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TMI Blog1965 (6) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... sued her husband for maintenance and for a charge over the A and B schedule properties in respect of it. 2. Mr. Ramamurthi Aiyar contends that the courts below were wrong in granting charge in favour of the plaint A schedule properties. He says that the Hindu Adoptions and Maintenance Act 1956, which is an amending and codifying law on the subject of maintenance, lays down the entire law as to that matter so that the right to follow property alienated by a person liable to maintain dependents out of a deceased's properties, with notice on the part of the alienees, is now confined to dependents as defined in that Act, and that, therefore, a wife who is not a dependent under the Act, is not entitled to the benefit of S. 39 of the Trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer for consideration and without notice of the right. 4. This section has been framed on the pattern of S. 39 of the Transfer of Property Act. 5. Being an amending and codifying law, says Mr. Ramamurti Iyar, the Act should be taken to be exhaustive on the subject-matter and applying this principle, he says, S. 28 contains the entire law relating to the effect of transfer of property in relation to right to maintenance. He deduces, therefore, that since this section covers only dependents and should be taken to be exhaustive, a wife is not entitled to follow up the property of her husband in case it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be taken that the law so amended and codified is exhaustive of the subject to the extent to which it has dealt with it. But the Hindu Adoptions and Maintenance Act of 1956 itself contains an interpretation section, which is Sec. 4. That provides for the overriding effect of the Act and save- Save as otherwise expressly provided in this Act--(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght and is only confined to dependents and is, therefore, not exhaustive and a Hindu wife is still entitled to rely on S. 39 of the Transfer of Property Act which is entirely left unaffected by the 1956 Act. 8. The finding of the courts below in this case is that the appellants purchased the property with notice of the right of the plaintiff to maintenance. Mr. Ramamurthi Aiyar contends that S. 39 by itself does not create a charge and as S. 28 of the 1956 Act is exhaustive she is not entitled to a charge. He argues that all the plaintiff can do is to follow the A schedule properties and that she is not entitled to a charge on that account. I have already held that S. 28 does not deal with the wife's right and is, therefore, not in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintenance decree in favour of the plaintiff. I think on this ground the decrees for granting a charge in favour of the plaintiff should be set aside and the matter be remitted to the trial court in order that it may find out the extent of the properties in the A and B schedule properties the income from which will be just sufficient to satisfy the maintenance fixed for the plaintiff and grant a charge in her favour over only that extent of properties in the A and B schedules. If the income from the B schedule property is sufficient to meet the maintenance granted to the plaintiff, then of course no question of creating a charge over the A schedule properties will arise. So far as the decree for past maintenance is concerned. I think it r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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