JUDGMENT : A.S. Naidu, J. - The present Second Appeal was filed by Gadei Dakua- and Kasi Gouda, Defendant Nos. 1 and 2 respectively before the trial court, as Appellants 1 and 2, against Plaintiff-Rangabati and Defendant No. 2-Kirtan Gouda arraying them as Respondent Nos. 1 and 2 respectively. During pendency of this appeal Defendant - Appellant No. 2 Kasi Gouda has died and his legal representatives have been substituted in his place. Defendant No. 3-Kirtan Gouda who was arrayed as Respondent No. 2 has also died, but then instead of substituting his daughter as legal heir his name has been deleted on the prayer of the Appellants. Therefore the Plaintiff who was arrayed as Respondent No. 1 has remained as the sole Respondent now. 2. Respondent -Rangabati had filed T.S. No. 78 of 1980 before the then Munsif (present Civil Judge, Junior Division), Aska inter alia praying for permanent injunction against present Defendant - Appellant No. 1-Gadei Dakua and deceased Defendant - Appellant No. 2-Kasi Gouda alleging that on the strength of two sale deeds dated 12-8-1980 and 30-10-1980 said to have been executed by Kirtan Gouda, Defendant No. 3- Respondent No. 2 having threatening to trespass into the suit land which was in her exclusive possession, she was constrained to file the suit. 3. According to the Plaintiff - Respondent, her husband Defendant No. 3-Kirtan Gouda was a wayward person addicted to drinking and he used to sell away portions of the lands willed in his favour by his grandmother. He also neglected to maintain her (Plaintiff - Respondent). At the intervention of well-wishers and relatives of the family, Kirtan Gouda, executed a deed of settlement with regard to the suit land towards her maintenance on 29-8-1980 and got the same registered. In consonance with the deed she acquired right over the suit land and the dwelling house standing thereon and out of the usufructs of the suit lands the family used to maintain themselves. In consonance with the recitals of the said deed of settlement Kirtan Gouda was not to alienate any land covered under the deed of settlement without the knowledge and consent of the Plaintiff - Respondent and vice versa. It was further stipulated in that deed that in case of necessity, the husband and wife could jointly alienate the entire land or portion thereof. It was further stipulated in that deed that in case of necessity, the husband and wife could jointly alienate the entire land or portion thereof. With regard to the claim put forward by Defendant - Appellants 1 and 2 that they had purchased the suit land from Defendant No. 3-Kirtan Gouda, it was alleged in the plaint that such alienation having been made by Defendant No. 3 Kirtan Gouda alone during subsistence of the aforesaid registered deed of settlement were ab initio void. 4. Defendants 1 and 2 in their written statement averred that for discharging certain mortgage and to meet certain legal necessities, Defendant No. 3-Kirtan Gouda alienated the suit land in their favour by executing two sale deeds on 12-8-1980 and 30-10-1980 and by virtue thereof they had acquired valid right, title and interest in respect of the suit land. The deed of settlement, as averred in the plaint, was a fraudulent and subsequently created document and conferred no title on the Plaintiff. Defendant No. 3 had filed a separate written statement taking the stand that he had executed a deed of mortgage and to clear up the mortgage dues he had executed two sale deeds in favour of Defendants 1 and 2 respectively out of his free will. He denied the plaint allegation with regard to his wayward life. According to him he used to maintain the Plaintiff to the best of his ability and the deed of settlement was got executed by him practicing fraud, misrepresentation and undue influence. After the written statement was filed by Defendant - Appellants 1 and 2, the Respondent filed a petition for amendment of the plaint and the same having been allowed she added a prayer for recovery of possession of the suit land denying title of Defendant - Appellants 1 and 2 thereto. 5. On the basis of the pleadings of the parties the trial court framed as many as six issues for deciding the suit. In order to substantiate her case the Plaintiff got four witnesses examined and exhibited two documents, Defendants 1 and 2 got two witnesses examined and exhibited six documents. Defendant No. 3 also got himself examined as a witness. On the basis of the pleadings of the parties the trial court framed as many as six issues for deciding the suit. In order to substantiate her case the Plaintiff got four witnesses examined and exhibited two documents, Defendants 1 and 2 got two witnesses examined and exhibited six documents. Defendant No. 3 also got himself examined as a witness. After threadbare discussion of the evidence both oral and documentary, the trial court answering issue No. 3 held that Defendants 1 and 2 were in possession of the suit land having purchased the same, vide sale deeds Exts. C and D. Answering issue Nos. 1, 2 and 4 together, it observed that the Plaintiff had been able to prove that the deed of settlement Ext. 1 had been executed and got registered by Defendant No. 3 out of his free will being fully aware of the contentsthereof. Thus the plea of practicing any fraud on Defendant No. 3 could not be accepted. It further observed that the wants of Defendant No. 3 Kirtan were not that high so as to compel him to sell away the suit land to Defendants 1 and 2 and that the said sales were not for legal necessity. According to the trial court the deed of settlement Ext. 1 created right, title and interest on the Plaintiff in respect of the suit land and Defendant No. 3 had no absolute right of alienation of the suit land. The Plaintiff being the owner of the suit land she was entitled to recover possession thereof. On the basis of such conclusion the trial court decreed the suit and directed Defendants 1 and 2 to deliver possession of the suit land to the Plaintiff. 6. Being aggrieved by the decree of the trial court, Defendants 1 and 2 preferred appeal which was registered as T.A. No. 21 of 1984. The said appeal was heard and disposed of by the then Subordinate Judge, Aska. The appellate court after discussing the evidence in extensor confirmed the decree of the trial court and dismissed the appeal. The said confirming decree is assailed in this Second Appeal. 7. According to Mr. The said appeal was heard and disposed of by the then Subordinate Judge, Aska. The appellate court after discussing the evidence in extensor confirmed the decree of the trial court and dismissed the appeal. The said confirming decree is assailed in this Second Appeal. 7. According to Mr. Ratho, learned Counsel for the Appellants, the land in dispute having been acquired by Kirtan, husband of the Plaintiff, by way of a will from his grandmother, the Plaintiff acquired no right, title or interest over the same during the lifetime of Kirtan. Thus the restriction for alienation contained in the deed of settlement dated 29-8-1980 Ext. 1 was non est in law. 8. There is no dispute that the suit land belonged to Defendant No. 3 Kirtan. There is also no dispute that Kirtan had executed a deed of settlement on 29-8-1980 in favour of the Plaintiff settling the lands towards her maintenance. The recitals of the said deed of settlement so far as relevant for the purpose of this case, translating the same into English, is reproduced here: You are my married wife and out of our wedlock a daughter has born. I do not possess any ancestral property. The property in question was given to me by my grandmother by a registered Will and, I am in possession thereof and I have been performing the annual obsequies of my grand parents. I have sold a portion of the property. As per the advice of my well-wishers and relatives and as you are my wife, for your future maintenance I settle the properties morefully described in this deed and create absolute right in your favour from today and hand over possession thereof to you. From today both of us shall maintain ourselves from the usufructs of the said property and reside in the house standing thereon. None of us shall alienate the property without informing the other. In future, if it would be necessary to alienate the property then both of us shall jointly do so. 9. It was submitted by Mr. Ratho that the property in question was earlier mortgaged by Defendant No. 3-Kirtan and for discharging the said mortgage as also for certain other legal necessities Kirtan subsequently alienated the very property in favour of Defendant - Appellants 1 and 2 by two registered sale deeds. 9. It was submitted by Mr. Ratho that the property in question was earlier mortgaged by Defendant No. 3-Kirtan and for discharging the said mortgage as also for certain other legal necessities Kirtan subsequently alienated the very property in favour of Defendant - Appellants 1 and 2 by two registered sale deeds. The Plaintiff having no right, title or interest over the said property and as a charge was created earlier in respect of the property by means of mortgage, the deed of settlement executed without discharging the said charge was invalid. Thus, by virtue of the aforesaid two registered sale deeds Defendants 1 and 2 having acquired valid right, title and interest are in possession of the said property. This aspect having been lost sight of by the courts below the decree cannot be sustained. 10. Mr. Misra, learned Counsel for the Plaintiff - Respondent, repudiates the submissions of Mr. Ratho. According to Mr. Misra, by virtue of the registered settlement deed Ext. 1, Defendant No. 3 created valid right, title and interest on the Plaintiff and as such the sale deeds executed by Defendant No. 3 at later dates in favour of Defendants 1 and 2 did not confer any right, title and interest and the courts below have rightly held so. 11. This Court heard the learned Counsel for the parties at length and perused the impugned decision as also the evidence, both oral and documentary. Article 315 of the Hindu Law stipulates that a wife cannot herself demand a partition, but if a partition does take place between her husband and sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. The wife however has a right to be maintained by her husband. Looking into the matter from any angle, the Plaintiff being the legally married wife of Defendant No. 3-Kirtan, the latter had the duty and moral obligation to maintain her befitting his status. After scanning the evidence, both the courts below have arrived at the conclusion that Defendant No. 3 led a wayward life and to meet his boozing habits he used to alienate properties indiscriminately and squander away the money. After scanning the evidence, both the courts below have arrived at the conclusion that Defendant No. 3 led a wayward life and to meet his boozing habits he used to alienate properties indiscriminately and squander away the money. Considering the said facts and as Defendant No. 3 admittedly had no ancestral property or any property other than the suit property, it was decided between the Plaintiff and Defendant No. 3 that by a registered deed of settlement the suit property would be settled in favour of the wife towards her maintenance, and that Defendant No. 3 would have the right of residence and the family would maintain itself out of the usufructs of the said property as it had no other source of income. Accordingly Defendant No. 3 executed the deed of settlement Ext. 1 and handed over possession of the suit property in favour of the Plaintiff. 12. Mr. Ratho tried to convince this Court that as the suit property had been mortgaged by the time the deed of settlement was executed and registered, and a charge had been created in respect of that property, execution of the deed of settlement without discharging the said charge was not in accordance with law and hence was invalid. But then, fact remains, the property was not mortgaged with Defendant Nos. 1 and 2. The person in whose favour the property was said to have been mortgaged is not a party to the suit. Law is well settled that only at the instance of the person in whose favour a charge has been created has a right to assail any subsequent sale. In the case at hand, no such eventuality has occurred. As stated earlier, Defendants 1 and 2 not being the mortgagees have no right to assail the deed of settlement Ext. 1. Thus the contention of Mr. Ratho in this regard cannot be accepted. 13. A similar dispute came before this Court in the case of Kandha Das Vs. Indumati Devi where a father who was the owner of a property had executed a settlement deed giving the said property to his daughter. The deed of settlement however contained a clause that without the knowledge of the father the daughter could not alienate the property nor would the father alienate the property without the consent of the daughter. Indumati Devi where a father who was the owner of a property had executed a settlement deed giving the said property to his daughter. The deed of settlement however contained a clause that without the knowledge of the father the daughter could not alienate the property nor would the father alienate the property without the consent of the daughter. This Court held that as the document created an absolute conveyance of title in favour of the daughter, the restriction of alienation and enjoyment was bad in law and that the daughter had acquired absolute right over the property. Further, in the case of Ramkishore Lal Vs. Kamal Narain, it was held that if title had been conveyed imposing restriction of alienation the same was bad. Thus it can be safely concluded that by virtue of the deed of settlement executed by Defendant No. 3 in favour of his wife- Plaintiff coupled with delivery of possession, the latter had acquired valid right, title and interest in respect of the suit property. 14. In course of hearing it appeared that Defendant No. 3 who was Respondent No. 2 in this appeal though died when the appeal was sub judice, no steps were taken for substitution in his place and by order dated 13-1-1993 his name was deleted from records on the basis of a memorandum filed by the Appellants. The materials reveal that out of the wedlock of Respondents 1 and 2 a daughter was born. According to the Appellants, the property belonged to Respondent No. 2 from whom they had purchased. After death of Respondent No. 2, his daughter being a necessary party ought to have been impleaded as a party to the litigation. That having not been done, the appeal abates. 15. For the discussions made above, this Court finds no reason to interfere with the concurrent decree impugned in this appeal. This Court therefore dismisses the Second Appeal and directs the parties to bear their respective costs. Final Result : Dismissed