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Judgment
Venkataramana Rao, J
The main question in this second appeal is whether the plaintiffs who are the auction-purchasers of a house in execution of a mortgage decree in
O.S. No. 91 of 1923 on the file of the Sub-Court, Narasaraopet are entitled to eject the defendant who claims a right of residence in a portion of
the said house. The plaintiff''s father obtained a mortgage on 19th April 1911 of the said house from the son of the defendant. On 23rd February
1913, the defendant appears to have obtained a document from her son in and by which among other things she was entitled to reside in the
eastern portion of the said house during the period of her natural life. The suit on the mortgage was instituted long thereafter and the decree was
obtained on 6th May 1924. The defendant was not a party to the said suit. When the plaintiffs sought to take possession of the house they were
obstructed by the defendant. To remove the said obstruction the plaintiffs filed an application Under Order 21, Rule 97, Civil P.C., but the
application was disallowed. Thereupon the plaintiffs filed the present suit to recover the property. Various defences were raised by the defendant.
Both the lower Courts have negatived the plaintiffs'' claim on the ground that as the defendant was not a party to the suit the decree would not bind
her, her right of redemption therein not having been affected thereby. On 1st November 1935 when the second appeal was argued before me, I
called for findings as to whether the mortgage debt is binding on the defendant and whether it was in fraud of her claim and if the plaintiffs'' father
had notice of the defendant''s right of residence in the suit property at the time of the mortgage in his favour.
The learned Subordinate Judge has submitted his findings to the effect that the mortgage debt is not binding on the defendant not having been
contracted for family necessity, that the mortgage was executed not with an intention of defeating or delaying the defendant''s claim for maintenance
or residence and that the plaintiffs'' father had no notice of the defendant''s right of residence in the suit house. It is contended by Mr. V.
Suryanarayana that in the mortgage suit the sons of the defendant raised a plea that the mortgage was not executed for any antecedent debts
binding on them but their contention was negatived and therefore it must be taken that the debt was a binding debt of the family. He relies very
strongly on Ramanadhan v. Rangammal, (1889) 12 Mad 260, and contends that it is an authority for the proposition that when adult members of
the family incur a debt, it must be prima facie deemed to be binding on the female members of the family and any sale in execution of a decree
obtained on the footing of the same would defeat their rights unless it is shown by them that such a debt is not binding on them. It seems to me that
the said contention is untenable and there is nothing in Ramanadhan v. Rangammal, (1889) 12 Mad 260 to support this view. In that case the
widow of a coparcener sued for a declaration that she was entitled to reside in the family dwelling house which had been sold in execution of a
decree obtained against her sons and grandsons. A finding was called for when the matter came in second appeal to the High Court as to whether
the debt was incurred for the benefit of the family and the finding was in the affirmative. Then the question was referred to the Full Bench whether
in view of Venkatammal v. Andyappa Chetti, (1883) 6 Mad 130 the widow can resist the claim of the auction-purchaser. It was held that she was
not entitled to do so on the ground that the debt was a debt binding on the family including herself. Muthuswami Ayyar, J. points out the distinction
between the right to maintenance and the right to residence, that while the former is not referable to any specific property the latter is a right
inherent in her incident to her status and there is no indefiniteness as to the specific property to which it is referable. He explained the principle
which ought to guide a Court in dealing with the matter thus:
The right of residence of Hindu females is ordinarily referable to the family house and a purchaser may be presumed to have notice of that fact. It is
reasonable to hold that he is not a bona fide purchaser entitled to eject her, unless it is proved that the sale is valid as against her, either because, as
in this case, it is made in liquidation of a debt binding on her or an ancestral debt, or with her consent or in circumstances which would sustain a
plea of equitable estoppel against her. The consideration that a real right is not a specific charge, unless that right is referable to specific property,
has no application in the case of a family dwelling.
Mr. Suryanarayana contends that the order of reference to the Full Bench was made in circumstances similar to the one in the present case and
the decision of the Full Bench must be deemed to have been based on the view that the debt incurred by the other coparceners would be a binding
family debt, but I think this view is negatived by the following observation of Muthuswami Ayyar, J.:
It is found that the judgment debt is a family debt, and I take it that the debt, though contracted only by the male coparceners, was contracted by
them, not for their exclusive benefit, but for the benefit generally of the joint family consisting of themselves and their mother.
The proposition contended by Mr. Suryanarayana if accepted would practically nullify the rights of the female coparceners to reside in the family
dwelling house. It would be open to the adult members of the family to contract debts for their personal purposes and most often without notice to
the female members of the family and thus render them helpless. Mr. Suryanarayana has not been able to cite any case in support of his contention.
It seems to me that it is hardly consistent with principle to hold in favour of this view. The right of a female member to reside in the family dwelling
house as well as her right of maintenance is based upon her husband''s right to share in the family property. Of course so far as the right to
maintenance is concerned, decided cases have taken the view that unless the right has been asserted and the obligation is made a charge on some
property it cannot prevail over a bona fide purchaser for value in execution of a decree obtained against the adult members of the family. But so far
as the right of residence is concerned, it is well established that the purchaser must show that the debt was incurred under such circumstances as
would bind her, i.e., the debt or the alienation was made under circumstances which would justify an alienation of the joint family property. This is
what is meant when it is said that it must be a debt binding her interest in the family. In Jayanti Subbiah v, Alamelu Mangamma (1904) 27 Mad 45,
Bhashyam Ayyangar J. explained the ratio of the decision in Venkatammal v. Andyappa Chetti (1883) 6 Mad 130, where the right of a widow to
reside in the family house against an auction-purchaser was upheld thus:
In Venkatammal v. Andyappa Chetti (1883) 6 Mad 130, the son after the death of the father, incurred considerable debts and on mortgage bonds
executed by him suits were brought and the properties brought to sale in execution of decrees passed in such suits. It was not shown that the debts
were incurred for purposes which could bind his mother who on the death of her husband had a right of maintenance against her son quoad the
share of her husband in the joint family property which the son mortgaged for a debt of his own and which was brought to sale for realisation of
such debt. It was held that the house must be sold subject to her right to continue to reside in the house which she had been occupying till then.
A similar view was taken in a recent decision of the Lahore High Court in Jamiatrai v. Mt. Malan AIR 1931 Lah 718, and the right of residence
was upheld in circumstances similar to the one in the present case. I therefore overrule the contention of Mr. Suryanarayana. In this view it is
unnecessary to consider whether the defendant was a necessary party to the mortgage suit and the decree is not binding on her. I accept the finding
that the mortgage in favour of the plaintiff''s father was not executed for a purpose binding on the defendant and the plaintiff is therefore not entitled
to eject the defendant from the portion allotted to her under Ex. 2. He is only entitled to get possession of the same after her lifetime. In the result
the second appeal fails and is dismissed with costs. Leave refused.