a manner, become owner of the property even though his interest is terminable in a certain contingency, he ought plainly to be held competent to exercise a disposing power over it for his own benefit. But as regards the other decisions to which reference has already been made, if is clear that they cannot be reconciled. A. distinction appears to have been sought to be drawn, between cases in which the maintenance was made a charge upon a definite property and was made payable out of a, specific fund and cases in which the grantee of the right of maintenance was not so protected. This distinction, however, in our opinion, does not furnish a true solution of the question whether the right is assignable or not because, if the allowance is regularly paid by the person liable, no question of enforcement of a charge upon any interest in immovable property arises; unless a default has been made and arrears are due, there is no charge to enforce. The answer to the question, therefore, whether the right to receive the maintenance is assignable or not, ought not to be made dependent upon the circumstance whether, in the event of failure of the grantor or his representative to make regular payments, the grantee is entitled to enforce a charge upon immovable property. To put the matter in another way, when an execution-creditor seeks to seize and sell a right of this description, he cannot rightly be regarded as attempting to attach, for purposes of sale, any interest in immovable property. In foot an examination of the cases in the Superior Courts in the other Provinces shows that this distinction has not always been consistently observed. Thus in the cases of Harshankar Prasad Singh v. Baij Nath 23 A. 164 : (1901) A.W.N. 50 and Salakshi v. Lakhsh mayee 31 M. 500 : 4 M.L.T. 485, it was treated as settled doctrine that land or other property allotted in lieu of a claim for maintenance, is liable in the hands of the grantee, to be attached in execution and sold at the instance of a creditor. But while in the cases of Joy Raj v. Devi (1883) A.W.N. 9 and Singai v. Baji Rao 14 C.P.L.R. 114, where such a grant of land had been made subject to a clause against alienation, it Was ruled that the interest of the grantee in the land was nevertheless assignable and consequently attachable, in the cases of Diwali v. Apaji Ganesh 10 B. 342 and Munisami Naidu v. Ammani Ammal 15 M.L.J. 7, it was held that the interest of the grantee was not assignable and not liable to be seized and sold in execution. Again, whereas in the cases of Gulab Kuar v. Bansidhar 15 A. 371 and Sher Singh v. Sri Ram 30 A. 246 : 5 A.L.J. 251 : A.W.N. (1908) 101 : 4 M.L.T. 10, the principle was recognised that an interest in the income of immovable property assigned by way of maintenance is not liable to attachment and sale in execution of a decree, though it must be observed that when the first of these cases was taken on appeal [Bansidhar v. Gulab Kuar 16 A. 443] the question was left open--it was ruled, in the cases of Muthuramen v. Sundera Kumer 9 M.L.J. 113 and Vaidya Natha v. Eggia 30 M. 279 : 17 M.L.J. 373 : 2 M.L.T. 338, that a hereditary grant of an allowance out of the income of specified land is not a right to future maintenance exempted as such from attachment. From a review of the authorities to which reference has been made, it is clear that when a grant of land has been made and accepted in lieu of a right to maintenance and there is no restraint upon alienation, there is no divergence of judicial opinion that the interest of the grantee is liable to be seized and sold in execution of a personal decree. This is based on the obvious principle that, when the grantee has become owner of the land transferred to him, however limited in point of time his interest may be and whatever risk there may be of resumption by the grantor in certain possible events, the interest is assignable, and the Court will not go behind the title and determine the quality of the estate taken, by reference to the consideration for the grant. In cases, however, where there is no transfer of interest in land in lieu of maintenance, there is a well-marked divergence of judicial opinion. In one class of cases, where the right to receive maintenance has been recognized, but the enforcement of the right is not secured by a possible recourse to immovable property in the event of default by the grantor, there is no room for controversy that, according to the strict letter of Section 266 of the Civil Procedure Code of 1882, the right is really one to receive future maintenance and is not assignable. In the other class of cases, where the person entitled to maintenance is placed in a position to enforce his right by recourse to a particular fund or interest in land in the event of default of payment by the grantor, there is a tendency to treat the right not merely as one to receive future maintenance and consequently inalienable, but really as property or a substantial interest in land, and consequently alienable. When regard is had, however, to the language of Section 266 of the Code of 1882, there is ample room for doubt whether the view adopted is really supported by the language used by the Legislature. As we have already explained, the interest which is sought to be alienated is not any interest in land: what is attempted to be transferred, is the right to receive future maintenance, and no question of any interest in land arises till a default has actually been made. It may be observed, however, that the class of capes, for instance, Vaidya Nath v. Eggia 30 M. 279 : 17 M.L.J. 373 : 2 M.L.T. 338, in which it has been ruled that a hereditary right of maintenance is alienable, stands on an entirely different footing and is defensible on principle; for the view has been maintained by jurists that if a right is heritable, it ought to be treated as also assignable. The theory which underlies this proposition is, that a heritable right is not a personal right, and consequently ought to be treated as assignable (Pomeroy on Remedies and Remedial Rights, Section 147). The converse proposition has also been maintained as a useful test, namely, that what is not heritable, is not assignable: in other words, that the power to assign and the power to transmit to personal representatives are convertible propositions. It is not necessary for us, however, to investigate, for the purpose of the present case, the question whether there are any limitations or exceptions to this principle. The doctrine, as pointed out in the case of Asad Ali v. Haider Ali 6 Ind. Cas. 826 : 14 C.W.N. 918, is at any rate limited to choses in action, and is not applicable to judgment-debts, though the distinction was apparently overlooked in Monessur v. Beer Protap 6 B.L.R. 646 : 15 W.R. 188 and Nanammal v. Collector of Trichnopoly 20 M.L.J. 97 : 5 Ind. Case 879, but it is worthy of note that although, as pointed out in the case of Asad Ali v. Haider Ali 6 Ind. Cas. 826 : 14 C.W.N. 918, when a claim has been merged in an actual judgment, ordinarily the right to the judgment is assignable and the nature of the chose in action is immaterial, this rule is not of universal application, and cases are conceivable in which a decree may not be assignable, and may not be enforceable at the instance of a transferee or even at the instance of a legal representative. Illustrations are afforded by decrees for restitution of conjugal rights and decrees made in favour of Hindu widows for residence in the family house of their husbands [Salakshi v. Lakhshmayee 31 M. 500 : 4 M.L.T. 485]. The reason obviously is that the right conferred by the decree upon the decree-holder is so essentially of a personal nature that it cannot be transferred by way of alienation or transmitted by inheritance. A consideration of this character applies manifestly with much greater force and reason to the case of choses in action before they have been merged in a decree. In our opinion, upon principle and apart from all authorities, when a question arises, whether a right to maintenance is assignable or not, the true test to be applied is, whether the intention of the grantor was to create a purely personal right to receive a certain sum of money in the grantee, or whether his intention was to create an interest in property, either a fund or an estate, which ought to be treated as alienable property. The essence of the matter is to determine, by reference to all the terms of the grant, whether it was personal and inalienable, or really an interest in property and attachable. A similar question has arisen under the English Law where a similar test has been applied. In the Laws of England by Lord Halsburry, Volume IV, Section 855, it is pointed out that alimony granted to a wife is not assignable, because it is not in the nature of property, but only money paid by the order of the Court from time to time to provide for the maintenance of the wife [In re Robinson (1884) 27 Ch. D. 160]. Maintenance, ordered under the Divorce and Matrimonial Causes Act, 1866, is similarly inalienable [Watkins v. Watkins (1896) P. 222 : 65 L.J.P. 75 : 74 L.T. 636 : 44 W.R. 677], but a life annuity scoured to a divorced wife under the Divorce Act, 1857, is assignable [Harrison v. Harrison (1888) 13 P.D. 180 : 58 L.J.P. 28 : 60 L.T. 39 : 36 W.R. 748]. This distinction has been sought to be supported on the ground that an allowance intended for the personal maintenance of the grantee ought not to be treated as alienable, though it may be a matter for controversy in any individual case whether a particular allowance is purely personal or annuity of the nature of alienable property. The truth is that such choses in action as are regarded as inalienable, are so held on the ground of public policy. In this country, however, we have the express provision of section 266, which lays down that a right to future maintenance is not assignable or attachable, and no difficulty would arise if effect were given to the reasonably plain language used by the Legislature. In the case before us, there is no room for controversy that the grant was intended to be purely personal. The father, apparently an orthodox Hindu Brahmin of the highest class, had given his daughter in marriage to a Kulin Brahmin who, though of the highest class, was not in a position to maintain his wife and children. The father consequently felt it his duty to make adequate provision for his daughter whom he had given away in marriage more from the point of view of social rank than wordly prosperity. The deed recites that such provision was in accordance with the family custom, and the grantor obtained the assent of his son on the face of the deed so as to avoid any possible dispute in future. Though the deed states that the money would be paid periodically out of the income of certain specified properties included in the estate of the grantor, it is manifest that no interest in these properties is transferred to the daughter or her children. The right, therefore, from every point of view, was essentially a personal one, and, in our opinion, there is no room for reasonable doubt that such right was not assignable and consequently not liable to be seized and sold in execution of a decree for money. It may, further, be added that the object of the grantor clearly was that the allowance should be applied for the maintenance, not merely of his daughter, but also of her children. It is obviously impossible to determine what proportion of the allowance ought to be applied for the maintenance of the daughter and what for that of her children, and the amount needed for the latter might clearly vary from time to time with their number. It could never have been intended by the grantor that the sum sanctioned by him to be paid out of his estate to his daughter should be liable to be alienated by her. The right which the decree-holder now seeks to seize and sell in execution of his decree, is clearly a right, to future maintenance and none the less so because the right is to receive a definite sum, or the enjoyment of it is secured by a possible recourse to the income of specific properties in the event of default of payment by the representative of the grantor: these are elements which do not, in our opinion, alter the nature or quantity of the right. The right which the decree-holder now seeks to seize is in no sense interest in immovable property owned by his judgment-debtor, but is her personal right to receive a certain sum of money, which she is bound to apply for the maintenance of herself and her children. In this view of the matter, the conclusion is inevitable that the prayer of the decree-holder to attach and sell the right cannot be allowed.

6. The result, therefore, is that the order made by the Court below, must be affirmed, and both the appeals dismissed. There will be no order for costs in either appeal.