SUBRAYA SAMPIGETHAYA Vs. KRISHNA BAIPADITHAYA

JUDGEMENT

(1.) The question referred to the Full Bench is "Whether the interest of a widow who has obtained by a registered deed a right to future maintenance during her life-time even if charged upon specified immoveable property is capable of being transferred when the transfer is attempted to be effected at a time before the maintenance has become due." I do not think that it is possible to give a general answer to this question, and I will confine myself to considering whether the assignment in this case is valid. By a document called a general power-of-attorney, the widow surrendered all her interest in her late husband's property in favour of the nearest reversioner of her husband in consideration of his agreeing to pay some debts of the husband and to maintain her during her life-time. The document then continues (according to a corrected translation) "Besides maintaining me by giving me food and clothing, etc., until my lifetime, you should also perform my obsequies, etc., after my death. Henceforward, you should also perform the Sraddhas of my husband, father-in-law and mother-in-law, making the necessary expenses therefore.... If it is not convenient for me to live jointly with you, I should remain in the building where I now reside. In that event, except that for my food and clothing you should pay yearly 33 muras of kuchlu rice and 12 muras of beltige rice charged on the following properties, I have no right to contract any debts as a charge on the said properties or have any claim to the return of the property."

(2.) Whether the right to future maintenance, apart from a contract, or under a contract to provide clothing, board, and residence in the house of the other contracting party is property at all, within the meaning of Section 6 of the Transfer of Property Act, is a matter upon which there has been considerable divergence of opinion, but it is unnecessary to consider that here as in my judgment, it is purely personal right and is clearly inalienable.

(3.) The right under a contract to a defined amount in cash or kind for future maintenance is, in my judgment, property under the enabling words of Section 6 of the Transfer of Property Act of 1882. But the question remains whether it is an interest in property restricted in its enjoyment to the owner personally, such an interest under Clause (d) of the section being inalienable. This must depend on the facts of each particular case and must be ascertained by the ordinary rules of the interpretation of the contract; the question being, whether the intention of the parties was that the right should be personal and therefore inalienable. That intention is to be ascertained from the language of the document itself and the surrounding circumstances at the time of its execution. It must be considered as a contract to come into operation at once, and in the light of the surrounding circumstances as they then stood. What has in fact happened since is not a relevant consideration, except perhaps as an illustration of what may possibly have been in the contemplation of the parties at the time of this contract. The widow was surrendering her life-interest in the property in exchange for the agreement for maintenance, and it seems to have been quite clear in the contemplation of the parties that the reversioner should continue in possession of the property and of the family house, and the fact that he has since sold the property does not help us to arrive at the true interpretation of the contract.