Somnath Iyer, J.
1. This appeal concerns a claim to enhanced maintenance. There were two brothers Deepu and Cheradappa. The plaintiff in the suit out of which this appeal arises is the widow of Cheradappa. Cheradappa and the plaintiff had ason Ramdas who died quite a long time ago. O. S. No. 76 of 1940 in the court of the District Munsiff, Mangalore, wasa suit brought by the plaintiff after the death of her husband and son against Deepu for maintenance. On April 1, 1942 a decree was made in that suit by which the plaintiff was awarded maintenance at Rs. 5/- a month and a charge for that maintenance was created upon the propertiesin the possession of Deepu.
2. On August 6, 1942 Deepu settled the property on which the charge was created in that way on his niece whois defendant 1, and the property so settled was valued at Rs. 3000/-. Deepu's widow and defendant 1 sold that property consisting of two separate houses to a certain Meenakshi on June 11, 1945 under Exhibit B-2. The sale wasfor Rs. 8000/- out of which a sum of Rs. 2,000/- was left with the vendee for the purpose of creating a fund for the purpose of maintenance due to the plaintiff. Meenakshi in her turn sold the property on November 8, 1946 under Exhibit B-3 to defendant 2 for a sum of Rs. 8,000/-.
3. The present suit was brought by the plaintiffagainst defendant 1, defendant 2 and others who are members of the family to which the plaintiff belongs for manyreliefs. She sought a declaration that the deed of settlement in favour of defendant 1 was void. She sought adecree for delivery of possession of the property so settled to her. In the alternative she sought enhanced maintenance at Rs. 50/- a month.
4. The suit was resisted on many grounds. But the plaintiff, however, succeeded in obtaining a decree for enhanced maintenance at Rs. 25/- a month. The decree forpossession sought by her was refused. That decree for enhanced maintenance was made by the Subordinate Judge against defendant 2, and on the entire suit property a charge was created for the enhanced maintenance.
5. Defendant 2 appeals.
6. Only two submissions were made in this appeal on behalf of the 2nd defendant. The first was that signs defendant 2 was a bona fide transferee for consideration without any notice of any intention on the part of any oneto defeat the claim of the plaintiff to recover enhanced maintenance, neither defendant 2 nor the property purchased by her could be made liable for the payment of any enhanced maintenance. The other submission was that in any event, the enhancement now made is excessive.
7. In support of the first submission we were asked to say that since there was a decree in favour of the plaintiff in the year 1942 for maintenance at Rs. 5/- a month and there have been successive transfers of the properly over which the charge was created subject only to liability to pay maintenance at that rate, the claim to enhancement which might have succeeded if Deepu had still been in possession of the property is no longer available against the transferees, particularly since it is not alleged or proved that any of the transferees was not a bona fide transferee or was a transferee with notice of any intention on the part of any one to defeat the right of the plaintiff to claim enhanced maintenance. It was also said that since the plaintiff was also precluded by her own conduct from claiming any enhanced maintenance since during all these many years even after defendant 2 became a purchaser under Exhibit B-3 she received maintenance without any complaint or demand for any higher maintenance than at the rate fixed by the decree made in the earlier suit.
8. Under Section 25 of the Hindu Adoptions and Maintenance Act which came into force in the year 1956, the amount of maintenance payable to a Hindu whether fixed by a decree of the court or by agreement either before or after the commencement of the Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration. It is upon this statutory provision reliance is placed on the claim to enhanced maintenance in this case. It is of course clear that the provisions of Section 25 do apply to the claim made by the plaintiff since the suit was brought on February 14, 1959 although what was done on that date was to present an application for permission to sue as a pauper which was subsequently allowed. It is thus clear that although maintenance awarded was only Rs. 5/- a month by the decree made in the earlier suit brought by the plaintiff, on the establishment of a material change in the circumstances justifying the demand for enhanced maintenance, the plaintiff could ask for the enhancement of the maintenance so fixed.
Section 25, it is clear, incorporates the well known rule of Hindu Law that the rate of maintenance fixed, even if it is fixed by a decree, is not immutable and is capable of variation or alteration if circumstances justify such variation. It is enough to refer in this context to the three decisions of the High Courts of Calcutta, Madras and Bombay in Sreeram Bhuttacharjee v. Puddomokhee Debia, 9 Suth WR 152; Venkanna v. Aitamma, ILR 12 Mad 183 and Sidlingappa v. Sidava, ILR 2 Bom 624 (FB), in which this proposition was enunciated. It is not necessary to refer to the later cases which have accepted the principle enunciated in these decisions.
9. Now the main ground on which the plaintiff claims enhanced maintenance in this case was the increase in the cost of living. That the living expenses have considerably increased between the year 1947 and the year 1959 is not seriously disputed. These are circumstances which result in a material change in the situation which obtained in the year 1942 and would therefore normally entitle the plaintiff to claim enhanced maintenance. One other circumstance which also creates a right to claim enhanced maintenance is an increase in the income of the propertywhich is liable to the claim for maintenance. The Subordinate Judge's finding was that the income from the property over which a charge was created has also substantially increased.
10. But it was urged before us by Mr. Karanth who doesnot dispute that there is a material change in the circumstances such as would normally justify the claim toenhanced maintenance, that that claim has to fall in thiscase since the property is in the hands of a stranger androt in possession of either Deepu or his heirs. The argumentadvanced was that in order to succeed in a claimto enhanced maintenance from the transferee of the property of a person against whom a decree is made for itspayment, it should be established that the purchaser ortransferee had notice of an intention on the part of thetransferor to defeat the claim to enhanced maintenance.Although this argument would have been irrefutable beforeSection 39 of the Transfer of Property Act was amended,it seems to me that the proposition would not be accurateafter the amendment made to Section 39. That sectionreads:
39. 'Transfer where third person is entitled to maintenance : Where a third person has a right to receive maintenance or a provision for enhancement 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 without notice of the right, nor against such property in his hands.' There being no doubt that the plaintiff in this case has a right to claim maintenance from the profits of the removable property over which a charge was created in the earlier suit, and it being also clear that there is a transfer of that property to defendant 2, that right to receive maintenance under the provisions of this section could be on-forced against defendant 2 if he has notice of that right, or if the transfer is gratuitous. But that right is not enforceable against defendant 2 if it could be said that he is a transferee for consideration without notice of the right.
11. Whatever might have been the attempt on the part of the plaintiff to challenge the bona fides of the sale to defendant 2, it is now clear from the finding recorded by the Subordinate Judge and also from the evidence in the case that the transfer to defendant 2 or to Meenakshi was not a gratuitous transfer. But it is clear from Exhibits B-1, B-2 and B-3 that all the three persons who were parties to that document viz. Puttu alias Kaveri, Meenakshi and defendant 2 had clear notice of the right of the plaintiff to receive maintenance. Indeed those three documents under which there was either a settlement or a sale recited the right of the plaintiff to receive maintenance and the decree made in favour of the plaintiff in her earlier suit. A sum of Rs. 2000/- was under the terms of Exhibit B-2 left with Meenakshi so that maintenance payable to the plaintiff may be paid nut of that fund which under the agreement between the parties had to he returned to Deepu's widow after the death of the plaintiff.
12. That defendant 2 is therefore a transferee with notice of the plaintiff's right to receive maintenance is indisputable. It is equally clear -- and no argument to the contrary was advanced before us -- that defendant 2 is also a transferee for consideration. Mr. Karanth did notalso contend before us that defendant 2 had no notice of the right of the plaintiff to receive maintenance.
13. Section 39 would therefore make it very clear that defendant 2, notwithstanding the fact that he is 3 transferee for consideration, would nevertheless, be a per-son against whom the right of the plaintiff to receive maintenance could be enforced since he had notice of her right to receive maintenance.
14. If that is what follows from the provisions of Section 39, it is difficult to understand how the argument that in order to obtain a decree against defendant 2, it was necessary for the plaintiff to further establish that there was some conspiracy on the part of some one to defeat the plaintiff's right to claim maintenance and that defendant 2 had knowledge of the fact that there was an intention to defeat that right. That argument, as I have already pointed out, would have been a good argument before the amendment of Section 39 of the Transfer of Property Act.
15. What I have so far discussed is the right of the plaintiff to enforce against defendant 2 and against the property purchased by her under Exhibit 8-3 a claim to receive maintenance. It seems to me that the position would be the same even in respect of the right of the plaintiff to claim enhanced maintenance. Section 39 of the Transfer of Property Act employs the words 'where a third person has a right to receive maintenance.' The right to receive maintenance about which this section speaks is not only the right to receive maintenance in the first instance but also the right to receive enhanced maintenance which may be claimed if there is a material change of circumstances. For the same reasons for which the plaintiff would have been able to enforce her right to receive maintenance against defendant 2 on the property purchased by her even if there was no decree in her favour, we should, in my opinion, say that the plaintiff has also the right to enforce her right to receive enhanced maintenance against defendant 2 and the property purchased by her. It is not, in my opinion, necessary to enforce that right to prove that defendant 2 had notice of any intention on the part of any one to defeat that right. What ensures the success of the right to enhanced maintenance is the fact that defendant 2 had notice of that right.
16. When under Exhibit B-1 there was a settlement of the property by Deepu on defendant 1 who was her niece and when there was a purchase by Meenakshi under Exhibit B-2 and by defendant 2 under Exhibit B-3, every one of those persons knew or should have known that the maintenance fixed by the decree made in the earlier suit instituted by the plaintiff was liable to be increased in the same way in which these alienees could have asked for a diminution of the maintenance if circumstances justified such diminution. If it is with this prospect that they entered into transaction, they could not be heard to contend that the right to claim enhanced maintenance came to an end when there was a transfer of the property on which a charge was created for such maintenance. The acceptance of this argument would lead to the result that the statutory right to claim enhanced maintenance created by Section 25 can be defeated by the simple process of alienation to a person who, although he has notice of the right to claim such enhanced maintenance, pays consideration. An interpretation which may lead to such consequences, in my opinion, cannot be sound and should not be accepted.
17. In support of a proposition to the contrary, Mr. Karanth asked attention to a decision of a single Judge in Ambika Rai v. Mt. Tetara Kuer, : AIR1956Pat293 . That was a case in which a claim to enhanced maintenance fixed by a decree was turned down on the ground that that claim could not succeed against a transferee. Choudhary, J. based his conclusion entirely on the principle that until a charge was created on a property, the person entitled to receive maintenance from that property would have no right to claim maintenance from its profits, and that the right to claim maintenance in that way came to an end if there was a transfer of the property to a bona fide purchaser.
18. Mr. Jagannatha Setty's criticism of this decision that it overlooks the provisions of Section 39 of the Transfer of Property Act is, in my opinion not without substance. Mahesh Prasad v. Mt. Mundar, : AIR1951All141 (FB) and Rama Murthy v. Kanakaratnam AIR 1948 Mad 203, to which Mr. Karanth asked our attention are cases between which and the case before us there is no resemblance. They were cases in which there was an alienation of property from the profits of which the widow could have claimed maintenance even before she obtained a charge on them, and the principle enunciated in these cases was that if the alienation made in that way was an alienation which was permissible under the Hindu Law the right of the widow to claim maintenance from the properties would disappear.
19. Now the distinguishing feature of the present case is that long before any transfer of the property was made there was a charge in favour of the widow. Secondly, although there were alienations after the charge was created, it was not pleaded by any one and no investigation was made into the question whether any of the alienations were alienations permitted by the Hindu Law. On the contrary, it is impossible for any one to contend that the settlement made under Exhibit B-1 by Deepu on his own niece could fall into the category of permissible alienations.
20. It is however true as Mr. Karanth contended that even before the decree was made in the earlier suit, there was a mortgage of the property by Deepu and the plaintiff on November 18, 1938 over which a charge was created, for the discharge of a debt contracted by Ramdas, the son of the plaintiff, from a co-operative bank. The debt borrowed from that bank by Ramdas and Deepu was Rs. 1,000/-, and the mortgage executed by the plaintiff and Deepu in favour of a certain Savitri was for a sum of Rs. 1300/-. It is true that the debt was not discharged until the alienations were made in this case, and it is not known whether that debt is still subsisting. But it should be remembered that while the transaction under Exhibit B-1 was only a voluntary settlement, the alienations made under Exhibits B-2 and B-3 are for as large a sum of money as Rs. 8,000/-. In that position it would be a very difficult endeavour for any one to attempt to establish that the principle enunciated in : AIR1951All141 and AIR 1948 Mad 208, could have any application to the case before us.
21. I am therefore of the view that defendant 2 cannot resist the claim for enhanced maintenance on the ground that she was a bona fide transferee for consideration and cannot sustain the plea that the claim to enhanced maintenance should fail even if she has notice of the claim to receive it.
22. What I should now turn to consider is the argument that the enhancement is excessive. The Subordinate Judge enhanced the maintenance from Rs. 5/- to Rs. 25/-a month. Whereas the finding of the Munsiff in the earlier suit was that the income from the property was Rs. 300/-a year, that recorded by the Subordinate Judge was that the income varied when the suit was brought between Rs. 700/- and Rs. 750/. Since the plaintiff was the widow of Deepu's brother, the Subordinate Judge proceeded to say that a sum of Rs. 300/- or Rs. 350/- would be the maintenance claimable by the plaintiff for her share. It was on this basis and after allowing some deductions for expenses such as repairs and taxes since the property is a house property that the enhanced maintenance claim of the plaintiff was calculated at Rs. 25/- a month.
23. The main argument addressed before us by Mr. Karanth was that the Subordinate Judge overlooked the fact that defendant 2 had made improvements to the property over which she claimed to have expended as large a sum of Rs. 6,000/-, and that if there was an increase in the income a good part of it was attributable to the improvements made in that way. That part of the income was, according to the argument, irrelevant for the claim to enhanced maintenance. Of course this argument is acceptable if we find it possible to say that it is established that those improvements have been made. The only evidence produced in the case in support of the story that improvements were made is that of the husband of defendant 2 who is examined as D.W. 1, and although he asserted in his evidence that he spent Rs. 6,000/- for those improvements, he had to admit in his cross-examination that there were no accounts maintained by him in regard to those improvements. As there is no other evidence about it, I am not surprised that the Subordinate Judge found it easy to say that the improvements stated to have been effected by defendant 2 have not been proved to have been made.
24. When I turn to consider the income of the property, it seems to me that the finding recorded by the Subordinate Judge is open to very little criticism. D.W. 1 himself admitted that the property was in an important locality of Mangalore Town 200 yards away from the busiest part of it called Hampankatta and situate in a place called Balmatta. D.W. 1 gave evidence that every cent of property in that locality was worth Rs. 1,000/-, and it is admitted that the property with which we are concerned in this appeal measures 25 cents. Although in one part of his examination D.W. 1 said that the suit property might fetch Rs. 10,000/- or Rs. 15,000/- when sold, it was elicited from him that the property was thus worth Rs. 25,000. The further evidence which he gave in his examination-in-chief was that the property which consisted of two houses would fetch Rs. 60 to Rs. 70 a month by way of rent.
25. Although the Subordinate Judge thus proceeded upon the many admissions made by D.W. 1 and did not act upon the testimony given by the plaintiff that the rent realised by the property was in the neighbourhood of Rs. 150/- a month, Mr. Karanth asked us to say that the Subordinate Judge did not take into account the fact that some part of the property was lying vacant and could not have been yielding an income. The Subordinate Judge, it is obvious, did not believe that part of the testimony of D.W. 1 and we should not, in my opinion, take a different view of it. The story that a part of the property whichis situate in a busy locality of Mangalore Town was lying vacant is incredible.
26. The finding of the Subordinate Judge that the income was between Rs. 700/- and Rs. 750/- a month thus receives support even from the evidence given by D.W. 1 himself.
27. Mr. Jagannatha Setty has also asked attention to the admissions made by D.W. 1 that there were 9 cocoanut trees and 2 jack fruit trees on the property. From the 9 cocoanut trees out of which 2, according to D.W. 1, had perished, he stated, that he used to get 100 nuts. Their value, according to Mr. Setty, was Rs. 30/- in the year 1959. It appears to me that he is right in making this submission. D.W. 1 also gave evidence that 1 jack fruit was worth Re. 1/-. But we should not pay much attention to that part of the evidence.
28. Even if we should take the income from the property according to the lower rate given by D.W. 1, the income from that property would be Rs. 60/- a month, and if the income, of two months is excluded for repairs and taxes, the income relevant for the purpose of calculation would be Rs. 600/- a year. If half of this amount which is the income relevant for the purpose of plaintiff's claim is Rs. 300/-, the maintenance at Rs. 25/- a month awarded by the Subordinate Judge could not be considered excessive.
29. But there is one little matter which the Subordinate Judge overlooked when he awarded enhancement at the rate. He overlooked the fact that there was a mortgage created for Rs. 1300/- by Deepu and the plaintiff, and the interest payable on this mortgage debt, if it is still subsisting as we must presume it does, should be debited against the plaintiff's claim to maintenance to the extent of her share of the interest so payable. If the enhanced maintenance is computed in this way, it would be reasonable to say that a sum of Rs. 20/- a month would be the enhanced maintenance to be awarded to the plaintiff.
30. Before concluding, it would be necessary to notice one argument advanced by Mr. Karanth which was to the effect that in the circumstances defendant 1 alone should have been made liable to pay at least some part of the enhanced maintenance claim of the plaintiff. It does not appear to me that we should do so. It is true that defendant 1 alienated the property to defendant 2. But so long as defendant 2 has notice of that claim, although defendant 1 could have been made liable also for the plaintiff's claim, there can be no doubt that defendant 2 cannot escape his liability to pay the enhanced maintenance.
31. The result therefore is that this appeal succeeds only to the extent indicated above. What we should do is to make a modification in the decree of the Subordinate Judge by substituting the figure Rs. 20/- for the figure Rs. 25/- which is the enhanced maintenance awarded. Subject to this modification, the appeal is dismissed.
32. No costs.
Govinda Bhat, J.
33. I agree.
34. Appeal partly allowed.