TARA SUNDARI DEBI Vs. SARADA CHARAN BANDOPADHYA

JUDGEMENT

(1.) We are invited in these appeals to consider the legality of an order made by the Court below upon an application for execution of a decree obtained by one Sarada Charan Banerjee against Tara Sundari Debi. The circumstances, under which the order in question, against which, both the decree-holder and the judgment-debtor have appealed, was made, have not formed the subject of controversy before us. In execution of a decree for money obtained by Sarada Charan against Tara Sundari, he applied for attachment and sale of the rights of the latter under a deed of gift executed in her favour by her father on the 6 September, 1372. The judgment-debtor objected on the ground that her interest was not liable to be attached under Section 266 of the Code of 1882, which corresponds with Section 60 of the Code of 1908. Her contention, in substance, was that the interest created in her favour by the deed of gift, was not saleable property over which she had a disposing power which she might exercise for her own benefit. The Subordinate Judge held that the interest which the judgment-debtor took under the deed of gift was a two-fold character, and was attachable as to one portion, thereof, and not attachable as to the remainder. Each party has appealed against the decision of the Subordinate Judge in so far as it gives effect to the contention of his opponent, and the question before us relates to the true nature of the interest taken by Tara Sundari under the deed of gift executed by her father.

(2.) It appears that Ishan Chandra Banerjee, father of Tara Sundari, had given her in marriage to a Kulin Brahmin, with the usual result that she and her children had to be maintained by him. The deed recites that it was the duty of the grantor to hear the burden of maintaining his daughter, the grantee, and her children, and that a similar liability rested upon the son of the grantor, Umesh Chandra, according to the family custom. The deed then recites that, to make some provision for the maintenance of the grantee with her children, the grantor gave her annual sum of Rs. 600, and a lump sum of Rs. 1,000, for the acquisition of a suitable site, and Rs. 5,000 for the construction of a house. As regards the first of these sums, namely, the annual maintenance, the deed states expressly that the sum was to be paid out of the income of two specified properties owned by the grantor. As regards the second it was made payable out of the estate. Neither of these two gifts, however, vested immediately in the donee. On the other hand, it was laid down that the lump sum granted, as also the annual payment, was not to be made till, by reason of disagreement between the grantee and the members of the family of the grantor, the former found it necessary to become separate in mess from them. This deed was executed by the father of Tara Sundari and his son, Umesh Chandra, affixed his signature to it in. token of his consent. Ishan Chandra died many years ago, and it is alleged on behalf of the judgment-debtor that she received in due course from the holders of the estate of her father, the sum of Rs. 6,000, with which she purchased land and built a house. The execution-creditor now seeks to attach and sell her interest under this deed of gift, both in respect of the house and the monthly allowance. Her objection is that neither of these is liable to be attached in execution of the decree. The Subordinate Judge has held that her interest in the house is liable to be attached but her right to receive the monthly allowance is not so liable. In the appeal of the judgment-debtor it has been argued that her interest in the house and land is not liable to be attached as it is not property over which she has a disposing power for her own benefit. In the appeal of the decree-holder, it has been argued, on the other hand, that the right of the judgment-debtor to receive the monthly allowance is liable to be attached and sold.

(3.) In so far as the appeal of the judgment-debtor is concerned, we are of opinion that the order made by the Court below is correct and ought not to be disturbed. From the terms of the deed it is clear that there was a gift of Rs. 6,000 to Tara Sundari. No doubt, the intention of the grantor was that the money should be applied by her for the purchase of land and the construction of a house, but there is no foundation for the suggestion that when the money should be converted into immovable property, she was to have a mere right of residence therein. The learned Vakil for the judgment-debtor has contended that the sum of Rs. 6,000 was given to her children as well as herself and that the intention of the grantor was that the children should be the ultimate owners of the property. No such direction, however, is given in the deed, either expressly or by necessary implication. Reference has also been made to the decision of their Lordships of the Judicial Committee in Rabutty Dasi V/s. Shib Chunder Mullick 6 M.I.A. 1. There a deed of arrangement and release between the members of a Hindu family, in respect of a certain joint estate claimed by a childless Hindu widow of one of the coheirs in her character of heiress and legal personal representative of her deceased husband, declared that she was entitled to the sum therein mentioned as the share of her deceased husband for her sole, absolute use and benefit. These words were construed to mean that, as a Hindu widow, she had only a life-estate in the corpus, which at her death devolved as assets of her deceased husband upon his personal representative in succession. The principle of the decision is that the interest of the widow was not enlarged by the transformation of the estate of her husband from land into money, and her position in relation to the fund she received, was identical with what would have been her relation to the immovable property if it had come into her hands. This doctrine is obviously of no assistance to the judgment-debtor in the present case. The question before us is, whether the interest Tara Sundari took in the sum, which she received under the deed of gift, is of such a character as to entitle her to alienate it. It is not necessary for us to consider whether she took an absolute interest therein or whether she was given an estate for life with a remainder over to her children. Even if we hold, as was done by the Judicial Committee in the case of Radha Prasad Mullick V/s. Ranee Mani Dasee 35 C. 896 : 12 C.W.N. 729 (P.C.) : 10 Bom. L.R. 604 : 8 C.L.J. 48 : 5 A.L.J. 460 that the intention of the grantor was that his daughter should have a life-interest, and that upon her death it would vest absolutely in her children, it is clear that she had something more than a mere right of residence. The children are not parties to the present proceedings and the Court cannot properly be invited to determine the precise quantum of interest, if any, taken by them in the land and house alleged to have been purchased out of the sum received by their mother as a gift from their maternal grandfather. That there may be room for controversy in a question of this character, is clear from the cases of Mahomed Sumsul Huda V/s. Sevok Ram 2 I.A. 7 : 22 W.R 409 : 14 B.L.R. 226 Suraj Mani V/s. Rabi Nath Ojha 35 I.A. 17 : 5 A.L.J. 67 : 18 M.L.J. 7 : 12 C W.N. 231 (P.C.) : 10 Bom. L.R. 59 : 7 C.L.J. 131 : 3 M.L.T. 144, Sambasiva Ayyar v. Visvam Ayyar 30 M. 356 : 17 M.L.J. 243 : 2 M.L.T. 316 : 31 M. 179 : 3 M.L.T. 369 but, whatever the precise nature of the interest of the grantee may be, whether it is treated as a life-estate or as an absolute interest, it is clearly an interest over which she has a disposing power. It will be observed that the fund was placed at her disposal; there was no express direction that it should be applied in the purchase of land and house, though the grantor stated that his intention was that the fund should be utilised for this purpose. Under these circumstances, it is impossible to hold that she had a mere right of residence which cannot be attached and sold in execution of a decree. It was open to her not to apply the fund for the purpose of land and house for many years, and the view cannot be sustained that the interest acquired by her when the grant was made was diminished when the money was converted into immovable property. We must consequently hold that the interest of the judgment-debtor in the land and house is liable to attachment and sale; but we do not decide, in fact, we cannot decide in the absence of the children, whether or not they have a present right o? residence therein. In so far, therefore, as the appeal preferred by the judgment-debtor is concerned, the order of the Court below must be affirmed.