Munisami Naidu vs Ammani Ammal

The respondent as guardians of her minor grandsons borrowed money from the appellant, who brought a suit, impleading her in it and got a

decree. In execution thereof he sought to proceed against her, and in the application for execution the reliefs prayed for were expressed thus:-""It is

prayed that the amount mentioned in column 8 with subsequent interest and costs may be recovered by the attachment and sale of the first

defendant''s maintenance right in the Immovable property described in list B, attached hereto, and the instrument of lease (apparently the rent due

under the instrument) executed to the said first defendant by one Anukapalli Goundan in respect of the said lands."" On objection being raised by

the respondent the District Munsif, on the 20th August 1901, made on her petition the following order, viz:--"" The decree states that respondents

are liable for the sum claimed. They cannot now say that they are not personally liable"" and on the execution petition wrote the word '' attach.'' The

latter direction was apparently given as if it had to be given as of course, the District Munsif completely overlooking the contention which had been

raised by the 1st defendant as to the attachability of one of the two subjects sought to be proceeded against, viz., her interest in the lands in list B,

apart from her right to the rents under the lease granted by her. A sale took place in which the Court purported to sell the respondent''s interest in

the said lands and the appellant became the purchaser thereof. Where, however, the question of the confirmation of the sale came up for decision,

the then District Munsif set aside the sale accepting the objection of the respondent that her interest was not such as could be sold. And the District

Judge has confirmed this order of the District Munsif.

The terms of the instrument by which the maintenance of the respondent was provided for with reference to the lands referred to above were

these:--The lands belonging to our family of the value of Es. 1,500 situated in Idumbangolam village in the Sub-Registration District of Paramadi in

the District of Salem and described in Schedule IV hereunto annexed, shall be enjoyed by our mother Ammani Ammal during her life-time, by her

enjoying their income only for her living and all other expenses without the right to make any alienation by way of sale etc.

These terms are almost identical with the provisions of the instrument in Diwali v. Appaji Ganesh ILR 10 B. 344 where Sargent, C.J. and

Nanabhai Haridas, J. held that the interest thereby created was with reference to Section 266, Clause (b) of the Civil Procedure Code, incapable

of being sold in execution of a decree. Following that case, we are of opinion that the conclusion of the lower courts is correct.

It was contended, however, for the appellant, that the orders of the District Munsif quoted above estopped the respondent from raising any

question as to the salability of her interest, she not having appealed against these orders but allowed them to become final. No doubt, to borrow

the language of the decision in Burlen v. Bhannen 96 ARep 733 ""estoppels is not confined to the judgment but extends to all facts involved in it as

necessary steps or as the ground work upon which it must have been grounded. It is allowable to reason back from a judgment to the basis on

which it stands, upon the obvious principle, that where a conclusion is indisputable and could have been drawn only from certain premises, the

premises are equally indisputable with the conclusion. But as the court took care to observe. "" Such a conclusion must be inevitable or it cannot be

drawn."" To put it otherwise, in order to work an estoppel, what is relied on as such must be "" certain to every intent."" See observations of Field J.

in Russel v. Place 94 U.S.p. 608 explaining the matter at length, quoted in the judgment of this Court in C.M. A. No. 7 of 1904 14 M.L.J.R. 879.

As stated there, if there is ambiguity, the matter is open to controversy in subsequent proceedings. With reference to these principles, how stands

the question here ? The contention on behalf of the appellant, in effect reads into the District Munsifs'' order much more than is there. What it says

is merely ""attach"" and this direction cannot be made, necessarily, to apply to either of the two subjects sought to be attached in particular. It may

apply to one or to the other or to both. This uncertainty is not removed by the terms of the order passed on the respondent''s objection petition,

dealing as that does only with the question of the appellant''s right to proceed against the respondent as well as against the estate of her grandson.

Consequently, an estoppel, such as that suggested on behalf of the appellant, could not be raised. That this is the only conclusion that ought to be

arrived at, follows from the fact, that though the point as to the non-saleability of the respondent''s interest had been taken in her objection petition,

yet that had not been debated and submitted for the decision of the Court when it passed the orders of the 20th August 1901. The instrument by

which her right to the land was created had not been produced before the Court when the orders in question were made and with out it was

impossible, for the Court to ascertain and pronounce upon the precise nature of her interest i. e., whether though the transaction was in respect of

maintenance, the right created was a transferable one as it might well have been or a personal and an untransferable one.

The appeal fails and is dismissed with costs.