Shah, J.:— The plaintiff in this case sued to recover possession of a past of the house conveyed under a sale deed executed by defendant No. 1, Ramchandra, in the year 1904 in favour of the plaintiff's mother as his guardian during the plaintiff's minority. The defendant No. 1 occupied the house as a tenant under a rent note, which expired in February 1909. At the date of the suit his wife, Jankibai, defendant No. 2, was in possession of a part of the house now in question. The suit was filed against both of them. The defendant No. 1 died during the pendency of the suit and ultimately the suit was defended by the wife both in her own right and as the legal representative of her husband. She pleaded that the sale-deed was a hollow transaction and that in any case she had the right of residence in that part of the house and that the purchaser must be takes to have purchased it subject to that right. There was also a plea of fraud. On a consideration of all the defences the trial Court found against her and decreed the plaintiff's claim for possession of the house. Defendant No. 2 appealed to the District Court and the Additional First Class Subordinate Judge with appellate powers, who heard the appeal, raised the following point for decision: “Whether the defendant has a right of residence in the plaint house, and, if so, whether the plaintiff purchased the said house under the sale-dead, Exhibit 62, with notice of the said right of hers?” It is stated in the judgment of the appellate Court that the appellant gave up all the remaining contentions. The appellate Court came to the conclusion that the defendant No. 2 had a right of residence in the house and that the gale in favour of the plaintiff must be taken to be subject to her right of residence. Accordingly tbs decree of the trial Court was varied and a part of the house indicated in the decree was allowed to remain in the possession of Jankibai.
2. The plaintiff has now appealed to this Court, and it is contended on his behalf that the lower appellate Court is wrong in its view of law that the wife has a right of residence which can be enforced against the purchaser from her husband. On the other hand it is contended that she has such a right and that is any case her position alter the death of her husband must be treated on the same footing as that of a widow having a right of maintenance against the family property. It is also urged on behalf of the respondent that she should be allowed to raise the point as to the benami nature of the sale-dead is favour of the plaintiff and that there should be a remand on that point.
3. It may be mentioned that the trial Court decided on the evidence against her on the question of fact as to whether the sale-dead was hollow, and in the appellate Court this question of fact appears to have been abandoned. The statement of the appellate Court on this point is quite distinct; and I do not think that the respondent could now be allowed to raise the point relating to a question of fact which was expressly abandoned in the lower appellate Court.
4. As regards the question of the wife's right of residence I am of opinion that the lower appellate Court has taken an erroneous view. All the right which the wife has during her husband's life-lime is a matter of personal obligation arising from the very existence of the relation and quite independent of the possession by the husband of any property, ancestral or self-acquired.
5. It is not suggested in the present case that her right of maintenance including the right of residence was declared a charge on this property during her husband's life-time. Thera was a suit by Janakibai against bar husband for maintenance after the sale of 1904 and it is common ground that no charge was created in favour of Jankibai in respect of this house; and indeed it is difficult to see how it could be done in view of the sale by the husband in 1904.
6. Under these circumstances it is difficult to understand how the wife could resist the claim of the purchaser based on a sals-deed executed by her husband during his life-time. The lower appellate Court has relied upon the case of Manilal v. Bai Tara (1). That case is realty against the view taken by the lower appellate Court. In that case the auction-purchaser was allowed to lake the house free from the plaintiff's right of residence as a Hindu widow notwithstanding the fact that the purchaser had notice of her claim. The original mortgage was effected by the husband ill the widow and the sale took place in execution of the decree on the mortgage after the husband's death. Mr. Shingae, however, has relied upon certain observations in the judgment, which ware strictly not necessary for the purpose of the decision, and which suggest that if the alienation effected by the husband is not for the family advantage or is in any way in fraud of the rights of the wife, she may have a claim against the alienee. In that particular case there was no point as to whether it was not for the family advantage or whether the alienation was in fraud of the right of the wife. It seems to me that the opinion expressed about those observations in the case of Jayanti Subbiah v. Alamelu Mangamma (2) by Mr. Justice Bhashyam Ayyangar is correct. In that case, after referring to the observations in the case of Manilal v. Bai Tara the learned Judge expressed his opinion as follows:—
“It does not appear from the resort of the case whether these was any male member of the family other than the husband. If from the decision in that case it is to be implied that, is the view of the learned Judge who decided it, the widow would have a eight to continue to reside in the house after it has been sold in satisfaction of a debt owing by her husband; unless the debt was incurred for a purpose which would be beneficial to and binding upon his wife, I am finable to concur in that view.”
7. I do not think that according to law the wife's right to residence in this case could be recognized against the alienee, claiming under a transfer effected by the husband during his life-time.
8. I would, therefore, sat aside the decree of the lower appellate Court and restore that of the trial Court with costs of this appeal and in the lower appellate Court on the respondent, original defendant No. 2.
Crump, J.:— I agree.
9. Appeal allowed.