MUNISAMI NAIDU Vs. AMMANI AMMAL

JUDGEMENT

(1.) The respondent as guardians of her minor grandsons borrowed money from the appellant, who brought a suit, impleading her in it and got a decree. In execution thereof he sought to proceed against her, and in the application for execution the reliefs prayed for were expressed thus:-"It is prayed that the amount mentioned in column 8 with subsequent interest and costs may be recovered by the attachment and sale of the first defendant's maintenance right in the immoveable property described in list B, attached hereto, and the instrument of lease (apparently the rent due under the instrument) executed to the said first defendant by one Anukapalli Goundan in respect of the said lands." On objection being raised by the respondent the District Munsif, on the 20 August 1901, made on her petition the following order, viz:--" The decree states that respondents are liable for the sum claimed. They cannot now say that they are not personally liable" and on the execution petition wrote the word attach. The latter direction was apparently given as if it had to be given as of course, the District Munsif completely overlooking the contention which had been raised by the 1st defendant as to the attachability of one of the two subjects sought to be proceeded against, viz., her interest in the lands in list B, apart from her right to the rents under the lease granted by her. A sale took place in which the Court purported to sell the respondent's interest in the said lands and the appellant became the purchaser thereof. Where, however, the question of the confirmation of the sale came up for decision, the then District Munsif set aside the sale accepting the objection of the respondent that her interest was not such as could be sold. And the District Judge has confirmed this order of the District Munsif.

(2.) The terms of the instrument by which the maintenance of the respondent was provided for with reference to the lands referred to above were these:--The lands belonging to our family of the value of Es. 1,500 situated in Idumbangolam village in the Sub-Registration District of Paramadi in the District of Salem and described in Schedule IV hereunto annexed, shall be enjoyed by our mother Ammani Ammal during her life-time, by her enjoying their income only for her living and all other expenses without the right to make any alienation by way of sale etc."

(3.) These terms are almost identical with the provisions of the instrument in Diwali V/s. Appaji Ganesh I.L.R., 10 B. 344 where Sargent, C.J. and Nanabhai Haridas, J. held that the interest thereby created was with reference to Section 266, Clause (b) of the Civil Procedure Code, incapable of being sold in execution of a decree. Following that case, we are of opinion that the conclusion of the lower courts is correct.