1925 JTR(SC) 7
1925 AIR(PC) 176 ; 1924 52 LawReportsInd.App. 262 ; 1925 22 LW 284 ; 1925 27 BomLR 849 ; 1926 30 CWN 818
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW, LORD CARSON, SIR JOHN EDGE, AND MR. AMEER ALI.
RAJINDRA NARAIN SINGH (JUDGMENT DEBTOR) - Appellant
Versus
SUNDARA BIBI (JUDGMENT CREDITOR) - Respondents
On appeal from the High Court at Allahabad.
Decided On : Feb. 19. 1925.
A right to future maintenance is not attachable or saleable under Section 60(1)(n) of the Code of Civil Procedure, 1908. The appropriate remedy for execution is the appointment of a receiver to apply surplus income from the property toward the debt after providing for the debtor's maintenance.
Act
Referred
:CIVIL PROCEDURE CODE
: S.60(1)(n)
(A) Code of Civil Procedure, 1908 - Section 60, sub-section 1(n) - Attachment and sale of property - Right to future maintenance - Whether property held for maintenance is attachable - Held: Right of maintenance is not attachable or saleable under the said section.
(B) Execution of decree - Equitable or indirect execution - Appointment of receiver - Proper remedy where property is not attachable - Receiver to realize rents and profits, provide for maintenance of judgment debtor and family, and apply balance to liquidate debt.
Facts of the case:
A judgment creditor sought to attach and sell land holdings held by a judgment debtor. The debtor's interest in the land arose from a compromise deed providing for maintenance, which expressly prohibited the power of transfer during the lifetime of a relative and restricted transfer as long as certain heirs existed.
Findings of Court:
The right of maintenance is not attachable or saleable under Section 60, head (n) of the Code of Civil Procedure. The appropriate remedy is the appointment of a receiver to collect income and apply the surplus to the debt after ensuring the debtor's maintenance is adequately provided for.
Issues: Whether the interest in property held for maintenance, without power of transfer, constitutes a "right to future maintenance" under Section 60, sub-section 1(n) of the Code of Civil Procedure, 1908, and is therefore exempt from attachment and sale.
Ratio Decidendi: The court held that a right of maintenance is legally exempt from attachment and sale under Section 60(1)(n) of the Code of Civil Procedure. In such cases, the court should utilize indirect execution by appointing a receiver to manage the property, ensuring the debtor's maintenance is met first, with any remaining funds used to satisfy the judgment creditor's claim.
Result: Judgment modified and case remitted to the High Court for the appointment of a receiver.
(B) Execution of decree - Equitable or indirect execution - Appointment of receiver - Proper remedy where property is not attachable - Receiver to realize rents and profits, provide for maintenance of judgment debtor and family, and apply balance to liquidate debt.
Facts of the case:
A judgment creditor sought to attach and sell land holdings held by a judgment debtor. The debtor's interest in the land arose from a compromise deed providing for maintenance, which expressly prohibited the power of transfer during the lifetime of a relative and restricted transfer as long as certain heirs existed.
Findings of Court:
The right of maintenance is not attachable or saleable under Section 60, head (n) of the Code of Civil Procedure. The appropriate remedy is the appointment of a receiver to collect income and apply the surplus to the debt after ensuring the debtor's maintenance is adequately provided for.
Issues: Whether the interest in property held for maintenance, without power of transfer, constitutes a "right to future maintenance" under Section 60, sub-section 1(n) of the Code of Civil Procedure, 1908, and is therefore exempt from attachment and sale.
Ratio Decidendi: The court held that a right of maintenance is legally exempt from attachment and sale under Section 60(1)(n) of the Code of Civil Procedure. In such cases, the court should utilize indirect execution by appointing a receiver to manage the property, ensuring the debtor's maintenance is met first, with any remaining funds used to satisfy the judgment creditor's claim.
Result: Judgment modified and case remitted to the High Court for the appointment of a receiver.
Maintenance - The case was referred to during the proceedings in relation to the attachability of maintenance rights under the Code of Civil Procedure.
Solicitors for appellant:T. L. Wilson & Co. Solicitor for respondent: H. S. L. Polak.
Judgement
Appeal (No. 48 of 1924) from a decree of the High Court (May 2, 1921) reversing a decree of the Subordinate Judge of Jaunpur.
The respondent obtained a decree against the appellant upon a bond for Rs.20,000 and interest. In execution of the decree she applied in 1919 to attach and sell the " zamindari property with sir and khudkasht holdings, together with all rights and interests appertaining thereto which the judgment debtor has therein," in sixteen villages specified.
Law. Rep. 52 Ind. App. 262 ( 1924- 1925)
Rajindra Narain Singh V. Sundara Bibi 56
The interest of the appellant in the villages arose under a deed of April 17, 1915, made in compromise of a suit which he had brought to eject his brother from a zamindari estate.
The deed provided that the appellant, and after his death his male issue in the male branch, should " hold and possess " the villages " yielding a profit of Rs.8000 a year in lieu of his maintenance, without power of transfer during the lifetime " of his brother, and that he should pay Rs.7035 as Government revenue, Rs.735 cesses, and Rs.102 malikana, in all Rs.7872, to his brother. After his brothers death the villages were to become the absolute property of the appellant and his descendants, but were not to be transferred so long as heirs of the brother were in existence.
The Subordinate Judge dismissed the application, holding that the appellants interest was a "right to future maintenance" within s. 60, sub-s.1 (n), of the Code of Civil Procedure, 1908, and, therefore, not liable to attachment and sale.
Upon appeal to the High Court the decree was reversed. The learned judges (Walsh and Wallach JJ.) were of opinion that the interest of the appellant in the villages was not covered by the expression "right to future maintenance," which they thought contemplated a bare right of maintenance and nothing more. They expressed the view that the appropriate method of execution would be by the appointment of a receiver, but they did not make any appointment by their decree.
1925. Feb. 19. De Gruyther K.C. and E. B. Raikes for the appellant.
Narasimham for the respondent.
[Reference was made to the Code of Civil Procedure, 1908, ss. 58, 60, and Order XL., r. 1 ; also to Ghulab Kuar v. Bansidhar . (( 1893) I. L.R. 15 A. 371.)]
Feb. 19. The judgment of their Lordships was delivered by
LORD SHAW. The Board is of opinion that the conclusion reached by the High Court by their judgment of May 2, 1921, was correct. It is to be regretted that the High Court did not itself, in the exercise of its powers, appoint a receiver of this property which the judgment creditor seeks to attach and bring to sale.
Their Lordships do not agree with the High Court on the subject of the actual legal position of the right of maintenance conferred upon the judgment debtor. That right of maintenance arose under a compromise which was made between the judgment debtor and his brother. The compromise agreement is not produced, but its terms are said by the parties to be recorded in a decree pronounced by the Subordinate Judge of Jaunpur on May 20, 1915. The substance of this agreement is that the judgment debtor, one of the two brothers parties to the compromise, was declared to have a right of maintenance in certain villages enumerated, the right being conferred expressly "without power of transfer."
In the present case the Subordinate Judge in his judgment of August 10, 1920, correctly limits the issue between the parties to this maintenance question. No other point was brought before the Board. Speaking of the plaintiff, the judge says "He now wants to execute that decree against the property in 16 villages, which the judgment debtor has got from his younger brother, Raja Lal Bahadur Singh, for his maintenance. His prayer is that this right of maintenance be proceeded against and a receiver appointed to realize rents and profits of the above-named 16 villages and the decretal amount be paid
Law. Rep. 52 Ind. App. 262 ( 1924- 1925)
Rajindra Narain Singh V. Sundara Bibi 57
out of the said realization as far as possible. To this the judgment debtor objects on the ground that the right of maintenance is not attachable under s. 60 of the Civil Procedure Code."
Their Lordships are of opinion that the right of maintenance is in point of law not attachable and not saleable. They think that s. 60 of the Civil Procedure Code, head (n), precludes an application for that purpose.
The proper remedy lies, in a fitting case, in the appointment of a receiver for realizing the rents and profits of the property, paying out of the same a sufficient and adequate sum for the maintenance of the judgment debtor and his family, and applying the balance, if any, to the liquidation of the judgment creditors debt. The High Court point out in their judgment “the appropriate remedy is what is known as equitable execution or indirect execution—namely, by the appointment of a receiver who takes the place of the debtor and acts as an officer subject to the directions of the Execution Court in collecting and disbursing the debtors income in accordance with the directions of the Execution Court towards the discharge of the claim of the decree-holder." These views appear to the Board to be sound.
Their Lordships think that the judgment of the High Court should be modified in the sense described, and that the case should be remitted to the High Court to make the appointment of the receiver on the terms just quoted.
In the circumstances their Lordships think that there should be no costs of this appeal; and they will humbly advise His Majesty accordingly.