SYED MAHBUB ALI Vs. SYED MOHAMMAD

JUDGEMENT

(1.) WE have before us a second. appeal, No. 454 of 1942 and a connected first appeal from order No. 104 of 1940. In order to understand the questions in issue, it is necessary to know that Talib Ali and Hatim Ali were two brothers. The former died in 1909 and the latter thereupon entered into an agreement with the former's widow. The widow gave up her one-fourth share in her husband's property in consideration for a promise by her brother-in-law that he would pay her an allowance of Rs. 450 per mensem. It appears that this allowance was paid till about the year 1928, but thereafter the widow, whose name was Mt. Nawab Begam, had to institute a suit in order to recover the allowance due to her from sometime in the year 1928 to the mon April, 1932. She obtained a decree. Hatim Ali had made a wakf of some of his property and he made an application on 22 November, 1935, under the Encumbered Estates Act partly, it appears, on his own account and partly as mut-walli of the wakf. Mt. Nawab Begam executed a will on 21 April 1935 by which she directed that any sum due to her at her death on account of this allowance payable by Hatim Ali should pass to the plaintiff- respondent in the second appeal, that is, to Syed Mohammad. Syed Mohammad claimed two amounts in the course of the proceedings under the Encumbered Estates Act, namely, the balance of the sum due under the decree passed in favour of Mt. Nawab Begam for the period from 1928 to April 1932 and thereafter the amount due on account of this allowance from April 1932 to 22nd November 1935, the date when the application was made under the Encumbered Estates Act. The second appeal before us arises out of a suit which he instituted to recover the amount due on account of this allowance from 23 November 1935, to 27 May 1936. He has obtained a decree and the representatives of Hatim Ali, who has since died, have filed an appeal. The argument is that the plaintiff, Syed Mohammad, had no right to recover any money on account of this allowance because the allowance was not transferable, The argument is based on the allegation that there was a transfer of future maintenance. It seems obvious that there could be no transfer, of this kind. There was no transfer at all inter vivos. Mt. Nawab Begam merely directed that any sum of money already due to her at the date of her death on account of this allowance should be recovered by Syed Mohammad and this she was entitled to do. A good deal of confusion is caused by a misuse of the term maintenance. Maintenance means the right to be fed, clothed and housed and it is a right which cannot be transferred. In some circumstances an allowance may be paid in lieu of maintenance and in others there may be a definite agreement by which the person entitled to maintenance gives up that right in consideration of a promise to pay an allowance. The distinction should always be realized between maintenance and an allowance in lieu of maintenance and also between an allowance in lieu of maintenance and an allowance in consideration for the relinquishment of a right of maintenance. In this case, however, there can be no question of any transfer of any future maintenance because there was no right of maintenance after the death of Mt. Nawab Begam when the directions in the will came into operation. It is obvious that Mt. Nawab Begam could bequeath a right to money which had already accrued to her. There is no force in the appeal and we dismiss it with costs.

(2.) THE first appeal from order arises out of proceedings under the Encumbered Estates Act. THE learned Special Judge appointed a Receiver of the property under the provisions of Section 9(A) or Section 9(B) of the Act. THE appellant maintained that no Receiver should have been appointed, but learned Counsel informed us that this appeal would depend upon the decision in the other appeal before us. THEre was some discussion whether a Receiver could be appointed under Section 9 (A) of the Act, but we have examined the provisions of Section 9(B) and it seems to us that the learned Special Judge had a wide discretion. We see no reason therefore to interfere with his order and we dismiss that appeal also with costs.