Banda Manikyam v. Banda Venkayamma And Others

(1) The and defendant is the appellant. The sui t was for separate maintenance by a wife for herself and her two minor daughters against her husband the 1st defendant and his mother, the and defendant. The lower appellate court in agreement with the trial court, recorded the following finding :

"i find that the 1st defendant had been given to bad ways in recent times and that he had resorted to drinking and beating the plaintiff and had also taken away her jewels. I believe the evidence on the plaintiff's side that the 1st defendant is guilty of legal and actual cruelty towards his wife and that he has been beating her and has finally driven her away from his house obliging the plaintiff to file a suit for maintenance."

(2) The expression " legal cruelty " in the above passage has reference to a wholly unfounded charge of immorality made by the husband against the wife prior to suit. That the plaintiffs are entitled to separate maintenance from the 1st defendant is not disputed. After the relations between the husband and wife had become estranged and a fortnig before the suit, the 1st defendant purported to settle all his properties on his mother, the and defendant, under exhibit b - 1 dated 18th september, 1948. The recital in exhibit b - 1 is that the document was executed because it was apprehended that the 1st defendant who was given to bad ways might waste the property. The trial court found that the settlement was. "a mala fide and gratuitous transfer" and was affected by section 39 of the transfer of property act. The lower appellate court also held that the and defendant who was a gratuitous transferee would take the properties subject to the plaintiff's right of maintenance. The courts below directed that the maintenance decreed to the: plaintiffs should be a charge on a portion of the properties settled on the and defendant under exhibit b - 1 and the only objection to the decree is as regards the charge created thereby.

(3) It was argued for the appellant that the properties settled on her under exhibit b - 1 were not legally liable to be charged for the maintenance of the plaintiffs and that section 39 of the transfer of property act had no application to the case - this point was not specifically or pointedly raised in the grounds of second appeal; but, as it was one of law, i heard arguments on it. Reliance was placed for the appellant on a recent decision of chandrasekhara ayyar, j. , in pavayammal v. Samiappa goundan,1 which, if correct would cover the present case. The judgment, of the learned judge on this point is, however, very brief consisting of one sentence and does not refer to any texts or decisions. It purports to be based entirely on the expression " right to receive maintenance from the profits of immoveable property " occurring in section 39 of the transfer of property act. The underlying assumption of the learned judge is that a wife and minor children have a right to be maintained by the husband or father irrespective of the possession of any property and therefore these persons could not be regarded as having a right to receive maintenance " from the profits of immoveable property " within the meaning of section 39. Reference was also made by the appellant to sections a and 3 of the hindu married women's right to separate residence and maintenance act (xix of 1946) entitling a wife to separate maintenance from her husband on one or more of the grounds enumerated therein. It is well known that this enactment was intended to enlarge and liberalise the rules of hindu law governing the rights of a hindu woman to maintenance from her husband in the contingencies therein specified. The act does not curtail or cut down the right of maintenance conferred either by the hindu law or by section 39 of the transfer of property act. It does not affect the right of a wife to have payment of her separate maintenance secured by a charge on her husband's properties in his hands or in the hands of his gratuitous transferee if, under any other law, she has such a right. The decision in pavayammal v. Samiappa goundan, (1947) 1 m. L. J. 329. Leads to considerable hardship in a case like the present where a delinquent husband, out of spite and vindictiveness, cruelly ill - treated and unjustifiably abandoned his innocent wife and minor children and gratuitously trans ferred all his properties to his mother in order to defeat their claim for maintenance. If, however, the law is as laid down in the decision cited above, the appellant must succeed. With great respect to chandrasekhara ayyar, j. , both as a judge and as the editor of the nth edition of mayne's hindu law (page 832) , i am unable to share his opinion.

(4) A hindu joint family consists of males as well as females and women married into the family are equally members of the joint family though, unlike the coparceners who are entitled to partition their wives are only entitled to maintenance - vedathanni v. Commissioner of income - tax, 1932 63 m. L. J. 542:i. L. R. 56 mad. 1. Kalyanji vithaldas v. Commissioner of incometax, (1937) 1 m. L. J. 312 :i. L. R. (1937) 1 cal. 653 l. R. 64 i. A. 28 (p. C.) and commissioner of income - tax v. Lakshminarayanan, (1935) i. L. R. 59 bom. 618.

(5) The rights of coparceners accrue on their birth while the rights of their wives accrue on marriage and both are entitled to reside and be maintained in the family house so far as the means of the family allow. The maintenance of a wife and minor children is obligatory on the husband or father, the liability arising from the very existence of the relationship quite independent of the possession of any property, ancestral or self - acquired jayanthi subbiah v. Alamelu, (1902) 12 m. L. J. 270 : i. L. R. 27 mad. 45 appibai v. Cooverji,. (1934) i - l - r 60 bom. 455. And venkatapathi v. Puttamma, (1936) 71 m. L. J. 499.

(6) This obligation of the husband or father is not occasional but permanent and continuous and the wife and minor children have a corresponding right. This right of the wife and minor children would, however, be illusory if a man were free to want only dissipate his wealth, reduce himself to pauperism and thereby deprive his wife and children of the means of subsistence. Though the smritikars and commentators encouraged and extolled gifts to deserving persons, they also condemned and prohibited in unequivocal terms, gifts of property to such an extent as to deprive a man's family of the means of subsistence. Some of the texts, binding a man's conscience and making it sinful for him to deal with his property in such a manner as to jeopardise the maintenance of his family, are referred to in mayne's hindu law (11th edition, page 831, footnote (j)). The matter is carried further by some of the commentators and the rights of the wife are put on a higher footing. The dayabhaga, chapter xi, section 1, pi. 26 and the smrithi chandrika, chapter ii, section 1, pl 19, chapter iv, pl 9 and chapter ix, section 2, pl 14 recognise that, through her marriage, a hindu woman acquires an interest in her husband's property, though, according to other authorities, an interest only of a subordinate or secondary kind. The vyavahara mayukha even contemplates a partition between a husband and wife and a reunion. Under the mitakshara law as administered in north india, the interest of the wife in her husband's property arising from her marriage has been held sufficient to entitle her to an equal share with the sons on a partition and in south india, to a provision for her maintenance out of the estate of her deceased husband. In view of the fact that the right of a widow to maintenance arises by marriage, it has been held that a disposition of his entire property by a hindu by a gift or a will to a stranger will not defeat her right and the legatee or donee would take the properly subject to her claim for maintenance - periambal chettiar v. Sundaranimal, (1945) 1 m. L. J. 58 : i. L. R. (1945) mad. 586. Ramanathan v. Rangammal, (1888) i. L. R. 12 mad. 260, 268. Kamakshi v. Krishnammal, (1938) 1 m. L. J. 252. Narbadabai v. Mahadev, (1880) i. L. R. 5 bom. 99. And jamna v. Machila, (1879) i. L. R. 2 all. 315.

(7) The interest of the wife in her husband's properties, like that of a widow of a deceased coparcener in her husband's share of the family properties, is not a proprietory right or interest adhering to the property into whatever hands it may pass, but only a right to be maintained therefrom. Normally, a wife's home is in her husband's house and she cannot therefore claim separate maintenance from her husband during his lifetime except oil one or more of the grounds now found codified in act xix of 1946. The reasons which require a wife to remain under her husband's roof do not apply where she has become a widow. I leave out of account the changes introduced by act xviii of 1937 with regard to hindu women's right of succession to their husband's properties and consider the law of maintenance as it stood before the act.

(8) So far as the right of maintenance is concerned, the position of a wife entitled to separate maintenance from her husband under act xix of 1946 and a widow entitled to maintenance from the property of her deceased husband in the hands of his heirs, legatees or surviving coparceners, would be the same, except that the husband would be personally liable to maintain his wife, whether or not he has property, while the liability of the other persons is entirely dependent upon and restricted to the amount of the husband's estate that has come into their hands. Neither the wife's right to separate maintenance from her husband under act xix of 1946 nor a widow's right to maintenance from the estate of her deceased husband is a charge on the property unless such a charge is created by agreement of parties or a decree of court. Very early in the evolution of the law, english judges administering the principles of justice, equity and good conscience laid down that a bona fide purchaser of property for value without notice or a purchaser with notice "under a sale effected for discharging the debts of the husband or the debts or liabilities of the joint family of which he was a member, would not be affected by the claim for maintenance and the property in the hands of such a purchaser would be free from the claim - lakshman ramachandra v. Satyabhamabai, 1877 i. L. R. 2 bom. 494. Jayanti sabhaiah v. Alamda, (1902) 12 m. L. J. 270 : i. L. R. 37 mad. 45. And latchanna v. Bapanamma, (1860) sudder udalut decisions (madras) 290.

(9) If, however, the transfer was gratuitous, the transferee took the property subject to the right of maintenance. If the property from which a wife or widow has a right to claim separate maintenance is alienated for the purpose of defeating the right and the alienee has notice thereof, the alienation would be a fraud upon persons whom the hindu law regards as deserving of special protection and a violation of the precept which prohibits alienation of that which is needed for the sustenance of the family and would therefore be subject to the maintenance right. This was the principle underlying section 39 of the transfer of property act when it was evacted.

(10) After the amendment of section 39 of the transfer of property act in 1939, it is no longer necessary to prove an intention to defeat the right of maintenance. Proof of notice of the existence of the right is sufficient. The special committee which recommended the amendment felt that the object of section 39 which was intended to protect persons entitled to maintenance, was not served by the requirement of knowledge by the transferee of the fraudulent intention of the transferor. They 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."

(11) This amendment was carried out by the legislature. Do the words '' right to receive maintenance from the profits of immoveable property

" occurring in section 39 exclude the case of a wife entitled to claim separate maintenance from her husband, because the obligation of the husband to maintain the wife exists irrespective of his ownership of any property ? does the existence of a personal obligation on the part of the husband negative the right of the wife to be maintained out of his properties, ancestral or self - acquired ? is not the personal liability of the husband something in addition to the liability to maintain his wife out of his properties ? is not the wife entitled to the protection"

of section 39 and pursue her claim for maintenance against the property of her husband in the hands of a gratuitous transferee who has taken with full notice of her claim, when the husband is ieft with no other means of providing for the maintenance of the wife ? i shall now advert to the decisions from which an answer to these questions might be found.

(12) The earliest case on the topic is latchanna v. Bapanamma, where the madras sudder court held in 1860 that a sale of property by the husband was invalid where nothing was left for the maintenance of his wife. Dealing with the analogous case of a son who is bound under the hindu law to maintain his mother as a matter of personal obligation, muthuswamy ayyar, j. , in ramanathan v. Rangammal, (1888) i. L. R. 12 mad. 260, 267. Said :

"for the appellant, it is urged that the claim to maintenance creates only a personal obligation against the heir in possession. I cannot accede to this contention. The son in possession of ancestral property is no doubt under a personal obligation to maintain his mother, but this is not all. The mother is entitled to insist that the maintenance should be charged on a specified part of ancestral property either when a partition is made by her sons or when the managing member wastes ancestral property, or when she is not duly maintained, or when for any other good and sufficient cause, the ancestral property indicated by hindu law as the general fund from which her maintenance is to be paid is in peril. The correct view is that the obligation to maintain the mother is strengthened by giving her an interest in immoveable property and thereby enabling her to constitute that interest into a specific charge, or an actual existing proprietary interest for the term of her life and to protect her right of maintenance against improvident alienation of the fund from which it is to be satisfied."

(13) In lakshmi devi amma v. Naganna, a. I. R. 1925 mad. 757, 760. Srinivasa ayyangar, j. , observed :

"it is true that the hindu law imposes an obligation on the hindu husband to support his wife, without any reference to any property or share possessed by him, even as it imposes similar obligations on sons to maintain their mother and father. But when the joint family is possessed of property, a claim by wife against her husband need not be regarded merely as a suit for the enforcement of any personal obligation, but may well be regarded as a suit against the family itself, represented to her by her husband, through whom alone so long as he is alive, she has to obtain the relief."

(14) In unnamalai ammal v. F. W. Wilson, a. I. R. 1927 mad. 1187. Goutts - trotter, g. J. , and srinivasa ayyangar, j. , recognised the right of a wife to have her maintenance charged on the residue of the estate of her insolvent husband after discharging his debts. The decision in gopala pattar v. Parvathi animal, a. I. R. 1929 mad. 47. Is more in point as the learned judges held that the maintenance awarded to an abandoned wife could be made a charge on her husband's share of the family property and observed that it was difficult to make any distinction between the position of a widow and an abandoned wife. In either case, the maintenance, though it does not form a charge upon the husband's property, could be made the subject of charge in order to secure the right.

(15) There are a few decisions of the other high courts taking the same view as gopala pattar v. Parvathi ammal,2 ramabhai v. Trimbak ganesh, 9 bom. H. C. R. 283. Was a case where a deserted wife was held entitled to be maintained out of her husband's share in joint family property. In savitribhai v. Luxmibai, (1878) i. L. R. A bom. 573, 589. Westropp, g. J. , approved of the earlier decision in ramabhai v. Trimbak ganesh,3 and observed that

" there does not appear to be any sound reason for making a distinction in this respect between a deserted wife and a widow."

in narbadabai v. Mahadev narayan, (1880) i. L. R. Bom. 99. It was held that a hindu husband cannot alienate the whole of his immoveable property, though self - acquired, without making a suitable provision for maintenance of his wife to take effect after his death. Radha bhai v. Gopal, a. I. R. 1944 bom. 50. Is a case exactly in point and the learned judges following shri biharilal v. Bai rajbai, (1898) i. L. R. 23 bom. 342. Held that a hindu wife has a right to maintenance not only from her husband personally but also out of his property and for that purpose she could pursue the property in the hands of a stranger alienee under section 39 of the transfer of property act. There the court created a charge for the maintenance of the wife on her husband's property in the hands of an alienee with notice of her claim.

(16) In jamna v. Machul sahu, (1879) i. L. R. 2 all. 315, 317. It was held that where a husband in' his lifetime made a gift of his entire estate leaving his wife without maintenance, and died. Shortly thereafter, the donee took and held such estate subject to her maintenance. Parsons, j. , observed :

"a wife, is under hindu law, in a subordinate sense, a co - owner with her husband. He cannot alienate his property or dispose of it by will in such a wholesale manner as to deprive her of maintenance ; and i am therefore of opinion that the donee of the entire estate must be deemed to have taken and to hold it subject to her maintenance."

in mansa devi v. Jiwanmal, (1884) i. L. R. 6 all. 617. A hindu who had a wife and an infant daughter became a convert to islam and transferred all his properties to a muslim wife.

(17) In a suit by the deserted hindu wife and daughter, the court decreed a charge for their maintenance on the properties in the hands of the alienee, observing that

"the right of the wife and daughter to be maintained out of the husband's and father's property is undoubted,"

and citing jamna v. Machul sahu,8 and ramabhai v. Trimbak ganesh3. The decision in satyavathi v. Kali shankar, a. I. R. 1955 all. 4, 6, relied on by the appellant merely lays down that a wife or widow has no charge upon any property belonging to her husband in the absence of a decree or agreement creating such a charge and that a widow cannot claim a residence in a house alienated by her husband during his lifetime. It is well established that the debts of the husband take precedence over the wife's or widow's claim for maintenance so long as the maintenance is not charged on any specific property.

(18) This is not a case where the husband. And wife are living together and the wife seeks a charge on the husband's property for safeguarding her right to maintenance. Here the wife and the minor daughters are entitled to separate maintenance by reason of the cruel and inhuman treatment meted out to them by the husband and father and by reason of their having been turned out from the house. This right to separate maintenance which was previously based on texts and decisions is now expressly conferred by statute under act xix of 1946. It is true that the husband or father is under a personal obligation to maintain his wife or infant children. This does not mean that the obligation could be enforced only by sending him to jail in case of default and that the wife or infant children have no right to be maintained out of the property of the husband or the father as the case may be. The rule as to personal obligation only emphasises the legal and imperative duty of the husband to maintain his wife and minor children irrespective of the possession of any property. Like a widow, the wife who has become entitled to demand separate maintenance from her husband, has no charge on his property. Therefore a bona fide purchaser for value without notice of the claim for separate maintenance is not affected thereby. But a transferee with notice of the right of maintenance or a gratuitous transferee takes the property subject to the claim for maintenance by virtue of section 39 of the transfer of property act. Though the right of the wife to separate maintenance does not form a charge upon her husband's property, ancestral or self - acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it could be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperilled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Such a charge could be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance. A transferee, like the appellant, who joins in a fraudulent and clandestine arrangement for defeating the right of maintenance binding on the conscience of the transferor and who pays no consideration for the transfer by her son in her favour, takes the properties subject to that right. The property in her hands is legally chargeable with the payment of maintenance to the wife and children of the transferor under section 39 of the transfer of property act.

(19) In view of the opinion of chandrasekhara ayyar, j. , in pavayammal v. Samiappa goundan, (1947) 1 m. L. J. 329. I would have referred this second appeal to a bench but for the fact that there are earlier decisions of division benches to the contrary with which i am in agreement and which i am bound to follow, but which have not been noticed by the learned judge in his judgment. For these reasons, the second appeal fails and must be dismissed with costs. Leave refused. Appeal dismissed.