BIBI HALIMAN Vs. BIBI UMADATUNNISSA

JUDGEMENT

(1.) The question to be deter, mined in this appeal is, whether the plain, tiff is entitled to recover the sum of Rupees 542.10-8 to which she claimed to be entitled by reason of an assignment under a bond dated 7 September 1933. Defendant 1, who is the appellant, contends that the claim is not maintainable, as the assignment was an assignment of a right to future maintenance and therefore unassignable under Section 6(dd), T.P. Act. The cir. cumstances giving rise to this case are as follows. By a kabala dated 3 November 1921, Hafiz Syed Fazal Haq, the father of Bibi Haliman (defendant 1 in the suit and appellant before me), transferred the whole of his property to his daughter, the appellant before me, for a sum of Rs. 10,000. There was another document which is undated but which was registered on 5 December 1929, by which the defendant-appellant entered into a transaction under, taking to make "a fixed monthly cash payment amounting in all to Rs. 400 per annum" to her father so long as he lived.

(2.) The learned Judge in the Court below has stated that the two last transactions were one, and, as one of the grounds for coming to this conclusion, has said that those documents were presented on the same day for registration. There were some other transactions entered into being releases of mukarrari leases which were for the purpose of carrying out the transactions to which I have made specific reference. Apart from that statement, it is unnecessary to go into further details with regard to them. Now, the document by which the defendant-appellant undertook to pay her father the sum of Rs. 400 annuallyrecites that it was intended to allow the father, after the deed of transfer of 1921, to remain in possession of the property on the basis of the mukarrari, and, if that intention had been carried out, the father would have got a net profit (under the mukarrari) of Rs. 400 a year; therefore, as an easier method of carrying out the same transaction, the daughter (appellant before me) going into possession of the property purchased, agreed to pay a sum of Rs. 400 annually to her father making the said sum a charge on the property which was the subject-matter of the sale deed of November 1921. By a deed of 7 September 1933, the right to this annual sum was assigned to the plaintiff.

(3.) As I have already said, the learned Judge in the Court below has held that the document executed by the appellant, a document which is undated and the sale deed of November 1921, were one and the same transaction. In support of this decision the learned advocate appearing on behalf of the plaintiff-respondents contends that the payment of Rs. 400 annually to the father was a part of the consideration for the sale which prima facie was effected for a consideration of Rs. 10,000. I have mentioned that fact at the commencement of my observations, as the real point for determination is whether this transaction of September 1933, under which the plaintiff claimed the sum in suit was an assignment of future maintenance. It seems to have been thought by the learned advocate for the plaintiff-respondent that if it was established that the payment by the daughter (defendant 1) of Rs. 400 annually to the father was a part of the consideration of the sale of 1921, then ipso facto it ceases to be an assignment of future maintenance, or, perhaps to be more accurate, it cannot be treated to be future maintenance. Before proceeding further, I propose to read the words of Section 6 (dd), T.P. Act. Those words are: A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.