Palikandy Mammad vs Chingoran Keloth Valia Appa alias Krishnan Nair

Moore, J.—Under a family karar, Exhibit A, the respondent, the deposed karnavan of the tarwad, was allotted properties yielding an annual

income of 1,1201/2 edangalis of paddy and Rs. 92-4. The karar further provided that the respondent should be paid Rs. 276 every year in

monthly instalments of Rs. 23 before the 5th of each month for the purpose of meeting extra expenses, such as entertaining guests. The appellant

who holds a money-decree against the respondent, applied for the appointment of a Receiver to realise the monthly allowances as they fell due in

satisfaction of his decree-debt. Both the lower Courts held that right to receive future maintenance could not be attached, and that a Receiver

could not be appointed to collect the allowance due to the respondent. Mr. Subramania Sastri for the appellant contends that the lower Courts

have misconstrued the karar and erred in holding that the allowance in question is maintenance, that the monthly allowance is property which can

be attached, and that the proper and convenient course would be to appoint a Receiver to collect the monthly instalments.

I think that it is clear upon the construction of the document that the sum of Rs. 276, which is payable in monthly instalments, forms part of the

respondent''s maintenance allowance, and that it represents an extra allowance granted to the respondent to enable him to maintain the dignity of

his position as a retired karnavan of the tarwad. It is not, however, made payable out of any definite fund or estate, nor is any charge created. The

allowance in question is clearly not a debt--a debt must be specific, existing and definite. [Syud Tuffuzzool Hossein Khan v. Rughoonath Pershad

14 M.L.A. 40 , and not merely a sum of money which may or may not become payable at some future time, and the payment of which depends

upon contingencies which may or may not happen: Haridas Acharjia Chowdhry v. Chowdhry Kishore Ackarjia Chowdhry 4 C.W.N. 87. Section

60(n) Civil Procedure Code, provides that ""a right to future maintenance"" shall not be liable to attachment or sale, the prohibition being presumably

based on grounds of public policy. The learned Vakil for the respondent argues that the right of the judgment-debtor to receive a monthly

allowance is a right to future maintenance within the meaning of Section 60 (n), Civil Procedure Code, that such right is not assignable, and that it

cannot be attached prospectively before it becomes due.

The question whether a right to future maintenance can be attached and sold has been exhaustively considered by Mr. Justice Mookerjee in

Asad Ali Molla v. Haidar Ali 6 Ind. Cas. 826 and Tara Sundari Debi v. Sarada Charan 7 Ind. Cas. 80, in which the various decisions on the point

are reviewed. The learned Judge observes at page 151 The page referred to is of 12 C.L.J.--Ed of the report that '' while the cases in the books

are by no means easy to reconcile on any intelligible principle, there is a well-marked distinction between two classes of cases, namely, the one in

which the right is merely to receive an allowance by way of maintenance periodically, and the one in which the right relates to Immovable property

granted and accepted in lieu of a periodical allowance for maintenance,"" and at page 156* that the true test to be applied, when a question arises

as to whether a right to maintenance is assignable or not, is whether the intention of the grantor was to create a purely personal right to receive a

certain sum of money in the grantee, and consequently inalienable, or whether his intention was to create an interest in property, either a fund or an

estate, which should be treated as alienable property."" A similar test has been applied in England. It has been held that alimony payable 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. See also Paquine v. Snary (1909) 1 K.B. 688 : 78 L.J.K.B. 361 : 100 L.T. 220.

On the other hand, a life-annuity is assignable. In Holmes v. Millage (1893) 1 Q.B. 551 the Court of Appeal held that the Court has no

jurisdiction to enforce satisfaction of a judgment-debt by appointing a Receiver of the future earnings of a judgment-debtor, and that unless a man

has assigned or charged his future earnings or has made a sum payable out of them, they cannot be prospectively impounded by any of his

creditors by any ordinary process of execution, whether legal or equitable."" Coming now to the Madras decisions cited by the appellant''s Vakil, in

Vaidyanatha Sastrial v. Eggia Venkatarama Dikshitar 30 M.d 279 which followed Muthu-raman Chettiar v. Sundra Kumara Ettappa Sami 9

M.L.J. 113, it was ruled that a hereditary right to an allowance out of the melvaram of certain lands was attachable but that case is, we think,

distinguishable on the ground that a heritable right is not a mere personal right and consequently ought to be treated as assignable.

In Muthvraman Chettiar v. Sundra Kumara Ettappa Sami 9 M.L.J. 113Mr. Justice Subramania Aiyar observes that the word ""maintenance"" in

Section 266 of the Code of 1882 means nothing more than personal sustenance the right to which must under any circumstances cease with the life

of the party entitled thereto, while a right of annuity payable to a man and his heirs is not a personal and limited right of that character. The decision

in Nanammal v. Collector of Trichinopoly 5 Ind. Cas. 879, where it was held that a decree for maintenance is a right to future maintenance and u/s

266 of Act XIV of 1882 cannot be attached nor can it be treated as a money-decree as against the appellant. Govinda Pillay v. Meenatchi Achi

Ind. Cas. : 22 M.L.J. 204 does not also help the appellant? What was held in that case was that the crops standing on land allotted to a widow for

maintenance were her property and as such available for her debts and could be attached and consequently did not fall within the interdiction in

Clause (n) of Section 60 of the Civil Procedure Code.

The learned Vakil for the appellant has referred us to Ranee Annapurni Naahiar v. Swaminathau Chetty 6 Ind. Cas. 439 In that case a widow

had hypothecated her claim to past and future maintenance and the plaintiffs asked for the appointment of a Receiver to collect the amounts.

hypothecated and for a decree ordering the sale of the hypotheca. The observations of the learned Judges at page 9 of the report lend some

support to the appellant''s contention that a right to future maintenance is transferable but the actual point decided was that, where the amount

payable for maintenance is subsequently fixed by agreement or decree, a transfer of such an interest may be valid. The learned Judges did not

express any opinion on the question whether a right to future maintenance is liable to attachment.

Following the rulings in Nanammal v. Collector of Trichinopoly 5 Ind Cas 879and Tara Sundari Debi v. Sarada Charan 7 Ind. Cas. 80, I am

inclined to hold that a mere right to future maintenance is not liable to attachment and sale and that the appellant was not entitled to attach the

monthly allowance payable to the respondent for maintenance. I am also of opinion that the lower Courts were right in holding that they had no

power to appoint a Receiver to collect the future maintenance due to the respondent. The learned Vakil for the appellant relies on Section 51 (d)

of the Civil Procedure Code, but that section merely declares in general terms the powers of a Court to enforce execution, one of which is by the

appointment of a Receiver. Rule 1 of Order XL of the CPC gives power only to that Court in which the suit is brought or by which the property

has been attached to appoint a Receiver. The said right to receive future maintenance is not property and cannot be attached. A Court cannot

appoint a Receiver except it has seisin of the property either by a suit being pending or by proceedings in execution of a decree made in a suit

being pending, and attachment having been made."" See Ameer Ali and Woodroffe''s Civil Procedure Code, page 1186.

The learned Vakil for the appellant relies on Monessur Doss v. Beer Protap Sahee 15 W.R. 188. In that case, maintenance payable in

instalments had been awarded by a decree, and it was held that the Court might at the instance of a person who held a decree against the

maintenance decree-holder make an order for the non-payment of an instalment by the party chargeable and for its non-receipt by the decree-

holder (judgment-debtor in the second suit), i.e., by the issue of a prohibitory order. In Ameer Ali and Woodroffe''s Commentaries on the CPC

the learned authors say at page 293 that this has not been the practice since. See Haridas Acharjia Chowdhry v. Baroda Kishore Acharjia

Chowdhry 27 C.d 38. In Udoy Kumari Ghatwalin v. Hari Ram Shaha 28 C. d483 the learned Judges, while holding that future rents and profits

due to a ghatwal cannot as such be attached in execution of a decree against him, sent the case back to the lower Court with directions to consider

the propriety of appointing a Receiver to collect the rents and profits as they fell due. The facts of that case are, however, plainly distinguishable

from the present one.

In the result the appeal fails and is dismissed with costs.

Sadasiva Aiyar, J.

I entirely agree. As regards the case Ranee, Annapurni Nachiar v. Swaminathan Chetty 6 Ind. Cas. 439, I am inclined with the greatest respect

to hold that a right to receive future maintenance cannot be validly alienated. Shephard and Brown in their Commentaries hold that it is not

alienable as it is not property within the enabling words of Section 6 of the Transfer of Property Act. The learned Judges, following the observation

in Palaniappa v. Lakshmanan 16 M.d 429, hold that a right to future maintenance, though not ""property"" under the Transfer of Property Act and

though not attachable under the Civil Procedure Code, might be alienable under the principles followed by Courts of Equity in England. We know

that Courts of Equity have held that even the contingent right of an heir-presumptive can be validly charged. I think the Courts in India are bound

by the Transfer of Property Act, the clear implication of Section 6, Clauses (d) and (h), of that Act being that a right to receive future maintenance

cannot be validly alienated. I think that ""a transfer not recognised by the Transfer of Property Act"" as legally effective cannot create any right in the

alleged transferee.

Mr. Subramania Sastriar contended that if a decree awarding future maintenance can be attached the rights granted by a private deed to

receive future maintenance of definite rates can also be attached, but I think we are bound by the decision in Nanammal v. Collector of

Trichinopoly 5 Ind. Cas. 879 to hold the contrary. Whatever may be the law in England, it has been held that the law applicable in this country is

that ""a right to recover damages for assault is not assignable."" [See Kocharla Seetamma v. Pillala Venkataramanayya 21 Ind. Cas. 387 While the

prohibition against attachment found in the provision to Section 60 of the CPC and the prohibitions against transfer found in the clauses of Section

6 of the Transfer of Property Act have been both enacted on grounds of public policy, the prohibition against attachment, so far as it relates to

some of the properties mentioned in Section 60 of the Civil Procedure Code, (such as tools of artisans, necessary cooking vessels, etc.,) is not

intended to interfere with the right of the owner to effect private alienations of those properties. The prohibition of private alienation itself found in

the Transfer of Property Act rests, therefore, on rules of public policy of at least equal stringency with the prohibition against attachment found in

the CPC and instead of being sought to be evaded by the Courts should, in my opinion, be liberally given effect to.