KUPPAYEE AMMAL Vs. GURUSWAMI PADAYACHI

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) IN Rajendra Narain Singh v. Sundara Bibi, ILR 47 All 385 : (AIR 1925 PC 176). (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 Code of Civil Procedure 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 Bom 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 appointed 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 is granted to a decree -holder under Section 51 (d) of the Code of Civil Procedure. The grant of such a relief would not violate either the provision contained in Section 60, Code of Civil Procedure 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, Code of Civil Procedure 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.