ASAD ALI MOLLAH Vs. HAIDAR ALI

JUDGEMENT

(1.) The substantial question of law, which calls for decision in this appeal, relates to the right of an assignee of a decree for maintenance to execute it against the judgment-debtor in the same manner as the original decree-holder. The circumstances under which the present dispute has arisen between the parties, have not formed the subject of controversy before us. On the 18 April, 1900, one Banu Bibi commenced an action for partition of moveable and immoveable properties jointly owned and possessed by her along with her co-sharer. On the 18 April, 1901,. a decree was made by consent, the effect of which was that the plaintiff relinquished her claim to the properties in suit, and the defendant undertook to pay her Rs. 5 per month for her maintenance during her lifetime; they also undertook to continue the maintenance to the sons and daughters born of her womb; and the sum payable was made a charge upon certain specified properties. The decree provided lastly that if the money was not paid for two consecutive months, the arrears would carry interest at 6 per cent, per annum from the date of default till that of realisation. On the 25 August, 1905, Banu Bibi assigned all her rights under this decree in favour of Asad Ali and Maharaj Mandal, who are now the appellants before this Court. On 12 December, 1905, the assignees applied to be substituted on the record and asked for leave to execute the decree. This application was refused by the Subordinate Judge on the ground that no interest had passed under the deed of assignment, as a right to future maintenance was not assignable under the law. The assignees then appealed to this Court. The order of the Subordinate Judge was reversed by Sir Francis Maclean, C.J. and Coxe, J. on the ground that the assignment undoubtedly operated to transfer title at least in respect of the arrears which had accrued due up to the date of the assignment, and consequently it could not be affirmed that the assignees were not entitled to be substituted as such on the record and to execute the decree. The learned Judges expressly left undecided the question, whether by virtue of the assignment, the assignees would be entitled to recover sums which had accrued due After the assignment in their favour had been made. The result was that on the 3 June, 1908, the assignees again applied for substitution of their names and for leave to execute the decree. The Subordinate Judge held that the assignment was operative in respect of the sums which had accrued due on the 25 August, 1905, but that, in so far as the assignment was intended to transfer to the assignees the right of the original decree-holder to realise arrears of maintenance as they fell due from time to time, it was inoperative in law It may be stated here that the assignor, upon whom notice had been served and who was a party to the proceedings, did not take any exception to the execution of the decree by the assignees in respect of the arrears subsequent to the date of assignment; the objection was taken by the judgment-debtor alone and was allowed to prevail. The assignees have now appealed to this Court, and on their behalf it has been contended that the assignment was valid and operative and effectively transferred to them all the rights of the decree-holder, inclusive of the right to realise from the judgment-debtors by execution the amount of monthly allowance as it fell due. In support of this proposition reference has been made to the cases of Harris V/s. Brown (1901) I.L.R. 28 Calc. 621, Haridas Acharjia V/s. Baroda Kissore Acharjia (1899) I.L.R. 27 Calc. 38, Udoy Kumari Ghatwalin V/s. Hari Ram Shaha (1901) I.L.R. 28 Calc. 483, Salamat Hossein V/s. Luckhi Ram (1884) I.L.R. 10 Calc. 521, and Abdul Lateef V/s. Doutre (1889) I.L.R. 12 Mad. 250. This position has been contested on behalf of the judgment-debtor's defendants, and it has been argued on their behalf that a right to future maintenance is not assignable and that a decree obtained for the enforcement of a claim to future maintenance, stands in this respect on the same footing. In support of this proposition, reference has been made to the cases of Syud Tuffuzzool Hossein V/s. Raghoo Nath Pershad (1871) 14 Moo. I.A. 40, Monessur Doss V/s. Beer Protap Sahee (1871) 15 W.R. 188, Sher Singh V/s. Sri Ram (1908) I.L.R. 30. All. 246 Reference has also been made to the observations in Tadman V/s. D Epineuil (1882) 20 Ch. D. 758, that a charge cannot be validly created so as to be operative ah undefined property not belonging to the mortgagor at the date of the execution of the deed, and it has been suggested that this dictum is not affected by the reversal of the decision itself in Tailby V/s. Official Receiver (1888) 13 A.C. 523. After careful consideration of the arguments addressed to us on both sides, we are of opinion, that the view taken by the Court below is erroneous and cannot be supported.

(2.) It may be conceded that there is authority for the proposition that, if a person is entitled to a monthly maintenance allowance under a deed, the allowance can be attached by an execution creditor only after it has become due; in other words, that it cannot be attached prospectively before it has become due: Kasheeshuree Debia V/s. Greesh Chunder Lahoree (1866) 6 W.R. Mis. 64 and Haridas Acharjia V/s. Baroda Kissore Acharjia (1899) I.L.R. 27 Calc. 38. These decisions are based on the principle that arrears of maintenance may be attached, but not the right to future maintenance, be cause such right is not assignable. It cannot, however, be affirmed as an inflexible rule that a right to receive maintenance is under no circumstances assignable, and in the case of Harris V/s. Brown (1901) I.L.R. 28 Calc. 621, the Judicial Committee upheld a sale by a widow, though not a Hindu widow, of her monthly allowance. Cases are also to be found in the books where maintenance grants "have by custom acquired the incident of alienability: Rameswar Singh V/s. Jibender Singh (1905) I.L.R. 32 Calc. 683, Ram Chandra Marwari V/s. Mudeshwar Singh (1906) 10 C.W.N. 978, Durga Dut Singh V/s. Rameshwar Singh (1909) I.L.R. 36 Calc. 943. The case of Vaidya Nath Sastrial v. Eggia Venkatarama Dikshitar (1907) I.L.R. 30 Mad. 279 also shows that a hereditary grant of allowance out of specified lands is not a right to future maintenance which is inalienable by its nature, and as such, exempt from attachment. There are, moreover, cases in which it has been held that an annuity, the payment of which is a charge upon an estate, is property which is alienable and cah be attached: Enact Hossein V/s. Nujeeboonissa Begum (1869) 11 W.R. 138, Mahatab Chand Bahadur V/s. Sreemuttee Dhuncoomaree Bibee (1872) 17 W.R. 254, Maniswar Das V/s. Baboo Bir Pertab Sahu (1871) 6 B.L.R. 646 and Harshanher Prosad Singh V/s. Baijnath DAll. 164.as (1901) I.L.R. 23 We are not prepared, therefore, to lay it down, as an inflexible rule of law, that a maintenance grant is under no circumstances alienable. It is not necessary for us, however, to consider in the present case the precise nature of the right of the assignor to receive a maintenance allowance or an annuity from her co-sharers, in whose favour she relinquished her interest in the joint property, because even if we assume that such right was inalienable, there can be no question that the right given to her by the decree is alienable. It is well settled that in reference to the assign ability of a judgment, the cause of action on which it is found is not generally material, and it has been repeatedly affirmed that a judgment recovered for a tort, is assignable to the same extent as one based on a contract. To take an illustration, in the case of Palmer V/s. Cohen (1831) 2 B. & A. D. 966, it a was ruled that an executor could enter up judgment after verdict in an action of tort, and the same view was adopted in Kramer V/s. Waymarh (1866) L.R. I. Exch. 241 : 4 H.C. 427. It may be observed, however, with reference to this particular point, that there has been some divergence of judicial opinion, and it has sometimes been maintained that the character of a chose in action is not changed by a verdict, so that in an action in tort, though a verdict has been returned in favour of plaintiff, his cause of action remains unassignable, and an attempted assignment thereof made prior to the rendition of the judgment, is void, and neither transfers the cause of action nor the judgment when subsequently entered thereon. On this principle, it has been ruled that, if the plaintiff in an action for malicious prosecution after obtaining a verdict in his favour, but before the entry of the judgment thereon, assigns the verdict and the cause of action, such assignment is a nullity; consequently the judgment when entered will not belong to the assignee, because if the cause of action was not assignable, its transfer pendente lite could not effect an assignment of the judgment subsequently recovered thereon : Ex-parte Charles (1811) 14 East. 197, Buss V/s. Gilbert (1813) 2 M. &. S. 70 : 14 R.R. 591, Scott V/s. Ambrose (1814) 3 M. & S. 326 : 15 R.R. 504, Walker V/s. Barnes (1814) 5 Taunt 778 : 15 R.R. 655 and Gamble V/s. Central Railway Co. (1888) 80 Georgia 595 : 12 Am. St. Rep 276. Whatever difference of opinion there may however be upon the question of the assignment of an inalienable chose in action pendente lite before the judgment is perfected, there is no difference of judicial opinion that when the claim has been merged in an actual judgment, the right under the judgment is assignable and the nature of the chose in action is immaterial, Comegys V/s. Vassee (1828) 1 Peter 193 where Mr. Justice Story pointed out that while mere personal rights which die with the party and do not survive to his personal representative, are incapable of assignment, vested rights ad rem and in re, possibilities coupled with an interest and claims growing out of and adhering to property may, pass by assignment : see, also the notes to Dugas V/s. Mathews (1851) 9 Georgia 510 : 54 Am. Dec. 361, where illustrations are given of valid assignments of judgments when the original cause of action was inalienable. Similarly in Charles V/s. Raskins (1869) Iowa 329 : 77 Am. Dec. 148, Baldwin J. observed that when a judgment is entered, the cause of action is merged therein, and loses most of its pre- existing characteristics, so that, even if the cause of action was not assignable, the judgment is assignable and may be enforced by the assignee in his own name. Freeman on Judgments, Vol. II, Section 425 and Black on Judgments, Vol. II, Section 924, where reference is made to Moore V/s. Howell (1886) 94 N.C. 265 and Stewart Lee (1900) 70 N.H. 181 : 46 At. 31. In this latter case the judgment which was held assignable had been recovered in a breach of promise suit]. We refer to these English and American decisions, not as authorities in any way binding upon this Court, but merely because they embody principles based not upon any technical rules peculiar to those systems, but upon grounds consistent with the rules of equity, justice and good conscience. It is conceded that there is no statutory provision in this country which is directly applicable to this matter. Section 6 of the Transfer of Property Act and Section 266 of the Civil Procedure Code of 1882 obviously do not conclude the matter. On the other hand, Section 232 of the Code of 1882 or Order 21, Rule 16, of the Code of 1908 does not specifically lay down any restriction upon the assignment of a decree. It may, indeed, be added that while under the old Code, the Court had a discretion whether it would allow execution to proceed at the instance of the assignee, under the new Code, his right of execution does not depend upon the discretion of the Court. It has been argued, however, by the learned Vakil for the judgment-debtor that an assignment of a decree, where the original cause of action was personal to the plaintiff and not assignable, ought not to be allowed on grounds of public policy. We are unable to accept this contention as well founded. When the cause of action is merged in the decree, there has been an adjudication by a competent Court upon the rights of the parties and the liability of the defendant" has been completely defined. It is immaterial to the defendant whether he satisfies the judgment for the benefit of the plaintiff or for that of his representative by assignment. In the case before us, for instance, it ought to be of no consequence to the defendants whether they pay the money into the hands of the original plaintiff or into those of the persons in whose favour she has transferred all her rights under that decree. Under that decree, a certain sum is periodically payable by them, and it is difficult to appreciate on what grounds the defendants can avoid payment to the appellants who acquired the rights of the original decree-holder for valuable consideration. It has been faintly suggested that the value of the interest of the decree-holder is uncertain, contingent upon the length of her life, and consequently a sale thereof is likely to be of a speculative character, and should on this ground be discouraged as contrary to public policy. This contention is obviously unsound, because if this view were maintained, we must hold that no valid transfer could be effected of any life-interest in property or of the interest of a Hindoo female, such as a widow, a daughter or a mother in possession of the estate of the last male owner. It has also been suggested that the conveyance in this case did not effect a transfer of all the rights of the original decree-holder, inclusive of her right to realise by execution the successive instalments of the annuity as they fall due. There is, in our opinion, no force in this contention. The decree in this case is in the form recognised in the Full Bench decision of Ashutosh Bannerjee V/s. Lukhimoni Debya (1891) I.L.R. 19 Calc. 139, and the decree-holder was entitled to recover in execution, without further suit, the allowance as it accrued due. When the transfer was effected, the allowance for four years was in arrears. It is inconceivable that a specific sum like this could have been alienated for a much larger sum; when the value of the interest was fixed at Rs. 785, there can be no doubt that the interest sought to be transferred, was the entire interest of the original plaintiff in the decree obtained by her. We must consequently hold that the plaintiff intended to transfer the aggregate of her rights under the decree, that such transfer was validly effected, and that the effect thereof is to entitle the assignees to execute the decree from time to time precisely in the same manner as the original decree-holder .might have done. The objection taken by the judgment-debtors to the execution of the decree is of an unsubstantial character, and cannot be sustained. We may add that, in our opinion, there would have been a failure of justice, if we had been constrained by any inflexible rule of law to hold that the rights of the decree-holder in the case before us were not assignable in their entirety. There is no room for controversy that the defendants have strenuously endeavoured to avoid payment of the decretal sum, and the original decree- holder, a pardanashin lady, has consequently been obliged to part with all her interest in the decree in favour of the present appellants.

(3.) The result, therefore, is that this appeal must be allowed and the order of the Court below discharged. The appellants will be entitled to realise by execution whatever sum is leviable under the decree. The appellants are entitled to their costs both here and in the Court below.