Jayanti Subbiah vs Mangamma

Bhashyam Aiyangar, J.—The appellant is the decree-holder in A.S. No. 16 of 1892, which he brought on a promissory note made by the

deceased Naranappa against his widow and legal representative, the respondent. In execution of that decree he attached and became the

purchaser of the house of the deceased Naranappa, in which the widow, the respondent, had been and was living at the time of the purchase.

When he proceeded to obtain delivery of the house u/s 318 of the Civil Procedure Code, he was insisted u/s 334 by the respondent on the ground

that she had a right of residence during her lifetime, and that she could not, therefore, be ejected from the residential portion of the house. The

District Judge upheld her contention holding that Naranappa''s liability under the pro-note was incurred by him only as a surety for certain debts

owing by certain relations of his to the appellant, and that it was, therefore, not incurred for the benefit of the family consisting only of Naranappa

and his wife, the respondent. We are unable to follow the reasoning of the District Judge. The family consisted only of the husband and wife, and

all debts which would bind the husband personally are necessarily binding upon the widow in respect of all the assets which have come to her

hands as his legal representative. Even if the family had been an undivided family consisting of father and son, a debt incurred by the father only as

surety and not for the benefit of the family, would bind the whole of the joint family property which may have devolved upon the son by right of

survivorship Sitaramayya v. Venkatramanna ILR 11 M. 373 tukarambhat v. Gangaram ILR 23 B. 454 and it is difficult to see on what principle

the District Judge holds that the debt is not a family debt. Under the Hindu Law the maintenance of a wife by her husband is a matter of personal

obligation arising from the very existence of the relation and quite independent of the possession by the husband of any property, ancestral or self-

acquired Mayne''s Hindu Law and Usage, 6th Edition, paragraphs 451 and 455; Savitribai v. Luximibai and Sadasiv Ganoba ILR 2 B. 573 and

his debts take precedence of her claim for maintenance Mayne''s Hindu Law, paragraph 464. The District Judge relies in support of his decision

upon the cases of Venkatammal v. Andyappa ILR 6 M. p. 130 and Ramanadan v. Rangammal ILR 12 M. p. 260. He appears to have

misapprehended the principle of those decisions. When an undivided Hindu family consists of two or more males related as father and son or

otherwise, and one of them dies leaving a widow, she has a right of maintenance against the surviving co-parcener or co-parceners, quoad the

share or interest of her deceased husband in the joint family property which has come by survivorship into the hands of the surviving co-parcener

or co-parceners, and though such right does not in itself form a charge upon her husband''s share or interest in the joint family property, yet, when

it becomes necessary to enforce or preserve such right effectually, it could be made a specific charge on a reasonable portion of the joint family

property, such portion of course not exceeding her husband''s share or interest therein ILR 12 M. 260. Such right may also in certain cases be

enforced against the transferee of joint family property (vide Section 39 of the Transfer of Property Act). In the 6 Madras Series case, 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 would 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 realization 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. In the 12 Madras Series case, the question was considered by a Full

Bench. In that case the undivided family consisted of a father, sons and grandsons, and on the death of the father, the sons or some of them

contracted a debt, and in execution of a decree passed against the sons and grandsons for the recovery of such debt, the house in which the

widow of the father was living was sold. An issue was sent as to the nature of the debt, and it was found that the debt was incurred for the benefit

of the whole family, and no objection was taken-to that finding. The judges were unanimous in holding that the widow of the father had no right as

against the purchaser to reside in the house of her late husband''s family. Muthusami Iyer, J., observed as follows: - ""I am also of opinion that the

purchase is valid as against the respondent. It is found that the judgment-debt is a family debt, and I take it that the debt, though contracted only by

the male co-parceners, was contracted by them, not for their exclusive benefit, but for the benefit generally of the joint family consisting of

themselves and their mother. A sale for the payment of her own debt would bind her interest in the house whatever it might be, and the decree in

O.S. No. 3 of 1882 was one which executed the hypothecation of 1875, and which was passed against the representatives of the joint family. In

these circumstances, the respondent is not entitled to set aside the sale unless she shows that the debt which has led to it is not binding upon her"".

He then distinguishes the case in 6 Madras Series, p. 130, on the ground that there was no finding in that case that the debt was a family debt,"" that

is to say, a debt contracted for the joint benefit of the mother and her sons."" A debt contracted by the husband himself, as in the present case, is

necessarily binding upon her, and on his death without male issue his estate devolves upon her by right of inheritance, in the absence : of any

undivided kinsmen of his. It is a mistake under such circumstances to regard her as having a right of maintenance (which includes right of residence)

against her husband''s estate. She takes it as heir and must administer it as such. It is only the residue that is left after discharging her husband''s

debts that will belong to her. During her husband''s lifetime she had no doubt a right of maintenance against him, but that was only a matter of

personal obligation on the part of the husband, quite independent of the possession of any property and it did not form a charge upon his property,

Kernan, J. in the Full Bench case, states that ""if the debt in respect of which the sale took place, was a debt due by her husband no doubt could be

entertained that the had no such right. The only doubt there could be, as it appears to me, is whether her right to reside in the house had not

accrued as against the manager who succeeded her husband, and whether such manager could have, by any act of his, voluntarily affected her

right. However, the finding is that the debt incurred by the manager was for the benefit of the family."" The italics in the above quotation are mine. In

Dalsukhram Mahasukhram v. Lallubhai Motichand ILR 7 B. 282 the father left not only a widow but a son who sold the house. It was held that

the sale will be subject to the right of the widow to continue to reside therein, it being found that there were no proper reasons for the alienation by

the son and that the purchaser bought the house admittedly with full knowledge that the widow was residing therein. In Bhikham Das v. Pura ILR 2

A. 141 the owner o the dwelling house who mortgaged the same died leaving him surviving his wife and mother. In a suit brought against both of

them after the death of the mortgagor, to enforce the mortgage, it was held that it could be enforced by sale of the dwelling house. Apparently, it

was left an open question as to whether the widow (mother?) could be ousted by the auction purchaser? If the dwelling house devolved upon the

mortgagor from his father who left surviving him his widow, the mortgagor s mother, her right of residence could not be defeated by a sale made in

satisfaction of a debt which was not incurred by the son for a purpose which would bind also his mother. In the case reported in Manilal v. Bai

Tara ILR 17 B. 398 the house was mortgaged by the husband in his lifetime and in execution of a decree enforcing such mortgage, it was sold and

purchased by the defendant with knowledge that the mortgagor''s widow was residing in the house at the time of the court-sale. In a suit brought

by the widow to establish her right to continue to reside during her lifetime in the house, her claim was negatived in the absence of any allegation

that the mortgage effected by the plaintiff s husband was not for the family advantage or as in any way in fraud of her rights."" It does not appear

from the report of the case whether there was any male member of the family other than the husband. If it is to be implied from the decision in that

case that, in the view of the learned judges who decided it unless the husband''s debt was incurred for a purpose which would be beneficial to and

binding upon his wife, she would have a right to continue to reside in the house after it is sold in satisfaction of the debt owing by ""her husband, I

am unable to concur in that view. The appeal is, there- '' fore, allowed and the order of the District Judge is modified by directing that the

respondent be ejected also from that portion of the house purchased by the appellant in which she has been residing.

The order of the District Judge is affirmed in other respects. Bach party will bear his or her own costs of this appeal.

Benson, J.

I concur.