Indian Kanoon - Search engine for Indian Law

2. On 11th May 1936, he filed a petition for insolvency, and the adjudication order was made on 24th of August following. On 20th February 1939, the Official Receiver in whom the estate of the insolvent vested, started a proceeding under Sections 4 and 53, Provincial Insolvency Act, for a declaration that the two mortgages mentioned above were illegal and void and were liable to be annulled inter alia on the ground that a right to future maintenance was not alienable in law under Section 6(dd), T.P. Act. An issue was raised on this point, which was heard as a preliminary issue by a District Judge and by his order dated 4th July 1931, the learned Judge decided this point in favour of the mortgagees and held that the transfers in dispute did not come within the mischief of Section 6(dd), T.P. Act. This order was not challenged by the receiver, but the insolvent has come up against it by way of appeal to this Court. A preliminary objection has been raised on behalf of respondents 2 and 3, that no appeal lies against the order of the District Judge at the instance of the insolvent who can have no locus standi in a proceeding under Section 4 or Section 53, Provincial Insolvency Act. Under Section 75 (2), Provincial Insolvency Act, the debtor, any creditor, the receiver or any other person aggrieved by a decision or order of a District Court as is specified in Schedule 1, come to or made otherwise than in appeal from an order made by a subordinate Court may appeal to the High Court. The order complained of, undoubtedly decided a question of title under Section 4, Provincial Insolvency Act, and hence comes within the category of appealable orders, as enumerated in Schedule 1 to the Act. Section 75 expressly mentions the 'debtor' as a person competent to appeal, though it is well settled that he can appeal only if he is aggrieved by the order of the District Judge and not otherwise.

5. Coming now to the merits of the appeal, the question that requires consideration is as to whether the insolvent's right to the monthly allowance of Es. 700 under the will of his father as had not accrued due already, could be assigned by way of mortgage, in view of the provisions of Section 6(dd), T.P. Act. The Court below is of opinion that the amount payable to the insolvent under his father's will was in the nature of an annuity, not of future maintenance, within the meaning of Section 6(dd), T.P. Act, and in support of this reliance has been placed on a decision of Sale J. in Gopal Lal Seal v. F.J. Marsden ('06) 10 C.W.N. 1102. In that case a question arose as to whether a certain sum of money payable to the applicants as monthly allowances under the will of their maternal grand father could be attached under a prohibitory order. Sale J. answered this question in the affirmative and held that Section 266, Civil Procedure Code, (which corresponds to Section 60(1)(n) of the present Code) was not applicable to a grant of this description. "The gift in question" so runs the judgment "was a gift to the sons of the daughter of the testator and is described in the will as a monthly allowance, and is treated as such in the proceedings in suit. They are not in any sense monies given to the applicants by virtue of any right to maintenance the applicant possessed. It was simply a gift made by the testator in their favour from the testator's bounty and therefore they must be taken as annuities which the applicants are entitled to deal with by way of charge, transfer or assignment and as such are attachable under Section 266."

6. According to this view, the right to maintenance in order to be unassignable in law must be based on the personal law of the parties, or the relationship between the grantor and the grantee; and unless the grantee has a legal right to be maintained by the grantor according to the personal law by which they are governed, right to such maintenance can be transferred. The result is that where the allowance is given as a matter of favour out of the bounty of the grantor, or is the result of a contractual agreement between the parties, the provision of Section 6 (dd) T.P. Act, would not apply. In our opinion, this would be attaching a very much restricted meaning to the plain words of the section. The policy of the law undoubtedly is to interdict alienation, of what is intended to be given for the personal enjoyment of the grantee. It is not proper that in such cases the grantee should starve whereas the property which was intended to be enjoyed by him personally should be held by a stranger.

7. But we cannot say that there could not be a maintenance grant unless there was an antecedent obligation on the grantor to maintain the grantee under the personal law of the parties. Whatever doubts might have existed on this point are now removed by the clear words of Section 6 (dd), T.P. Act, (which was introduced by the amending Act of 1929) which says that a right to future maintenance in whatsoever manner arising, secured or determined cannot be transferred. If the right is only to arise under settled personal laws, these words would be altogether Unnecessary. The expression "in whatsoever manner arising" certainly refers to the way in which the right is created and not merely evidenced. This view is supported by the decision of the Privy Council in Rajendra Narain Singh v. Mt. Sundar Bibi . In this case certain villages had been conveyed to a judgment-debtor without power of transfer during the life time of the grantor in order that he. should possess and enjoy the same thereof in lieu of maintenance. It was held by their Lordships of the Judicial Committee that the debtors' interest was neither attachable nor saleable under Section 60 (1)(n), Civil P.C. This decision was in 1925 and Clause (dd) of Section 6, T.P. Act, which was introduced in 1929 was quite in conformity with this decision. It is true that there is a distinction between a maintenance allowance and an annuity; and whether an allowance is the one or the other may depend upon the facts of each case : vide Subraya v. Krishna ('24) 11 A.I.R. 1924 Mad 22. Altap Begam v. Brij Narain . Tara Sundari Debi v. Sarada Charan ('10) 12 C.L.J. 146. In the present case, we have no doubt that the sum of Rs. 700 a month which was given to the appellant was nothing else but a maintenance grant. The testator had vast properties and he practically disinherited his son, giving him only so much as was necessary for his maintenance. The provisions for maintenance of the testator's wife and daughter-in-law occur in the same paragraph, and are couched in identical language. The appellant, it appears, was an adopted son of the testator, and the testator might have thought that even though he was disinheriting his adopted son he had a moral duty to maintain him.