R. SWAMINATHAN Vs. ANNAMMAL

JUDGEMENT

(1.) THE question that arises in this Civil Miscellaneous Second Appeal is whether the sum of Rs. 1,200 or any part of the same, now lying in Court deposit to the credit of the respondent herein, is attachable in execution of a decree obtained by the appellant herein. The appellant is no other than the stepson of the respondent. In an original petition under the Hindu Marriage Act between the respondent herein and her husband (father of the appellant), the Court ordered the husband to pay periodically a certain sum to the respondent towards her future maintenance. In pursuance of that decree, the husband of the respondent had deposited a sum of Rs. 1,200 in Court, representing the maintenance due to the respondent accrued up to a particular date. There was another litigation between the appellant and the respondent in which the appellant has been awarded costs as against the respondent. For realising the said costs, the appellant attached the abovesaid sum of Rs. 1,200 lying in Court deposit to the credit of the respondent. The respondent filed E.A. No. 895 of 1973, out of which the present Civil Miscellaneous Second Appeal arises, for raising the attachment on the ground that the said sum of Rs. 1,200 or any part thereof, is not attachable by virtue of Section 60(1)(n) of the Code of Civil Procedure. This contention of the respondent has been accepted by the executing Court as well as the appellate Court. The Courts below based their conclusion on the decision of this Court by Ganesan, J., in Swaminathan v. Annammal : (1970) 83 L.W. 767. That decision was between the same parties herein. There, the appellant herein sought to attach the interim maintenance that had been awarded to the respondent herein and deposited in Court during the pendency of the original petition under the Hindu Marriage Act. The learned Judge held that that amount was not attached as in his view that came under Section 60(1)(n) of the Code of Civil Procedure. But with respect to the learned Judge, I am unable to agree with his view in the abovesaid decision, and it is not in consonance with the Bench decisions of this Court.

(2.) SECTION 60(1)(n) of the Code of Civil Procedure, says that a right to future maintenance is not attachable This is analogous to Section 6(dd) of the Transfer of Property Act, which says that a right to future maintenance cannot be transferred. The question is whether the appellant in the present case is attaching a "right to future maintenance". As already seen, the husband of the respondent has deposited in Court, maintenance accrued upto a particular date and that amount is now lying to the credit of the respondent. There can be no dispute that the money lying in Court is that of the respondent and not that of her husband. Undoubtedly the respondent is entitled to get payment out of the said amount and equally she would be entitled to transfer the same to a third party. I do not think there can be any controversy that the money lying in Court to the credit of the respondent is property of the respondent which is alienable and heritable. Supposing the respondent died without getting payment out of the abovesaid sum which is now lying in Court, her legal representatives would certainly be entitled to claim that amount. Equally, the respondent during her lifetime can alienate the same. Once the maintenance amount has accrued, and especially when the same is deposited into Court, the money so accrued or deposited does not remain a mere right to future maintenance. It has to be noted that both under Section 60(1)(n) of the Code of Civil Procedure and Section 6(dd) of the Transfer of Property Act, what is not attachable or transferable as the case may be, is not " future maintenance " but a "right to future maintenance." Once the right is exercised and the same fructifies into a quantified amount which has actually come into Court, I fail to see how it could be called a mere right to future maintenance. In such a contingency, the right transforms into cash. Once that stands to the credit of the respondent, it is difficult to understand as to why that is not attachable. There can be no dispute that if the cash is property and is transferable it would be attachable at the instance of a creditor.

(3.) THE learned Judge who decided Swaminathan v. Annammal : (1970) 83 L.W. 767, has in fact observed that it is difficult to say that the sum lying in Court deposit is a mere right to future maintenance. The learned Judge also says that the amount having been deposited, into Court, the right to future maintenance is transformed into cash. The difficulty arises only in the further conclusion of the learned Judge which is to the effect that in spite of such transformation, the amount in deposit will not lose the immunity from attachment. The learned Judge has not considered the question whether the amount in Court deposit is property or not and whether it is transferable or not.