Muthuperumal Pillai v. Pechi Amma — 1955 DIGILAW 7 (KER)

Judgment :- 1. The 5th defendant is the appellant. The plaintiff's suit is for maintenance. She is the widow of one Krishna Naicker who died in 1086. Krishna Naicker had two brothers, Chinnarulappa Naicker the father of the 1st defendant and Aundi Naicker, the father of defendants 2 and 3. The parties are governed by the Hindu Mitakshara Law and the plaint properties are the ancestral properties of these three brothers. The plaintiff's husband died without effecting a partition of the family properties and without leaving any issue behind him. In 1095 the two brothers partitioned the family properties under Ext. A or V. Though no provision had been made in that for the maintenance of the plaintiff, she was being maintained by the surviving members of the family out of the family income till the two brothers of her husband died. After their death, the plaintiff was not given any maintenance. The plaintiff stated that she was entitled to get past maintenance for three years and future maintenance at the rate of one Kotta of paddy a month though she was entitled to get more in view of the income from the family properties. Plaint items 1 to 3 are in the possession of defendants 2 to 4 and items 4 to 9 are in the possession of the 5th defendant under the 1st defendant. Even after repeated demands, defendants 1 to 3 had not paid any sum for the plaintiff's maintenance. The suit is therefore for a declaration that she was entitled to maintenance from the family properties at the rate of one Kotta of paddy or Rs. 25 a month whichever was less. She also wanted a charge on the family properties scheduled in the plaint for this sum to be decreed to her. Plaint item 10 is the family house and she also wanted a declaration that she was entitled to reside there. 2. The 1st defendant remained exparte. Defendants 2 to 4 admitted the status of the plaintiff alleged in the plaint and the right of the plaintiff to receive maintenance. They admitted the partition deed Ext. A; but stated that the plaintiff was not entitled to any arrears of maintenance as no demand for the same had been made. According to them on the date of Ext. Defendants 2 to 4 admitted the status of the plaintiff alleged in the plaint and the right of the plaintiff to receive maintenance. They admitted the partition deed Ext. A; but stated that the plaintiff was not entitled to any arrears of maintenance as no demand for the same had been made. According to them on the date of Ext. A there was a debt in the family to the extent of 23,500 fanams under a mortgage deed. According to this mortgage the mortgagees were in possession of the northern 1 acre and 101/2 cents of item 1 and the southern 2 acres and 111/2 cents in item 3. The annual profits from these properties excluding the said properties outstanding on mortgage would come to only 8 Kottas of paddy a year. The plaintiff had not included all the family properties and all the persons in possession of such properties and so the suit was not maintainable. The price of paddy claimed in the plaint was excessive and according to them not more than one half of a Kotta of paddy a month was to be decreed for her maintenance. The annual profits from the properties in the possession of defendants 2 to 4 would only be ten Kottas of paddy and out of such profits the plaintiff was entitled to two Kottas of paddy for her maintenance. The defendants were willing to pay their share of the maintenance legitimately due to the plaintiff. The 5th defendant admitting the relationship of the parties and the partition deed Ext. A, stated that plaint items 4 to 9 which had been allotted to Chinnarulappa Naicker were mortgaged by him in 1104 to one Ganapathy for 28,000 fanams. On 1.9.1118 the 1st defendant executed a sale deed for the equity of redemption of these properties to the 5th defendant reciting the said mortgage and other debts. Accordingly he discharged the debts mentioned in the sale deed. He took the sale deed as a bona fide purchaser for value and it was supported also by necessity. The plaintiff was not entitled to get any relief so far as plaint items 4 to 9 were concerned and he pressed for the dismissal of the suit so far as himself and the properties in his possession. 3. He took the sale deed as a bona fide purchaser for value and it was supported also by necessity. The plaintiff was not entitled to get any relief so far as plaint items 4 to 9 were concerned and he pressed for the dismissal of the suit so far as himself and the properties in his possession. 3. In the replication the plaintiff stated that the family debt came to only Rs.100 and that the annual mesne profits from the properties in the possession of defendants 2 to 4 would come to 16 Kottas of paddy a year. She stated that the demand made by her was reasonable and that she was to get a decree for that. 4. The court below did not allow the plaintiff's prayer for her separate residence in the family house item 10. It was also held that the sale deed Ext. I taken by the 5th defendant in 1118 from the 1st defendant would not defeat the plaintiff's right to claim maintenance charged on plaint items 4 to 9. She was allowed past and future maintenance at one Kotta of paddy per mensem from 21.5.1121. This had been made a charge on all the plaint properties. She was allowed to recover only the price of paddy at the Nirak rate prevailing on the date of suit. Interest on the arrears was not allowed and the parties were directed to bear their costs of the suit. 5. In this appeal the 5th defendant pleaded that plaint items 4 to 9 which he had purchased in 1118 were not liable for the plaintiff's maintenance. On the other hand no charge could be given on those properties to meet the plaintiff's claim. He did not question the rate fixed by the lower court or of the plaintiff's right to get maintenance. 6. It is now agreed by all the commentators on Hindu Law that the claim even of a widow for maintenance is not a charge on the estate of her deceased husband whether joint or separate until it is fixed and charged upon the estate. As pointed out in the Principles of Hindu Law by Mulla,11th Edn., the charge may be created by a decree of court or by an agreement between the widow and the holder of the estate or by the will by which the property was bequeathed. As pointed out in the Principles of Hindu Law by Mulla,11th Edn., the charge may be created by a decree of court or by an agreement between the widow and the holder of the estate or by the will by which the property was bequeathed. Therefore the widow's right is liable to be defeated by a transfer of the husband's property to a bona fide purchaser for value without notice of the widow's claim for maintenance. It is also liable to be defeated by a transfer to a purchaser for value even with notice of the claim unless the transfer was made with the intention of defeating the widow's right and the purchaser had notice of such intention. In fact a widow's right to receive maintenance is one of an indefinite character which, unless made a charge upon the property, is enforceable only like any other liability in respect of which no charge exists. But where maintenance had been made a charge upon the property and the property is subsequently sold the purchaser must hold it subject to the charge. 7. This principle has been adopted in Mayne on Hindu Law and Usage, 11th Edition at page 832, paragraph 699. A Division Bench of the Travancore High Court in Thiraviam Pillay v. Unnamala reported at page 805 of 30 T.L.J. has accepted this position of the widow in respect of her claim for maintenance from the family properties of her deceased husband. The earlier decisions of that Court in 8 T.L.J. 318 and 24 T.L.J. 213 had been cited with approval. The plaintiff has no case either in the plaint or in the replication that a charge for her maintenance had been created on any of the family properties. After the death of her husband in 1086, the husband's two brothers divided the ancestral properties in 1095 under Ext. A or Ext. V. No provision was made there for the maintenance of the plaintiff and not even mention of her existence was made in that document. In paragraph 4 of the plaint the plaintiff admitted the partition. But she had stated that she was maintained by the two brothers till their death. Thus it could be seen that no charge had at any time been created either by an agreement of parties or by a decree of court on the family properties for the plaintiff's maintenance. Some time after Ext. But she had stated that she was maintained by the two brothers till their death. Thus it could be seen that no charge had at any time been created either by an agreement of parties or by a decree of court on the family properties for the plaintiff's maintenance. Some time after Ext. A on 14.9.1104 the 1st defendant's father had mortgaged plaint items 4 to 9 under Ext. II for 28,000 fanams. The mortgagee was thereafter in possession. The plaintiff does not question this mortgage as one executed with the intention of defeating her claims. Even the sale deed Ext. I taken by the 5th defendant on 1.7.1118 for the equity of redemption over those properties is neither impeached nor sought to be avoided. Thus the plaintiff had no case that the mortgage and the sale deed were gratuitous or that the mortgagee and the vendee had notice of the plaintiff's right to receive maintenance. No doubt in her deposition she had stated that the 5th defendant was aware of her existence and of her right to get maintenance. But that would not be sufficient to fix any liability on plaint items 4 to 9. 8. The lower court and the respondent's learned Advocate had relied on S. 39 of the Transfer of Property Act which laid down that where a third person had a right to receive maintenance, from the profits of immoveable property, and such property was transferred, the right might be enforced against the transferee, if he had notice thereof or if the transfer was gratuitous, and that the same could not be enforced against a transferee for consideration and without notice of the right nor against such property in his hands. In the first place the plaintiff had no case that the transfer in 1104 by mortgaging the property for 28,000 fanams or the sale deed to the 5th defendant in 1118 were fraudulent documents or that they were gratuitous. S.39 of the Transfer of Property Act could not therefore be made applicable even if it was taken that this case would be governed by the provisions of the Transfer of Property Act. This suit was filed in 1124 in the District Court of Nagercoil when the Transfer of Property Act was not law in Travancore. This Act had been made applicable only from 1.4.1951, while the suit was pending. This suit was filed in 1124 in the District Court of Nagercoil when the Transfer of Property Act was not law in Travancore. This Act had been made applicable only from 1.4.1951, while the suit was pending. This could not however affect the rights of parties which already existed. In any view of the matter it has to be held that the plaintiff cannot get a charge over plaint items 4 to 9. 9. The decree of the lower court is therefore modified by holding that the plaintiff's right to receive maintenance will not be a charge on plaint items 4 to 9. The appeal is therefore allowed with costs of this court. Allowed.