Rajkumari Lakshmi Devi v. Rani Pritam Kaur — 1969 DIGILAW 91 (ALL)

JUDGMENT T. P. Mukerjee, J. - This is an execution first appeal which has arisen under the following circumstances. The late Raja Raj Kumar was the owner of the extensive zamindary properties in Moradabad and other districts. His estate was known as Sahaspur Bilari. Raja Raj Kumar died in 1917 leaving behind him his minor son Raja Jagat Kumar, then aged four years. his widow Rani Amrit Kaur and a daughter namely Rajkumari Lakmi Devi. During the minority of Raja Jagat Kumar, the estate of Sahaspur Bilari was under the superintendence of the Court of Wards, U. P. After Raja Jagat Kumar attained majority, he assumed the control and management of the estate from the Court of Wards, but he died shortly afterwards, on 7-3-1934, in a motor accident. After his death, there were disputes regarding succession to his estate. Rani Amrit Kaur, the mother of the late Raja Jagat Kumar, claimed the entire estate by right of inheritance. Her allegation was that Rani Pritam Kaur was not the lawfully wedded wife of Raja Jagat Kumar and that, in any event, she had become unchaste, even during the life time of the Raja. It was, therefore, asserted that Rani Pritam Kaur was debarred from inheriting the estate of the deceased, Raja. There was another claimant to the estate namely, Rani Jai Devi Kunwar, but her claim was resisted by Rani Amrit Kaur on the ground that she too was not the lawfully wedded wife of Raja Jagat Kumar and further that she was a Thakur by cast, while the Raja was a Khatri. It was alleged that there could be no lawful marriage under the Hindu Law between a Thakur and a Khatri. Rajkumari. Laxmi Devi, the sister of the late Raja Jagat Kumar, supported the allegations made by her mother Rani Amrit Kaur and she further alleged that her son Jagjit Kumar had been adopted by the late Raja Jagat Kumar according to the family custom. The case of Rajkumari Laxmi Devi was that she would be the lawful heir to the estate after the death of her mother Rani Amrit Kaur, who had a life interest therein. 2. As a result of these disputes the Court of Wards, U. P. again assumed the superintendence and control of the estate of the late Raja. The case of Rajkumari Laxmi Devi was that she would be the lawful heir to the estate after the death of her mother Rani Amrit Kaur, who had a life interest therein. 2. As a result of these disputes the Court of Wards, U. P. again assumed the superintendence and control of the estate of the late Raja. Eventually, on 22-9-1943, there was a registered agreement between the then Collector of Moradabad, representing the Court of Wards and Rani Pritam Kaur on the one hand and Rani Amrit Kaur and Rajkumari Laxmi Devi on the other. By means of that agreement Rani Amrit Kaur and Rajkumari Laxmi Devi unconditionally withdrew their allegations against Rani Pritam Kaur and admitted that the latter was the lawfully wedded wife of Raja Jagat Kumar, entitled to inherit the estate. It was also agreed that Rani Amrit Kaur would get an allowance of Rs. 500/- per mensem and Rajkumari Laxmi Devi would also get an allowance of Rs. 500/- per mensem from the first day of January, 1943, for the duration of their respective lives, out of the income of the Sahaspur Bilari estate. It was further agreed that Rani Amrit Kaur as well as Rajkumari Laxmi Devi both would have the right of residence in the warwick house at Moradabad pertaining to the said estate. It may be mentioned here that the agreement in question was duly signed by the Collector of Moradabad on behalf of the Court of Wards, U. P., as well as by the three contestants, namely, Rani Pritam Kaur, Rani Amrit Kaur and Rajkumari Laxmi Devi. 3. The amounts of the maintenance allowance stipulated under the agreement continued to be paid to Rani Amrit Kaur and Rajkumari Laxmi Devi by the Court of Wards. After the enactment of the U. P. Zamindari Abolition and Land Re-forms Act in the year 1952 the management of the estate by the Court of Wards, U. P. ceased and the estate was released in favour of Rani Pritam Kaur. In the year 1953 Rani Jai Devi Kunwar, who was not a party to the aforesaid agreement of 22-31943, filed a civil suit for partition against Rani Pritam Kaur (Suit No. 95 of 1953) in the court of the Civil Judge, Moradabad, claiming to be a co-widow of the late Raja Jagat Kumar, in respect of the properties pertaining to the Sahaspur Bilari estate. In that suit Rajkumari Laxmi Devi was also impleaded as a co-defendant. The suit was decreed in respect of the unsettled estate, but was dismissed in respect of the settled estate. 4. It appears that Rani Pritam Kaur also continued payment of the maintenance allowance to Rajkumari Laxmi Devi up to the end of ,the year 1961. However, it appears to have been stopped from January, 1962 with the result that the lady was driven to file a suit (No. 18 of 1962) in the court of the Civil Judge, Moradabad asking for a decree for Rs. 1,000/- as arrears of maintenance for the months of January and February, 1962 and also for a decree at the rate of Rs. 500/- per mensem thereafter. She further asked for a declaration that she had a right of residence in the Warwick House for the term of her life. In her suit, Rajkumari Laxmi Devi, impleaded Rani Pritam Kaur as the first defendant and Rani Jai Devi Kunwar as the second defendant. 5. The suit brought by Rajkumari Laxmi Devi was transferred to this Court for hearing in exercise of its extraordinary original jurisdiction and it was disposed of by a learned Single Judge (D. S. Mathur, J.) on the 24th August, 1967. The learned Judge decreed the suit against defendant No. 1 Rani Pritam Kaur for recovery of the sum of Rs. 1,000/- as maintenance for the months of January and February, 1962 and also granted a declaration that she was entitled to recover maintenance at Rs. 500/-per mensem from defendant No. 1. For payment of the allowance to the plaintiff, a charge was also created on three items of properties viz. Warwick House, Gulariawala Bagh and Budaun House. The suit was dismissed against defendant No. 2, Rani Jai Devi Kunwar with costs. 6. The aforesaid decree passed by this Court was transmitted to the court of the Civil Judge, Muradabad for execution, where it was registered as execution case No. 17 of 1968. In the petition for execution the decree-holder Rajkumari Laxmi Devi, sought to realise the following amounts. 1. Rs. 1,000/- as arrears of maintenance for January and February, 1962. 2. Rs. 16,250/- as arrears of maintenance (after certain deductions) for the period March, 1962 to August, 1967. 3. Rs. 3,500/- as maintenance for the period commencing September, 1967 to March, 1968 at the rate of Rs. 1. Rs. 1,000/- as arrears of maintenance for January and February, 1962. 2. Rs. 16,250/- as arrears of maintenance (after certain deductions) for the period March, 1962 to August, 1967. 3. Rs. 3,500/- as maintenance for the period commencing September, 1967 to March, 1968 at the rate of Rs. 500/- per mensem. Rs. 1,326/- as costs of the suit. 7. The total amount thus sought to be realised aggregated Rs. 22,076/-. A sum of Rs. 10,300/- had been deposited by the judgment-debtor, Rani Pritam Kaur, under specific order of this Court. The decree-holder sought to withdraw that sum of Rs. 10,300/- and realise the balance of Rs. 11,776/- by attachment and sale of certain movable properties, including furniture and jewellery, belonging to the judgment-debtor. It was prayed that if any part of the decretal amount remained unsatisfied after the sale of such properties, the same might be rcovered by sale of the following immovable properties :- 1. The Warwick House, Civil Lines, Moradabad. 2. Gulariawala Bagh, Sahaspur, Tahsil Bilari, district Moradabad. 3. Budaun House, Budaun. 8. The judgment-debtor filed an objection under Section 47, C. P. C. in the Court of the Civil Judge, Moradabad (registered as Miscellaneous Cose No. 51 of 1968) . The main contention was that the decree being declaratory in nature it was not executable. The contention found favour with the learned Civil Judge who allowed the miscellaneous case in part and refused execution in respect of the amount of maintenance claimed by the decree-holder for the period commencing March, 1962 onwards, observing that there was only a declaratory decree for the enforcement of which a separate suit should be instituted by the decree-holder. The decree-holder has appealed against that order. 9. The only question to be decided in this appeal is whether the decree dated the 24th August, 1967 passed by learned D. 3. Mathur, J. in the suit filed by the plaintiff is capable of execution. The decree that was drawn up on the basis of the judgment of the learned trial Judge is reproduced below (omitting the irrelevant term). "It is ordered that the suit is decreed against Rani Pritam Kaur defendant No. 1 only for the recovery of Rs. 1,000/- (one thousand) towards the allowance for the months of January and February, 1962, that it is declared that the plaintiff is entitled to recover maintenance allowance of Rs. "It is ordered that the suit is decreed against Rani Pritam Kaur defendant No. 1 only for the recovery of Rs. 1,000/- (one thousand) towards the allowance for the months of January and February, 1962, that it is declared that the plaintiff is entitled to recover maintenance allowance of Rs. 500/- (Rupees five hundred) per month from defendant No. 1 for the duration of the suit and also in the future during her life time and that a charge is created on Warwick House to the extent of Rs. 150/-(Rupees one hundred and fifty) per month, on Budaun House to the extent of Rs. 100/- (Rupees one hundred) per month and Gulariawala Bagh to the extent of Rs. 250/- (Rupees two hundred and fifty) per month for-the payment of maintenance allowance and that the suit be and is hereby dismissed as against defendant No. 2. It is further declared that the plaintiff is not at the instance of defendant No. 1 liable to eviction from Warwick House situate in the Civil Lines, Moradabad and she can reside there for her life time and this right being a personal one, shall not pass to her heirs or successors-in interest .......... And it is further ordered that defendant No. 1 aforesaid do any to the plaintiff aforesaid the sum of Rs. 1,326/- (Rupees one thousand three hundred and twenty six) the amount of costs incurred in this Court ........... It is further directed that if possible all the three properties viz., the Warwick House, the Budaun House and the Guianawala Bagh shall be allotted to defendant No. 1 at the time of the final partition of properties, but if for some reason it is not possible to partition the properties by allotting all the properties mentioned above to Rani Pritam Kaur, defendant No. 1, attempt shall be made to allot Warwick House to her so that Rajkumari Lakshmi Devi, plaintiff may not be deprived of the right of residence and may not have any difficulty in realising the allowance payable to her for her life time. It is further ordered that in case all the three properties detailed above are not allotted to Rani Pritam Kaur, defendant No. 1, at the time of the partition among defendants Nos. It is further ordered that in case all the three properties detailed above are not allotted to Rani Pritam Kaur, defendant No. 1, at the time of the partition among defendants Nos. 1 and 2, it shall be open to the plaintiff to move this Court for the amendment of the decree so that a charge may instead be created on other properties allotted to her share." 10. On behalf of the respondent judgment-debtor, Rani Pritam Kuer, it is contended by her learned counsel Sri Jagdish Swarup that the decree is purely declaratory, because there is no specific order or direction of the trial court that defendant No. 1 do pay the amount of the maintenance to the plaintiff every month. In the absence of such a direction for payment, it is argued, the decree is not capable of execution, not-withstanding the charge created on the properties specified therein. It is submitted that the only remedy of the plaintiff lies 'n a separate suit for enforcement of the charge. 11. On the other hand, Sri K. C. Saxena appearing for the decree-holder Rajkumari Lakshmi Devi, canvassed for the proposition that where in a suit for maintenance, the decree declares the right of the plaintiff to recover the maintenance and also creates a charge on specific properties, for recovery of such maintenance, then, on default in payment of maintenance by the judgment-debtor, it would be open to the decree-holder to recover the amount of the maintenance in default, by sale of the charged properties in execution of the decree, and it is not necessary for the decree-holder to bring a separate suit to enforce the charge. 12. The learned counsel .for the parties have referred to a number of authorities, which we shall presently discuss, in support of their respective contentions. 13. A "charge" is a burden laid on immovable property of one person as security for the payment of money to another and it is to be contra distinguished from a mortgage. A mortgage, is, in essence, a form of transfer but a charge is not so and while a mortgage is a security for payment of debt, a charge is a security for payment of money which may or may not be a debt. A mortgage, is, in essence, a form of transfer but a charge is not so and while a mortgage is a security for payment of debt, a charge is a security for payment of money which may or may not be a debt. A mortgage may be created only by act of parties but a charge may be created either by (i) act of parties or (ii) by operation of law or (iii) by decree of a competent Court. Section 100 of the Transfer of Property Act which defines a charge and also lays down the procedure for its enforcement runs as follows : "100. Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage the latter person is said to have a charge on the property; and all the provisions herein before contained which apply to a simple mortgage shall, so far as may be, apply to such charge." 14. The rest of the section is not relevant. This section refers only to a charge created by act of parties or by operation of law and it laid down that all the provisions relating to a simple mortgage shall apply mutatis mutandis, to such charge. Evidently, therefore, for the enforcement of a charge created by act of parties or by operation of law, a suit has to be brought for sale of the charged properties in the same way as a suit has to be brought for the sale of properties hypothcated under a simple mortgage, as required by Rule 14 (1) , read with Rule 15, of Order 34 of the Civil Procedure Code. These rules are quoted below : "14 (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, Rule 2." "15. All the provisions contained in this order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title deeds within the meaning of Section 58, and to a charge within the meaning of Section 100 of the Transfer of Property Act, 1882." 15. It is significant that Section 100 of the Transfer of Property Act is silent about a charge created by a decree of Court and, therefore, the procedure for enforcement thereof is not governed by Rules 14 (1) and 15 of Order 34. This lends support to the view canvassed by the learned counsel for the appellant decree-holder that where a decree itself creates a charge it is not necessary to bring a separate suit for the enforcement thereof, and that such charge may be realised and enforced by execution of the decree itself. 16. The decision of full bench of this court in the case of Mahesh Prasad v. Mst. mundar, A.I.R. 1951 Alld. 141 (FB) : 1951 ALJ 39 also lends support to the contention put forward on behalf of the appellant. In that case the relevant portion of the appellate judgment of this court was as follows :- "The result is that we set aside the decree of the court below and make a decree tree in favour of the plaintiff for maintenance at the rate of Rs. 20/- a month and declare that it be a charge on the property of the family. She will be entitled to recover this maintenance from the date of the institution of this suit." 17. It would be noticed that in the operative portion of the judgment there was no specific order or direction that the defendant do pay to the plaintiff the amounts of maintenance at the rate of Rs. 20/- a month. The appellate decree of this court was in the following terms : "The decree be and is hereby passed in favour of the plaintiff for recovery of the maintenance allowance at the rate of Rs. 20/- a month from the date of the institution of the suit. It is hereby declared that such a maintenance allowance shall be a charge on the property of the family." 18. In the above decree also there is no specific direction for payment of such maintenance to the plaintiff appellant. 20/- a month from the date of the institution of the suit. It is hereby declared that such a maintenance allowance shall be a charge on the property of the family." 18. In the above decree also there is no specific direction for payment of such maintenance to the plaintiff appellant. The plaintiff as the decree-holder filed an application for execution of the decree against the defendants and one of the grounds on which the application was resisted was that the decree merely declared a charge and it did not provide that the money would be realised by sale of the property. Reliance in support of this attack was placed on the 'terms of Order 34, Rules 14 (1) and 15 of the Civil Procedure Code. The leading judgment of the Full Bench was delivered by Malik, C. J., who rejected the contention put forward on behalf of the judgment-debtor and observed as follows :- "I do not think these rules help the appellant. Where there is a mortgage or a- charge created previous to the date of the decree a suit on the mortgage or that charge has to be brought if the mortgagee or the charge-holder wants to proceed against the property over which the mortgage or the charge has been created. Where however, a charge is created by the decree itself these provisions do not seem to be applicable. The question would depend upon the interpretation of the decree and if from the terms of the decree it is clear that it was intended that on default of payment the property would be sold by the executing court for realisation of the amount due it must be held that a separate suit is not necessary to obtain another decree for sale." 19. Three of the other Judges constituting the Full Bench namely, Waliullah, J. Wanchoo, J., and Seth, J., expressed their concurrence with the opinion of the learned Chief Justice, while Agrawala, J. delivered a separate but concurring judgment. 20. In the present case, the relevant terms of the decree under execution have been quoted above. It would appear therefrom that it was declared "that the plaintiff is entitled to recover maintenance allowance of Rs. 500/- (Rupees five hundred) per month for the duration of her life time." The decree also declared "that a charge is created on Warwick House to the extent of Rs. It would appear therefrom that it was declared "that the plaintiff is entitled to recover maintenance allowance of Rs. 500/- (Rupees five hundred) per month for the duration of her life time." The decree also declared "that a charge is created on Warwick House to the extent of Rs. 150/- (Rupee one hundred and fifty) per month, on Budaun House to the extent of Rs. 100/- (Rupees one hundred) and on Gulariawala Bagh to the extent of Rs. 250/-(Rupees two hundred and fifty) per month for the payment of maintenance allowance." From the words which we have italicized above, it would appear that there was a direction in the decree declaring that the plaintiff was entitled to recover maintenance not only for duration of the suit but also in the future and certain specific properties were charged for the payment of such maintenance decreed to her. To our mind, the decree under execution in the present case is similar in terms and in language to the decree which came in for consideration of the full Bench of this court in Mahesh Prasad v. Mst. Mundar. As laid down by the Full Bench, the question whether the decree is executable or not, would depend on the interpretation of its terms and if it appears from the decree that it was intended that on default in payment, the property would be sold by the executing court for realisation of the amount due, it must be held that a separate suit is not necessary to obtain another decree for sale. Reading the relevant terms of the decree in the present suit we have no doubt that such was the the intention of the trial Court when it passed the decree. 21. On behalf of the judgment-debtor the decision of a Division Bench of this court in the case of Niranjan Singh v. Gurua Devi, 1961 ALJ 812 was relied upon for the correct interpretation of the decision of the Full Bench of this Court in Mahesh Prasad's case Desai, C. J. who delivered the leading judgment of the Bench, referring to the decision of Chief Justice Malik in the Full Bench case, spoke as follows :- 'The learned Chief Justice obviously contemplated a decree which not only directed payment by the defendant to the plaintiff, Nit also created a charge. The emphatic word "itself" in the clause "a charge is created by the decree itself" suggests that a charge is created by the decree by which some other direction is given and the other direction can only be payment of maintenance allowance." 22. With the greatest respect, we are unable to agree, with the above interpretation of the Full Bench Decision. 23. In another case of this Court, Jagdamba Misir v. Ranjit Singh, A.I.R. 1953 Alld. 253 Agarwala. J. also held that Rule 14 of Order 34 does not apply to a case in which a charge has been created by the decree itself. In such a case the properties charged under the decree are liable to be sold in execution thereof without a fresh suit. 24. In Smt. Indra Devi v. B. Pirag Nath, A.I.R. 1950 Alld. 210 a Division Bench held that a decree granting maintenance at the rate of certain amount per month and creating a charge on the property of the judgment-debtor for future maintenance could be enforced by execution and it was not necessary to file a separate suit. In that case also the judgment-debtor had put forward the objection that the decree in favour of the decree-holder for maintenance was only a declaratory decree and. therefore, not capable of execution. In coming to the conclusion as aforesaid the Bench followed an earlier decision of this court in Durga Prasad v. Mst. Tulsa Kuer, A.I.R. 1939 Alld. 579. 25. To the same effect is the decision of the High Court of Travencore-Cochin in Senkaran Pangasakshan v. Narayana Pillai Velayudhan Pillai, A.I.R. 1957 Trav.-Cochin 90. 26. Sri Jagdish Swarup appearing for the judgment-debtor referred to a very early decision of a Bench of this court in the case of Mamman v. Kuar Sen, ILR 16 Alld. 579. But, it appears that in that case the decree omitted to specify any precise date on which such maintenance would become payable. Moreover, the decree in that case was passed in the year 1875 before the Transfer of Property Act, 1882, came into force and it does not appear that any charge was created upon any specific property for payment of the decretal amount. 27. Sri Swarup also cited an old decision of the Bombay High Court in Vishnu Shambhog v. Man jamma, ILR 9 Bom 108 in support of his contention. 27. Sri Swarup also cited an old decision of the Bombay High Court in Vishnu Shambhog v. Man jamma, ILR 9 Bom 108 in support of his contention. In that case upon the suit of a Hindu widow for maintenance there was a decree declaring her right to receive future maintenance, at an annual rate from the defendant. It was held that the proper way of enforcing that right was not by executing the decree, but by a fresh suit. The case was decided in 1884 and in this case also it does not appear that any charge was created on any property by decree for maintenance. 28. Lastly, learned counsel for the judgment-debtor referred to the opinion of Brijmohan Lall, J. of this court in Manmohan Das v. Bahuddin, A.I.R. 1957 Alld. 575. There was, it appears, differences of opinion between Brijmohan" Lall and Beg. JJ. in that case and the matter was, ultimately. referred to Bhargawa. J. In the course of his 'opinion B. M. Lall, J. stated that where the decree of a court simply declares the ulufa (i.e. annual allowance) to be a charge on the property, but does not direct the sale of the property in enforcement of that claim, it is a declaratory decree for the enforcement of which a suit will have to be instituted and not a decree which is executable by itself. The opinion of the learned Judge is apparently in conflict with the decision of the Full Bench of this court referred to above. 29. It is also manifest that. in this case, the learned Judge, while passing the decrees for future maintenance, intended that on default in payment. the plaintiff as the decree-holder would be entitled to execute the decree by sale of the charged property. This would appear from the fact that the plaintiff was required to pay full court fee under the proviso to Section 7 (ii) (a) of the Court fees Act. The court fee originally paid by the plaintiff at the scheduled rate under Section 17 of that Act, as on a purely declaratory suit, was not accepted by the - Court (vide order of the Court dated 22-12-1965) . 30. The court fee originally paid by the plaintiff at the scheduled rate under Section 17 of that Act, as on a purely declaratory suit, was not accepted by the - Court (vide order of the Court dated 22-12-1965) . 30. On a review of the authorities discussed above, it seems clear that where in a suit for maintenance, the decree declares that the plaintiff is entitled to recover not only the amount of arrears of maintenance but also maintenance in future at a monthly or an annual rate and the decree also creates a charge on specific immovable properties, for payment of the maintenance, the plaintiff would be entitled to recover maintenance. if there is default in payment, by executing the decree. If the decree-holder is driven to file a separate suit to enforce the charge it will lead to unnecessary multiplicity of proceedings. Agarwala, J. in his separate concurring judgment in the above Full Bench case of Mahesh Prasad v. Mundar observed as follows :- "In my opinion, whenever a decree is executable for a certain sum of money and a charge has been created for the recovery of that amount, the property charged is, in the absence of anything to the contrary, saleable in the execution proceedings and no fresh suit is necessary to be instituted. It would be very anomalous indeed if, after having filed a suit and obtaining a decree for recovery of the amount due and also getting a declaration from the court about the charge on the property, a party were to be required to bring a fresh suit for the enforcement of the charge. This will be an unnecessary multiplication of c litigation without any advantage to any body and would be contrary to the public policy which looks with disfavour upon such multiplicity." 31. The result is that the appeal is allowed with costs. The order of the learned Civil Judge dated 10-7-1968 is set aside. The decree shall be executed according to law with due regard to our observations herein. They stay order dated 6-8-1968 is vacated.