PESTONJEE BHICAJEE FIRM Vs. PATRICK H ANDERSON

JUDGEMENT

(1.) By his will dated 28 December 1926, one John Alexander Anderson, who died in October 1928, directed that the residue of his estate should be divided into sixteen shares and he bequeathed three of such shares to his nephew C. S. Anderson and Winifred, his wife, and their issue as therein mentioned. By a codicil dated 22 July, 1927, the testator revoked that bequest and in lieu thereof he directed as follows : The income from these three-sixteenths shall as long as C. S. Anderson and Winifred, his wife, are both alive be divided, two-thirds to the wife and one-third to the husband. If one of them dies his or her share of the income shall belong to their four children or the survivors of them in equal proportions, and when the remaining parent dies the capital and income shall belong to the children then living in equal proportions.

(2.) The respondent, Patrick H. Anderson, is one of the four children of C. S. Anderson and his said wife; and the question to be determined upon this appeal is whether, while both C. S. Anderson and his said wife were still living, the interest of the respondent in the income and capital of the three-sixteenth shares in the said testator's residuary estate was liable to attachment and sale in view of Para. (m) to the Proviso to S.60, Civil PC, 1908. That Section so far as relevant is as follows : 60. - (1) The following property is liable to attachment and sale in execution of a decree, namely lands, houses or other buildings, goods, money, banknotes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds, or other securities for money, debts, shares in a Corporation and, save as hereinafter mentioned, all other saleable property, moveable or immovable belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf : Provided that the following particulars shall not be liable to such attachment or sale, namely: (m) an expectancy of succession by survivorship or other merely contingent or possible right or interest.

(3.) The circumstances that have given rise to the appeal are as follows. On 14 January 1932, the appellants instituted in the Court of the Judicial Commissioner of Sind (District Court Jurisdiction) a suit against the respondent and others claiming a sum of Rs. 1,20,900. On the same day they applied to the said Court for attachment of (inter alia) the interest of the respondent in the income and capital of the said three-sixteenth shares. This application was made under O. 38, Rule 5 of the said Code which provides for conditional attachment before judgment of property of a defendant where the Court is satisfied that such defendant with intent to obstruct or delay the execution of any decree that may be passed against him: (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court.