The Judgment of the Court was delivered by
Bhashyam Ayyangar, J.:— The appellant is the decree-holder in Original Suit No. 16 of 1892, which he brought, on a promissory note made by the deceased Naranappa, against his widow and legal representative. The respondent. In execution of that decree he attached and became the purchaser of the house of the deceased Naranappa in which the widow. The respondent, had been and was living at the time of the purchase. When he proceeded to obtain delivery of the house under section 318 of the Civil Procedure Code, he was resisted under section 334 by the respondent on the ground that she had a right of residence during her lifetime and that she could not therefore be ejected from the residential portion of the house. The District Judge upheld her contention holding that Naranappa's liability under the promissory note was incurred by him only as a surety for certain debts owing by certain relations of his to the appellant, and that it was therefore not incurred for the benefit of the family consisting only of Naranappa and his wife. The respondent. We are unable to follow the reasoning of the District Judge. The family consisted only of the husband and wife and all debts which would bind the husband personally are necessarily binding upon the widow in respect of all the assets which have come to her hands as his legal representative. Even if the family had been an undivided family consisting of father and son, a debt incurred by the father only as surety and not for the benefit of the family would bind the whole of the joint family property which may have devolved upon the son by right of survivorship [Sitaramayya v. Venkatramanna and Tukaram Bhat v. Gangaram ] and, it is difficult to see on what principle the District Judge holds that the debt is not a family debt. Under the Hindu Law the maintenance of a wife by her husband 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 (Mayne's ‘Hindu Law and Usage,’ 6th edition paragraphs 451 and 455) and Savitribai v. Luximibai and Sadasiv Ganoba (3) and his debts take precedence of her claim for maintenance (Mayne's ‘Hindu Law,’ paragraph 464). The District Judge relies in support of his decision upon the cases of Venkatammal v. Andyappa Chetti (4) and Ramanadan v. Rangammal (5). He appears to have misapprehended the principle of those decisions, When an undivided Hindu family consists of two or more males related as father and sons or otherwise and one of them dies leaving a widow, she has a right of maintenance against the surviving co-parcener or co-parceners, quoad the share or interest of her deceased husband in the joint family property which has come by survivorship into the bands of the surviving co-parcener or co-parcaners, and though such right does not in itself form a charge upon her husband's share or interest in the joint family property, yet when it becomes necessary to enforce or preserve such right effectually, it could be made a specific charge on a reasonable portion of the joint family property, such portion of course not exceeding her husband's share or interest therein [Ramanadan v. Rangammal ] Such right may also, in certain cases, be enforced against the transferee of joint family property (vide section 39 of the Transfer of Property Act). In Venkatammal v. Andyappa Chetti . The son after the death of the father, incurred considerable debts and on mortgage bonds executed by him suits were brought and the properties brought to sale in execution of decrees passed in such suits. It was not shown that the debts were incurred for purpose which could bind his mother who, on the death of her husband, had a right of maintenance, against her son quoad the share of her husband in the joint family property which the son mortgaged for a debt of his, own and which was brought to sale for realization of such debt. It was held that the house must be sold subject to her right to continue to reside in the house which she had been occupying till then. In Ramanadan v. Rangammal the question was considered by a Full Bench. In that case the undivided family consisted of a father, sons and grandsons, and on the death of the father the sons or some of them contracted a debt and in execution of a decree passed against the sons and grandsons for the recovery of such debt. The house in which the widow of the father was living was sold. An issue was sent as to the nature of the debt, and it was found that the debt was incurred for the benefit of the whole family and no objection was taken to that finding. The Judges were unanimous in holding that widow of the father had no right as against the purchaser to reside in the house of her late husband's family Muttusami Ayyar, J., observed as follows:—“I am also of opinion that the purchase is valid as against the respondent. It is found that the judgment debt is a family debt, and I take it that the debt though contract only by the male co-parceners, was contracted by them, not for their exclusive benefit, but for the benefit generally of the joint family consisting of themselves and their mother. A sale for the payment of her own debt would bind her interest in the house whatever it might be, and the decree in Original Suit No. 3 of 1882 was one which executed the hypothecation of 1875, and which was passed against the representatives of the joint family. In those circumstances the respondent is not entitled to set aside the sale unless she shows that the debt which has led to it is not binding upon her.” He then I distinguishes the case of Venkatammal v. Andyappa Chetti on the ground that there was no finding in that case that the debt, was a family debt, that is to say, “a debt contracted for the joint benefit of the mother and her sons.” A debt contracted by the husband himself as in the present case is necessarily binding; upon her and on his death without male issue his estate devolves upon her by right of inheritance, in the absence of any undivided kinsmen of his. It is a mistake, under such circumstances, to regard her as having a right of maintenance (which includes right of residence) against her husband's estate. She takes it as heir and must administer it as such. It is only the residue that is left after discharging her husband's debts that will belong to her During her husband's lifetime she had, no doubt, right of maintenance against him, but that was only a matter of personal obligation on the part of the husband, quite independent of the possession of any property and it did not form a charge upon his property. Kernan, J., in the Full Bench case states that “if the, debt in respect of which the sale took place was a debt due by her husband, no doubt could be entertained that she had no such right. The only doubt there could be, as it appears to me, is whether her right to reside in the house had not accrued as against the manager who succeeded her husband and whether such manager could have, by any act of his, voluntarily affected her right. However the finding is that the debt incurred by the manager was for the benefit of the family.” The italics in the above quotation are mine. In the case of Dalsukhram Mahasukhram v. Lallubhai Motichand . The father left not only a widow but a son who sold the house. It was held that the sale would be subject to the right of the widow to continue to reside therein; it being found that there were no proper reasons for the alienation by the son and that the purchaser bought the house admittedly with full knowledge that the widow was residing therein. In Bhikham Das v. Pura the owner of the dwelling-house, who mortgaged the same, died, leaving him surviving his wife and mother. In a suit brought against both of them after the death of the mortgagor to enforce the mortgage, it was held that it could he enforced by sale of the dwelling-house. Apparently it was left an open question as to whether the widow (query mother) could be ousted by the auction-purchaser. If the dwelling-house devolved upon the mortgagor from his father, who left surviving him his widow. The mortgagor's mother, her right of residence could not be defeated by a sale made in satisfaction of a debt which was not incurred by the son for a purpose which would bind also his mother. In Manilal v. Baitara the house was mortgaged by the husband in his lifetime and in execution of a decree enforcing such mortgage, it was sold and purchased by the defendant with knowledge that the mortgagor's widow was residing in the house at the time of the Court's sale. In a suit brought by the widow to establish her right to continue to reside during her lifetime in the house, her claim was negatived in the absence “of any allegation that the mortgage effected by the plaintiff's husband was not for the family advantage or was in any way in fraud of her rights.” It does not appear from the report of the case whether there was any male member of the family other than the husband. If from the decision in that case it is to be implied that, in the view of the learned Judges who decided it. The widow would have a right 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 unable to conour in that view. The appeal is therefore allowed, and the order of the District Judge is modified, by directing that the respondent be ejected also from that portion of the house purchased by the appellant in which she has been residing. The order of the District Judge is affirmed in other respects. Each party will hear his or her own costs of this appeal.
Benson, J.:— I concur.