SOPHIAMMA Vs. BANK OF DECCAN LTD

JUDGEMENT

(1.) THE appellant garnishee was the petitioner in C. M. P. 24 of 1953 in O. S. 99 of 1124 on the file of the District Court, Kottayam. THE petitioner had filed objections to the attachment effected by the 1st respondent of certain amounts alleged to be due by the petitioner to the second respondent under a will executed by the petitioner's husband on 25-10-1115. THE contention was that there was no subsisting right to be attached and that the amount shown in the will had already been received by the 2nd respondent prior to the attachment. THE 1st respondent-decree-holder contended that the alleged payment was not true and that it is only a collusive attempt on the part of the petitioner and the 2nd respondent to evade payment. THE learned judge over-ruled the objection of the petitioner and ordered the amount to be produced in Court. It is that order that is now challenged in this appeal.

(2.) THAT the court had the right to go into the question and decide the issue when the garnishee denies liability has not been disputed in this appeal. In fact, 0. 21, R. 46 A to R. 46f, C. P. C. , makes specific provision for such an enquiry. The only two questions that were argued were (1)whether the judgment-debtor had an attachable interest and (2) whether the debt was subsisting or whether the debt had been discharged. What the appellant contends is that the attachment is void as the 2nd respondent under the terms of the will had only a contingent interest in the sum attached and S. 60 sub-clause (m) of C. P. C. , directs such an interest not liable to attachment. If on the other hand under the terms of the will Ext. XIII the 2nd respondent has a vested interest in the amount although payment is deferred, then it would not be exempt from attachment. Whether the 2nd respondent took a vested or contingent interest is a question of intention and has to be decided on the construction of the terms of the will. We have been taken through the terms of the will. Para. 7 of the will provides that due to love and affection for his son Raju it is decided to give Rs. 25,000/- to him. The Malayalam words used are Hiswife was directed to pay the amount after the death of the testator when raju (2nd respondent) attains the age of 35 together with interest due from the date of the death of the testator. Para. 8 of the will provides that if she feels that the son would waste the money she is given the option to pay the yearly interest. A reading of the provisions of the will would therefore show that the amount of Rs. 25,000/- was an outright gift; the only thing was payment was deferred for a future date. Venkatasubba Rao, J. , observes in Alagirisami Pillai v. Lakshmanan Chetty alias Samuel (50 M. L. J. 79)"it is a well-known rule of construction that if the gift and the direction as to payment are distinct, the direction as to the time of payment does not postpone the vesting. The question is, are there words constituting a gift independent of the direction to pay. If there are, the interest is a vested interest. In the document in that case there was a present gift with a postponed payment and Their Lordships held, "a vested interest is thus created. " Here in this case a reading of the terms of the will makes it abundantly clear that there was an immediate vesting of Rs. 25,000/- in the 2nd respondent. The stipulation that interest shall be given in the meantime also shows that a present gift was intended. So this contention fails.