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1938 Supreme(SC) 28
Privy Council At Sind
Sir George Rankin, Sir Shadi Lal , Justice Lord Romer, JJ.
Pestonjee Bhicajee Firm -Appellant
Versus
Patrick H. Anderson -Resopndent
Privy Council Appeal No. 18 of 1938
Decided On : 27-07-1938
Hicks, Rose, Johnson, Hy. S.L. Polak and Co., F.H.L. Errington, L.M. Jopling
A contingent interest in property, including a legacy vesting upon the death of others, is protected from attachment and forced sale under Section 60(1)(m) of the Civil Procedure Code, regardless of whether such interest is voluntarily transferable under the Transfer of Property Act.
Headnote:(A) Civil Procedure Code, 1908 - Section 60(1), Proviso (m) - Attachment and sale of property - Contingent or possible right or interest - Whether an interest in the income and capital of a residuary estate, which vests only upon the death of parents, is liable to attachment - Such interest is contingent and therefore protected from attachment under the Proviso to Section 60(1) - No distinction exists between an interest that is "contingent" and one that is "merely contingent."
(B) Civil Procedure Code, 1908 - Section 60(1)(m) - Interpretation - Ejusdem generis - The phrase "other merely contingent or possible right or interest" is not limited to rights of the same nature as an expectancy of succession by survivorship - A contingent interest falls within the scope of the protection provided by the statute.
(C) Transfer of Property Act, 1882 - Section 6(1)(a) - Transferability vs. Attachability - The fact that a contingent interest may be the subject of a voluntary transfer does not imply that it is liable to be the subject of a forced sale in attachment proceedings.
Facts of the case:
A creditor sought the attachment of a debtor's interest in a residuary estate. Under a codicil, the debtor, being one of the children of the beneficiaries, was to receive a share of the income and capital only after the death of both parents. The lower courts held that this interest was a "merely contingent or possible right or interest" and thus exempt from attachment under the Code of Civil Procedure.
Findings of Court:
The interest of the debtor was contingent both as to income and corpus during the joint lives of the parents and was therefore expressly protected from attachment by the plain terms of the Proviso to Section 60(1).
Issues: Whether the interest of a beneficiary in a legacy, which is contingent upon the death of others, is liable to attachment and sale under Section 60 of the Civil Procedure Code.
Ratio Decidendi: The court held that "contingent" and "merely contingent" interests are indistinguishable. The protection afforded by Section 60(1)(m) is broad and includes contingent interests. Furthermore, the legal capacity to voluntarily transfer a contingent interest under the Transfer of Property Act does not render such an interest liable to forced sale through court-ordered attachment, as forced sales of indefinite or unvested interests have historically not been countenanced.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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execution of decrees
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attachment of property
- contingent interests
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attachment of property
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execution of decrees
Lord Romer:-
By his will dated 28th December 1926, one John Alexander Anderson, who died in October 1928, directed that the residue of his estate should be divided into sixteen shares and he bequeathed three of such shares to his nephew C. S. Anderson and Winifred, his wife, and their issue as therein mentioned. By a codicil dated 22nd July 1927, the testator revoked that bequest and in lieu thereof he directed as follows:
The income from these three-sixteenths shall as long as C. S. Anderson and Winifred, his wife, are both alive be divided, two-thirds to the wife and one-third to the husband. If one of them dies his or her share of the income shall belong to their four children or the survivors of them in equal proportions, and when the remaining parent dies the capital and income shall belong to the children then living in equal proportions.
The respondent, Patrick H. Anderson, is one of the four children of C. S. Anderson and his said wife; and the question to be determined upon this appeal is whether, while both C. S. Anderson and his said wife were still living, the interest of the respondent in the income and capital of the three-sixteenth shares in the said testator's residuary estate was liable to attachment and sale in view of Para. (m) to the Proviso to S.60, Civil PC, 1908. That Section so far as relevant is as follows:
60. - (1) The following property is liable to attachment and sale in execution of a decree, namely lands, houses or other buildings, goods, money, banknotes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds, or other securities for money, debts, shares in a Corporation and, save as hereinafter mentioned, all other saleable property, moveable or immovable belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf :
Provided that the following particulars shall not be liable to such attachment or sale, namely:
(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest.
The circumstances that have given rise to the appeal are as follows. On 14th January 1932, the appellants instituted in the Court of the Judicial Commissioner of Sind (District Court Jurisdiction) a suit against the respondent and others claiming a sum of Rs. 1,20,900. On the same day they applied to the said Court for attachment of (inter alia) the interest of the respondent in the income and capital of the said three-sixteenth shares. This application was made under O. 38, Rule 5 of the said Code which provides for conditional attachment before judgment of property of a defendant where the Court is satisfied that such defendant with intent to obstruct or delay the execution of any decree that may be passed against him: (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court.
The application in due course came before Additional Judicial Commissioner, Aston. He was satisfied that the conditions upon which an attachment could be made under the said rule had been fulfilled, but he held that the respondent's interest in the said three-sixteenth shares was protected from attachment by virtue of the Proviso to Sec. 60 (1) of the Code. It was, he held, a "merely contingent or possible right or interest"within the meaning of Para. (m) of the Proviso. The appellants thereupon appealed to the said Court (High Court Jurisdiction). The appeal was heard on 28th February 1936, by Additional Judicial Commissioners, Rupchand Bilaram and Dadiba C. Mehta, and was dismissed. From that dismissal the appellants, having obtained the necessary leave, now appeal to His Majesty in Council.
In their Lordships' opinion the decision appealed from was plainly right. The int
