1927 Supreme(Mad) 303

IN THE HIGH COURT OF MADRAS
Phillips
Rajah D.K. Thimmanayanim Bahadur
Versus
Rajah Damara Kumara Venkatappa
Decided On : 3 May, 1927

Headnote:

The appeals relate to the recovery of allowances payable out of the Kalahasti estate. The first batch of appeals concerns the allowance granted to Chennappa, the father of the plaintiff, in O.S. No. 86 of 1916 and 58, 69 and 70 are from O.S. No. 50 of 1916 for recovery of the amount assigned to them. The remaining appeals, Nos. 280, 288, 352 and 353, relate to an allowance made payable to Venkatappas widow Lakshmikantamma under her husband's will and under the decree in O.S. No. 15 of 1897, a suit brought to enforce the terms of the will.

Fact of the Case:

In 1890 the second son Timma filed a suit against Rajah Venkatappa for partition of the estate alleging that it was joint family property and not an impartible estate. This suit was compromised and a decree passed therein on 30th March 1893, whereby it was decreed that the estate was impartible and certain allowances were fixed for each of the brothers and their male descendants and made payable out of the estate. The allowance was then fixed at Rs. 600 per mensem for ten years from 1892, and thereafter at Rs. 700 per mensem. This provision was embodied in the District Courts decree, but in appeal the High Court deleted so much of the decree as related to the allowances on the ground that they were beyond the scope of the suit and merely gave a decree declaring that the estate was impartible. Under the final decree, therefore, this maintenance allowance was not charged upon the estate, but it was so charged under the terms of the compromise. The next step was taken by another brother, Chennappa, the father of the plaintiff, in O.S. No, 88 of 1895, for the recovery of the allowance due to him under the compromise. This suit was compromised on 20th April 1896, and an allowance of Rs. 650 per mensem was ordered to be paid to the plaintiff and his male descendants and this allowance was made a charge upon the estate. Chennappa took out execution of this decree on several occasions, but finally it was held that the decree was not executable, but that a suit should be filed thereon. The final order in this respect was passed by the High Court on 7th January 1915. Accordingly Chennappans son who had obtained an assignment from his father brought O.S. No. 86 of 1916 to recover these allowances, and certain transferees of a portion of the past allowances brought O.S. No. 50 of 1916 for recovery of the amount assigned to them. The District Court has allowed the claims and has passed a decree for the sale of portions of the estate which are now in the hands of alienees. So far as the appeals against the decree in O.S. No. 50 of 1916 are concerned, it appears that plaintiff 1 died shortly after they were filed. In one of these appeals an attempt was made to bring his legal representatives on record but long out of time, and in the others no such application has been made and it is only now that we are asked to excuse the delay and bring on the legal representative. No grounds for excusing the delay have been put forward and certainly there are no valid reasons for excusing the gross negligence of which the appellants have been guilty. As the decree is a joint decree in favour of three persons, it would be useless to set aside as regards two of them a decree which the third party can execute. The decree must, therefore, stand as it cannot be set aside against him in his absence. As the appeals have abated so far as plaintiff 1 is concerned, it follows that they must be dismissed with costs: vide Wajid Ali Khan v. Puran Singh A.I.R. 1925. All. 108. The memorandum of objections in appeal No. 69 is not pressed and is dismissed. The Letters Patent appeal which concerns stay of execution must fail on the abatement of Appeal No. 39 and is also dismissed with costs.

Finding of the Court:

The compromise of 1893 is admissible in evidence and the charge must be deemed to have been created on 30th March 1893 and alienations since that date must be deemed to be made subject to the charge. It was also held that Venkatappa had made partial alienations of his allowance and that these are bad in law. It was, however, admitted that the alienations included all the arrears of maintenance up to the date of alienation. As the charge was a recurring one, it would have to be executed from time to time as the instalments became payable. The ordinary objections, there-[fore, to the partial assignment of a decree do not apply here, for the assignment merely places the assignees in the same position as the charge holder so far as executing the decree by instalments is concerned. It was also held in Muthiah Chettiar v. Govinda Doss Krishna Doss A.I.R. 1921 Mad. 599, that a partial transfer of a decree is valid and can be recognized by Courts. The further contention that the transfer by Venkatappa to his son, the plaintiff in O.S. No. 86, of his right to future maintenance is bad under Section 6 (d), T. P. Act, must also be disallowed. That section prohibits transfers of a right which is restricted in enjoyment in the owner thereof. Undoubtedly many cases of maintenance would be of that nature, as, for instance, the right of a widow to residence in the family house; but, where a maintenance allowance has been fixed and decreed by Court, the right is merely] the right to a fixed sum of money and it cannot be said to be restricted in enjoyment to the maintenance holder The transfer of such a right must be deemed to be valid: vide Annapurni Nachiar v. Swaminatha Chettiar [1910] 34 Mad. 7. The provision in the compromise, that the allowance should be payable to these brothers and their male descendants is a somewhat unusual one and is objected to by the appellants, firstly, on the ground that it is a breach of the rule against perpetuities; and secondly, that it creates an estate unknown to Hindu law. In so far as the first argument is concerned, it is clear that this provision of an allowance charged upon the estate creates an estate in the grantee and to that extent would not offend against the rule of perpetuities. If it be conceded that such an estate is created, the words "and to his male descendants" would apparently create an estate in tail male and such an estate is not known to Hindu law. We are not, however, concerned with this point in the present case which relates only to the estate created in the actual grantee, Venkatappa, and the grant would be good so far as his estate is concerned, although it may be bad in so far as it creates an estate in his male descendants, and Mr. Krishnaswami Aiyar conceded that, even if this provision created an estate in tail male, it would be valid in so far as Venkatappas right is concerned.

Issues: 1. Whether the compromise of 1893 is admissible in evidence? 2. Whether Venkatappa had made partial alienations of his allowance and that these are bad in law? 3. Whether the transfer by Venkatappa to his son, the plaintiff in O.S. No. 86, of his right to future maintenance is bad under Section 6 (d), T. P. Act? 4. Whether the provision in the compromise, that the allowance should be payable to these brothers and their male descendants is a breach of the rule against perpetuities?

Ratio Decidendi: 1. The compromise of 1893 is admissible in evidence as it is exempted from compulsory registration under Section 17, Registration Act, Clause 2, Sub-clause 6, which exempts "any decree or order of Court". 2. The partial alienations of Venkatappa's allowance are not bad in law as the charge was a recurring one, and the alienations merely placed the assignees in the same position as the charge holder so far as executing the decree by instalments is concerned. 3. The transfer by Venkatappa to his son of his right to future maintenance is not bad under Section 6 (d), T. P. Act, as the right to a fixed sum of money decreed by Court cannot be said to be restricted in enjoyment to the maintenance holder. 4. The provision in the compromise, that the allowance should be payable to these brothers and their male descendants is not a breach of the rule against perpetuities as it creates an estate in the grantee and to that extent would not offend against the rule of perpetuities.

Final Decision: The first batch of appeals falls and should be dismissed with costs. With regard also to the second batch of appeals arising out of what has been termed the maintenance claim, the appeals should also be dismissed with the modification indicated.