Subba Rao, C.J.:-
(1) The main question that is raised in this appeal turns upon the application of section 39 of the transfer of property act to the right to maintenance claimed by a wife against her husband. Under section 39 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 question is whether a wife has a right to receive maintenance from the profits of immovable property in the hands of her husband. On this question, a decision of a single judge of the madras high court and that of a single judge of andhra high court speak in different voices. While chandrasekhara ayyar, j. , in pavayammal v. Samiappa goundan, (1947) 1 m. L. J. 329. Says mat a wife has not got a right to receive maintenance from the profits of immovable property, viswanatha sastri, j. , in manikyam v. Venkayamma, (1956) an. W. R. 1021. Holds that she has such a right. I do not propose to add my view introducing thereby confusion in the subordinate courts.
(2) It is necessary that this question should be decided by a division bench of this court. It is also contended that, as the wife subsequently lived with her husband section 39 cannot affect the transaction that took place at the time she was living separately from her husband. This also raises an interesting question which requires to be decided by a bench. Post this appeal before a bench of two judges. The second appeal then came on for hearing before the bench in pursuance of the aforesaid order.
(3) This second appeal has been referred to a division bench for resolving the conflict between the decisions of two single judges, one that oi the madras high court delivered before 5th july, 1954 and the other that of the andhra high court. It raises an interesting question of law, namely, whether the wife of a hindu has the right to receive maintenance from the profits of immovable property within the meaning of section 39 of the transfer of property act. Chandrasekhara ayyar, j. , held in pavayammal v. Samiappa goundan1, that she has no such right, whereas viswanatha sastri, j. , held in manikyam v. Venkayamma, that she has such a right. The facts, either admitted or found, may be stated : the plaintiff is the second wife of the first defendant. As he ill - treated and neglected her, she took criminal and civil proceedings for maintenance. In 1940, the sub - divisional magistrate, chittor, made in her favour an order for maintenance at rs. 5 per month and she was receiving that amount till 1946. On 12th august, 1942, the first defendant executed a gift deed, exhibit b - 4, in favour of his daughter, the second 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 rs. 700 in favour of the land mortgage bank. In 1947, the first defendant filed two suits for setting aside the gift deed in respect of items 1 to 16 and for recovering other items alleged to have been purchased by the first defendant benami in the name of the third defendant, the husband of the second defendant. On 16th july, 1949, the suits were compromised. Under the compromise, the title of the second defendant to items 1 to 16 except itenv, 10 and 11 was recognised. The excluded items were set apart for the joint enjoyment for life of the plaintiff and the first defendant and the second defendant was directed to pay rs. 50 per year to the first defendant and the vested remainder in the said. Items was to go to the second defendant. The plaintiff was not a party lo this compromise. The plaintiff, who, at the time of the said compro. Mise was living with her husband, filed the present suit attacking the binding nature of the compromise and claiming maintenance at the rate of rs. 75 per month with arrears of past maintenance, besides payment of rs. 2,000 for her jewels. She, alleged that, from about four months prior to the filing of the suit, when she asked for return of her jewels, he began to ill - treat her and neglect her, compromised the suit with defendants 2 and 3 behind her back and refused to return her jewels. On those allegations, the suit was filed for the aforesaid reliefs.
(4) The first defendant did not deny the plaintiff's right to maintenance. He admitted his liability to return jewels worth rs. 500 and also the nominal nature of the settlement between him and the second defendant. Defendants 2 and 3 claimed that the settlement was true and was binding on the plaintiff. Presumably as the first defendant did not dispute the plaintiff's right to maintenance, both the covirts proceeded on the basis that she was entitled to maintenance but concerned themselves with the question whether she was entitled to have a charge on items 1 to 16 of the c schedule. Both the courts fixed the rate of maintenance at rs. 15 per mensem. While the first court held that she was entitled to a charge on items 1 to 16, the appellate court held that section 39 of the transfer of property act would not help her to obtain such a charge. Hence, the appeal.
(5) As the question raised turns upon the provisions of section 39 0f the transfer of property act, it would be convenient, at the outset, to read the same
"where a third person has a right to receive maintenance, or a provision for advancement of 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."
(6) This section was amended by amending act xx of 1929 and the section before the amendment stood thus : "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 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. '
(7) 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."
(8) 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 against a person who has notice of such right. The old section did not give sufficient protection to the maintenance - holder, for it was difficult to establish that the alienation was effected with the intention of defeating her right or in fraud of her right. The decided cases have invoked various presumptions to ascertain the intention. Such an intention was presumed where the entire family property was alienated, where the purchaser was aware of the circumstances of the family, where the transfer was subject to the widow's right to maintenance and where all the property available for the payment of maintenance was alienated. See becha v. Mothina, (1900) i. L. R. 23 all. 86 abu mohamed v. Saraswathi, (1983) 43 c. L. J. 604. And bhagat ram v. Mst. Sahib devi, (1923) i. L. R. 3 lah. 55. .
(9) The amended section gives greater protection to a person who has a right to receive maintenance and relieves such a person of the onerous burden which the original section imposed on her. Proof of the notice of the existence of the right to receive maintenance is sufficient to bind the transferee. So much is conceded, but the difficulty centres round the connotation of the words ' right to receive maintenance from the profits of immoveable property'. To invoke the section, the person should not only have a right to receive maintenance but also the said right to receive should be from the profits of immoveable property.
(10) Learned counsel for the appellant contends that the wife of a hindu has a right to receive maintenance not only personally from her husband but also from the profits derived by him from his self - acquired property or from his interest in joint family property. Learned counsel for the respondents argues that the wife, by her marriage alone, does not acquire such a right to receive maintenance and that the right contemplated by the section must be a crystallised one, not amounting to a charge, i. E. , recognized by some agreement, decree or other circumstance giving rise to such a right. He would further argue that, even if the wife had such a right, she could only enforce it personally against her husband and that, therefore, it was not a right to receive maintenance from the profits of immoveable property. The first aspect of the argument of the learned counsel for the respondents need not detain us. It is clear from the aforesaid facts that, at the time the giftdeed 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 first 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. To appreciate the main contention raised in the 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 upon them : mam chapter viii, pladtum 389. - " a mother, a father, a wife and a son shall not be forsaken ; he who forsakes either of them, unless guilty of a deadly sin, shall pay 600 panams to the king ".
Narada. - " a husband who abandons an affectionate wife, or her who speaks not harshly, who is sensible, constant and fruitful shall be brought to his duty by the king with a severe chastisement". Vishnu. - " the man who deserts a faultless wife, shall suffer the same punishment". Yajnavalkya. - " he who forsakes a wife, though obedient to his commands, diligent in household management, mother of an excellent son and speaking kindly, shall be compelled to pay the third part of his wealth or if poor to provide a maintenance for that wife ".
(11) These texts enjoin a mandatory duty upon a husband to maintain his wife. The duty does not depend upon the husband possessing any property. They impose a personal obligation on him enforceable by the sovereign or the state. But these texts cannot be read to indicate that the obligation is de hors the property in the sense that the husband can alienate all his property and make himself in competent to discharge his obligation. It is more reasonable to assume that the obligation is wider in scope, in that he has to maintain her even if he does not possess
" any property. This is also clear from the fact that some hindu law texts prohibit the gift of property to such an extent as to deprive the man's family of the means of subsistence. Brihaspati says : " " a man may give what remains after the food and clothing of ms family ; the giver of more. Who leaves his family naked and unfed) may taste honey at first, but shall afterwards find it poison. If. What is acquired by marriage, what has descended from an ancestor or what has been gained by valour, be given with the assent of the wife or the co - heirs or of the king, the gift is valid ".
Katyayana declares what may and may not be given :
" except his whole estate and his dwelling house, what remains after the food and clothing of his family, a man may give away whatever it be (whether fixed or moveable) ; otherwise it may not be given."
Vyasa says : (d. Bh. I, 45) " they who are born and they who are yet unbegotten and they who are actually in the womb, all require the means of support and the dissipation of their hereditary maintenance is censured. " manu (d. Bh. Ii. 23 - 24) declares : " the support of persons, who should be maintained is the approved means of attaining heaven. But hell is the man's portion if they suffer. Therefore let a master of a family carefully maintain them". Jimutavahana says : , "the problem is not against a donation or other transfer of a small part not incompatible with the support of the family. " the aforesaid passages clearly indicate that it is sinful on the part of a person to alienate his properties in such a way as to deprive the members including his wife of their maintenance.
(12) Other commentators go further and say that a hindu woman acquires an interest in her husband's property, though only of a subordinate or secondary kind. (see the dayabhaga, chapter xi, section 1, p1. 26 and the smrithi chandrika, chapter ii, section 1, pl. 19, chapter iv, pi. 9 and chapter ix, section 2, pl. 14). The nature of the claim of a wife to be maintained by her husband is described in apastamba dharma sutras quoted at page 234 of golspchandra sarkar sastri's hindu law, 8th edition :
"there is no partition (or separation) between husband and wife because from the taking of hand (marriage) companionship (or jointness, of husband and wife) in (religious) acts (is ordained) likewise in the fruits of (acts of) spiritual merit and also in the ownership of wealth since (manu and other sages) do not declare (the commission of the offence of theft in the case of necessary gift) made by a wife of her husband's property."
At page 278, the learned author in describing the wife's right to the husband's, property says :
" the patni or lawfully wedded wife acquires from the moment of her marriage a right to every thing belonging to the husband, so as to become his co - owner. But her right is not co - equal to that of the husband but is subordinate to the same and resembles the son's right to the father's self - acquired property. The husband alone is competent to alienate the same and the wife cannot interdict his disposal but being dependent on him must acquiesce in it, provided it does not unjustly affect her right to maintenance out of it. Nor can the wife enforce a partition of the property. But it is by virtue of this right that the wife enjoys the husband's property and is entitled to get maintenance out of it ; and it is also by virtue of this right that she gets a share equal to that of a son when partition takes place at the instance of the male members. Thus the wife also of a male member becomes a coparcener of the family propety".
(13) The hindu law texts therefore recognise that a wife, by reason of her status,, acquires an interest in the property of her husband though, according to some writers, not co - equal with him but of a secondary kind. They also impose a personal obligation on him to maintain his wife enforceable by the sovereign or the state. Other texts prohibit a person from alienating all his properties in such a way as to deprive his dependants including his wife of their maintenance. When the text say that a wife has a subordinate interest in the property of her husband, that he cannot alienate the properties so as to deprive her of her right to be maintained and that he is under a legal obligation to maintain her, it is more reasonable to read them as indicating that a husband is under a legal obligation to maintain his wife not only from and out of his properties, whether self - acquired or joint family properties, but also personally if he did not possess any, than to hold that his liability is - only personal to him and is de hors his properties, in that he could starve her if he chooses by disgorging all his properties. The case - law follows the same pattern. The earliest case is lakshman ramachandra joshi v. Satyabhamabai, (1877) i. L. R. 2 bom. 404. .
(14) In a suit for maintenance brought by a hindu widow against her husband's brother, who was the sole surviving member of that husband's family and against bona fide purchasers for value from him (the defendant) of certain immoveable ancestral property of the family, it was held that the mere circumstance that such purchasers had notice of her claim was not conclusive of the widow's rights against the property in their hands. Though it was not a case of a wife claiming maintenance against her husband, west, j. , considered the hindu law texts pertaining to the rights of a hindu woman in her husband's property and pointed out that, by marriage, she acquired an interest in the husband's property, though only, according to some writers, of a secondary kind such as may be divested by gift by the husband to a third party. The same learned judge in savitri bai v. Luxmibai, (1877) i. L. R. 2 bom. 573. In the context on a hindu widow's right to claim maintenance from her husband's relatives who had separated in estate from her husband at the time of his death, after making a deeper scrutiny of the relevant hindu law texts and the case - law on the subject, observed at page 598 in regard to the husband's liability to maintain his wife thus :
"the injunction contained in these texts is not rendered dependent upon or in anywise qualified by a reference to the possession of family property and purports to impose a personal legal obligation enforceable by the sovereign or the state. That obligation, too, is not asserted to be merely occasional but permanent and continuous".
(15) The two conclusions arrived at by the learned judge in the aforesaid two decisions, if correlated, would lead to the irresistable conclusion that the personal legal obligation of the husband to maintain his wife is in addition to her interest in the properties of her husband.
(16) The allahabad high court in jamna v. Machul sahu, (1879) i. L. R. 2 all. 315 ruled that a wife is, under the hindu law, in a subordinate sense a co - owner with her husband and, therefore, the husband cannot alienate his property or dispose of it by a will in such a wholesale manner as to deprive her of her maintenance. Pearson, j. , in coming to that conclusion relied upon the remarks at page 366 of west and buhler's hindu law of inheritance and partition (second edition) and on the privy council decision in sonatun by sack v. Sreemutty juggutsoondree dossee. , (1859) 8 moo. Ind. App. 66 so too, west, j. , in narbadabai v. Mahadeo narayan, (1880) i. L. R. 5 bom. 99. Held that a hindu husband cannot alienate by a deed of gift to his undivided sons by his first and second wives of the whole of his immoveable property though self - acquired without making his third wife, who is destitute and has not forfeited her right to maintenance, a suitable provision to take effect after his death. In that context, the learned judge dealt with the content of a wife's interest in her husband's property. At page 103 the following observations are found :
"but the co - ownership of the wife in her husband's property, if that can properly be called ownership at all which involves no independent or co - equal powers of disposition or exclusive enjoyment, is not of a kind that accepts the rules applicable to an ownership in the ordinary sense. Her right to maintenance does not depend on it,for the husband is bound to support her, though he should have no property at all. 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 to her 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 which " 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 owe to another. Her right as against him is one that she cannot tranfer to another".
(17) The above observations make an attempt to define the interest of a wife in the property of her husband and its connection to her right of maintenance. Though the husbands obligation to maintain his wife does not depend upon his ownership of the property, it rests not only upon her identity with him but also is connected with her subordinate interest in her husband's property arising from her married status. A division bench of the madras high court in bangaramma v. Brambaze, 18 m. L. J. 254 : (1908) i. L. R. 31 mad. 338 - in the context of a wife's right to claim maintenance from her father - in - law, who has taken her husband's estate, made the following observations at page 342 :
"the right of a wife to maintenance is a matter of personal obligation. It rests on the identity arising from the marriage relations and is not dependent on the possession of any property by the husband".
(18) These observations restate the well - settled law on the subject. They cannot be understood to mean that the obligation of a husband has no connection with his property though it does not depend on his possessing some property. The decision of the bombay high court in radhabai v. Gopal, (1943) 212 i. C. 291. Is more in point. There, lokur, j. , in clear terms recognises the connection between an obligation to maintain and the properties possessed by the husband. At page 292, the learned judge, after citing the passage from the full bench decision in savitribai v. Luxmibai, (1877) i. L. R. A bom. 573 observes :
" this merely emphasises the well - recognized doctrine that the maintenance of the wife is a legal and imperative duty of the husband independently of his possession of any property. But it does not mean that she has no right to be maintained out of her husband's property if he possesses any. Her right of maintenance during her husband's life - time is in a way higher than after his death since in the latter case it depends on the property left by her husband. In either case her claim to be maintained out of his property cannot be denied". We entirely agree with the aforesaid observations. In mansa devi v. Jiwanlal , (1884) i. L. R, 6 all. 617. A husband, who became a convert, alienated the properties in favour of his muslim wife. In a suit 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.
(19) This principle has been succinctly stated in brij raj kuar v. Ram dayal , (1931) i. L. R. 7 luck. 411. At page 417, 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 feet 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".
(20) It is not necessary to multiply cases. The case - law on the subject affirms the proposition that the husband is under a personal obligation to maintain his wife irrespective of the fact whether he possesses property or not. But' some decisions recognize the connection of that right with the wife's subordinate interest in her husband's property arising out of her status as wife. The catena of decisions holding that a wife or widow can enforce her right to maintenance against the transferee of her husband's properties with knowledge of his intention to defeat her rights can only be understood on the basis that her right, though it does not amount to a charge, is some kind of subordinate interest in the property.
(21) The decisions charging maintenance of the wife on the property of her husband can also be traced to the conception of some link between the obligation of the husband to maintain his wife and the property of the husband. A division bench of the madras high court in gopala pattar v. Parvathi ammal, (1928) 117 i. C. 785, held that a hindu wife who gets a decree for maintenance against her husband is entitled to have it charged on the joint family properties. At page 786, the learned judges stated that such a charge was also recognized in bommadevara rajalakshmi devi amma v. Naganna naidu, (1925) 21 m. L. W. 461. Where srinivasa ayyengar, j. , observed at page 468, thus :
"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. But when the joint family is possessed of property, a claim by a 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".
(22) It is true that the charge in that case was given against the husband's interest in the joint family property but, for the same reason, a charge can also be given against his self - acquired property. Devadoss, j. , in rattamma v. Seskachalem sarma, (1927) 52 m. L. J. 520. Came to the same conclusion by holding that the liability of a hindu husband to maintain his wife or to provide for her maintenance is a personal one and if he has property, charge will be given against the property. In unnamalai ammal v. F. W. Wilson,a. I. R. 1927 mad. 1187. Coutts trotter, c. J. And srinivasa "iyengar, 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. So too, in gopala pattar v. Parvathi ammal, (1928) 117 i c. 785. The maintenance awarded to an abandoned wife was charged on her husband's share in the property. Decisions invalidating sales, gifts and testamentary dispositions by a husband leaving nothing for the maintenance of his wife or providing inadequate maintenance can be supported only on the basis of the inter - connection between the obligation and the interest of the wife in her husband's property.
(23) In latchanna v. Bapanamma, (1860) sudder udalat decisions (madras) 290 ,the sale of property by the husband was held invalid where nothing was left for the maintenance of the wife. Where a hindu husband alienated the whole of his immoveable property, though self - acquired, without making a suitable provision for the maintenance of his wife, it was held in narbadabai v. Mahadeo narayan, (1880) i. L. R. 5 bom. 99. That the alienation would not affect her right to maintenance. So too, where a husband made a gift of his entire estate leaving his wife without maintenance, it was ruled in jamna v. Machul sahu, (1879) i. L. R. 2 all. 315 that the donee took the estate subject to her right of maintenance.
(24) Where a husband executed a will which had the effect of defeating his wife's right to maintenance, it was held in periambul chettiar v. Sundarammal, (1945) 1 m. L. J. 58. That the will could not affect her right on the ground that she was entitled to be maintained out of the estate of her husband. The restriction imposed on the husband's power to alienate his properties to protect the wife's right to maintenance is indicative of the subordinate interest of the wife in the property and also the link between the obligation and the property of the husband.
(25) The question may be looked"at from a different perspective, namely, the wife's claim to maintainance out of the interest of her husband in joint family property. It is commonplace that a hindu joint family consists of males and females, and women married into the family become members of that family. See vedathani v. Commissioner of income - tax, madras. , 63 m. L. J. 542 : (1932) i. L. R. 56 mad. 1 the women, who enter the family by marriage, are entitled to be maintained from the common fund. A division bench of the madras high court in rajalakshmi deal amma v. Nagenna naldu, (1925) 21 m. L. W. 461. Denned the wife's right to be maintained out of the family property thus, at page 468 :
"i may also add that the true view of the hindu law would seem to be that the wives of coparceners are also members of the joint family, though they may not be entitled to share in the estate of the family, or to enforce any partition. The obligation of the family and of its estate to maintain all the members cannot possibly be doubted. 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 a 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 relief".
(26) Much to the same effect was the view expressed by muthuswami iyer, j. , though in the context of a mother's right to maintenance, in ramanathan v. Rangammal, (1888) i. L. R. 12 mad. 260. The learned judge says at page 267 :
"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 the ancestral property or when she is not duly maintained, or when for any other good and sufficient qause 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 thatinterest 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".
(27) There are other decisions of different courts holding that a deserted wife is entitled to be maintained from out of her husband's share in the joint family property. See ramabhai v. Trimbak ganesh, (1872) 9 bom. H. C. R. 283. And savitribai v. Luxmi bai, (1877) i. L. R. 2 bom. 573. The aforesaid decisions recognise the right of a wife to get her maintenance out of the interest of her husband in joint family properties, though she could reach, it only by proceeding against her husband. In the present case, the property is admittedly ancestral property and the wife's claim to be maintained out of it cannot be denied. At this stage, it will be convenient to consider the conflicting decisions which led up to this reference. Chandrasekhara ayyar, j. , in pavayammal v. Samlappa gvurdan, (1947) 1 m. L. J. 329. In a brief sentence rejected the claim of the wife by stating that it cannot be said of the plaintiffs that they have got a right to receive maintenance from the profits of immoveable property. But, viswanatha sastri, j. , in manikyam v. Venkayamma, (1956) an. W. R. 1021. Gave a considered and elaborate treatment to the subject. After considering the different aspects, he summarised his view thus at page 1026 :
"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"
.
(28) We respectfully agree with the aforesaid observations. To summarise : the hindu law texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property, whether joint or self - acquired. They recognise the subordinate interest of the wife in her husband's property arising out of her married status. They also prohibit the alienation of properties 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.
(29) Applying the aforesaid principles, we hold that the plaintiff is entitled to enforce her claim against items i 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. 3. 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 government will be paid by the first respondent. Appeal allowed.
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