Sathiyamma v. Gayathri & Ors.

P.D Rajan, J.:— This appeal is preferred against the judgment in OP No. 1530 of 2005 of the Family Court, Alappuzha. Second respondent in the above OP is the appellant. The above petition was filed by first and second respondents seeking maintenance and to set aside a sale deed. The third respondent in this appeal is the husband of the first respondent.

2. The brief facts are as follows. The marriage between the first respondent and third respondent was solemnized on 01/03/1999 at the Bride's residence as per Hindu Customary rites, and at that time, third respondent was working in GREF. After the marriage, they resided together in the matrimonial home and in the wedlock one child was bom to them who is the second respondent. The husband failed to maintain his wife and child and hence, MC No. 48 of 2000 was filed in the Court of Judicial Magistrate of First Class, Haripad and that OP was settled in the Lok Adalath and respondents 1 and 2 were granted Rs. 750/- per month as maintenance. The husband failed to pay the amount as directed by the Court. Moreover, in order to defeat the claims of wife and child, he executed a sale deed in favour of his sister. Actually no sale consideration was paid by the appellant to third respondent. Moreover, she is also an accused in CC No. 544 of 2000 of Judicial First Class Magistrate Court-I, Haripad and was fully aware of the maintenance case before the execution of the sale deed. The first and second respondents had no job or income, they approached the Family Court for getting maintenance from third respondent husband and to set aside the sale deed and realisation of maintenance arrears. The appellant resisted the claim in the Trial Court by filing a written objection and the third respondent husband was ex parte. In the written objection, she contended that she had no knowledge with regard to the legal proceedings between first and second respondents and with third respondent. She purchased the property on payment of valid consideration to third respondent with bona fides. By virtue of sale deed No. 2675 of 2000, appellant is the absolute owner and she is in possession of the property and enjoying the property. She had no knowledge about the whereabouts of the third respondent. She admitted that she was an accused in CC No. 544 of 2000, which ended in conviction. The sale deed executed by appellant and third respondent is valid and therefore the request for declaring the document as a sham document and to set aside the deed is not sustainable in law.

3. Both parties adduced both oral and documentary evidence in the Family Court. The evidence consists of oral testimony of P W1 and RW1 and documentary evidence of Exts. A1 to A5. Trial Court, after detailed examination of the evidence on record, decreed the suit. Aggrieved by that judgment, this appeal has been preferred.

4. Heard both sides. Learned counsel appearing for the appellant contended that the impugned judgment was rendered without considering the legal and documentary evidence in this case. The appellant had no knowledge regarding the pendency of the above maintenance case, which will not in any way, affect the right of the appellant by virtue of Ext. A1 sale deed. According to Section 39 of Transfer of Property Act, the right of maintenance could be enforced against the transferee, if he has notice of the proceedings, or if the transfer is gratuitous. In spite of it, first respondent proceeded against the appellant and no inference could be drawn against the property of the appellant.

5. The learned counsel appearing for respondents 1 and 2 strongly resisted the above argument and contended that the appellant had knowledge about the pendency of the case when she was convicted in the criminal case. Ignoring that fact she colluded with the third respondent and fraudulently created a sham document.

6. Section 39 of Transfer of Property Act which reads as follows:

“39. Transfer where third person is entitled to maintenance—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.”

7. It is definite from the above section that 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. According to Section 39 of Transfer of Property Act, three definite rights, viz. a) right of maintenance, b) a provision for marriage and c) a provision for advancement of money are ensured. Here, the first respondent and her son claimed maintenance from her husband third respondent which was kno ‘n to the appellant. During the pendency of the maintenance petition, the property was transferred in favour of the appellant. The word ‘maintenance’ has not been defined in the Transfer of Property Act. Therefore, the word should be understood in the manner it is understood in the common parlance. The word, ‘maintenance’ in the ordinary parlance includes provision for food, shelter, clothing, etc. The term maintenance has been defined in Hindu Adoption and Maintenance Act, 1956 as “provision for food, clothing, residence, education and medical attendance and treatment.”

8. When personal law is considered, Section 28 of Hindu Adoption and Maintenance Act, 1956 reads as follows:

“28. Effect of transfer of property on right to maintenance.— Where a dependant has a right to receive maintenance out of an estate and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the rights.”

9. The dependants are those mentioned under Sections 21 and 22 of the Hindu Adoption and Maintenance Act, 1956, in which wife is not mentioned. In Vijayan v. Sobhana, 2007 (1) KLJ 812; 2007 ICC 1636, this Court held that under Sections 28 and 21 of Hindu Adoption and Maintenance Act benefit available to dependants is the right to maintenance out of an estate. Wife and children ar not included under Section 21 and the dependants mentioned are the relatives of deceased Hindu who are entitled to claim maintenance against the transferee of the property of the deceased in the hands of heirs. Under Hindu Law, a Hindu has a personal obligation to maintain his 1) wife 2) children and 3) aged parents. Maintenance of wife is discussed under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (Chapter III). In Vihalal Mangaldas Patel v. Smt. Maiben Vihalal Patel, A.I.R 1999 Gujarat 88 it was held that “a divorced wife is included in the expression wife”. Therefore the obligation of the husband to maintain his wife does not arise from any contract, but out of jural relationship of husband and wife, and thus the obligation commences with the marriage. Section 18 has been discussed by this Court in Kaveri Amma v. Parameswari Amma, 1970 KLJ 966; 1970 ICO 722 held thus in paragraph 28 that,

“But it appears to me that the provisions of the Hindu Adoptions and Maintenance Act, 1956 relating to maintenance of dependants do not have any application to the case of enforcement of a claim against the joint family. Section 18 of the Act indicates that a Hindu wife is entitled to be maintained by her husband during her lifetime and after the death of her husband by her father-in-law. Maintenance of dependants is also dealt with in the Act. The widow is one of the dependants so long as she does not remarry. It is in Section 22(1) that provision is made for maintenance of dependants.”

10. Evidence of PW 1 shows that third respondent earns a permanent income of Rs. 8000/- per month from his job. Moreover, he is getting sufficient income from the plaint schedule property. As per the compromise in the Lok Adalath, PW 1 and her child is entitled to get maintenance of Rs. 750/- per month. In this case, 1st respondent wife alleges that the appellant and third respondent colluded and transferred the property as per Ext. A2 sale deed without consideration, in order to defeat her claim for maintenance. The evidence of PW 1 shows that appellant had sufficient notice about the pendency of the suit at the time of transfer. But appellant who was examined as CPW1 strongly resisted the above contention and contended that she purchased the property as per Ext. A2 for valid consideration and without any collusion. According to the appellant, being a bona fide purchaser, her right under Ext. A2 is to be protected and PW 1 has no right in the property.

11. Section 39 of Transfer of Property Act contemplates where any transfer is effected, right to claim maintenance could be enforced against such transferee if he has notice of such right. Here, the appellant is not a stranger but part and parcel of the same family. Appellant is the sister of third respondent and thus she cannot plead total ignorance. Moreover, she was an accused in CC No. 544 of 2000 of JFMC, Haripad, who participated in the trial. After the amendment of Section 39 of Transfer of Property Act, the matter came up for consideration before the Privy Council, in M.P Dan Kuer v. M.T Sarala Devi, AIR 1947 PC 8 where it was held as follows:

“Where property was alienated before the amendment of Section 39 of 1929, but the suit filed by the claimant for maintenance, to enforce his right of maintenance against the transferee, was brought after the embedment, Section 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 has notice of that right.”

12. Following this view, this Court in Ramankutty Purushotaman v. Amminikutty, 1997 (1) KLJ 275; 1997 ICO 386’ at page 308 held that

“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,

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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.”

13. Notice under Section 39 of Transfer of Property Act was discussed by Andhra Pradesh High Court in Yemuna v. P. Manohara, AIR 2004 AP 317; 2004 ICO 6197 and held in paragraphs 13 and 15 of the judgment as follows:

“13. Even on a bare reading of Section 39 of the Transfer of Property Act, clearly it recognises that existence of right to receive maintenance can be enforced against the transferee. Therefore, it does not contemplate that such right has to be recognised in any other manner or culled out in a form of decree before any such transfer. Nor, any demand or assertion is a precondition for enforcement. ‘Notice’ expression used should have broaden connotation and cannot be construed literally to mean an intimation given. Aptly, it should mean knowledge and awareness. As long as a right exists under the law, it is obvious notice to one and all. Any claim made through legal process is only an enforcement of such right. Further, the object of the provision is to safeguard the rights of woman towards maintenance. Where one seeks to enforce such right, any transfer made is subject to such recovery. Therefore, it has to be held that since the documents in favour of the appellants are much prior to the present claim. It cannot be said that the items covered thereunder cannot be proceeded against for charge towards maintenance by the wife.

15. In the circumstances, the expression ‘notice’ used under Section 39 of the Transfer of Property Act has to be read along with the definition clause as contained in Section 3 thereof, which could only lead to a conclusion that where a person is fully aware of the existing rights of the parties and moreso where such transferee is a member of the family, it cannot be said that he is not aware of the rights of the other members or persons forming part.”

14. From the evidence of CPW 1, it is found that she colluded with her brother and got the property transferred. In view of the above facts, it cannot be said that appellant is a bona fide purchaser. Trial Court considered this fact and granted declaration and decreed the suit. No reasons are highlighted by the appellant to interfere in the finding recorded by the Trial Court, except the direction to the appellant to pay maintenance to first and second respondent. To that limited extent, the lower Court judgment is modified. Appellant being the sister-in-law of first respondent, no liability is cast upon to pay maintenance to the wife of third respondent in this appeal. If any portion of the amount is deposited before the Family Court, Alappuzha, it shall be returned to her forthwith.

15. Hence we do not find any merit in this appeal and it is dismissed. There is no order as to cost.