Defendants 2 and 3 in O.S No. 660 of 1979 on the file of the Munsiff Court, Sherthallai are the appellants. Respondents 1 and 2 are the plaintiffs. The third respondent is the first defendant in the case. The plaint allegations are as follows:
The first plaintiff is the wife of the first defendant and the 2nd plaintiff is the daughter of the first plaintiff, viz. the first respondent and the first defendant. Till 1147 M.E first plaintiff and first defendant were residing together in the first defendant's house. Thereafter, the first defendant neglected his wife and refused to maintain them. Plaintiffs were forced to reside in the first plaintiff's parents' house. Therefore, they instituted M.C 13/72 before the Judl. 1st Class Magistrate's Court, Sherthalla for maintenance. That petition was allowed on 22-5-1974, 1st plaintiff was allowed a maintenance of Rs. 30/- p.m and the 2nd plaintiff Rs. 16/- p.m In spite of the order, the first defendant has not paid any amount. With a view to defeat the claim of the plaintiff, the first defendant has executed sale deeds in respect of the plaint properties in favour of defendants 2 and 3. Defendants 2 and 3 are none other than the brothers of the first defendant. Plaintiffs have prayed for arrears of maintenance for the past three years at Rs. 1717.82 with future interest at 6% on the principal sum of Rupees 1620/- charged on the plaint schedule properties. There was a further prayer for declaration that the first plaintiff was entitled to maintenance at Rs. 30/- p.m and the second plaintiff at Rs. 15/- p.m and the same may be allowed to be recovered from the first defendant and charged on plaint schedule properties.
2. The first defendant did not file any written statement. He remained ex parte. Defendants 2 and 3 filed a joint written statement. Their contentions are as follows: The first defendant has another wife. The order in M.C 13/72 was obtained in collusion between the first plaintiff and the first defendant and the same is not binding on defendants 2 and 3 and plaint schedule properties. The allegation that the sale deeds in favour of defendants 2 and 3 are executed fraudulently, and benami in the name of defendants 2 and 3 is not true and is denied. Item No. 1 was purchased by the 2nd defendant as per Ext. B2 dated 18-1-1973 from the first defendant and his father. Similarly item No. 2 was purchased by the 3rd defendant from the first defendant and his father as per Ext. B2. The sale deeds are genuine and bona fide transactions. They were executed for valuable consideration and no decree charged on the properties can be passed.
3. The trial Court passed the decree in terms of the plaint, and to realise the amount from the first defendant charging on the plaint schedule properties. Against that defendants 2 and 3 filed an appeal. The appeal was heard by the Sub Court, Shertallai and the decree of the trial Court was confirmed. Hence this second appeal is filed.
4. Learned Counsel for the appellants submitted that the findings of the Courts below that the sale deeds taken by defendants 2 and 3 are fraudulent and to defeat the claims of the plaintiffs are not correct. Further, he contended that no decree can be passed charged on the properties as they are bona fide purchasers. Learned Counsel further contended that there is no provision for passing a decree charged on the plaint schedule properties. It was also contended that the order in M.C 13/72 was obtained in collusion.
5. Learned Counsel for the plaintiffs-respondents submitted that defendants 2 and 3 are the brothers of the first defendant. Defendants 1 to 3 were residing together in their father's house, at the time when the M.C case was pending. All of them were aware of the pendency of the M.C case. It was not to defeat the rights of the plaintiffs that the sale deeds were executed during the pendency of the criminal case. It was further submitted that the first defendant obtained the properties as per a partition deed under which the father was given a right of maintenance. After that the first defendant in collusion with defendants 2 and 3 executed the sale deeds in their favour. This was with a particular intention to see that any order obtained by the plaintiffs is not fruitfully executed.
6. After hearing the rival contentions, I am of the view that the judgment and decree passed by the Courts below are to be confirmed. So far as the findings of fact are concerned, both the Courts below have arrived at these findings on the basis of evidence. The reasons given by the Courts below for arriving at a conclusion that Exts. B1 and B2 documents were executed in order to defeat the rights of the plaintiffs are based on the evidence adduced by the parties. As already stated, defendants 1 to 3 were residing together when the M.C was pending and it is too much to believe that defendants 2 and 3 were not aware of the pendency of the case. Nothing is stated as to what was the necessity for executing such a document and why the father gave up his right of maintenance by executing the sale deeds. All the above facts cumulatively show that the attempt on the part of the first defendant by transferring the property in favour of defendants 2 and 3 is only to defeat the rights of the plaintiffs. In the above view of the matter, it cannot be said that the defendants 2 and 3 are bona fide purchasers.
7. With regard to the contention of collusion in obtaining the order from the Criminal Court, it is found that no evidence has been adduced to show that there was collusion. Further, the first defendant, though contested the application by filing objection, did not appear in the last stage of the proceedings. From the order, it is clear that the learned Magistrate has looked into all the circumstances and ordered maintenance at Rs. 30/- and Rs. 15/- respectively.
8. The next contention is that no decree can be passed charging on the plaint schedule properties. According to the learned Counsel for the appellants, it may be true that the plaintiffs are entitled to maintenance from the first defendant, but they have no right to receive it from the profits of the plaint properties. I am afraid, the contention of the appellants cannot stand scrutiny even for a moment. Section 39 of the Transfer of Property Act states as follows:
“Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable 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.”
The above provision is the amended provision by the Amending Act 20 of 1929. Before the amendment, it was necessary to prove that the transfer was with the intention of defeating such a right. This is taken away under the amendment. Hence, under the present section, if a person has a right to receive maintenance from the profits of immovable property and such property is transferred, the right can be enforced against the transferee if he has notice thereof. Thus, according to me, it was not necessary for the plaintiffs to prove in this case that the transfer was with the intention to defeat their rights. Now, the only question to be considered is whether defendants 2 and 3 had notice thereof. Soon after the amendment of Section 39, the matter came up for consideration before the Privy Council in AIR 1947 PC 8 (Dan Kuer v. Sarla Devi). It was held as follows:—
“Where property was alienated before the amendment of S. 39 of 1929 but the suit by the claimant to maintenance to enforce his right of maintenance against the transferee, is brought after the amendment S. 39 as amended will apply and therefore the claimant need not prove the intention on the part of the transferor to defeat the right of maintenance but only that the purchaser had notice of that right.”
9. An identical question came up before this Court in 1985 Ker LT 1001 (Divakaran v. Chellamma). In that case, following the decision of the Madras High Court in AIR 1979 Mad 200 (Raghavan v. Nagammal), Sukumaran, J. held as follows:—
“A charge will fasten on the property of a Hindu dehors the provisions of the Hindu Adoptions and Maintenance Act. That is the effect of S. 39 of the T.P Act. The Hindu Law texts enjoin a mandatory duty upon the husband to maintain his wife. That duty is not dependent upon the husband's possession of any property. A wife is treated under the ancient texts as a co-owner of her husband's property though in a secondary sense. It is not open to a husband to effect an alienation of his properties. When such alienation has the effect of depriving her and other dependents of their maintenance. A wife is thus entitled to be maintained out of the profits of her husband's property. The wife and children can therefore have a charge upon the properties of the husband and can enforce the same against a gratuitous transferee.”
10. Hence I do not find any merit in the appeal and is dismissed without any order as to costs.
Appeal dismissed.