Sivaji Govinda Rao Mohitay Rao Saheb vs N.N.C.T.C.V. Firm and Others

King, J.—The appellant in this case mortgaged all his properties to a usufructuary mortgagee in 1918, and as one of the terms of that

transaction is entitled to receive from him an allowance of Rs. 100 a month. He claims that this allowance, which he says is subject to a very large

deduction on account of rent due to the mortgagee is paid to him specifically for his maintenance and is his sole means of support. In E.P. No. 242

of 1932 a creditor of the appellant sought to attach his right to the allowance. Appellant contended that it was exempt from attachment u/s 60(n),

Civil Procedure Code. The first Court upheld this contention but on appeal the learned District Judge rejected it and ordered execution to

proceed.

The determination of this question depends upon the meaning of the expression ''right to future maintenance''. In its primary sense that expression

means simply the right of one person to receive from another board, lodging, clothing and the other necessaries of life. Clearly no creditor can

prevent any person who is thus under an obligation to maintain his debtor from doing so. It is only when this obligation is so to speak, not met in

kind, but in some commuted form that difficulties arise. The debtor is now entitled by agreement to receive periodical money payments with which

to procure for himself the necessaries of life. Can those payments be attached? Appellant''s learned advocate contends that so long as the

allowance is not excessive that is, is not more than is required for maintenance, due regard being had to the status in life of the recipient, it is always

protected no matter how the right first arose. 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.

That the former view is too comprehensive becomes clear from an examination of the cases in which it has been held that allowances are not

exempt from attachment. In Har Shankar Prasad Singh v. Baijnath Das I.L.R.(1901) 23 All. 164 a vendor sold all his property to the Court of

Wards. The sale-price was paid partly in cash and partly in the form of an annuity. In Gopal Lal Seal v. Marsden (1906) 10 C.W.N. 1102 an

annuity was bequeathed by will. Neither of these annuities was held to be exempt. In Padmanand v. Rama Prasad (1912) 16 Cal. L.J. 354 a father

sold property to his son and as part of the transaction it was provided that the son should pay his father an allowance of Rs. 4,000 a month. In

Rajah of Ramnad v. Subramaniam Chettiar I.L.R.(1928) 52 Mad. 465 the Rajah of Ramnad mortgaged his zamindari, and covenanted with the

mortgagee that he should receive an allowance of Rs. 5,000 a month. These allowances also were held not to be exempt. Now no doubt in three

of these cases, the parties were rich men and the allowances were large, but there is nothing in these decisions which confines the right of

attachment to a portion only of the allowances. Nor is there anything in Section 60 itself which provides that every judgment-debtor is entitled to

retain a certain minimum income free from attachment. Special provisions are no doubt made for Government pensioners and certain salaried

officials but any judgment-debtor who, for instance, depends solely for his income upon investments is liable u/s 60 to have all his securities sold

and so lose all his income.

I come then to an examination of the other class of cases where allowances have been held either inalienable as personal property u/s 6(d) of the

Transfer of Property Act (and therefore not liable to attachment) or exempt u/s 60(n), Civil Procedure Code. In Subraya Sampigethaya and

Others Vs. Krishna Baipadithaya, a widow surrendered her life-interest in her husband''s estate to the nearest reversioner in return for a right of

residence and the receipt of a certain quantity of paddy every year. This right was held to be inalienable. In Palikandy Mammad Vs. Chingoran

Keloth Valia Appa alias Krishnan Nair, the karnavan of a Malabar tarwad who was deposed from his managership was allotted properties and

granted a cash allowance by the terms of a family agreement for his maintenance. The allowance was held to be protected from attachment u/s

60(n). In Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146 what was considered was a deed of gift by a father to his daughter

by which Rs. 6,000 was paid in a lump sum, and an annual allowance of Rs. 600 was granted. This allowance was held to be personal and

inalienable property exempt from attachment. The decision depended upon the facts of the case, and particularly the intention of the grantor, who it

appeared, wished to compensate his daughter financially for marrying her to a husband with inadequate means.

Now it is clear from an analysis of these three cases that all are concerned with family relationship, and the allowances in all of them were

granted in recognition of some pre-existing"" right. There remains only one case to be considered, which is reported in Sundar Bibi v. Raj Indar

Narain Singh I.L.R.(1921) 43 All. 617 and again after appeal to the Privy Council in Rajindra Narain Singh v. Sundara Bibi I.L.R.(1925) 47 All.

There a younger brother was by a family arrangement granted certain villages ''in lieu of maintenance'' with the life-interest in the income, and

the right to full ownership if he should survive his elder brother. The High Court held that his property in the villages was saleable and was not a

right to future maintenance. It then, however, proceeded to give practical directions for the carrying out of the execution by a Receiver, and

suggested that provision should be made from the income of the villages for the maintenance of the debtor. In appeal the Privy Council appears in

one passage to hold that the brother''s right to maintenance was not legally attachable under the CPC though it might be attached by way of

equitable execution, but as is pointed out by Beaumont, C.J. in Secretary of State for India v. Bai Somi I.L.R.(1933) 57 Bom. 507 the judgment

of the Privy Council is a difficult one to interpret, and there is no clearly-expressed finding that the brother''s property was a right to future

maintenance. Even however if all doubts were removed on this point, this is still a case of a family agreement in which the undoubted rights in the

family property which the younger brother possessed were provided for by the grant of a particular income. It is not a case of a right arising for the

first time out of contract.

Upon a consideration of all the cases cited before me it will be seen at once that the only cases which really form anything like a close parallel to

the facts with which I have now to deal were Har Shankar Prasad Singh v. Baijnath Das I.L.R.(1901) 23 All. 164, Rajah of Ramnad v.

Subramaniam Chettiar I.L.R.(1928) 52 Mad. 465 and in a lesser degree Padmanand v. Rama Prasad (1912) 16 C.L.J. 354. 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. I can see no reason why I should not

follow those decisions in disposing of the present case, and I accordingly agree with the view of the learned District Judge and dismiss this appeal

with costs.