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TMI Blog1957 (9) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st defendant. As he ill-treated and neglected 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 ₹ 5/- per month and she was receiving that amount till 1946. On 12-8-1942, the 1st defendant executed a gift deed, Ex. B-4 in favour of his daughter, the 2nd defendant, conveying to her items 1 to 16 of the plaint C Schedule, subject to the condition that the donee should discharge a mortgage debt of ₹ 700/- in favour of the Land Mortgage Bank. In 1947, the 1st defendant filed two suits for setting aside the gift deed in respect of items 1 to16 and for recovering other items alleged to have been purchased by the 1st defendant benami in the name of the 3rd defendant, the husband of the 2nd, defendant. On 16-7-1949 the suits were compromised. Under the compromise, the title of the 2nd defendant to items 1 to 16 except items 10 and 11 was recognised. The excluded items were set 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 1st defendant and the vested remainder in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. 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 agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 incompatible with the support of the family. 15. The aforesaid passages clearly indicate that it is sinful on the part of a person to alienate his properties in such a way as deprive members including his wife of their maintenance; 16. 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). 17. 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 (marriag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hors his properties in that he could (sic)ve her if he chooses by disgorging all his pro(sic)ies. 19. 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 claim 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit 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. 25. 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. 26. It is not necessary to multiply cases. The case-law o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal one and if he has property, a cr(sic) will be given against the property. In Unnai(sic) Ammal v. E. W. Wilson, AIR 1927 Mad 1187 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. 30. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough whom alone so long as he is alive has to obtain relief. 35. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties 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. 40. 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. 41. 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 Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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