[This Second Appeal came on for hearing on the 6th, 7th and 19th days of April, 1922, before their Lordships Oldfield and Spencer, JJ.]

Sir Francis Oldfield, J.

I agree to a reference to a Full Bench in the terms, which my learned brother is about to state. In doing so, I commit myself to no opinion as to whether Sect. 6, Transfer of Property Act, is to be interpreted, with reference to public policy. For it is not clear that the considerations which arise correspond with any of the heads of public policy, which authority has hitherto recognised and which it is undesirable to multiply, or that the refusal of the law to treat certain things and rights, of which a widows right to future maintenance may be one, as property susceptible of transfer, may not be a sufficient justification, for interpreting the section in the manner proposed.

Spencer, J.

In this Second Appeal a question has arisen whether the sale of a right to maintenance which a Hindu widow executed in favour of the plaintiff was valid. The widow, who is named Lakshmi Hengsu, in 1904 surrendered by Ex. B her husbands estate to the nearest reversioner, subject to a condition by which she became entitled to food and clothing for life and a right of residence, the food to consist of 45 muras of rice of two descriptions charged on the liability of the surrendered properties; and nearly ten years later, she conveyed under Ex. A her right to collect future maintenance in the form of 45 muras of rice annually to the plaintiff in consideration of a sum of Rs. 1,000. The description of property in the document refers to another conveyance of the widows right to collect arrears of maintenance, which she executed on the same day.

Mr. Ananthakrishna Aiyar, who appears for the appellant, concedes that the transfer of arrears of maintenance already accrued at the time of transfer is valid. But he argues that Ex. B is invalid, in so far as it purports to transfer future maintenance. In the Lower Appellate Court, in dealing with this point of law, the Subordinate Judge relied on an observation in Ranee Annapurni Nachiar v. Swaminatha Chettiar (I.L.R., 34 Mad., 7 at p. 9), of Sir Arnold White, C. J., and Munro, J. They state:

It may be that voluntary alienations of rights for future maintenance should be prohibited, as well as the taking of such rights in execution. The legislature has not thought fit to prohibit them. We are not prepared to say, that, at any rate, where as here, the amount payable is subsequently fixed by agreement or by decree, a transfer of a widows right to maintenance from her late husbands estate is inalienable.

With due deference, I feel some difficulty in accepting that dictum as a correct statement of the law on the subject. So far as it makes an agreement to pay maintenance to a widow transferable, it seems to be opposed to Sect, 6, cl. ( d ) of the Transfer of Property Act, which declares that an interest in property, restricted in its enjoyment to the owner personally, cannot be transferred by him. On this section and clause, there is a note in the commentary by Shephard and Brown on the Transfer of Property Act, which is so well accepted an authority that I do not hesitate to quote it. It says:

The right to future maintenance cannot be attached in execution of a decree and it seems clear that such a right enjoyed by a Hindu widow cannot be made the subject of a sale or other transfer by her, since the right exists for her personal benefit only.

It may be doubted whether she could effectually transfer her interest in property allotted to her for her maintenance. As regards attachment of the right to future maintenance, reference is made to Diwali v. Apaji Ganesh (I.L.R., 10 Bom., 342), and Sect. 60 of the Code of Civil Procedure. In Diwali v. Apaji Ganesh (I.L.R., 10 Bom., 342), the decision proceeded upon the proviso against alienation, contained in the deed of assignment. But Sect. 60, cl. ( n ) is quite clear. The Courts have consistently held that a right to future maintenance cannot be attached in execution. In Nanammal v. The Collector of Trichinopoly (20 M.L.J., 97), the fact that the right to maintenance had ripened into a decree did not, in the opinion of Abdur Rahim and Munro, JJ., who was also a party to Ranee Annapurni Nachiar v. Swaminatha Chettiar (I.L.R., 34 Mad., 7), make the right to maintenance any more attachable. In Palikandy Mammad v. Krishnan Nairi (I.L.R., 40 Mad., 302) [LQ/MadHC/1916/73] , Sadasiva Aiyar and Moore, JJ., had no hesitation in holding that there could be no attachment of a right to future maintenance. As pointed out by Sadasiva Aiyar, J., in that case, the public policy of prohibiting transfer, found in Sect. 6 of the Transfer of Property Act and the prohibition against attachment under the Civil Proceddre Code, both rest upon the same foundation. In England, it was held in Watkins v. Watkins ((1896) Probate 223, C. A.), that alimony granted to a separated wife was not alienable by her. Lindlay, L.J., indicates the reason for this. He says the Court, which orders it, never loses its control over it and the doctrine of inalienability is based on the old ecclesiastical law. The learned Judges, who decided Ranee Annapurni Nachiar v. Swaminatha Chettiar (I.L.R., 34 Mad., 7), evaded the application of the Transfer of Property Act, by saying that the right to future maintenance was not in their opinion property. Seshagiri Aiyar, J., in Seshappa Heggade v. Chandayya Heggade (37 M.L.J., 402=58 I.C., 665), also expressed an opinion that a right to maintenance would not be covered by cl. ( d ) of Sect. 6, as it could not be described as an interest in property, restricted in its enjoyment to the owner personally. But my learned brother, Oldfield, J, who sat with him pronounced an opinion, only on the other question, which arose as to the maintainability of the suit in a Small Cause Court. In Armada Mohan Roy v. Gour Mohan Mallik (I.L.R., 48 Cal., 536) [LQ/CalHC/1920/437] , Mookerjee, Acting C.J., in deciding that the chance of a Hindu reversioner succeeding to the estate of the last full owner was not alienable property, under cl. (a) of Sect. 6, discussed a definition of property, a definition which Gould cover a widows right to maintenance. He pointed out that when non-existent property is made the subject of a contract, the party who takes the agreement is in no better position, when he attempts to defeat the application of the statutory provision by this means, as no Court of equity will assist him in his endeavour to accomplish his purpose which is opposed to public policy. There are two instructive cases, Asad Alt Molla v. Haidar Ali (12 C.L.T., 130) and Tara Sundari Debi v. Saroda Charan Bannerjee (12 C.L.J., 146). Mookerjee, J., observed, in the earlier case at page 133, that if a person is entitled to a monthly allowance under a deed, the allowance can be attached by an execution creditor, only after it has become due, so that an assignee of a decree, for arrears of maintenance, can execute it against the judgment-debtor, in the same manner as the original decree-holder, and at page 154, where land has been granted in lieu of a right to maintenance, the interest of the grantee is liable to be sold, in execution of a personal decree. He quotes the decision in Harris v. Brown (I.L.R., 28 Cal., 621 (P.C.)), by the Privy Council, where a monthly allowance of Rs. 50, devised by will for the maintenance of a daughter, was transferred and the Privy Council treated the assignment as operative. In that case, no question as to the illegality of the assignment by the legatee, Flora Williams, of this allowance was raised, with reference to Sect. 6 of the Transfer of Property Act. The two cases, Enaet Hossein v. Nujeeboonissa Begum (11 W.R., 138), and Maharajah Dheraj Mahtab Chand Bahadoor v. Sreemutteee Dhun Coomaree Bibee (17 W.R., 254), the latter relating to an annuity charged on an estate, in favour of a brother, which was held to be attachable in execution, are not very material to the question before us, as they were decisions, prior to the passing of the Transfer of Property Act, in which the provisions of the Civil Procedure Code alone Were considered. In the present case, the provisions for residence and clothing under Ex. B appear to be undoubtedly interest restricted in enjoyment to the widow Lakshmi Hengsu. As the allowance of rice was intended to be for her support, after she had parted with her interest in the land, and as it would come to an end at her death, this also appears to be an interest restricted to her personally, and a transfer of such an interest is, in my opinion, prohibited on grounds of public policy by Sect. 6, cl. ( d ). Whether, after a decree has been obtained for arrears of past maintenance, the decree-holder can assign the decree for execution is a matter, which does not require to be decided on the facts of this case. As the decision in Ranee Annapurni Nachiar v. Swaminatha Chettiar (I.L.R., 34 Mad., 7), appears to be at variance with Sect. 6 of the Transfer of Property Act and the other decisions already referred to, we refer the question to a Full Bench.

Whether the interest of a widow, who has obtained, by a registered deed, a right to future maintenance during her life-time, even if charged upon specified immoveable property, is capable of being transferred, when the transfer is attempted to be effected at a time, before the maintenance has become due.

The question referred to the Full Bench is:

"Whether the interest of a widow who has obtained by a registered deed a right to future maintenance during her life-time even if charged upon specified immoveable property is capable of being transferred when the transfer is attempted to be effected at a time before the maintenance has become due." I do not think that it is possible to give a general answer to this question, and I will confine myself to considering whether the assignment in this case is valid. By a document called a general power-of-attorney, the widow surrendered all her interest in her late husband s property in favour of the nearest reversioner of her husband in consideration of his agreeing to pay some debts of the husband and to maintain her during her life-time. The document then continues (according to a corrected translation) "Besides maintaining me by giving me food and clothing, etc., until my lifetime, you should also perform my obsequies, etc., after my death. Henceforward, you should also perform the Sraddhas of my husband, father-in-law and mother-in-law, making the necessary expenses therefore.... If it is not convenient for me to live jointly with you, I should remain in the building where I now reside. In that event, except that for my food and clothing you should pay yearly 33 muras of kuchlu rice and 12 muras of beltige rice charged on the following properties, I have no right to contract any debts as a charge on the said properties or have any claim to the return of the property."

Whether the right to future maintenance, apart from a contract, or under a contract to provide clothing, board, and residence in the house of the other contracting party is property at all, within the meaning of Section 6 of the Transfer of Property Act, is a matter upon which there has been considerable divergence of opinion, but it is unnecessary to consider that here as in my judgment, it is purely personal right and is clearly inalienable.

The right under a contract to a defined amount in cash or kind for future maintenance is, in my judgment, property under the enabling words of Section 6 of the Transfer of Property Act of 188

2. But the question remains whether it is an interest in property restricted in its enjoyment to the owner personally, such an interest under Clause (d) of the section being inalienable. This must depend on the facts of each particular case and must be ascertained by the ordinary rules of the interpretation of the contract; the question being, whether the intention of the parties was that the right should be personal and therefore inalienable. That intention is to be ascertained from the language of the document itself and the surrounding circumstances at the time of its execution. It must be considered as a contract to come into operation at once, and in the light of the surrounding circumstances as they then stood. What has in fact happened since is not a relevant consideration, except perhaps as an illustration of what may possibly have been in the contemplation of the parties at the time of this contract. The widow was surrendering her life-interest in the property in exchange for the agreement for maintenance, and it seems to have been quite clear in the contemplation of the parties that the reversioner should continue in possession of the property and of the family house, and the fact that he has since sold the property does not help us to arrive at the true interpretation of the contract.

Examining the contract itself, we find that the first alternative form of maintenance provided was by residence in the house and by sharing the meals of the family. The second alternative was that, if she chose to live apart, she should receive definite amounts of paddy secured by a charge on the land. There is no provision for an election once and for all, and I see no reason why she should not at her will at one time live in the house, and at another live away and receive the paddy. This leads me to the conclusion that the intention of the parties to be derived from the document was that the rights under the contract should be personal and inalienable; for, she could not give to another the right of living and feeding with the reversioner s family.

I think that the view expressed above that this question must turn on the intention of the parties reconciles most, if not all, of the apparently conflicting decisions on this question.

The right to further maintenance properly so called, by which I mean the right to be maintained by the supply of clothing, board and lodging is inalienable, and so I understand the statements in the text-books, Trevelyan s Hindu Law, II Edition, page 80, West and Buhler s Hindu Law, page 253 and Shepherd and Brown Transfer of Property Act, page 209, and so, I think, may be explained the decision in Rajatkamini Debi v. Raja Satya Niranjan Chakrabarty (1912) 23 C.W.N. 824, where, on facts somewhat similar to these, it was held that a widow who released her life-interest in return for an agreement to pay her Rs. 100 per annum and supply her with 39 maunds of rice per annum could alienate her interest under the agreement; for, in that case, it was no part of the agreement that she should be clothed, fed or housed and therefore there was nothing personal about the contract at all. This too, was, I think the view of Mookerjee, J., who in two cases decided in the same month held that the widow s right to. maintenance under one contract could be taken in execution and under another it could not. Asad Ali Molla v. Haider Ali (1910) 12 C.L.J. 130 and Tara Sundara Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146. The right to attach is governed by the Code of Civil Procedure, but in his judgments he discussed fully the inalienability of such right. In Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146, in which he held the right inalienable and, therefore, not attachable, the payments were not to be made until the donee lived separately from the family, and he distinguishes between cases where the provision of land, money or goods is taken in lieu of maintenance without any restraint upon alienation where the land, money or goods are alienable, and cases where the right is purely personal. If the latter, he considers that, even when the fight is merged in a decree, it is not alienable Bhyrub Chunder Ghose v. Nubo Chunder Gooho (1866) 5 W.R. 111, Enaet Hossein v. Nujeeboonissa Begum (1869) 11 W.R. 138 and Maharajah Dheraj Mahtab Chand Bahadur v. Sreemuttee Dhun Coomaree Bibee (1872) 17 W.R. 254, I think, may be reconciled on the same ground Ranee Annapurni Nachiar v. Swaminatha Chettiar (1910) I.L.R. 34 M. 7 : 20 M.L.J. 785, and the explanation of it in Palikandy Mammad v. Krishnan Nair (1917) I.L.R. 40 M. 302 : 30 M.L.J. 361, by Sadasiva Ayyar, J. do not assist me in arriving at the principle to be applied. The remarks of Seshagiri Ayyar, J., in Seshappa Heggade v. Chandayya Heggade on this point were purely obiter but can properly be explained by limiting their application to cases of maintenance properly so called. I do not think that any useful purpose will be served by going in further detail into any of these cases or others to which our attention was drawn.

I answer the question referred by saying that this widow s right to future maintenance was inalienable.

The question referred is stated in general terms, which, as the referring order of Spencer, J., and the argument before us show, are liable to be applied to interests of different kinds and subject to different legal incidents. Some confusion has again been introduced by reliance on the exemption under Section 60, C.P.C. of a right to maintenance from attachment. But that exemption is inconclusive, when, as here, a transfer by act of parties is in question and when some of the descriptions of property enumerated in the section certainly are not, and it is to be assumed that maintenance right is, exempted from attachment. Authorities relating to attachment are accordingly irrelevant, except in so far as they deal with the only provision of law at present material. Section 6(d), under which property cannot be transferred, if it "restricted in its enjoyment personally to the owner." And on this account Palikandy Mammad v. Krishnan Nair (1917) I.L.R. 40 M. 302 : 30 M.L.J. 361, one of the decisions of this Court regarded as conflicting in the reference, is not of assistance, the prohibition against attachment having been relied on directly. The other Ranee Annapurni Nachiar v. Swaminatha Chettiar (1910) I.L.R. 34 M. 7 : 20 M.L.J. 785, proceeds on the view that a right to future maintenance is not property within the enabling words or an interest in property contemplated by paragraph (d) of Section 6. But, with all respect, we have not been shown that this view has been taken elsewhere; it is inconsistent with the statutory exclusion of such a right from property liable to attachment; and, if it were acceptable, explanation would still be necessary as to the law, by which the validity of a transfer of what is not property is recognised or can be tested at all.

Authority need not be cited to show that Section 6(d) requires more than the termination of the interest in question with the life of its owner. But in the present case that requirement is complied with. For it is not conceivable that Exhibit B was meant to enable the widow to have some other person clothed or to introduce any stranger she might nominate to the family meals. The rights conferred on her are clearly personal; and it is therefore unnecessary to follow Mookerjee, J., in his exhaustive discussion in Tara Sundari Debi v. Saroda Charan Banerjee (1910) 12 C.L.J. 146, of the questions (i) whether an interest created in lieu of and in discharge of a right to maintenance is assignable and (2) whether it is material that the right is enforceable by a charge on immoveable property. For as regards the first I agree that there is no question of a discharge in Exhibit B, the widow s option to return at any time to actual maintenance instead of a periodical allowance having been preserved (and as regards the second the only substantive right under transfer is the right to future maintenance already considered and no question of an impersonal interest in land available for the enforcement of that right can arise, except incidently and in case a default takes place.

I concur in the opinion expressed by my Ford.

Coutts Trotter, J.

I am of the same opinion and have nothing to add.