RAM PRASAD SINGH Vs. MOTIRAM MARWARI

JUDGEMENT

(1.) The decree-holder respondent seeks to execute his money decree by attachment and sale of the appellant judgment-debtor's interest in eleven villages. The appellant resists this prayer on the ground that he is a khorposhdar, and that his interest in the villages is a mere right of future maintenance which cannot be sold under Section 6(dd), T.P. Act, Section 60(1), (n), Civil P.C. and the express terms of his grant.

(2.) It was admitted by both parties before the lower appellate Court that the villages in question were given by the proprietor of the Jamtara Raj, an impartible estate, to the ancestor of the appellant for maintenance of him and his male heirs in the male line in 1858, and it was admitted that the right acquired by the khorposhdar was a heritable one. There is no evidence as to the exact terms of the grant then made, or as to the special customs of the family, if any. It appears, however, that there was a dispute between the Raja and the then khorposhdar before the settlement authorities in the year 1910. They arrived at a compromise, which was filed before the settlement authorities and incorporated in, the record of rights. This compromise and the entry in the record of rights were placed before the Court, and these documents show that the khorposhdar was recognized by the compromise to have the right to appropriate the income of the eleven villages, that right to descend to his male descendants in the male line, and on the extinction of that line the property was to revert to the estate. It was further provided that the khorposhdar or his descendants would not be at liberty to sell or transfer the properties or any portion thereof in any form, and, if they did so, the proprietor of the estate would be entitled to take back the properties into his khas possession.

(3.) In deciding whether Section 6(dd), T.P. Act and Section 60(1)(n), Civil. P.C. afford any protection the judgment-debtor in this case the crucial question is, is the judgment-debtor the holder of a bare incorporeal and personal right of future maintenance, or, is he the holder of an estate in property in lieu of maintenance? If the former, then manifestly the interest in question is protected from sale by the statutory provisions just referred to. If the latter, then equally manifestly those provisions have no application. It is true that Section 6(dd) is in very wide terms. It speaks of a right to future maintenance in whatsoever manner arising, secured, or determined; but, in my view, there is an essential difference between assigning property in lieu of maintenance and securing the right of maintenance upon certain property.