Document Fragment View

Matching Fragments

7. Reliance was placed on Munisami Naidu v. Ammani Ammal (1905) 15 M.L.J., 7, where Subrahmanya Ayyar, J., held that a land granted to a widow for maintenance was not attachable in execution of a decree against the widow. That learned Judge followed another decision in Diwali v. Apaji Ganesh (1886) I.L.R., 10 Bom., 342, which held a similar view, but the question in those cases was whether the land in question would come within the purview of 'future maintenance' exempted from attachment by Clause (L) of Section 266 of the Civil Procedure Code (of 1882). There are various kinds of property which are transferable by the owner but which are exempt from attachment. The distinction was pointed out in Ranee Annapurni Nachiar v. Swaminatha Chettiar (1911) I.L.R., 34 Mad., 7, where this Court held that property given for maintenance is transferable and distinguished Diwali v. Apaji Ganesh (1886) I.L.R., 10 Bom., 342, and other cases which held that such property was not attachable. The general principle undoubtedly is that though a grant may prescribe the mode in, which the grantee is to enjoy the property, such a provision would not be binding on him. See Section 1 of the Transfer of Property Act, Section 125 of the Succession Act and Chamaru Sahu v. Sona Koer (1911) 16 C.W.N., 99. A grant no doubt may be conditional on the grantee enjoying it in a particular manner; but where it cannot be construed to be conditional and there is a mere direction or request that the enjoyment should be in a certain manner, such a provision would not be binding. In Rameswar Singh v. Jibender Singh (1905) I.L.R, 32 Calc., 689, it was held that Babuana grant for maintenance could be alienated. Balaji J. Rahalkar v. Narayanbhat (1866) 3 Bom., H.C.R, A.C., 63 (A.C.J.), was not a case analogous to the present. There the lease was of a piece of land for building a house in which the grantee and his heir were to live. Couch, C.J., and Newton, J., held that there was no grant of any interest in the land except of a personal use for a particular purpose. We must overrule this contention also and hold that the enjoyment is not restricted by Exhibit N personally to the grantees under it. The next question is whether the clause preventing alienation by the grantees is valid. Section 10 of the Transfer of Property Act enacts that whore property is transferred, subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void. An exception is provided in the case of a lease where the condition is for the benefit of the lessor or those claiming under him. This section is applicable to Hindus unless any rule of a Hindu law be affected by it. It has frequently been applied both to Hindus and to Muhammadans. See the cases collected in Gour's Transfer of Property Act, page 184. The prohibition, of alienations is absolute in this case. The grantees were not to alienate by sale, mortgage, etc., and the reasons for the prohibition is stated to be the properties are intended for the maintenance of the grantees. There is also a provision that the grantor himself should not make any kind of alienation Having regard to the reason stated for the restraint on alienation, there can be no doubt that the clause must be construed as preventing alienation absolutely. There is no reason for holding that there is any rule of Hindu Law that alienations may be prevented in the case of grants for maintenance, The alienation, of course, would not be valid beyond the time that the grant itself enures. In Kuldip Singh v. Khetrani Koer (1898) I.L.R., 25 Calc., 869, all that was held was that a provision in an agreement between a widow and her husband's relations that an alienation should not be made without the consent of the relations was not repugnant to the provisions of Section 10, because alienation was not altogether forbidden but was only directed to he made, subject to certain conditions.