Document Fragment View

Matching Fragments

4. The substantial question, however, that arises for decision in this appeal is whether the learned Subordinate Judge is right in his view that the Government is not entitled to relief by way of attachment or appointment of a receiver in respect of future maintenance. Under Order 33, Rule 10, Civil P. C., the amount payable as court-fee in respect of a pauper-plaint shall be recoverable by the Government from any party ordered to pay the same and shall be a first charge on the subject-matter of the suit. By virtue of Rules 12 and 13 of the same order, the Government can recover the said amount by an application, which is to be treated as one in execution. The subject-matter of the suit in the present case is the right to recover maintenance, with a charge on specified properties. There can be no doubt that the Government have a first charge on this right to maintenance as decreed with the benefit of the charge in favour of the first judgment-debter: see Gadadhar Mandal v. Manaka Dassi, A.I. R. (13) 1996 Cal. 859 at page 860: (94 I. 0. 391). The only question is how that charge in favour of the Government is to be realised or whether the Government have no remedy at all on account of the prohibition against attachment of the right of maintenance under Section 60(1)(n), Civil P. C., and the prohibition against the transfer of the right to future maintenance by virtue of Section 6(dd), T. P. Act.

5. There has been considerable difference of opinion in the High Courts with reference to this question. That a mere right to future maintenance as such can neither be attached, nor sold cannot be very well disputed and has been established by a long course of judicial decisions. There has been difference of view, however, as to whether where the right to future maintenance has merged into a decree, that decree right can be attached or assigned. The difference of view on these matters can be gathered from the two cases in Asad Ali v. Haider Ali, 12 C. L. J. 130; (6 I. C. 826) and Tara Sundari v. Saroda Charan, 12 C. L. J. 146 : (7 I. C. 80), in which there is very learned and exhaustive discussion of the subject by Mukherjee J. The view has been maintained in Asad Ali v. Haider Ali, 12 C. L. J. 130 : (6 I. C. 826) that where the right to maintenance has merged into a decree, it is both attachable and assignable, particularly where the right has been charged on specific property. It may be doubted, however, in view of the specific amendment of Section 6, T. P. Act of 1929, whereby Sub-clause (dd) to Section 6 has been inserted stating "A right to future maintenance in whatsoever manner arising secured or determined, cannot be transferred, whether the distinction that has been laid down in the case in Asad Ali v. Haidar Ali, 12 C. L. J. 130 : (6 I. C. 826) between the right secured by a decree and the mere right to maintenance can any longer be maintained in respect of a right to maintenance which is merely personal and not heriditary. It would also be reasonable to construe the prohibition of the attachment in Section 60(1)(n), Civil P.C. of a future right to maintenance as equally applicable to decrees for maintenance, since the attachment is only preliminary to a sale through Court. It is no doubt true that the Transfer of Property Act applies only to transfers by the parties; but Section 6 (dd) has the effect of declaring that a decree for the right of future maintenance is not saleable property. This would, therefore, lead to the consequence that a decree for future maintenance is not attachable and saleable through Court, I would, therefore, assume without deciding that the decree for future maintenance obtained by the first judgment-debtor in this cage against the second judgment-debtor is not attachable and that the Government cannot obtain any relief by way of attaching or selling the decree, in so far as any instalment has not, by the date of the application become an arrear. The question then is whether the remedy by way of appointment of a receiver is also not available. On this question Rajindra Narain Singh v. Mt. Sundar Bibi, A. I. R. (12) 1925 P. C. 176 : (47 ALL. 385), Secy. of State v. Venkata Lakshmanayya, A. I. R. (13) 1926 Mad. 665 : (49 Mad. 667); Sain Das v. Tikka Sant Singh, A. I. R. (23) 1936 Lah. 830: (165 I. C. 519); Keshabati Koeri v. Mohan Chndra, 39 Cal. 1010 : (14 I. C. 227) and Ashfaq Mahmed Khan v. Nazir Banu, A. I. R. (29) 1942 Oudh 410 : (201 I. C. 100) are in favour of the appellant's view; while Palikandi Mammad v. Valia Appa, 40 Mad. 302 : (A. I. R. (4) 1917 Mad. 79); Secy. of State v. Bai Some, A. I. R. (20) 1933 Bom. 360 : (57 Bom. 507) and Vishnibai v. Bulchand Tikamdas, 154 I. C. 580: (A. I. R. (22) 1935 Sind. 21) are in support of the opposite view.

8. Learned counsel for the respondent relies on the observations in those cases. He say a that since a right to future maintenance is not merely not attachable under the procedural law, but is not transferable as a matter of substantive law by virtue of Section 6 (dd), T. P. Act, the principles recognised in those cases will apply.

9. There does not appear, however, to be any scope for this distinction as a general rule in the law as administered in India. In Rajindra Narain Singh v. Mt. Sunder Bibi, A. I. R. (12) 1925 P. C. 176 : (47 ALL. 385) maintenance was payable by way of the rents and profits of certain property allotted for the purpose which in specific terms was made inalienable. Their Lordships recognised that not only wag the property inalienable by the settlement, but the rents and profits which constitute maintenance was unattachable by virtue of Section 60, Civil P. C. All the same, they held that the remedy by way of appointment of a receiver could be granted of such future rents and profits. It is submitted with respect that the weight of this decision cannot be whittled down in the way in which Secy. of State v. Bai Some, A. I. R. (20) 1983 Bom. 860 : (67 Bom. 507) does. In Wasif Ali Mirza v. Karnani Industrial Bank Ltd., A. I. R. (18) 1931 P. C 160 : (59 Cal. 1) [which confirmed on appeal the decision of the High Court in Karnani Industrial Bank Ltd. v. Nawab Bahadur of Murshidabad, A. I. R. (17) 1930 Cal. 159 : (126 I. C. 45)] a similar question aroae with reference to property which was inalienable under a statute, viz., the Murshidabad Act (Act IV [4] of 1891). It was pointed out by their Lordships that though the property as such was inalienable by the Statute, the owner had the disposing power over the rents and profits thereof and that, therefore, a receiver of the same could be appointed though the property itself could not be attached. Similarly, in Monohar Singh v. Riazuddin, A. I. R. (21) 1934 ALL 605: (150 I.C. 665), it was pointed out that a statutory prohibition of the sale of any property is not a prohibition of the assignment of the proceeds thereof or of the receipt of its income by a receiver on behalf of the owner of the property to be applied in discharge of his decree debt. Besides, instances of appointment of receiver by way of execution in respect of properties which are inalienable are numerous, the most familiar being cases of Muth properties: See Vibhudapriya, Thirtha v. Lakshmindra Tihrtha A. I. R. (14) 1927 P. C. 131 : (50 Mad. 497) and Niladri Sahu v. Chaturbhuj Das, A. I. R. (13) 1926 P. C. 112 : (53 I. A. 253). It appears to me on the authority of the above cases that it cannot be maintained as a general proposition that when a property is not alienable as a matter of substantive law, either because o! the character of the property or because of the terms on which it is held, or on account of statutory provisions relating thereto, a receiver in respect of that property cannot be appointed in execution. This must depend on the nature and amptitude of the prohibition to be gathered from the context and the three English cases and the Patna Full Ben oh case above referred to may be distinguished as relating to the construction of the nature of the prohibition in those cases.

10. On the distinction pointed out in Karnani Industrial Bank Ltd. v. Nawab Bahadur of Murshidabad, A.I.R. (17) 1930 Cal. 159: (126 I. C. 45) and Wasif Ali Mirza v. Karnani Industrial Bank Ltd., A.I.R. (18) 1931 P. C. 160: (59 Cal. 1) and on the authority of Rajindra Narain Singh v. Mt. Sundar Bibi, A.I.R. (12) 1925 P. C. 176: (47 ALL 385) it would seem to follow that while the future right to maintenance is not assignable, as property and hence not attachable, there can be appointed a receiver in respect of the proceeds thereof, which are at the disposal of the judgment-debtor. Apart, however, from the larger question whether any judgment-debtor can get a receiver appointed under the decree for future maintenance of his judgment-creditor, in execution of his own decree, the question in the present case so far as Government's position under Order 33, Rule 10, Civil P. C. is clear and simple. Any prohibition against attachment under Section 60, Civil P. C., or against assignability under Section 6 (dd), T. P. Act, must be read in the light of the provisions of Order 33, Rule 10 and must be reconciled with it. A general declaration of unattachability and/or non-transferability by statute in respect of a future right to maintenance, cannot be construed as nullifying a charge expressly created by statute for a specific and limited purpose. It has been held in Dalar Kaur v. Ram Rattan, 1 Lah. 192 : (A. I. R. (7) 1920 Lah. 456 (F. B.)) that a statutory prohibition against alienation of property does not necessarily imply prohibition of a temporary alienation. The charge created by statute under Order 33, Rule 10 is limited and for a specific purpose. It is absolute and makes no exception in respect of a maintenance suit by a pauper. To hold that the Government have no right to realise the amount due to it by way of appointment of a receiver in a case like the present one, would be to defeat the express statutory right of the Government, though protected by a charge. It is also well settled that in an appropriate case, a mortgage or a charge can be realised in execution by the appointment of a receiver in respect of the property charged. (See Rameshwar Singh v. Chuni Lal, 47 Cal. 418 : (A. I. R. (7) 1920 Cal. 545) and Paramasivan Pillai v. Ramasami Chettiar, 56 Mad 915 : (A. I. R. (20) 1933 Mad 670 (F. B.) )