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Radhabai Gopal Joshi Vs. Gopal Dhondo Joshi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 354 of 1940
Judge
Reported in(1943)45BOMLR980
AppellantRadhabai Gopal Joshi
RespondentGopal Dhondo Joshi
Excerpt:
hindu law-maintenance-wife-liability of husband's property-debts of husband take precedence over claim for maintenance-transfer of property act (iv of 1882), section 39-claim for maintenance against purchaser of husband's property-civil procedure code (act v of 1908), section 11, order xxi, rule 63-conclusiveness of orders-meaning of-practice-point of law-appeal-raising of point of law for first time in appeal-res judicata.;under hindu law the maintenance of the wife is a legal and imperative duty of the husband independently of his possession of any property. this does not mean that she has no right to be maintained out of her husband's property, if he possesses any. her right of maintenance during her husband's lifetime is in a way higher than after his death, since in the latter case.....lokur, j.1. this appeal arises out of a suit filed by the plaintiff against her husband for past and future maintenance and dismissed by the first class subordinate judge at belgaum on the ground that he had no jurisdiction to try it.2. the plaintiff was married to defendant no. 1 about the year 1913 or 1914 and they have been living apart since about the year 1920. the plaintiff claimed rs. 3,300 for arrears of maintenance and future maintenance at rs. 400 per annum and a charge for the amounts on the property described in the plaint. at the date of suit the plaintiff was living in sangli and her husband was living in miraj, but the suit was filed in the court of the first class subordinate judge at belgaum as the property sought to be charged with the maintenance is situated in belgaum.....
Judgment:

Lokur, J.

1. This appeal arises out of a suit filed by the plaintiff against her husband for past and future maintenance and dismissed by the First Class Subordinate Judge at Belgaum on the ground that he had no jurisdiction to try it.

2. The plaintiff was married to defendant No. 1 about the year 1913 or 1914 and they have been living apart since about the year 1920. The plaintiff claimed Rs. 3,300 for arrears of maintenance and future maintenance at Rs. 400 per annum and a charge for the amounts on the property described in the plaint. At the date of suit the plaintiff was living in Sangli and her husband was living in Miraj, but the suit was filed in the Court of the First Class Subordinate Judge at Belgaum as the property sought to be charged with the maintenance is situated in Belgaum district.

3. Defendant No. 1 contended that he had sold the whole of that property to his natural father Vinayak Krishna and had no interest left in it. If the property in suit be found not liable to the charge of the plaintiff's maintenance, the Belgaum Court would have no jurisdiction to try the suit. Hence on the contention of defendant No. 1, his natural father was added as defendant No. 2. He claimed to be a bona fide purchaser for value of the entire property in suit. The plaintiff contended that the sale was bogus and intended to defeat her claim for maintenance.

4. The trial Court dismissed the suit for want of jurisdiction without framing proper preliminary issues arising out of the pleadings. On appeal by the plaintiff this Court set aside the decree and remanded the suit with the following specific issues, viz. : (1) Assuming that the plaintiff is entitled to separate maintenance from defendant No. 1, can she claim to have it made a charge on his immoveable property (2) If so is the sale of the property in suit by defendant No. 1 to defendant No. 2 a hollow and sham transaction and therefore inoperative and not affecting defendant No. 1's title to it And is defendant No. 1 still the owner of that property in spite of the sale-deed in favour of defendant No. 2 And (3) Has the First Classs Subordinate Judge's Court at Belgaum jurisdiction to try the suit ?

5. After recording further evidence the trial Court found in the affirmative on the first issue and in the negative on both the parts of the second issue, and again dismissed the suit on the ground of want of jurisdiction.

6. The first issue was framed by reason of the contention urged on behalf of the defendants that the husband's liability to maintain his wife being personal, the plaintiff could not claim a charge on the property in suit, even assuming that he was still its owner. The origin of this contention may be traced to the remark made by Westropp C.J. in the leading full bench case of Savitribai v. Luximibai and Sadasiv Ganoba I.L.R. (1878) 2 Bom. 573 wherein, after considering various texts, he observed (p. 598) :-

The injunction contained in these texts is not rendered dependent upon or in anywise qualified by a reference to the possession of family property, and purports to impose a personal legal obligation enforceable fay the sovereign or the state. The obligation too, is not asserted to be merely occasional, but permanent and continuous.

7. This merely emphasises the well recognised doctrine that the maintenance of the wife is a legal and imperative duty of the husband independently of his possession of any property. But it does not mean that she has no right to be maintained out of her husband's property, if he possesses any. Her right of maintenance during her husband's lifetime is in a way higher than after his death, since in the latter case it depends on the property left by her husband.

8. In Narbadabai v. Mahadev Narayan ( I.L.R. 1880) 5 Bom. 99, it was held that a Hindu husband cannot alienate the whole of his immoveable property, though self-acquired, without making for his wife a suitable provision for her maintenance to take effect after his death. During her husband's lifetime the wife cannot claim separate maintenance from him unless she can make out sufficient reasons for not staying with him, whereas after his death she can claim separate maintenance from his coparceners or heirs if he has left sufficient property. In either case her claim to be maintained out of his property cannot be denied.

9. But the plaintiff is not satisfied with a bare personal decree against her husband but wants to have a charge on his property. Hence the second issue had to be framed, Her learned advocate Mr. Abhyankar has urged before us two new grounds for holding the property in suit, or at least some of it, liable for her maintenance even though its sale to defendant No. 2 be upheld, one based on Order XXI, Rule 63, of the Code of Civil Procedure, 1908, and the other on Section 39 of the Transfer of Property Act, 1882. He says that as they involve pure questions of law arising out of facts either proved or admitted, they should be considered though they were never urged before. It is true that if these grounds had been urged and upheld in the former appeal, the decision might perhaps have been different. It is, therefore, urged for the defendants that the plaintiff must be deemed to have given up those grounds. It would perhaps be more correct to say that those grounds were then lost sight of and the plaintiff should not suffer for the oversight.

10. It is well settled that provided the determination of a question of law which is raised for the first time in appeal does not depend upon a decision as to facts which are in dispute, the Court is not only competent but should in the interests of justice entertain the plea (Nuri Mian v. Ambica Singh I.L.R. (1916) Cal 47.It is therefore necessary to see whether the points newly raised by Mr. Abhyankar can be disposed of on the evidence already on record.

11. The question under Order XXI, Rule 63, of the Code of Civil Procedure, arises in this way. The plaintiff had some shridhan lands of her own in Sangli State. After her marriage with defendant No. 1 he took them into his possession for management. After the plaintiff went to live with her maternal relations she filed a suit in the Sangli Court to recover possession of her lands from the defendant, together with mesne profits. The trial Court gave a decree for possession, but not for mesne profits. In appeal she succeeded in obtaining a decree for mesne profits also. She got that decree transferred for execution to the Court of the Second Class Subordinate Judge at Athni on July 13, 1926, as defendant No. 1 owned two lands at Kagwad in Athni taluka. Within a month thereafter defendant No. 1 sold all his immoveable property to his natural father, defendant No. 2, all his lands in British India for Rs. 17,500 on August 2, 1926, and his lands in Bhor State for Rs. 2,500 on September 16, 1926. In December, 1926, the plaintiff presented a darkhast to execute her Sangli decree and recover her mesne profits by the attachment and sale of defendant No. 1's Kagwad lands. When they were attached, defendant No. 2 stepped in and made an application under Order XXI, Rule 58, of the Civil Procedure Code, to have the attachment raised on the ground that he was in possession of them as their bona fide purchaser for value from defendant No. 1. His application was dismissed, and he filed a suit to have it declared that the Kagwad lands belonged to him and were not liable to be attached in execution of the decree obtained by the plaintiff against defendant No. 1. His suit was dismissed, and he filed an appeal to the District Court. When that appeal was pending, the decretal amount due to the plaintiff was paid off, and the attachment of the Kagwad lands naturally came to an end. The appeal was then heard on merits and was dismissed. The learned Judge remarked that the decision of the appeal was purely of an academical interest as the amount claimed in the darkhast had already been paid. But as the parties wanted to go on with the appeal, he heard it and held that though the sale was not effected with the sole intention of defrauding the plaintiff, the transfer was made with the clear knowledge that she would thereby be defrauded. He observed :

It is possible to hold that the object was two-fold, firstly, as a consideration for the moneys which the plaintiff was to advance and secondly, in order to bring Radhabai (the plaintiff) into difficulties as regards the execution of her decree against Gopal.

12. It is urged on behalf of the plaintiff that the appeal having been dismissed, the order in the miscellaneous application refusing to raise the attachment must be treated as conclusive under Order XXI, Rule 63, of the Civil Procedure Code, and that the plaintiff can claim to have her maintenance charged at least on the two Kagwad lands. This contention is based on an unwarranted exaggeration of the effect of the claim proceedings under Order XXI, Rule 58, of the Civil Procedure Code. That rule provides that when any claim is preferred to, or any objection is made to the attachment of, any property in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection as if he was a party to the suit, After such investigation the Court may allow the claim under Rule 60 and release the property from attachment or disallow the claim under Rule 61 and uphold the attachment. Then Rule 63 says that when a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. What is conclusive is the order passed under Rule 60 or Rule 61 which only decides the liability or non-liability of the particular property to the attachment already effected. This limited effect of the order was clearly defined in Dinkar Ballal Chakradev v. Hari Shridhar Apte I.L.R. (1889) 14 Bom. 206 In that case the plaintiff purchased two plots A and B from one Gopal. In execution of a decree against Gopal, plot A was attached and sold by auction to the defendant. The plaintiff did not then intervene. Next year the defendant obtained another decree against Gopal and got the plaint plot B attached in execution of that decree. The purchaser plaintiff applied for the removal of the attachment. The defendant's contention that the sale was colourable was not upheld and the attachment was raised. The defendant did not file a suit. Then the plaintiff filed a suit to establish his title to the plot A. The defendant again contended that the plaintiff's sale was colourable. Holding that the finding in the claim proceedings in respect of plot B did not debar the defendant's defence in respect of plot A, although the plaintiff had purchased both the lands under one and the same sale-deed, Jardine J. observed : If the decision as to the validity of the deed had been a final decision in a suit as distinguished from an execution proceeding, it would have created an estoppel by res judicata, Between the parties the orders to which Section 283 (now Order XXI, Rule 63) of the Civil Procedure Code refers, are subject to the result of a suit, if any, conclusive, but this conclusiveness exists only as regards the particular property in dispute.

13. This distinction is patent from the wording of Order XXI, Rule 63, itself. That rule does not require the plaintiff to establish his ownership of the property attached, but 'the right which he claims to the property in dispute'. If the suit has been instituted by the decree-holder, against whom an order has been passed under Rule 60 releasing the property from attachment, the right which he claims in the suit is the right to have the property attached in execution of the decree against his judgment-debtor. If, on the other hand, the plaintiff is the objector, who has been unsuccessful in the objection proceedings before the executing Court, the right which he claims in the suit is the right to have the property in dispute released from attachment, it not being the property of the judgment-debtor. It will be seen that in either case it is not necessary for the plaintiff to establish his own title in the property in question, but what he has to establish is, in the first case, the claim to have the property attached, and in the other to have it released from attachment. Subject to the decision in that suit, the order passed by the executing Court is conclusive. But that order must be subsisting at the date of the decision of the suit. If the order upholds the attachment, but for some reason or other the attachment comes to an end, the order upholding it becomes defunct, and then there is no purpose in filing a suit to have it set aside or in proceeding with the suit if one has already been filed. Thus in Ibrahimbhai v. Kabulabhai I.L.R. (1888) 13 Bom. 72 A obtained a decree against B and in execution attached certain property. B objected and applied to have the attachment raised. His application was rejected, but the judgment-debtor paid the amount of the decree into Court and the attachment was removed. A then again attached the same property in execution of another decree against B and his application to remove it was rejected. Within one year thereafter he filed a suit under Order XXI, Rule 63. It was held that it was not necessary for him to file any suit after his first application was set aside, since the attachment had been raised on the satisfaction of that decree.

14. Similarly in Najimunnessa Bibi v. Nacharuddin Sardar I.L.R. (1923) Cal. 548 where the attachment was released within a year after the order dismissing the claim case and execution proceedings were again taken after the lapse of several years, a title suit brought to resist the attachment was held not to be time-barred. Rankin J. observed (pp. 559-561) :-

The meaning [of the words 'shall be conclusive'] is that the act of the Court is to be valid unless there is a suit. It means that the attachment held valid in the claim case shall be valid, and the attachment removed shall be as though it never was, so far as the parties are concerned. The rule seems to mean that subject to a suit factum valet, the act of the Court shall not be questioned save in that way. The effect of the decision as to possession in other proceedings in which that question may again arise is not the matter to which the words 'shall be conclusive' are directly addressed. The principle is that the object of making a claim in execution is to remove the attachment, that when the attachment is withdrawn that object is gained, and that, if there exists no attachment, or proceeding in execution of which the order in the claim case can take effect, one is not bound to bring a suit complaining of such order.

15. In the present case as soon as the plaintiff's decree, in execution of which the Kagwad lands had been attached, was satisfied, during the pendency of defendant No. 2's appeal, the attachment must ipso facto be deemed to have been withdrawn under Order XXI, Rule 55, of the Civil Procedure Code, and there remained no order of the executing Court which could be made conclusive by the decision of the appeal. Yet the parties to the appeal might fight it out on its merits to its end, not for the purpose of giving finality to the order of the executing Court which had already spent itself, but to have their dispute about the right to the property settled once for all. The decision will then debar the parties from agitating the same question again on the ground of res judicata, and not because of the finality of the previous order of the executing Court. If there be no effective order of the executing Court existing, it can in no way be affected by the decree in the suit or the appeal one way or the other. Hence the plaintiff cannot now take shelter under the order of the executing Court and resist defendant No. 2's claim to the Kagwad lands on the ground of its being conclusive. But as the parties wanted to get a final decision in the suit, she can rely upon it as a bar to another litigation in respect of the same property under the provisions of Section 11 of the Civil Procedure Code. But admittedly she cannot claim the benefit of that section. In order that a decision in a former suit may operate as res judicata in a subsequent suit, it is necessary that the Court which tried the former suit must have been a Court competent to try the subsequent suit. Mr. Abhyankar for the plaintiff contends that the Athni Court was competent to try the suit with regard to the Kagwad lands and its decision is binding between the parties so far as those lands are concerned, and he relies upon the ruling Venkataraghava v. Rangamma I.L.R. (1892) Mad. 498. In that case the daughter of a deceased Hindu brought a suit in the Court of a District Munsif for a declaration that the defendant was not the adopted son of her deceased father as he claimed to be. It was found that the alleged adoption was valid and the suit was dismissed. Then the adopted son sued her in the same Court to recover some of his adoptive father's property which had gone into her possession. She again challenged the validity of the adoption and contended that the value of the entire property which went to the defendant by his adoption being worth more than Rs. 2,500, the District Munsif was not competent to try the first suit. This contention was disallowed because the first decree, not being appealed against, was binding on her and the Court which passed it was competent to try the second suit. It was not the case of the Court which tried the first suit being incompetent to try the second suit. As held in Gokul Mandar v. Pudmanund Singh (1902) I.L.R. 29 IndAp 196 a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue, but also the subsequent suit itself in which the issue is subsequently raised. If the plaintiff had reduced the value of her claim and filed this suit in the Court of a Second Class Subordinate Judge, defendant No. 2 would have been debarred from relying upon his sale-deed with regard to the Kagwad lands. But having chosen to file this suit in the Court of the First Class Subordinate Judge she has deprived herself of the benefit of the decision obtained by her in her favour in the Athni Court. It is not, therefore, open to her to plead the bar of Order XXI, Rule 63, or of res judicata by reason of the decision in appeal in her litigation at Athni.

16. Before considering the second new ground urged by Mr, Abhyankar under Section 39 of the Transfer of Property Act, it will be more convenient to deal with the nature and consideration of the sale-deed passed by defendant No. 1 to defendant No. 2, The circumstances under which it was passed raise a doubt about the bona fides of the transaction. Defendant No. 2 is the natural father of defendant No. 1 and has given him in adoption. The property in suit is the property of defendant No. 1's adoptive family. Since the plaintiff began to live separate from defendant No. 1 in 1920, he has not been on good terms with her and he has married a second wife. About the year 1922-23 he went to Poona and did business as a contractor. Then he went to Bombay about the year 1924 and started the business of removing goods by motor trucks. He says that he incurred losses in that business and had to borrow debts. He had a motor accident and a suit for Rs. 20,000 for damages was filed against him in this Court. When that suit was pending the plaintiff got her decree of the Sangli Court transferred to the Athni Court for execution on July 13, 1926. Defendant No. 2 knew about that suit and he had even sent in his own handwriting questions to be put to the plaintiff in her cross-examination in the Sangli Court. Defendant No. 1 says that he was living joint with his father till 1929-30 and that until he was twenty years old defendant No. 2 was looking after his estate. Defendant No. 2 died during the pendency of this suit and therefore has not been examined. But a certified copy of his deposition in the Athni suit has been produced. It shows that he was not ignorant of defendant No. 1's affairs. It was in these circumstances that Bapusaheb alias Sakharam Ganesh Phadke sent a wire to defendant No. 2 and called him to his place at Kalyan. It was on his advice that within three weeks after the plaintiff's Sangli decree was transferred to the Athni Court and before she filed her darkhast, the sale-deed in dispute was passed by defendant No. 1 to defendant No. 2 on August 2, 1926. By that deed he purported to convey his entire property in British India for Rs. 17,500. Six weeks later, on September 16, 1926, he passed another sale-deed to him purporting to convey his entire State property for Rs. 2,500. Thus he had ostensibly left no immoveable property for himself out of which the plaintiff could recover either her decretal dues or her maintenance. The plaintiff filed her darkhast after both these sale-deeds were executed. These dates indicate that the object of the sales must have been to defeat the plaintiff's claim.

17. It is admitted that Bapusaheb Phadke was an intimate friend of the family and his deposition shows that he was keenly interested in having the sale deed in suit upheld. He says that defendant No. 1 was going to commit suicide on account of his heavy debts and so he sent a wire to defendant No. 2 in order to persuade him to lend money to defendant No. 1 and relieve him of his debts. This reason given by him for sending for defendant No. 2 is palpably false. It is true that Bapusaheb Phadke is a man of status and was the President of the Thana Local Board and Kalyan Municipality. But he appears to have been solicitous about the welfare of his friend's family. There was no cause for defendant No. 1 even to think of committing suicide at that time. The suit for damages was still pending. His motor truck which was involved in the accident had been insured and in fact the suit was compromised and the damages were paid by the insurance company. So there was no reason for defendant No. 1 to be afraid of that suit, Bapusaheb Phadke claims to have saved him from suicide by inducing his father to pay off his debts and take over all his immoveable property. The contents of the sale deed in suit show that it was intended to pay off three debts, viz. Rs. 4,060 due on a mortgage deed of Rs, 4,000 passed in favour of Vishnu Phadke in June, 1925, Rs. 5,458 due on a mortgage deed for Rs. 5,000 passed in favour of Ramchandra Joshi in September, 1925, and Rs. 6,000 due on a promissory note of Rs. 5,000 passed to Bapusaheb Phadke in October, 1923. The balance of Rs. 1,982 is said to have been paid to defendant No. 1 in cash.

18. Out of the three debts said to have been satisfied, the two mortgages were hardly a year old and it is not likely that the mortgagees would be anxious to recover their dues which were well secured and were carrying compound interest. The period of repayment fixed in the mortgage deed of Ramchandra Joshi, exhibit 33, was three years and his amount was to fall due for payment in December, 1928. Defendant No. 1 frankly admits that his creditors were not pressing him for payment when he passed the sale deed. The third debt, assuming it to be genuine, was that of Bapusaheb Phadke himself who was so anxious to save defendant No. 1. Thus there was no pressing necessity for Bapusaheb to send for defendant No. 2 so hurriedly and hustle defendant No. 1 into transferring all his property to him. It is significant that the sale deed was registered in Bombay. The obvious object was to put the property out of the reach of the plaintiff who, so far as the evidence shows, was the only person who was then after defendant No. 1 to recover her dues.

19. The two debts under the mortgage deeds are not disputed. But it is contended that as their total came to about Rs. 9,500 only, Bapusaheb's debt was invented in order to make up an adequate consideration for the sale of all the lands in British India to defendant No. 2, There is a good deal of force in this contention. In his zeal for the good of his intimate friend, Bapusaheb did not mind his name being used in the Sale deed as one of the creditors of defendant No. 1. His debt was to be mentioned as due on a promissory note which could be fabricated at any time and ante-dated, and as he was not going to make any claim under it, he may have thought that there was nothing wrong in it. It is significant that in the sale deed, while all the details of the two mortgage debts were given, the date of Bapusaheb's promissory note was not mentioned. That promissory note purports to have been passed on October 29, 1923. In that year defendant No. 1 was doing business as a contractor in Poona and, as he says, he was making a profit in that business. On the other hand Bapusaheb admits that he himself was then heavily indebted to the extent of Rs. 50,000 or Rs. 60,000 and that he had lost all his property. He had no previous dealings with defendant No. 1 and he admits that he made no inquiries. Yet he claims to have advanced such a large sum of money without any security. He says that he had accounts, but he never produced them. It appears that the date on the promissory note was purposely selected as in October, 1923, in order to show that three years were about to expire when the sale deed in suit was passed. But it is not alleged that he was then pressing defendant No. 1 to satisfy his debt. No evidence is led to prove the consideration of the promissory note and the interested word of Bapusaheb is difficult to believe in the absence of his accounts. Defendant No. 2's statement in the Athni suit shows that he had an extensive business and he must have maintained accounts. But he never produced them even in that suit although he was called upon to do so. He indirectly admitted that the payment of defendant No. 1's debts at the time of the sale deed was not entered in his accounts as he had paid them out of his cash balance at home. He said that he used to keep Rs. 5,000 to Rs. 25,000 on hand, which is hard to believe. In view of all these circumstances we are not prepared to hold that Bapusaheb's debt was genuine. That amount and Rs. 1,982 said to have been paid in cash to defendant No. 1 were evidently added in the sale deed to show that the price paid was adequate. Thus the only debts which were paid off by defendant No. 2 on behalf of defendant No. 1 were those of the two mortgagees amounting to Rs. 9,518. The remaining consideration of Rs, 7,982 was bogus, and, even assuming that it was paid by defendant No. 2 to defendant No. 1, it was not for the satisfaction of his debts. But as the major portion of the consideration was actually paid by defendant No. 2, the sale cannot be held to be hollow and cannot be set aside. Defendant No. 2 must therefore be held to have acquired a valid title to the property conveyed to him by the sale deed.

20. This conclusion having been reached on the evidence already on record, it has to be seen how far it helps the plaintiff to claim the benefit of Section 39 of the Transfer of Property Act, although she did not claim it in the trial Court or in the former appeal. That point has now become a pure question of law and we are bound to consider it in the interests of justice. The section provides that when a third person has a right to receive maintenance, or a provision for advancement of marriage, from the profits of immoveable 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. Under Hindu law a husband is under a personal obligation to maintain his wife even 'if he has to do a hundred things which ought not to be done', as Manu says. It has yet to be decided whether the plaintiff can live away from her husband and claim separate maintenance from him. But in any event she has a right to maintenance not only from him personally but also out of his property, and for that purpose she can pursue the property even in the hands of a stranger who has purchased it with notice of her claim [Shri Beharilalji v. Bai Rajbai I.L.R. (1898) 23 Bom. 342. Before the amendment of Section 39 of the Transfer of Property Act in 1929 it was necessary to prove that the transfer was with the intention of defeating the right of maintenance, etc. But that condition having been deleted by the amendment, bare notice of the existence of the right would be sufficient to make it a burden on the property in the hands of the transferee. Defendant No. 2 was fully conversant with defendant No. 1's affairs, his strained relations with his wife and her right to get her maintenance from him. With all this knowledge he purposely bought from him his entire immoveable property. The plaintiff is, therefore, entitled to claim the benefit of Section 39 of the Transfer of Property Act. But under Hindu law debts contracted by a Hindu take precedence over the right of maintenance of his wife or infant child. Hence a purchaser of property sold to discharge the debts of a husband acquires a good title against a wife who seeks to charge it with her maintenance unless this has been already done [Jamiat Rai v. Mst. Malan I.L.R. (1931) Lah. 41. Hence the sale of the property to defendant No. 2 for the payment of the two mortgage debts cannot be impugned. But in order to defeat the plaintiff's claim he purchased nearly twice the property by fraudulently inflating the debts of her husband. The payment of the genuine debts of Rs. 9,518 cannot be questioned and it takes precedence over the plaintiff's right of maintenance. But having notice of that right, defendant No. 2 fraudulently purchased the entire property for a consideration, out of which Rs. 7,982 was not needed for the payment of debts, and that amount cannot have priority over the plaintiff's right of maintenance. Hence, taking an equitable view of the case, we hold that 7,982/17,000 or roughly 16/37 part of the property in suit is liable to bear the burden of the plaintiff's maintenance. This will be taken into consideration in determining the quantum of the maintenance payable to her.

21. Thus on the second of the three issues sent down to the trial Court our finding is that the sale to defendant No. 2 is not wholly hollow, that he has acquired a title to the property in suit but subject to the burden of the plaintiff's right of maintenance on 16/37 share in it and that defendant No. 1 is not the owner of that property. It follows that the finding on the third issue is in the affirmative. We, therefore, set aside the decree of the lower Court and remand the suit for further hearing and disposal according to law. Costs of the appeal will be costs in the suit. The costs of the Government, if any, will be paid by the respondents.

22. March 5, 1943. After the above judgment was delivered, the appellant and respondents Nos. 3 to 5 have entered into a compromise and put in an application that a decree should be passed in terms of the compromise. So, after the papers of this appeal are received by the trial Court, it will pass a decree in terms of the compromise so far as the appellant and respondents Nos. 3 to 5 are concerned and a decree on the merits as between the appellant and respondents Nos. 1 and 2. Costs of Government, if any, will have to be paid by the appellant in view of the compromise. Other costs in this Court will be borne by the parties themselves, and costs of the appellant and respondents Nos. 3 to 5 in the lower Court will also be borne by the parties themselves. The order regarding costs passed by this Court is hereby vacated.


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