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