Bibi Haliman vs Bibi Umadatunnissa and Another

Wort, J.—The question to be deter, mined in this appeal is, whether the plain, tiff is entitled to recover the sum of Rupees 542.10-8 to which she claimed to be entitled by reason of an assignment under a bond dated 7th September 1933. Defendant 1, who is the appellant, contends that the claim is not maintainable, as the assignment was an assignment of a right to future maintenance and therefore unassignable u/s 6(dd), T.P. Act. The cir. cumstances giving rise to this case are as follows. By a kabala dated 3rd November 1921, Hafiz Syed Fazal Haq, the father of Bibi Haliman (defendant 1 in the suit and appellant before me), transferred the whole of his property to his daughter, the appellant before me, for a sum of Rs. 10,000. There was another document which is undated but which was registered on 5th December 1929, by which the defendant-appellant entered into a transaction under, taking to make "a fixed monthly cash payment amounting in all to Rs. 400 per annum" to her father so long as he lived.

The learned Judge in the Court below has stated that the two last transactions were one, and, as one of the grounds for coming to this conclusion, has said that those documents were presented on the same day for registration. There were some other transactions entered into being releases of mukarrari leases which were for the purpose of carrying out the transactions to which I have made specific reference. Apart from that statement, it is unnecessary to go into further details with regard to them. Now, the document by which the defendant-appellant undertook to pay her father the sum of Rs. 400 annually recites that it was intended to allow the father, after the deed of transfer of 1921, to remain in possession of the property on the basis of the mukarrari, and, if that intention had been carried out, the father would have got a net profit (under the mukarrari) of Rs. 400 a year; therefore, as an easier method of carrying out the same transaction, the daughter (appellant before me) going into possession of the property purchased, agreed to pay a sum of Rs. 400 annually to her father making the said sum a charge on the property which was the subject-matter of the sale deed of November 1921. By a deed of 7th September 1933, the right to this annual sum was assigned to the plaintiff.

As I have already said, the learned Judge in the Court below has held that the document executed by the appellant, a document which is undated and the sale deed of November 1921, were one and the same transaction. In support of this decision the learned advocate appearing on behalf of the plaintiff-respondents contends that the payment of Rs. 400 annually to the father was a part of the consideration for the sale which prima facie was effected for a consideration of Rs. 10,000. I have mentioned that fact at the commencement of my observations, as the real point for determination is whether this transaction of September 1933, under which the plaintiff claimed the sum in suit was an assignment of future maintenance. It seems to have been thought by the learned advocate for the plaintiff-respondent that if it was established that the payment by the daughter (defendant 1) of Rs. 400 annually to the father was a part of the consideration of the sale of 1921, then ipso facto it ceases to be an assignment of future maintenance, or, perhaps to be more accurate, it cannot be treated to be ''future maintenance.'' Before proceeding further, I propose to read the words of Section 6(dd), T.P. Act. Those words are:

A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.

This Sub-section appeared for the first time in 1929 as a result apparently of a number of decisions in India by which it was held that although a right to maintenance was not assignable, yet, if the right was secured by a deed or determined by a judgment of the Court, the matter was otherwise. The new Sub-section as regards certain aspects of the matter has deter, mined the point once and for all, the point being that the fact that the maintenance is secured by a deed does not exclude it (if it be determined to be future maintenance) from coming within the mischief of the Section. A number of authorities have been quoted and there are some to which I propose to refer but which have not been mentioned at the Bar.

As regards the first contention that this was a part of the consideration for the sale and therefore there was no right to maintenance, I would only say that, if I came to the conclusion that it was a part of the consideration, that would not necessarily determine the matter. Indeed, the argument that it was a part of the consideration is entirely beside the point. Regarding the matter from one point of view, the transactions were entirely different, although as pointed out by the learned Judge in the Court below, they might form parts of a series of transactions one depending upon another. And although I do not accept the argument that the conclusion at which the Judge has arrived as a conclusion of fact is binding upon me, I am rather inclined to the view that these transactions were dependent one upon another: I refer of course to the sale deed and the document by which the daughter granted what is alleged to be ''maintenance'' to her father. This is obvious from the recitals in the documents themselves. If the father had not sold the property, the occasion would not have arisen to have allowed him to remain in possession for the purpose of his maintenance.

It was by reason of the fact that the father divested himself of the whole of the property by the sale of 1921 that some sort of arrangement was necessary such as is recited in the grant by the daughter Bibi Haliman. To that extent I agree with the learned Judge in the Court below that the transactions were one and the same, or perhaps to be more accurate, they were two of a series. The argument therefore that this was a part of the consideration of the sale deed is, in my judgment, irrelevant. But if I were forced to determine the question whether the consideration for the sale of 3rd November 1921 was Rs. 10,000 or something more, I would be precluded from going into the matter by reason of Section 92, Evidence Act. Certain authorities were relied upon for this proposition, and I shall briefly refer to them. The first relied upon by the learned advocate for the respondents is the decision in Nabin Chandra Chakravarti and Others Vs. Sm. Shuna Mala Ghose and Others, the head-note of which correctly states the decision as follows:

it is permissible to prove that the real consideration was not that mentioned in the document but something else. Section 92, Evidence Act, is no way barring that course inasmuch as the recital of the consideration is not one of the terms of a document but the recital of a fact.

This, apart perhaps from the particular facts upon which the case was determined, was decided in total disregard of the earlier decision of the same Court in Annada Charan Sil and Another Vs. Hargobinda Sil and Others, where an attempt was made to prove that the consideration was something other than what the document showed. I prefer to follow the later decision to the effect ''that the recital of the consideration is not one of the terms of a document''; but, as in my judgment, the matter does not arise in the present case, I propose to say no more about it. If I had accepted the argument of the learned advocate for the respondents that Rs. 400 was a part of the consideration of the sale of November 1921, many, and I think, insuperable difficulties would have been in his way amongst which would be that the plaintiff in the case was relying upon an assignment of a part of the consideration or part of the debt. The mere fact that the original debtor had already paid a part of it would not, in any way, help the plaintiff respondent in the contention which was made at the suggestion of the Court that a part of the debt or a part of the chose in action is not assignable. To meet that, the learned advocate for the respondents contended, relying upon the decision of the Madras High Court in Raja of Ramnad v. Subramanjam Chettira A.I.R (1928) . Mad. 1201 that

though a transfer of a part of a debt was not good at English common law, it was good at equity and in India law.

With that decision I do not agree as there is no such thing in India as the rules of the Common law or equity eo nomine. The rules of the Common law and the rules of equity are administered in India in the absence of express rules statutory or otherwise as the rules of justice, equity and good conscience : see Waghela Rajsanji v. Shekh Masludin (1887) 11 Bom. 551 . We are bound with regard to this matter by Section 130, T.P. Act, which as the late Chief Justice of the Calcutta High Court pointed out, is a mixture of the rules of law and equity in England. But the validity of the assignment depends upon its compliance with the Section to which I have referred. I propose to leave the point there as, for the purpose of this decision, it is irrelevant. But I would refer to the decision in Forster v. Baker (1910) 2 K.B. 636 where Bray J. came to the conclusion that part of a debt could not be assigned u/s 25, Sub-section (6), Judicature Act, not by reason of any construction to be placed upon that Section but by reason of the difficulties which would arise in the event of the Court holding that such a debt could be assigned. This decision was followed by P.C. Lawrence J. as he then was in In re Steel Wing Co. Ltd. (1921) 1 Ch 349. I dealt with these points because they were raised, but in my judgment they are irrelevant.,

The real point is whether this is maintenance; and even accepting the argument of the learned advocate for the respondents that the sum claimed was a part of the consideration of the sale, it would not, by reason of that fact, cease to be maintenance; it seems to me that the proposition is obvious. Now, what is intended by Section 6(dd), T.P. Act, is not a sum which is used as maintenance, but which in fact is maintenance. There is nothing, I would observe in passing, in the Section to prevent an assignment of arrears of maintenance, that is to say a sum which has already become'' due. But in that connexion I would refer to the document of 7th September 1933. What was assigned was a right to future maintenance. That document recites:

I made dar-mukarrari settlement of the right to realize the said fixed monthly allowance of Rupees 33-5-4, the annual amount whereof comes to Rs. 400 together with the right of realizing the damage in default of instalment.

I would find none myself and it is agreed that there was no reference to arrears. Therefore we must take the transfer of September 1933 as the transfer of the whole right, and it either stands or falls depending upon whether it comes or not within the mischief of Section 6(dd) to which I have made more than one reference. I understand the Section to mean a right, under the personal law of the parties concerned to maintenance. The sum does not come within the Section merely by reason of the fact that it is used as maintenance. In this case undoubtedly the sum was to be used as maintenance and it is so stated. In these circumstances a rather nice question falls to be determined, namely whether the father had right to maintenance in the circumstances. Para. 270 of Mulla''s Principles of Mahomedan Law, Edn. 11, says:

Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves.

The text-book which is an authority on the matter, namely the late Ameer All''s Mahomedan Law, Vol. II (Edn. 5), lays down at page 430 as follows:

When children have means they are bound to maintain their parents if in straitened circum stances, and it makes no difference in their liability whether the parents are Moslems or non-Moslems.

It is contended by the learned advocate for the respondents that if in fact the father in this case was in straitened circumstances such as would give rise to the liability of the children to maintain him, such straitened circumstances were due to the transaction entered into by him with his daughter; I refer to the transaction of sale; and that circumstances of that kind were not contemplated by the rule of Mahomedan law. At first I was of the opinion, that the mere fact that he received Rs. 10,000 as consideration for the sale was a reason for coming to the conclusion that he was not in such circumstances as would give rise to the obligation he was referred to. It is pointed out by Mr. Hasan Jan on behalf of the appellant that the consideration of Rs. 10,000, according to the deed itself, was used as to Rs. 8049-1-0 for the payment off of the bond of 12th August 1920 and as to Rs. 1950-15-0 for the payment off of another bond dated 21st March 1920. That would dispose of the whole of Rs. 10,000. Now, it is true that there appears to be no finding of the Judge in the Court below as to the condition in life of the father after this transaction.

But in my judgment I am entitled to look at the recitals of this bond (Ex. A) and determine the question of fact if indeed it be a question of fact for the purposes of this case u/s 103, Civil P.C. It seems to me that the obligation arising under the Mahomedan law arose in this case; and by reason of the transaction the defendant, appellant was obliged to pay under the personal law by which she was governed the sum of Rs. 400 by way of maintenance; and that undoubtedly in the circumstances on the recitals contained in the document itself, there was a right to future maintenance, I am not deciding this question by reason of the fact that there are references to the fact that the sums are to be used for maintaining the father, but I am deciding the case on the facts as they appear to me to be established and by reason of the obligation which arises in those circumstances under the Mahomedan law.

I would hold that it comes within the mischief of Section 6(dd), T.P. Act, and is not assignable. As I have already held that the deed of assignment is a deed of assignment of the future amounts, therefore the plaintiff, the mother of the appellant, was not entitled to bring her action on that document.

I would set aside the judgment of the learned Judge in the Court below, allow the appeal and dismiss the suit with costs throughout. There will be leave to appeal.