Kuppayee Ammal vs Guruswami Padayachi and Others

Maharajan, J.—These appeals arise under the following circumstances. One Guruswamy Padayachi, the first respondent in both these

appeals obtained a decree against Thillai Govinda Padayachi, who is the appellant in A, A. A. O. No. 37 of 1969 and who is the son of Kuppayee

Ammal, the appellant in A. A. A. O. No. 36 of 1969. He filed E. P. No. 989 of 1966 on the file of the court of the District Munsif of Cuddalore,

for execution of the decree by the issue of a pro-order to the mother of the judgment-debtor prohibiting her from delivering 10 bags of paddy

payable by her annually to her son under a maintenance deed dated 15-1-1963. The court issued notice to the garnishee, but as the garnishee did

not appear, a pro-order was passed. Against that order, the garnishee preferred C. M. A. No. 140 of 1967 whereas the judgment-debtor

preferred C. M. A. No. 70 of 1967 on the file of the Sub-Court, Cuddalore. Both the C. M. As. were dismissed by the Sub-Court. It is against

the dismissal of these C. M. As. that the present civil miscellaneous second appeals have been filed.

Under Clause (n) of the proviso to Section 60(1) of the Code of Civil Procedure, the right to future maintenance shall not be liable to attachment

and sale in execution of a decree. There are some rulings to the effect that, once maintenance has fallen due and arrears of maintenance have

become payable, the same may be attached. But the law is clear that a right to future maintenance is not attachable. The execution petition itself

says that the ten bags of paddy, which the garnishee would be liable to pay to the judgment-debtor in future, should be attached. There is no

allegation in the Execution Petition to the effect that the amount which the garnishee was liable to pay to the judgment-debtor under the

maintenance deed had become due on the date of the execution petition. As the amount sought to be attached is not in the nature of past

maintenance, but in the nature of future maintenance, the executing court ought to have refused to order attachment. Both the Courts below went

wrong in holding that the amount is attachable.

Learned counsel for the respondent, Mr. N. Sivamani, has cited before me a plethora of authorities in support of his contention that the amount

payable to the judgment-debtor under the maintenance deed is attachable. Before considering the authorities cited, it is necessary to bear clearly in

mind two distinct provisions of law which, if I may say so with great respect, have been confused, with the result that a clear juridical principle

could not be evolved. The first is the principle enshrined in Section 60(1)(n), Code of Civil Procedure, which says that a right to future maintenance

shall not be liable to attachment or sale. The other provision is Section 6(d) of the Transfer of Property Act which provides that an interest in

property restricted in its enjoyment to the owner personally cannot be transferred by him. The scope for confusion between these two provisions

arises in cases where the right to future maintenance is charged upon immovable property or where possession of immovable property is given to

the maintenance holder in lieu of his right to future maintenance. In such a case, the court has to apply the double test, namely, (1) Is it an

arrangement to secure the right to future maintenance;

(2) Is it an interest in property restricted in its enjoyment to the owner personally? Evidently, to remove a conflict that may arise in the application

of these two provisions of law, the legislature incorporated Clause (dd) to Section 6, of the Transfer of Property Act, by Act 20 of 1929. That

clause is to the effect that a right to future maintenance, by whatsoever manner arising, secured or determined, cannot be transferred.

In AIR 1925 176 (Privy Council) (This is a decision delivered before the incorporation of Clause (dd) to Section 6 of the Transfer of Property

Act) the Privy Council was called upon to consider the terms of a compromise deed which provided that the judgment-debtor in that case was to

hold and possess sixteen villages yielding a profit of Rs. 8,000 a year in lieu of his maintenance without power of transfer during the lifetime of his

brother, to whom he was to pay Rs. 7,872 a year in respect of the Government revenue, cesses and malikana. It was held by the Privy Council,

when the interest of the judgment-debtor in the villages was sought to be attached and sold, that the judgment-debtor''s interest was future

maintenance within the meaning of Section 60, subsection (1) (n) of the CPC and therefore could not be attached and sold. But their Lordships,

however, directed that in such a case, a receiver should be appointed to realise the rents and profits, with a direction to pay thereout a sufficient

and adequate sum for the maintenance of the judgment-debtor and his family, and to apply the balance (if any) to the liquidation of the judgment-

debtor''s debt. I am unable to perceive why Beaumont, C. J. in Secretary of State for India v. Bai Some, ILR 57 Born 507 = AIR 1933 Bom 350

should have observed that the above judgment of the Privy Council is a difficult one to interpret, it appears to me that the Privy Council has given

an interpretation which gives the fullest effect to two apparently conflicting concepts. Where the right to future maintenance is secured by giving a

large extent of immovable property fetching an income far in excess of the subsistence needs of the maintenance holder and his family, it is certainly

equitable that a receiver should be ap-pointed to collect the rents and profits of the property and to pay out of the collections, an amount adequate

for the maintenance of the maintenance holder and apply the balance for the liquidation of his debts. Though, no doubt, the property is not

attachable or saleable in execution, the appointment of a receiver is a specific relief which js granted to a decree-holder u/s 51(d) of the Code of

Civil Procedure. The grant of such a relief would not violate either the provision contained in Section 60, CPC interdicting attachment of the right

to future maintenance or the provision contained in Section 6(d) of the Transfer of Property Act, which places an embargo upon the alienability of

an interest in property restricted in its enjoyment to the owner personally. It appears that even the introduction of Clause (dd) of Section 60

Transfer of Property Act does not substantially affect the proposition laid down by the Privy Council. All that Section 6(dd) says is that a right to

future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred. But, where under the guise of securing the right to

future maintenance, possession of vast properties is given to the maintenance holder or a charge is created in his favour in respect of the property

for an amount far in excess of what would be reasonable for his maintenance, it is certainly open to the court to appoint a receiver and equitably

execute the decree without violating either the provisions of Section 60, CPC or the provisions of Clauses (d) or (dd) of Section 6 of the Transfer

of Property Act. I shall explain a little later that the principle of the Privy Council ruling is not attracted by the facts of this case.

I may now refer to the ruling of King, J. in Sivaji Govinda Rao Mohitay Rao Saheb Vs. N.N.C.T.C.V. Firm and Others, . There, the judgment-

debtor had usufructuarily mortgaged all his property and had provided as one of the terms of the mortgage transaction that the mortgagee should

pay him an allowance of Rs. 100 a month. Be it noted that the mortgagee in that case was neither morally nor legally liable to maintain the

mortgagor, nor does it appear that the mortgage deed in that case characterised the monthly allowance payable to the mortgagor as a maintenance

allowance. However, when that allowance was sought to be attached by the decree-holder, the judgment-debtor-mortgagor contended that the

allowance was payable to him by the mortgagee specifically for his maintenance and it was his sole means of support, and consequently, exempt

from attachment u/s 60(1)(n) of the Code of Civil Procedure. The learned Judge, upon an interpretation of the case law, held that the allowance

payable by the mortgagee to the mortgagor was not exempt from attachment. This is what the learned Judge says at page 268 = (817 of AIR) :--

In all those cases, the provision for an annuity or allowance was made by a vendor or a mortgagor as part of the transaction by which he sold or

mortgaged his property, and as I have said, in all the cases, the annuity or allowance was held not to be exempt from attachment"".

No doubt, in an earlier part of the judgment the learned Judge, while referring to the view of the District Judge made the following observations :--

On the other hand, the view taken by the learned District Judge is that there must first exist the right to maintenance independently of contract, a

right derived from the personal law and personal relationship of the parties, and only when such a right has been commuted can protection be

afforded. Where the right is created for the first time by contract it is always alienable and subject to attachment it seems to me from a study of the

authorities that of these two views, the latter must prevail.

I am afraid that in this part of the judgment, which is really in the nature of obiter dicta, the learned Judge has put the juridical basis of his

proposition a little too broadly. Learned counsel relying upon this obiter contends that under the personal law of the judgment-debtor in this case,

there was no obligation on the part of his mother to pay any maintenance to the son and therefore inasmuch as the maintenance allowance payable

to the judgment-debtor in this case is not a right derived from the personal law but only a right which has been created for the first time by contract,

the allowance is attachable in execution. I am unable to agree. In the execution petition itself the decree-holder has characterised it as maintenance

allowance. It is stated at the Bar that the judgment-debtor is a tuberculosis patient and that is why he conveyed all his properties to his mother, and

was content to receive maintenance from his mother under the deed of maintenance dated 15-1-1963. Further, the quantum of maintenance

payable is only ten bags of paddy per year and that too in two half yearly instalments. It cannot be said that the quantum is suspiciously in excess of

what would be necessary for keeping the body and soul of the judgment-debtor together. In fact, the decree-holder himself has valued the ten hags

of paddy at Rs. 380, which would be hardly adequate for the annual subsistence of the judgment-debtor.

Reference may also be made to a ruling in Chittoory Venkataraju Vs. Themmana Sathiraju and Others, . There, Mack. J. refused to follow the

ruling of King, J. in Sivaji Govinda Rao Mohitay Rao Saheb Vs. N.N.C.T.C.V. Firm and Others, by saying that the learned Judge made a

differentiation which was difficult to apply practically. I would refuse to follow the ruling of King, J. referred to above on the ground that it is in

conflict with the earlier Division Bench judgment of this court in Palikandy Mammad v. Krishnan Nair, ILR 40 Mad 302 = AIR 1917 Mad 79 as

well as the decision of a Full Bench in Subraya Sampigethaya and Others Vs. Krishna Baipadithaya, I respectfully adopt the following observations

of Mack, J. in Chittoory Venkataraju Vs. Themmana Sathiraju and Others, .

There may be oases where a wealthy father may constitute a trust out of which a large sum of money has to be paid each month for the

maintenance of his son or in lieu of his maintenance. It is manifestly inequitable that this sum which is far in excess of the needs of the son for

maintenance should be put out of the reach of decree-holders; nor with respect to the view taken by King, J, in Sivaji Govinda Rao Mohitay Rao

Saheb Vs. N.N.C.T.C.V. Firm and Others, can a practical distinction be drawn in these cases between maintenance dependent on personal law,

personal relationship and personal obligation and a right to maintenance created by a contract. It is for the executing court on the facts of each case

to determine how much of an allowance should toe made attachable having regard to the circumstances of each case. In a case involving collection

of rents from property out of which any maintenance is payable, the appropriate remedy, described as equitable execution or indirect execution by

appointment of a receiver adopted by the Privy Council in AIR 1925 176 (Privy Council) appears to be in harmony with this view. In this

particular case, I have no hesitation in holding that Rs. 60 a month maintenance provision made by a father to his son is, taking into consideration

the cost of living today, a minimum maintenance provision, no portion of which is attachable by a decree-holder, who must look to some other

asset or income of the judgment-debtor to proceed against in execution. Everything would depend upon the meaning of the word ""maintenance"",

that is, what in the opinion of the executing court is, in the circumstances of the case, a reasonable maintenance. I can myself see no impediment in

restricting the exemption in Section 60(1)(n) to maintenance pure and simple and anything, which, in the opinion of the executing court, is in excess

of maintenance not being exempt from attachment.

In this case, I am satisfied that the quantum of maintenance prescribed in the maintenance deed in favour of the judgment-debtor is hardly

sufficient for his maintenance, .and what the decree-holder seeks to attach in this case is clearly a right to future maintenance which is not

attachable u/s 60(1)(n) of the Code of Civil Procedure. Unfortunately, the deed of maintenance has not been produced by the judgment-debtor in

this case. It is the complaint of the decree-holder that the arrangement whereby the judgment-debtor transferred all his properties in favour of his

mother and obtained a deed of maintenance from her is an arrangement entered into to defraud the creditors of the judgment-debtor. Nothing that

I have said in this judgment shall be construed to prejudice this contention of the decree-holder.

In the result, the concurrent orders of the Courts below are reversed and the Execution Petition is directed to be dismissed. Both the appeals

are allowed; but in the circumstances of the case, there will be no order as to costs in both appeals. Leave refused.