1. This is the plaintiff's Second Appeal against the decree passed by the Civil Judge at Bagalkot in Regular Appeal No. 4 of 1968 affirming the decree passed by the Munsiff at Bagalkot in Civil Suit No. 9 of 1967.
2. The suit property is a house of which the owner is Shivanappa, the second defendant. The first defendant Tangewwa is the wife of the second defendant. The plaintiff claims to have purchased the suit property on 2nd December 1957 from the second defendant. He has, on the basis of his title, filed the suit for possession. The second defendant filed a pursis consenting for a decree in favour of the plaintiff. It is only the wife, the first defendant that resisted the suit. Her main case is that the suit house has been given for her residence during her lifetime by the husband and that therefore, the plaintiff is not entitled to secure immediate possession of the suit property from her in view of the bar contained in Section 39 of the Transfer of Property Act. She has further pleaded that disputes arose between herself and her husband and as they were not pulling on well, the disputes were referred to the elders of the village. The elders brought about some sort of settlement between the parties in pursuance of which the second defendant save the suit property to the first defendant for her residence during her lifetime. It is, therefore, her case that during her lifetime the plaintiff will not be entitled to the possession of the suit property.
3. The Court of first instance held that the agreement pleaded by the first defendant is proved. It further held that the provisions of Section 39 of the T. P. Act are attracted and consequently dismissed the suit. The decree of the Court of first instance has been affirmed on appeal by the learned Civil Judge. Hence this second appeal bv the plaintiff.
4. Sri K. S. Savanur, learned counsel appearing on behalf of the plaintiff contended that the first defendant is not entitled to claim benefit of Section 39 of the T. P. Act, inasmuch as she does not claim that the suit house was given to her for her maintenance, but only claims that the same was given for her residence. Section 39 of the Transfer of Property Act, reads as follows:--
'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.'
It is not the case of the first defendant that the suit house was given to her to make provision for advancement or for meeting the marriage expenses of the dependants. It, was, therefore, submitted that if only the first defendant establishes that the suit house was given to her in lieu of maintenance to which she is entitled, that the provisions of Section 39 of the T. P. Act are attracted. The contention of Sri Savanur is that the word 'maintenance' used in Section 39 of the T. P. Act does not include the right of residence. I find it difficult to understand the word 'maintenance' in the restricted sense in which Sri Savanur wants me to understand. As the expression 'maintenance' has not been defined in the T. P. Act, one has to necessarily give the ordinary meaning of the said expression. The word 'maintenance' in its ordinary parlance means and includes provision for food, provision for shelter, provision for clothing etc. The word 'maintenance' occurring in Section 39 of the T. P. Act must be deemed to have been used to convey this ordinary meaning of that word. The context in which the word 'maintenance is used in Section 39 of the T. P. Act does not warrant the giving of any restricted meaning and holding that it only includes within its ambit expenses of food and clothing. I have, therefore, to repeal the contention of Sri Savanur that the word 'maintenance' used in Section 39 of the T. P. Act does not include residence within its ambit.
5. Sri Savanur, learned counsel for the plaintiff invited my attention to the decision of the Bombay High Court in Gangabai v. Jankibai, (AIR 1921 Bom 380). The relevant paragraph to which my attention was invited, reads as follows:--
'As regards the question of the wife's right of residence I am of opinion that the lower appellate Court has taken an erroneous view. All the right which the wife has during her husband's lifetime 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. It is not suggested in the present case that her right of maintenance including the right of residence was declared a charge on this property during her husband's lifetime. There was a suit by Janakibai against her husband for maintenance after the sale of 1904 and it is common ground that no charge was created in favour of Jankibai in respect of this house; and indeed it is difficult to see how it could be done in view of the sale by the husband in 1904.'
The clear effect of the judgment of the Bombay High Court is that the mere fact that the wife is entitled to be maintained by the husband during his lifetime, is not sufficient to clothe her with a right in respect of any immovable property of her husband, which is transferred by him in order to attract the protection of Section 39 of the T. P. Act. The right that is contemplated under Section 39 of the T. P. Act is a right in respect of a specific property, having been created by way of making provision for maintenance or for making provision for advancement or making provision for marriage, by the husband during his lifetime. It is necessary to note that in the case decided by the Bombay High Court, no right as such was created in the property in question by the husband in favour of the wife in that the said property was not given to her for her maintenance including the right of residence. The said decision far from indicating that the right of residence is not included in the right of maintenance, clearly indicates the contrary. Their Lordships have understood the right of maintenance as including the right of residence, as is clear from the portion of the judgment, which I have extracted above. Hence, the said decision is not of any assistance to support the contention which Sri Savanur has pressed in this appeal.
6. The next decision relied upon is the one reported in (1904) ILR 27 Mad 45, (Jayanti Subbiah v. Alamelu Manga-mma). That was a case in which the deceased husband of the defendant had executed a promissory note as a surety and after his death a decree was obtained against the defendant his widow on the promissory note. The decree-holder attached a house which belonged to the deceased and in which the widow was residing, brought it for sale and purchased it. On the auction-purchaser endeavouring to obtain possession the widow resisted on the ground that she had a right of residence in the house during her lifetime and could not, therefore, be ejected. The High Court of Madras held that the decree-holder was entitled to be given possession of the house and that the widow had no right of residence therein. It is clear from the said decision that no charge was created in respect of the specific immovable property in respect of the right of maintenance of the widow. The widow could not resist the suit claim of the auction-purchaser for possession as she was not given a right of residence during her lifetime. The said decision is clearly distinguishable from the facts of the present case.
7. In the present case the first defendant has pleaded that an agreement was entered into on the advice of the elders to resolve the disputes between defendant 1 and her husband, who were not pulling on well. It is by way of settlement of the disputes between the husband and the wife that the suit property was given by the husband to the wife for her separate residence during her lifetime. Though it was given for residence, it is obvious that the same is a part of the arrangement for the grant of maintenance to the wife. As a right was created in respect of a specific immovable property i. e., the suit house in this case, before the property was transferred by the husband in favour of the plaintiff, the first defendant, who has a right of residence during her lifetime, can successfully resist the suit for possession by the plaintiff under Section 39 of the Transfer of Property Act. The Courts below, therefore were right in dismissing the suit of the plaintiff.
8. For the reasons stated above, this appeal fails and it is dismissed. No costs.
9. Appeal dismissed.