Banda Manikyam vs Banda Ven-kayamjoaaVand

Viswanatha Sastri, J.—The 2nd Defendant is the Appellant. The suit was for separate maintenance by a wife for herself and her two minor daughters against her husband the 1st Defendant and his mother, the 2nd Defendant. The lower Appellate Court in agreement with the trial Court, recorded the following finding:

I find that the 1st Defendant had been given to bad way in recent these and that he had resorted to drinking and: beating the Plaintiff and had also taken away her jewels. I believe the evi dence on the Plaintiff''s side that the 1st Defendant is guilty of legal and actual cruelty towards his wife and'' that he has been beating her and has finally driven her away from his house obliging the Plaintiff to file a suit for maintenance.

Tile expression "legal cruelty" in the above passage has reference to a wholly unfounded charge of immorality made by the husband against the wife prior to suit. That the Plaintiffs are entitled to separate maintenance from the 1st Defendant is not disputed. After the relations between the husband and wife had become estranged -and a fortnight before the suit, the 1st Defendant purported to settle all his properties on his mother, the 2nd Defendant, under Exhibit B-l dated 18th September, 1948. The recital in Exhibit B-l that the document was executed because it was attended that the 1st Defendant who was given to bad ways might waste the property. The trial Court found that the settlement was "a mala fide and gratuitous transfer" and was affected by Section 39 of the Transfer of Property Act. The Lower Appellate Court also held that the 2nd Defendant who was a gratuitous transferee would take the properties subject to the Plaintiff''s right of maintenance. The Courts below directed that the maintenance decreed to the Plaintiffs should be a charge on a portion of the properties settled on the 2nd Defendant under Exhibit B-l and the only objection to the decree is as regards the charge created thereby.

It was argued for the Appellant that the properties settled on her under Exhibit B-l were not legally liable to be charged for the maintenance of the Plaintiffs and that S. 39 of the Transfer of Property Act had no application to the case. This point was not specifically or pointedly raised in the grounds of Second Appeal; but, as it was one of law, I heard arguments on it. Reliance was placed for the Appellant on a recent decision of Chandrasekhara Ayyar, J., in Pavayamal and Another Vs. Samiappa Goundan and Others, , which, if correct would cover the present case. The judgment of the learned Judge on this point is, however, very brief consisting of one sentence and does nob refer to any texts or decisions. It purports to be based entirely on the expression "right to receive maintenance from the profits of Immovable property" occurring in Section 39 of the Transfer of Section 39 of the Transfer of Property Act.

It does not affect the right of a wife to have payment of her separate maintenance secured by a charge on her husband''s properties in his hands or in the hands of his gratuitous transferee if, under any other law, she has such a right. The decision in Pavayamal and Another Vs. Samiappa Goundan and Others, , leads to considerable hardship in a case like the present where a delinquent husband, out of spite and vindictiveness, cruelly ill-treated and unjustifiably abandoned his innocent wife and minor children and gratuitously transferred all his properties to his mother in order to defeat their claim for maintenance. If, however, the law is as laid down in the decision cited above, the Appellant must succeed. With great respect to Chandrasekhara Ayyar, J., both as a Judge and as the Editor of the 11th Edition of Mayne''s Hindu Law (page 832), I am unable to share his opinion.

A Hindu joint family consists of males as well as females and women married into the family are equally members of the joint family though, unlike the coparcener''s who are entitled to partition their wives are only entitled to maintenance - Vedathanni Vs. Commissioner of Income Tax, , AIR 1937 36 (Privy Council) , and The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, . The rights of coparceners accrue on their birth while the rights of their wives accrue on marriage and both are entitled to reside and be maintained in the family house so far as the means of the family allow. The maintenance of a wife and minor children is obligatory on the husband or father, the liability arising from the very existence of the relationship quite independent of the possession of any property, ancestral or self acquired-Jayanthi Subbiah v. Alamelu TLR 27 Mad 45 (E), Bai Appibai Vs. Khimji Cooverji, and Venkatapathi v. Puttamma 71 Mad LJ 499 : AIR 1936 Mad 609 (G). This obligation of the husband or father is not occasional but permanent and continuous and the wife and minor children have a corresponding right.

This right of the wife and minor children would, however, be illusory if a man were free to wantonly dissipate his wealth, reduce himself to pauperism and thereby deprive his wife and children of the means of subsistence. Though the Smri-tikars and Commentators encouraged and extolled gifts to deserving persons, they also condemned and prohibited in unequivocal terms, gifts of property to such an extent as to deprive a man''s family of the means of subsistence. Some of the texts, binding a man''s conscience and making it. sinful for him to deal with his property in such a manner as to jeopardise the maintenance of his family, are referred to in Mayne''s Hindu Law (11th Edition, page 831, footnote (J)).

The matter Is carried further by some of the Commentators and the rights of the wife are put on a higher footing. The Dayabhaga, Chapter XI, Section 1, PI. 26 and the Smrithi Chandrika, Chapter II, S. 1, PI. 19, Chapter IV, PI. 9 and Chapter IX, Section 2, PI. 14 recognise that, through her marriage, a Hindu woman acquires an interest in her husband''s property, though, according to other authorities, an interest only of a subordinate or secondary kind. The Vyavahara Mayukha even contemplates a partition between a husband and wife and a reunion. Under the Mitakshara Law as administered in North India, the interest of the wife in her husband''s property arising from her marriage has been held sufficient to entitle her to an equal share with, the sons on a partition and in South India, to a provision for her maintenance out of the estate of her deceased husband.

In view of the fact that the right of a widow to maintenance arises by marriage, it has been held that a disposition of his entire property by a Ifindu by a gift or a will to a stranger will not defeat her right and the legatee or donee would take jthe property subject to her claim for maintenance sPeriambal Chettiar v. Sundarammal ILR (1945) Mad 586; AIR 1945 Mad 193) (H), Ramanathan v. Rangammal; ILR Mad 260 (FB) 268 (I), Kamakshi Ammal and Another Vs. Krishnammal, , Narbadabai v. Mahadcv ILR 5 Bom 99 (K) and Jamna v. Machila ILR All 315 (L). The interest of the wife in her hush''s properties, like that of a widow of a deceas-g,e$/;oparcener. in her husband''s share of the family ''properties, is not a proprietary right or interest adhering to the property into whatever hands it may pass, but Only a right to be maintained there from.. Normally, a wife''s. home is in her husband''s house and he cannot therefore claim separate maintenance from her husband during his lifetime except on one or more of the grounds now found Filed in Act XIX of 1946. The reasons which require, a wife to remain under her husband''s roof do not apply where she has become a widow. I leave out of account the changes'' introduced by Act XVIII of 1937 with regard ''to Hindu women''s right of succession of their husband''s properties and consider the law of maintenance as it stood before the Act.

So far as the right of maintenance is concerned, the position of a wife entitled to separate . maintenance from her husband under Act XIX of 1946 and widow entitled to maintenance from the property of her deceased husband in the hands of his heirs, legatees or surviving coparceners, would be the same, except that the husband would be personally liable to maintain his wife, whether or not he has property, while the liability of the other persons is entirely dependent upon and restricted to the amount of the husband''s estate that has come into their hands. Neither the wife''s right to separate maintenance from her husband under Act XIX of 1946 nor a widow''s right to maintenance from the estate of her deceased husband is, a charge on the property unless such a charge Is created by agreement of parties or a decree of Court.

Very early in the evolution of the law, English Judges administering the principles of justice, equity and good conscience laid down that a bona fide purchaser of property for value without notice or a purchaser with notice under a sale effected for discharging the debts of the husband or the debts ; or liabilities of the joint family of which he was ] a member, would not be affected by the claim for maintenance and the property in the hands of such a purchaser would be free from the claim - Lakshman Ramachandra v. Satyabhamabai.'' ILR 2 Bom 494 (M), ILR Mad 45 (E) and Latchanna V." Bapahamma, (1860) Sudder Udalut Decisions (Madras) 290 (N). If, however, the transfer was gratuitous, the transferee took the property subject to the right of maintenance.

If the property from which a wife or widow has a-right to claim separate maintenance is alienated for the purpose of defeating the right and the alienee has notice thereof, the alienation would be a fraud upon persons whom the Hindu Law regards as deserving of special protection and a violation of the precept which prohibits alienation of that which is needed for the sustenance of the family and would therefore be subject to the maintenance right. This was the principle underlying '' Section 39 of the Transfer of Property Act when it was enacted.

After the amendment of Section 39 of the defroster of property Act in 1939, it is no longer necessary to prove an intention to defeat the right of maintenance. Proof of notice of the existence of the right is sufficient. The Special Committee which recommended the amendment felt that the object of Section 39 which was intended to protect persons entitled to maintenance was not served by the requirement of knowledge by the transferee t of the fraudulent intention of the transferor. They observed :

As it is desirable to protect persons entitled to maintenance or for whom provision for advancement has been made from improvident holders of the property, it is necessary that the reference to the transferor''s intention should be omitted from the section and the section should be-amended accordingly.

This amendment was carried out by the Legislature. Do the words "right to receive maintenance from the profits of Immovable property" occurring in Section 89 exclude the case of a wife entitled to claim separate maintenance from her husband, because the obligation of the husband to maintain the wife exists irrespective of his ownership of any property? Does the existence of a personal obligation on the part of the husband negative the right of the wife to be maintained out of his properties, ancestral or self-acquired? Is not the personal liability of the husband something in addition to the liability to maintain his wife out of his properties? Is not the wife entitled to the protection of Section 39 and pursue her claim for maintenance against the property of her husband in the hands of a gratuitous transferee who has taken with full notice of her claim, when the husband is left with no other means of providing for the maintenance of the wife? I shall now advert to the decisions from which an answer to these questions might be found.

The earliest case on the topic is (1860) Sudder Udalut Decisions (Mad) 290 (N). where the Madras Sudder Court held in 1860 that a sale of property by the husband was invalid where nothing was left for the maintenance of his wife. Dealing with the analogous case of a son who is bound under the Hindu Law to maintain his mother as a matter of personal obligation, Muthu-swamy Ayyar, J., in ILR Mad 260 (FB) (I), at p. 267 said:

For the Appellant, it is urged that the claim to maintenance creates only a personal obligation against the heir in possession. I cannot accede to this contention. The son in possession of ancestral property is no doubt under a personal obligation to maintain his mother, but this is not all. The mother is entitled to insist that the maintenance should be charged on a specified part of ancestral property either when a partition is made by her sans or when the managing member wastes ancestral property, or when she is not duly maintained, or when for any other good and sufficient cause, the ancestral property indicated by Hindu Law as the general fund from which her maintenance is to be paid is in peril. The correct view is that the obligation to maintain the mother is strengthened by giving her an interest in Immovable Property and thereby enabling her to constitute that interest into a specific charge, or an actual existing proprietary interest for the term of her it if and to protect her right of maintenance against improvident alienation of the fund from which it is to be satisfied.

In Lakshmi Devi Amma v. Naganna AIR 3925 Mad 757 at p. 760 (O), Srinivasa Ayyangar.J. observed "It is true that the Hindu Law imposes obligation on the Hindu husband to support his Wjfe, without any reference to any property or ''share possessed by him, even us it imposes similar obligations on sons to maintain their mother and father. But when the joint family is possessed of property, a claim by wife against her husband need not be regarded merely as a suit for the enforcement of any personal obligation, but may well be regarded as a suit against the family itself, represented to her by hsr husband, through whom alone so long as he is alive, she has to obtain the relief.''

In Unnamalai Ammal Vs. F. W. Wilson and Others, , Coutts-Troltor, C. J. and Srinivasa Ayyangar J., recognised the right of a wife to have her maintenance charged on the residue of the estate of her insolvent husband after discharging his debts. The decision in Gopala Pattar V. Parvathi Ammal, AIR 1929 Mad 4? (Q), is more in- point as the learned Judges held that the maintenance awarded to an abandoned wife could be made a charge on her husband''s share of the family property and observed that it was, difficult to make any distinction between the position of a widow and an abandoned wife. In either case, the maintenance, though it does not form a charge upon the husband''s property, could be made the subject of charge in order to secure the right.

There are a few decisions of the other High Courts taking the same view as A. Gopala Pattar and Another Vs. Parvathi Ammal and Others, . Ramabai v. Trimbak Ganesh, 9 Bom HCR 283 (R), was a case where a deserted wife was held entitled to be maintained out of her husband''s share in joint family property. In Savitribai v. Luxmibai ILR 2 Bom 573 (FB) (S) al p. 589, Westropp, C. J., approved of the earlier decision in 9 Bom HCR 283 (R), and observed that "there does not appear to be any sound reason for making a distinction in this respect between a deserted wife and a widow." In ILR 5 Bom 99 (K), it was held that a Hindu husband cannot'' alienate the whole of his Immovable property, though self-acquired, without making a suitable provision for maintenance of his wife to take effect after his death. Radha Bhai v. Gopal AIR 1944 Bom 50 (T), is a case exactly in point and the learned Judges following Shri Behari Lalji v. Bai Rajbai ILR 23 Bom 342 (U), held that a Hindu wife has a right to maintenance not only from her husband personally but also out of his property and for that purpose she could pursue the property in the hands of a stranger alienee u/s 39 of the Transfer of Property Act. There the Court created a charge for the maintenance of the wife on her husband''s property in the hands of an alienee with notice of her claim.

In ILR All 315 at p. 317 (L), it was held that where a husband in his lifetime made a gift of his entire estate leaving his wife without maintenance, and died shortly thereafter, the donee took and held such estate subject to her xsuntenance. Parsons, J., observed:

A wife is under Hindu Law, in a subordinate sense, a co-owner with her husband. He cannot alienate his property or dispose of it by will in such a wholesale manner as to deprive her of maintenance; and I am therefore of opinion that the donee of the entire estate must be deemed to have taken and to hold it subject to her maintenance."

In Mansha Devi v. Jiwanmal ILR All 617 (V), a Hindu who had a wife and an infant daughter became a convert to Islam and transferred all his properties to a Muslim wife. In a suit by the deserted Hindu wife and daughter, the Court decreed a, charge for their maintenance on the properties in the hands of the alienee, observing that "the right of the wife and daughter to be maintained out of the husband''s and father''s property is undoubted," and citing ILR All 315 (L), and 9 Bom HCR 283 (R). The decision in Mst. Satwati and Another Vs. Kali Shanker and Others, at p. G (W), relied on by the Appellant merely lays down that a wife or widow has no charge'' upon any property belonging to her husband in the absence of a decree or agreement creating such a charge and that a widow cannot claim a residence in a house alienated by her husband during his lifetime. It is well established that the debts of the husband take precedence over the wife''s or widow''s claim for maintenance so long as the maintenance is not charged on any specific property.

This is not a case where the husband and wife are living together and the wife seeks a charge on the husband''s property for safeguarding her right to maintenance. Here the wife and the minor daughters are entitled to separate maintenance by reason of the cruel and inhuman treatment meted out to them by the husband and father and by reason of their having been turned out from the house. This right to separate-maintenance which was previously based on texts and decisions is now expressly conferred by statute under Act XIX of 1946.

It is true that the husband or father is under a personal obligation to maintain his wife or infant children. This does not mean that the obligation could be enforced only by sending him to jail in case of default and that the wife or infant children have no right to be maintained put of the property of the husband or the father as the case may be. The rule as to personal obligation only emphasizes the legal and imperative-duty of the husband to maintain his wife and minor children irrespective of the possession of any property:

Like a widow, the wife who has become entitled to demand separate maintenance from her husband, has no charge on his property. Therefore a bona fide purchaser for value without notice of the claim for separate maintenance is-not affected thereby, But a transferee with notice of the right of maintenance or a gratuitous transferee takes the property subject to the claim for maintenance by virtue of Section 39 of the Transfer of Property Act.

Though the right of the wife to separate maintenance does not form a charge upon her husband''s property, ancestral or self-acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it could be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperiled or jeopardized by the conduct and dealings of the husband or father with reference to his properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children.

Such a charge could be created not only over the properties in the-hands of the husband or I father but also over-properties transferred by hero either gratuitously or to persons having notice-of the right to maintenance. A transferee, like-the Appellant, who joins in a fraudulent and clandestine arrangement for defeating the right of maintenance binding- on the conscience of the sufferer and who pays no consideration for the transfer by her son in her favour, takes the properties subject to that right. The property in her of finds'' is legally chargeable with the payment of Imimaintonance to the wife and children of the transferor u/s 39 of the Transfer of Property Act.

In view of the opinion of Chandrakhara Ayyar J., in Pavayamal and Another Vs. Samiappa Goundan and Others, , I would have referred this Second Appeal to a Bench but for the fact that there are earlier decisions of Division Benches to the contrary with which I am in agreement and Which I am bound to follow, but which have not noticed by the learned Judge in his judgment. For these reasons, the Second Appeal fails and must be dismissed with costs. Leave refused.