Chandramma vs Maniam Venkatareddi and Others

K. Subba Rao, C.J.—This second appeal has been referred Division Bench for resolving the conflict b(sic) the decisions of two Single Judges, one t(sic) the Madras High Court delivered before 5t(sic) 1954 and the other that of the Andhra High Court. It raises an interesting question of law, whether the wife of a Hindu has the r(sic) receive maintenance from the profits of i(sic) able property within the meaning of S. 39(sic) Transfer of Property Act.

Chandrasekhara Ayyar J. held in Pavayamal and Another Vs. Samiappa Goundan and Others, , that she has no such (sic)ght, whereas Viswanatha Sastri J. held in Mani(sic)am v. Venkayamma, 1956 An WR 1021 : (AIR 57 Andh-Pra. 710) (B), that she has such a (sic)ght.

The facts, either admitted or found, (sic)ay be stated: The plaintiff is the second wife the 1st defendant. As he ill-treated and negleet(sic) her, she took criminal and civil proceedings for maintenance. In 1940, the Sub Divisional Magistrate, Chittoor, made in her favour an order for maintenance at Rs. 5/- per month and she was receiving that amount till 1946. On 12-8-1942, the defendant executed a gift deed, Ex. B-4 in (sic)rour of his daughter, the 2nd defendant, con(sic)ring to her items 1 to 16 of the plaint C Schedule, subject to the condition that the done (sic)ild discharge a mortgage debt of Rs. 700/- in (sic)our of the Land Mortgage Bank.

In 1947, the 1st defendant filed two suits for (sic)ting aside the gift deed hi respect of items 1 (sic)16 and for recovering other items alleged to (sic)ve been purchased by the 1st defendant benami the name of the 3rd defendant, the husband the 2nd,defendant. On 16-7-1949 the suits were compromised. Under the compromise, the title of 2nd defendant to items 1 to 16 except items (sic)ind 11 was recognised. The excluded items were apart for the joint enjoyment for life of the plaintiff and the. 1st defendant and the 2nd defendant was directed to pay Rs, 50/- per year to the defendant and the vested remainder in the (sic) items was to go to the 2nd defendant.

The plaintiff was not a party to this compromise. The plaintiff who, at the time of the said compromise was living with her husband, filed the sent suit attacking the binding nature of the promise and claiming maintenance at the rate Rs. 75/- per month with arrears of past maintenance, besides payment of Rs. 2,000/- for her (sic)els. She alleged that, from about four months (sic)r to the filing of the suit, when she asked for (sic)rn of her jewels, her husband began to ill(sic)t her and neglect her and compromised the with defendants 2 and 3 Behind her back and (sic)sed to return her jewels. On those allegations, suit was filed for the aforesaid reliefs.

The 1st defendant did not deny the plaintiff right to maintenance. He admitted his liabi(sic) to return jewels worth Rs. 500/- and also the (sic)inal nature of the settlement between him the 2nd defendant.

Defendants 2 and 3 claimed that the (sic)ement was true and was blading on the plaintiff.

Presumably as the 1st defendant did not (sic)ite the plaintiff''s right to maintenance, both Courts proceeded on the basis that she was led to maintenance but concerned themselves the question whether she was entitled to have large on items 1 to 16 of the O schedule. Both Courts fixed the rate of maintenance at Rs. 15/- (sic)nensem. While the first court held that she entitled to a charge on items 1 to 16, the appel(sic) Court held that S. 39 of the Transfer of Pro(sic) Act would not help her to obtain such a (sic)ge. Hence, the appeal.

As the question raised turns upon the pro(sic)is of S. 39 of the Transfer of property Act, (sic)uld be convenient, at the outset, to read the where a third person has a right to receive (sic)tenance, or a provision for advancement or marriage from the profits of immoveable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right nor against such property in his hands."

This section was amended by Amending Act XX of 1929 and the section before the amendment stood thus:

Where a third person has a right to receive maintenance or a provision for advancement or marriage from the profits of immoveable property, and such property is transferred with the intention of defeating such right, the right may be enforced against the transferee if he has notice of such intention or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.

While under the original section, the intention of defeating the right on the part of the transferor and the knowledge of such an intention on the part of the transferee were necessary, under the amended section, mere notice of the existence of the right to receive maintenance would be enough. The Special Committee, which recommended the amendment 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.

The result of the amendment is that a person, who has a right to receive maintenance from the profits of immovable property, can enforce that right not only against the gratuitous transferee but also against a person who has notice of such right. The old section did not give sufficient protection to the maintenance-holder, for it was difficult to establish that the alienation was effected with the intention of defeating her right or in fraud of her right. The decided cases have invoked various presumptions to ascertain the intention. Such an intention was presumed where the entire family property was alienated, where the purchaser was aware of the circumstances of the family, where the transfer was subject to the widow''s right to maintenance and where all the property available for the payment of maintenance was alienated. See Becha v. Mothina, ILR 23 All 86 (C) Syed Abu Mahomed Barkat Ali Shah Vs. Saraswati Dasi and Others, and Bhagat Ram v. Mst. Sahib Devi, ILR 3 Lah 55 : (AIR 1922 Lah 273) (E).''

The amended section gives greater protection to a person who has a right to receive maintenance and relieves such a person of the onerous burden which the original section imposed on her. Proof of the notice of the existence of the right to receive maintenance is sufficient to bind the transferee.

So much is conceded, but the difficulty centres round the connotation of the words ''right to receive maintenance from the profits of immoveable property. To invoke the section, the person should not only have a right to receive maintenance but also the said right to receive should be from the profits of immoveable property.

Learned counsel for the appellant contends that the wife of a Hindu has a right to receive maintenance not only personally from her husband but also from the profits derived by him from his self-acquired property or from his interest in joint family property. Learned counsel for the respondents argues that the wife, by her marriage alone, does not acquire such a right to receive maintenance and that the right contemplated by the section must be a crystallised one, not amounting to a charge i.e., recognised by some agreement, decree or other circumstance giving rise to such a right. He would further argue that, even if the wife had such a right, she could only enforce it personally against her husband and that, therefore, it was not a right to receive maintenance from the profits of immoveable property.

The first aspect of the argument of the learned counsel for the respondents need not detain us. It is clear from the aforesaid facts, that, at the time the gift-deed was executed in favour of the second defendant, the plaintiff''s right was crystallised by an order. She had, therefore, the right to receive maintenance from the 1st defendant. We should not be understood to have accepted the contention of the learned counsel that the section should be confined only to a crystallised right, though not amounting to a charge, for in this.case the plaintiff had satisfied that condition when she obtained an order for maintenance from a criminal Court.

The question whether the words "right to receive maintenance" take in a right to be maintained or a potential right to receive maintenance When circumstances allow, does not arise in this case and, therefore, we do not propose to express our opinion thereon.

To appreciate the main contention raised in this case, namely, that the wife has no right to receive maintenance from the profits of immoveable property, it would be necessary to consider the content of that right having regard to the Hindu Law Texts on the subject. The doctrine of maintenance of a wife can be traced to the Smritis and the principal Hindu commentaries upon them:

Manu Chapter VIII, Placitum 389:

A mother, a father, a wife and a son shall not be forsaken; he who forsakes either of them, unless guilty of a deadly sin, shall pay 600 panams to the king.

Narada:

A ''husband who abandons an affectionate wife, or her who speaks not harshly, who is sensible, constant arid fruitful shall be brought to his duty by the King with a severe chastisement.

Vishnu:

The man who deserts a faultless wife, shall suffer the same punishment.

Yajnavalkya:

He who forsakes a wife, though obedient to his commands, diligent in household management, mother, of an excellent son and speaking kindly, shall be compelled to pay the third part of his wealth or if poor to provide a maintenance for that wife.

These texts enjoin a mandatory duty upon a husband to maintain his wife. The duty does not depend upon the husband possessing any property. They impose a personal obligation on him enforceable by the sovereign or the State. But these texts cannot be read to indicate that the obligation is de hors the property in the sense that the husband can alienate all his property and make himself incompetent to discharge his obligation. It is more reasonable to assume that the obligation is wider in scope, in that he has to maintain her even if he does not possess ai(sic) property. This is also clear from the fact the some Hindu. Law Texts prohibit the gift of Property to such an extent as to deprive the mar(sic) family of the means of subsistence. Brihasp(sic) says:

A man may give what remains after the fo(sic) and clothing of his family; the giver of more (W(sic) leaves his family naked and unfed) may tas(sic) honey at first, but shall afterwards find it poise(sic) If what is acquired by -marriage, what has d(sic)cended from an ancestor or what has been gain by valour, be given with the assent of the w(sic) or the co-heirs or of the King, the gift is vali(sic) Katyayana declares what may and may not given:

Except his whole estate and his dwelli(sic) house, what remains after the food and clothi(sic) of his family, a man may give away whatever be (whether fixed or moveable); otherwise may not be given.

Vyasa Says: (D. Bh. I. 45)

They who are born and they who are unbegotten and they who are actually in womb, all require the means of support and dissipation of their hereditary maintenance is c(sic)sured.

Manu (D Bh. II. 23-24) declares:

The support Of persons who should be m(sic)tained is the approved means of attaining heav(sic) But hell is the man''s portion if they suffer. Th(sic)fore let a master of a family carefully maint(sic) them.

Jimutavahana says:

The problem is not against a donation other transfer of a small part not incompat(sic) with the support of the family.

The aforesaid passages clearly indi(sic) that it is sinful on the part of a person to (sic)nate his properties in such a way as deprive members including his wife of their maintenance;

Other commentators go further and that a Hindu woman acquires an interest in husband''s property, though only of a subc(sic)nate or secondary kind. (See the Dayabhaga, (sic)pter XI, Section 1, Tl. 26 and the Smriti Chi(sic)rika, Chapter II, Section 1, Pl. 19, Chapter PI. 9 and Chapter IX, Section 2 Pl. 14).

The nature of the claim of a wife t(sic) maintained by her husband is described in A(sic)tamba Dharma Sutras quoted at page 234 Golapchandra Sarkar Sastri''s Hindu Law, 8th (sic)tion:

There is no partition (or separation) bet(sic) husband and wife because from the taking hand (marriage) companionship (or jointnes husband and wife) in (religious) acts (is on (sic)ed) likewise in the fruits of (acts of) spir merit and also in the ownership of wealth (Manu and other sages) do not declare (the mission of the offence of theft in the ca(sic) necessary gift) made by a wife of her husb(sic) property.

At page 278. the learned author in descr(sic) the wife''s right to the husband''s property

The Patni or lawfully wedded wife acq from the moment of her marriage a right to thing belonging to the husband, so as to be his co-owner. But her right is not co-equi(sic) that of the husband but is subordinate t(sic) same and resembles the son''s right to the fa(sic) self-acquired property. The husband alone is (sic)petent to alienate the same and the wife cj(sic) interdict his disposal but being dependent on must acquiesce in it, provided it does not unjustly (sic)fleet her right to maintenance out of it. Nor an the wife enforce a partition of the property, (sic)ut it is by virtue of this right that the wife en(sic)says the husband''s property and is entitled to (sic)et maintenance out of it; and it is also by virtue this right that she gets a share equal to that a son when partition takes place at the in(sic)ance of the male members. Thus the wife also a male member becomes a coparcener of the (sic)mily property.

The Hindu Law Texts therefore recognise at a wife, by reason of her status, acquires an (sic)erest in the property of her husband though, (sic)cording to some writers, not co-equal with him (sic)t of a secondary kind. They also impose a per(sic) (sic)lal obligation on him to maintain his wife en(sic)ceable by the sovereign or the State. other (sic)ts prohibit a person from alienating all his (sic)perties in such a way as to deprive his depen(sic)its including his wife of their maintenance.

When the texts say that a wife has a subordi(sic)e interest in the property of her husband, that cannot alienate the properties so as to deprive of her right to be maintained and that he is (sic)er a legal obligation to maintain her, it is (sic)e reasonable to read them as indicating that (sic)usband is under a legal obligation to maintain wife not only from and out of his properties, (sic)ther self-acquired or joint family properties, also personally if he did not possess any, than (sic)old that his liability is only personal to him is de hors his properties in that he could (sic)ve her if he chooses by disgorging all his pro(sic)ies.

The case-law follows the same pattern, earliest case is Lakshman Ramachandra v. (sic)abhama, ILR 2 Bom 494 (F). In a suit for (sic)itenance brought by a Hindu widow against husband''s brother who was the sole surviv(sic) member of that husband''s family and against fide purchasers for value from him (the (sic)idant) of certain immoveable ancestral pro(sic) of the family, it was held that, the mere (sic)nstance that such purchasers had notice of (sic)laim was not conclusive of the widow''s rights (sic)st the properly in their Hands.

Though it was not case of a wife claiming (sic)enance against her husband", West, J., con(sic)d the Hindu Law Texts pertaining to the of a Hindu woman in her husband''s pro(sic) and pointed out that, by marriage, she ac(sic)l an interest in the husband''s property (sic)h only, according to some writers, of a (sic)lary kind such as may be divested by gift husband to a third party. The same learned in Savitri Bai v. Luximi Bai, TLR 2 Bom 573 (G) in the context on a Hindu widow''s right (sic)im maintenance from her husband''s rela(sic) who had separated in estate from her husband (sic)at the time of his death, after making a scrutiny of the relevant Hindu Law Texts (sic)ie case-law on the subject, observed at page regard to the husband''s liability to main(sic)s wife thus:

The injunction contained in these texts is (sic)idered dependent upon or in any wise quali(sic) a reference to the possession of family (sic)y and purports to impose a personal legal on enforceable by the sovereign or the That obligation, too, is not asserted to be (sic)oceasional but permanent and continu(sic) (sic)o conclusions arrived at by the learned (sic)n the aforesaid two decisions, if correlated would lead to the irresistible conclusion that personal legal obligation of the husband to maintain his wife is in addition to her interest in the properties of her husband.

The Allahabad High Court in Jamna v. Machul Sahu, ILR 2 All 315 (H) ruled that a wife is, under the Hindu Law, in a subordinate sense a co-owner with her husband and, therefore, the husband cannot alienate his property or dispose of it by a will in such a wholesale manner as to deprive her of her maintenance. Pearson, J. in coming to that conclusion relied upon the remarks at page 366 of West and Buhler''s Hindu Law of Inheritance and Partittion (Second Edition) and on the Privy Council decision in Sonatun Bysack v. Jaggutsoondree Dossee B Moo Ind App66 (PC) (I).

So too, West J., in Narbadabai v. Mahadeo Narayan, ILR 5 Bom. 99 (J) held that a Hindu husband cannot alienate by a deed of gift to his undivided sons by his first and second wives of the whole of his immoveable property though self-acquired without making his third wife, who is destitute and has not forfeited her right to maintenance, a suitable provision to take effect after his death. In that context, the learned. Judge dealt with the content of a wife''s interest in her husband''s property. At page 103 the following observations are found:

But the co-ownership of the wife in her husband''s property, if that can properly be called ownership at all which involves no independent or co-equal powers of disposition or exclusive enjoyment, is not of a kind that accepts the rules applicable to an ownership in the ordinary sense. Her right to maintenance does not depend on it, for the husband is bound to support her, though: he should have no property at all.

It is rather a latent right coming into operation only when natural affection which usually prompts the mutual acts of members of families, fails of its proper effect, and law has to step in with its rigid rules and imperfect remedies. Unless she be deserted or the family be divided, the wife is strictly dependent as toiler so called property. In these events a right to a share of the estate springs up, but till then she has only a right which is completely subordinate.

It is not one that she can transfer by her individual act, as this is opposed to the theory even of joint ownership, and no substitution is possible of another for herself in the supposed co-ownership with her husband in the common estate. No other could take her place in the joint celebration of the family sacrifices with the family estate or some interest in it must accompany and support.

Her right to maintenance is connected with the right called co-ownership with her husband and rests on the same conception of a moral identity arising from the marriage relations but the two are rather co-ordinate rights than one the basis of the other. The husband''s duty of maintaining his wife is one which he cannot owe to another. Her right as against him is one that she cannot transfer to another.

The above observations make an attempt to define the interest of a wife in the property of her husband and its connection to her right of maintenance. Though the husband''s obligation to maintain his wife does not depend upon his ownership of the property, it rests not only upon her identity with him but also is connected with her subordinate interest in her husband''s property arising from her married status.

A Division Bench of the Madras High Court in Surampally Bangaramma v. S. Bramhazee ILR 31 Mad 328; 18 Mad LJ 254 (K) in the context of a wife''s right to claim maintenance from her father-in-law, who has taken her husband''s estate made the following observations at page 342,

The right of a wife to maintenance is a matter of personal obligation. It rests on the identity arising from the marriage relations and is not dependent on the possession of any property by the husband.

These observations restate the well-settled law on the subject. They cannot be understood to mean that the obligation of a husband has no connection with his property though it does not depend on his possessing some property.

The decision of the Bombay High Court in Radhabai Gopal Joshi Vs. Gopal Dhondo Joshi, , is more to the point. There, Lokur J,, in clear terms recognises the connection between an obligation to maintain and the properties possessed by the husband. At page 292 (of Ind Cas) (at p. 52 of AIR), the learned Judge, after citing the passage from the Full Bench decision in ILR 2 Bom 573 (G) observes :

This merely emphasises the well-recognized doctrine that the maintenance of the wife is a legal and imperative duty of the husband independently of his possession of any property. But it does not mean that she has no right to be maintained out of her husband''s property if he possess any Her right of maintenance during her husband''s life-time is in a way higher than after his death since in the latter case it depends on the property left by her husband... In either case her claim to be maintained out of his property cannot be denied.

We entirely agree with the aforesaid observations.

In Mansha Devi v. Jiwanmal ILR 6 All 617 (M), a husband, who became a convert, alienated the properties in favour of his Muslim wife. In a suit filed by the deserted Hindu wife and her daughter, the Court gave a charge on the properties in the hands of the alienee. The learned Judge observed that the right of the wife and daughter to be maintained out of the husband''s and father''s property is undoubted.

This principle has been succinctly stated in Brij Raj Kaur v. Ram Dayal, ILR 7 Luck 411: (AIR 1932 Oudh 40) (N), at p. 417 (of ILR Luck): (at P. 42 of AIR) thus:

The right of maintenance of the wife or the widow has sometimes been loosely described as a charge on the husband''s estate. But in the strict legal sense of the word charge, it cannot be correctly so described. She has in fact merely a claim against the estate which does not ripen into a charge until the maintenance is fixed and made a charge upon the whole or any portion of the estate by a decree or agreement. In case the property is transferred with the intention of defeating her right of receiving the maintenance, then in such a case her rights against the property in the hands of the transferee will be regulated by the provisions of Section 39 of the Transfer of Property Act.

It is not necessary to multiply cases. The case-law on the subject affirms the proposion that the husband is under a personal obligation to maintain his wife irrespective of the fact whether he possesses property or not. But some decisions recognise the connection of that right with the wife''s subordinate interest in her husband''s property arising out of her status as wife. The catena of decisions holding that a wife or widow can enforce her right to maintenance against th(sic) transferee of her husband''s properties with knowledge of his intention to defeat her rights ca(sic) only be understood on the basis that her right though it does not amount to a charge, is so(sic) kind of subordinate interest in the property.

The decisions charging maintenance the wife on the property of her husband can also be traced to the conception of some link between obligation of the husband to maintain his wife and the property of the husband.

A Division Bench of the Madras High Court in A. Gopala Pattar and Another Vs. Parvathi Ammal and Others, a Hindu wife who gets a decree for maintenance against her husband is entitled to have it charge on the joint family properties. At p. 786 (of I Cas): (at P. 48 of AIR), the learned Judges stal(sic) that such a charge was also recognized in Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu Vs. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and Another, where Srinivasa Ayyengar, J. observed at p. (sic) (of Mad LW) : (at pages 760-761 of AIR) th(sic)

It is true that the Hindu Law imposes obligation on the Hindu husband to support wife without any reference to any property share possessed by him... But when the j(sic) family is possessed of property, a claim by a v(sic) against her husband need not be regarded me as a suit for the enforcement of any personal ligation but may well be regarded as a suit aga(sic) the family itself represented to her by her (sic) band, through whom so long as he is alive has to obtain the relief.

It is true that the charge in that case was g(sic) against the husband''s interest in the joint fa(sic) property but, for the same reason, a charge also be given against his self-acquired prope(sic)

Devadoss, J., in Rattamma v. Sesha(sic)lam Sarma, 52 Mad LJ 520: (AIR 1927 Mad (Q), came to the same conclusion by holding that the liability of a Hindu husband to n(sic)tain his wife or to provide for her mainten(sic) is a personal one and if he has property, a cr(sic) will be given against the property. In Unnamalai Ammal Vs. F. W. Wilson and Others, Coutts-Trotter, C. J. and Srinivasa Ayyanga recognised the right of a wife to have her r(sic)tenance charged on the residue o(sic)estate of her insolvent husband, after discha(sic) his debts. So too, in 117 Ind Cas 785 : (AIR Mad 47) (O), the maintenance awarded (sic) abandoned wife was charged on her hust(sic) share in the property.

Decisions invalidating sales, gifts testamentary dispositions by a husband le(sic) nothing for the maintenance of his wife or p(sic)ing inadequate maintenance can be sup(sic) only on the basis of the inter-connection be(sic) the obligation and the interest of the wife i(sic) husband''s property. In Latchanna v. Bapan (1860) Sudder Udalat Decision (Madras) 29 (sic) the sale of property by the husband was he(sic) valid where nothing was left for the maint(sic) of the wife. Where a Hindu husband alienate(sic) whole of his immoveable property, though acquired, without making a suitable provision wife without maintenance it. was ruled i(sic) 5 Bom. 99 (J), that the alienation would not her right to maintenance. So too, where band made a gift of his entire estate leavi(sic) wife without maintenance, it was ruled i(sic) 2 All. 315 (H), that the donee took the subject to her right of maintenance.

Where a husband executed a will which (sic)id the effect of defeating his wife''s right to maintenance, it was held in Periambal Chettiar Sundarammal, 1945-1-Mad L. J. 58: (AIR 1945 (sic)ad 193) (T), that the will could not affect her (sic)ght on the ground that she was entitled to be maintained out of the estate of her husband.

The restriction imposed on the husband''s (sic)iwer to alienate his properties to protect the (sic)fe''s right to maintenance is indicative of the. subordinate interest of the wife in the property (sic)d also the link between the obligation and the (sic)operty of the husband,

The question may be looked at from a (sic)ferent perspective, namely, the wife''s claim to (sic)intenance out of the interest of her husband joint family property. It is common place that Hindu joint family consists of males and fe(sic)es, and women married into the family be(sic)ne members of that family. See Vedathanni Commissioner of Income Tax, Madra Vedathanni Vs. Commissioner of Income Tax, . The men, who enter the family by marriage, are en(sic)ed to be maintained from the common fund.

A Division Bench of the Madras High Court in 21 Mad LW 461: Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu Vs. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and Another, defined:.the wife''s right to be maintained out the family property thus at P. 468: (Of Mad (sic)): (at pp. 760-761 of AIR) :

I may also add that the true view of the Hindu Law would seem to be that the wives of (sic)arceners are also members of the joint family, (sic)ugh they may not be entitled to share in the (sic)ite of the family, or to enforce any partition. (sic)e obligation of the family and of its estate to (sic)tntain all the" members cannot possibly be (sic)bted. It is true that the Hindu Law imposes obligation on the Hindu husband to support wife, without any reference to any property share possessed by him, even as it imposes (sic)ilar obligations on sons to maintain their mo(sic) and father. But when the joint family is (sic)sessed of property a claim by a wife against husband need not be regarded merely as a for the enforcement of any personal obliga(sic) but may well be regarded as a suit against family itself, represented to her by her husband, through whom alone so long as he is alive has to obtain relief.

Much to the same effect was the view (sic)ssed by Muthuswami Iyer, J., though in the t(sic)ext of a mother''s right to maintenance, in (sic)landan v. Rangammal, ILR 12 Mad 260 (PB) The learned Judge says at page 267 :

The son in possession Of ancestral property is (sic)oubt under a personal obligation to maintain nether but this is not all. The mother is en(sic)d to insist that the maintenance should be (sic)ged on a specified part of ancestral property (sic)r when a partition is made by her sons or (sic)p the managing member wastes the ancestral (sic)erty or when she is not duly maintained, or (sic) for any oilier good and sufficient cause, the (sic)stral property indicated by Hindu Law as the (sic)ral fund from which her maintenance is to be is in peril.

The correct view is that the obligation to (sic)tain the mother is strengthened by giving her (sic)terest in immoveable property and thereby (sic)ling her to constitute that interest into a (sic)flc charge, or an actual existing proprietary (sic)est for the term of her life and to protect her of maintenance against improvident aliena(sic) of the fund from which it is to be satisfied.

There are other decisions of different Courts holding that a deserted wife is entitled to be maintained from out of her husband''s share in the joint family property. See Ramabai v. Trembak Ganesh, 9 Bom HCft 283 (W) and ILR 2 Bom 573 (PB) (G).

The aforesaid decisions recognise the right of a wife to get her maintenance out of the interest of her husband in joint family properties, though she could reach it only by proceeding against her husband. In the present case, the property is admittedly ancestral property and the wife''s claim to be maintained out of it cannot be denied.

At this stage, it will be convenient to consider the conflicting decisions which led up to this reference. Chandrasekhara Ayyar, J., in 1947-1 Mad LJ 329 : Pavayamal and Another Vs. Samiappa Goundan and Others, , in a brief sentence rejected the claim of tile wife by stating that it cannot be said of the plaintiffs that they have got a right to receive maintenance from the profits of immoveable property. But, Viswanatha Sastri, j., in 1956 Andh WR 1021: (AIR 1957 Andh. Pra 710) (B), gave a considered and elaborate treatment to the subject. After considering the different aspects, he summarised his view thus at page 1026 (of Andh WR): (at p. 713 of AIR):

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 out of the property of the husband or the father as the case may be. The rule as to personal obligation only emphasises the legal and imperative duty of the husband to maintain his wife and minor children irrespective of the possession of any property.

We respectfully agree with the aforesaid observations.

To summarise : The Hindu Law Texts and the important commentaries Impose a legal personal obligation on a husband to maintain hi wife irrespective of his possession of any property whether joint or self-acquired. They recognise the subordinate interest of the wife in her husband''s property arising out of her married status.

They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependants of their maintenance. They further treat her as a member, of a Hindu joint family entitled to be maintained out of joint funds.

The decisions of the various High Courts tow the same line, recognise her subordinate interest in her husband''s property and enforce his personal obligation by creating a charge on his properties either self-acquired or ancestral. A wife, therefore, is entitled to be maintained out of the profits of her husband''s property and, if so, under the express terms of section 39 of the Transfer of Property Act, she can enforce her right against the properties in the hands of the alienee with notice of her claim.

Applying the aforesaid principles, we hold that the plaintiff is entitled to enforce her claim against items l to 16 of the plaint C schedule settled on the second defendant. As regards the quantum of maintenance, we do not see any reason to differ from the Court below.

In the result, the decree of the learned District Judge is set aside and that of the Subordinate Judge is restored. The appellant will have her costs throughout. Court fee due to the Government will be paid by the first respondent.