1. This is an appeal by some of the judgment-debtors against the order of the Subordinate Judge of Cuttack dismissing in part their objection under Schedule 7, C. P. C. to the execution of a maintenance decree obtained by the respondent Bhuyani Trinayani Dasi against her late husband Srichandan Bhuyan Btuudafoan Chandra Roy in O. S. No. 484 of 1908. The maintenance decree (Ex. P) was passed on 16.8.1909 and several items of zamidari properties of Sriohandan Bhuyan Brundaban Chandra Roy were charged with liability for the maintenance of the respondent. Two of those items are touzi Nos. 1453 and 1463 appertaining to Balasore Collectorate. The maintenance decree was slightly modified when the litigation was taken up to the High Court in 1917. But for the purpose of the present appeal it is unnecessary to discuss in detail the history of that litigation. It is sufficient to note that the aforesaid two touzis and several other properties of Sriehandan Bhuyan Brundaban Chandra Roy were made subject to the maintenance charge of the respondent. Touzi No. 1463 wag purchased by one Pitacambar Ghoae through his authorised agent in a court-sale on 28 9-1916 and in the sale certificate (ex, E) it was expressly stated that the sale in favour of the auotion-purehaser was subject to the charge created by the aforesaid maintenance decree. Touzi No. 1458 was also purchased on 4 7-1923 by the said Pitambar Ghose from one Jadunath Panda who had acquired the said touzi from Sriehandan Bhuyan Brundaban Chandra Roy by purchasing the same in a court sale in execution of his morttgage decree. The said Brichandan Bhuyan Brundaban Chandra Roy died on 4.2.1943. During his life-time his wife (the respondent) had executed the maintenance decree on several occasions. The present application for execution (Execution case No. 125 of 1944) out of which this appeal arose was filed on 28-7-1944 and it related to the maintenance due to her for three years from August 1941 to the end of July 1944. It will be noticed that a portion of the claim refers to the period after the death of her husband Sricbandan Bhuyan Brundaban Chandra' Roy. The decree-holder's case was that the aforesaid two touzes were subject to the maintenance charge decreed in her favour and that the appellants having acquired the said touzis with full knowledge of the existence of the charge decree in her favour were bound by the same. The appellants are all the descendants of Pitambar Ghose.
2. The learned Subordinate Judge disallowed the respondent's claim in respect of touzi NO. 1453 on the ground that in a previous litigation (O. S. NO. 522 of 1913, Ex. 5 and Misoc Case No. 95 of 1931) to which the respondent was a party it was decided that the said touzi was not liable to sale in execution of her deoree for maintenance. As regards touzi No. 1463, however, he held that the said Pitambar Ghose acquired it subject to the maintenance charge of the respondent and that consequently the execution should be allowed to continue in respect of that property.
3. Several objections had been taken in the lower Court by the appellants-judgment-debtors one of them being that the respondent was the sols heir of Sriohandan Bhuyan Brundaban Chandra Roy and that there was a merger of her maintenance decree with her right as heir. The respondent on the other hand contended that her husband had adopted one Gourhari Saha some time before his death. The learned lower Court believed the story of adoption. 14 is, however, unnecessary in this litigation to come to any decision as to whether the said Gourhari Saha was validly adopted by Sriehandan Bhnyan Brundaban Chandra Roy. Even if it be held that he was validly adopted the respondent as a widow would also have a substantial interest in her husband's property by virtue of the provisions of the Hindu Women's Rights to Property Act, 1987.
4. The main point urged by Mr. Pal on behalf of the appellants is that the aforesaid maintenance decree became unexecutable on the death of Sriohandan Bhuyan Brundaban Chandra Roy because after that date the respondent being his widow became an heir to this property by virtue of the Hindu Women's Rights to Property Act, 1937 and that an heir under the Hindu law was not entitled to any maintenance. He further urged that the other properties left by the said Srichandan Bhuyan Brundaban Chandra Roy to his widow were considerable and that she has adequate means to maintain herself out of those properties.
5. There is, however, no clear evidence about the exact value of the property left by Srichandan Bhuyan Brundaban Chandra Eoy. Un-doubtedly in 1909 he was a very substantial Zamindar as will be clear from the list of the zamindari properties that were made subject to the maintenance charge of his wife in the decree in O.S. No. 484 of 1SO8 (Ex. f). But from a perusal of the case reported in Debendra Nath v. Trinayani Dasi, (1948) 24 Pat. 245 : (A.I.R. (82) 1946 Pat. 278) (which also arose out of the execution of the same maintenance decree) it appears that most of the properties charged with the payment of maintenance to the respondent had pasted out of the hands of her husband even during his life. time. The evidence in the present case merely shows that the husband left about 80 acres of chas lands and some other properties. But there is absolutely no evidence as to the amount of income derived from those properties and how much will fall to the share of the respondent even if the story of adoption be taken as true.
6. The essential facts are practically admitted. Touzi no. 1463 was made subject to the maintenance charge of the respondent decree-holder in the decree dated 16 8.1909 (Ex. F). That touzi was purchased by the ancestor of the appellants on 23 9.1916 in a court-sale and in the sale certificate (ex. e) the existence of the charge on the basis of the aforesaid maintenance decree was clearly mentioned. The purchaser purchased the property with the full knowledge of the existence of the charge. In this case therefore it will be of mere academic interest to discuss the various conflicting decisions regarding the effect of Sections 52 and 100 of the Transfer of Property Act, when a property is purchased during the pendency of a litigation regarding the creation of a charge on the said property by a maintenance decree (See Gangabai Pandurang v. Pagubai Narayan, I. L. R. (1941) Bom. 1: (A.I.R. (27) 1940 Bom. 395), Ramchandra Gururao v. Kamala Bai, A.I.R. (31) 1944 Bom. 191: (I. L. R, (1944) Bom. 274) and Kulandaivelu Pillai v. Sowbagyammal, A.I.R. (32) 1945 Mad. 350 : (1946-1 M.L.J. 261).
7. It cannot be seriously disputed that the respondent decree-holder has the right to proceed against any item of property charged. As early as 1867, it was pointed out by the Bombay High court in Ramchandra v. Savitribai (4 Bom. H.C.A.C. 73) that :
'By Hindu law the maintenance of a widow is a charge upon the whole estate, and, therefore, upon every part thereof.'
Similarly in Sham Lal v. Banna, 4 ALL. 296 : (1882 A.W.N. 42 F.B.), the Full Bench declared :
'When the maintenance has been expressly charged on the purchased property, it will be liable, although it be shown that there is property in the hand of the heirs sufficient to meet the claim.'
In Thimmanayanim Bahadur v. Venkatappa Nayanim Bahadur, A. I. R. (15) 1928 Mad. 713 at p. 716; (109 I.C. 872 F.B.), the right of the maintenance decree-holder to choose the property against which she may proceed was clearly recognised. Again in Debendranath v. Trinayanidasi, I.L.R. (1945) 24 Pat. 245 : (A. I. R. (32) 1945 Pat. 278) it was pointed out that 'every part of the property charged is liable for the payment of the decretal debt'. Therefore the fact that the respondent has chosen one of the several items of the charged property for this execution proceeding will not be a ground for resisting her claim.
8. The main question for consideration is whether the death of the respondent's husband in 1943 has had the effect of making the maintenance decree unexeeutable. It is doubtless true that from the date of his death the respondent as his widow became entitled to a share of his-property (if the story of adoption be believed) or the whole of his property (if there was no adoption) by virtue of the Hindu Women's Rights to Property Act, 1937. There is sufficient' authority to support the view that a Hindu, widow who has become an heir of her husband's property cannot claim maintenance out of that property, Venkata Subbarattamma v. Krishniah, A. I. R. (30) 1943 Mad. 417 : (208 I. C. 688) and T. Sarojini Devi v. T. Sri Kristne, I.L.R. (1945) Mad. 61 at p. 69 : (A. I. R. (31) 1944 Mad. 401). In the latter Madras decision Patanjali J. pointed out:
'It may well be that, if the Act (referring to the Hindu Women's Eights to Property Act, 1987) conferred upon the widow a right of Succession in respect of all her husband's property, the right of maintenance allowed to her under the ordinary Hindu law as compensation for her exclusion from inheritance would no longer be available, although nothing is said in the Act about rights of maintenance.'
This point has been fully discussed in a recent decision of the Oudh chief Court reported in Misri Lal v. Mst. Simatra, (23 Luck. 277) where after an exhaustive discussion of all the authorities on the subject it was pointed out that the right of a Hindu widow claim to maintenance out of the joint family property of her husband was extinguished after the passing of the Hindu Women's Eights to Property Act, 1937. In the aforesaid Madras decisions, however, the right of maintenance of a Hindi widow from the agricultural lands left by her husband was recongnised because till then the said Act had not bean applied to agricultural lands left by her husband was recognised because till then the said Act had not been applied to agricultural lands by the Provincial Legislature. But this argument is no longer available in the. Province of Orissa because by Orissa Act V of 1944 the provisions of the Hindu Women's Rights to Property Act, 1937 were applied to agricultural lands in the Province with retros pective effect from the date of the commencement of the latter Act.
9. But the main difficulty against the appellants' case arises from the fact that the lower Court was acting merely as an executing Court and had, therefore, no jurisdiction to go behind the decree. It may be that in a properly constituted suit the appellants may be able to succeed in establishing that the respondent had no right to claim maintenance from the date of the death of her husband and thus extinguish the effect of the maintenance decree in C. s. No. 484 of 1908. It is also not unlikely that even if they are unable to completely extinguish the said decree they may be able to get the maintenance allowance reduced to a substantial extent after taking into consideration the exact value of the assets of Srichandar Bhuyan Brundaban Chandra Roy that were inherited by his widow. Even before the passing of the Hindu Women's Eights to Property Act, 1937, it was fully recognised that a maintenance decree itself may be varied due to change in circumstances: Ruka Bai v. Ganda Bai, 1 ALL. 694, Venkanna v. Aitamma, 12 Mad. 183; Bangaru Ammal v. Vijayamachi Reddiar, 22 Mad. 175; Gopika Bai v. Dattatraya, 24 Bom. 386 : (2 Bom. L. R. 191); Kewalmal v. Isri Bai, 93 I. C. 353: (A.I.R. (13) 1925 Sind 135), Sheo Mangal. Bodhikuar, A. I. R. (23) 1936 Oudh 60 : (11 Luck 607) and Sundari Ammal v. Venkat Rama, 66 M. L. J. 680 : (A. I. R. (21) 1934 Mad. 384). But in all these cases the question arose not in an execution proceeding but in a separate suit. In the present case, however, there is a decree in favour of the respondent and that decree does not say in any way that it shall cease to be operative after the death of the respondent's husband. On the other hand, the very fact that; it is a maintenance decree reasonably indicates that it would be operative during the life. time of the decree-holder. The Court took special care to specify various items of property of the husband which should be subject to the maintenance charge and this safeguard was specially adopted with a view to prevent the husband from defeating the maintenance of his wife by alienating his properties. Therefore, so long as the charge remains and the decree stands unmodified I do not think it will be open to the executing Court to say that the decree is unexecutable because after the death of the husband the widow as his heir has inherited his properties.
10. In Gopikabai v. Dattatraya, 24 Bom. 386 : (2 Bom. L. R. 191), Parsons J. pointed out the desirability of inserting suitable words in the maintenance decree so as to enable the Courts, on application, to set aside or modify their orders as circumstances might require. If in the present maintenance decree also such words had been inserted it would have been open for the appellants to apply in the execution proceeding itself for reduction of the rate of maintenance due to change of circumstances but unfortunately for them, there are no such words in the decree and it must be executed as it stands. In Ranmalsangji v. Bai Kundankuvar, 26 Bom. 707: (4 Bom. L. R. 531) it was observed:
'But here the claim is under the special provisions of a decree expressly dealing with the circumstances of this particular case. And that decree, passed in relation to those circumstances, contained no provision whatever that the rights thereby conferred on the respondent should be dependent upon her place of residence or upon any other matter whatsoever. It conferred in terms an unconditional and absolute right to the maintenance specified therein. There is neither; necessity nor justification for any conjecture as to the reasons for that decision or as to the propriety thereof. It is binding in execution on the parties thereto, and neither of them could go behind it or add to it a condition which it does not contain. A decree for maintenance right may be so framed as to admit of modification of its terms with reference to post decretal changes In the circumstances or in the relations of the parties. No authority has, however, been cited to show that such modifications could be made on application in execution when the decree contains no provision in that behalf.'
Though the aforesaid ease is distinguishable on facts from the present case the principle laid down down therein is applicable with equal force and with respect I would agree entirely with those observations.
11. In Muttia v. Virammall, (10 Mad 283. F. B.) it was held that a decree for maintenance obtained by a widow in a suit against her husband's brother could not be executed after his death against the joint family property in the hands of other members of the family. But it was expressly observed that the decision would have been would have been different if the defendant had been sued as representing the family or if the maintenance had been charged on the joint family property. Following this decision, in Subbanna, Bhaita v. Subbanna, 30 Mad. 324 : (17 M. L. J. 180) it was held that a maintenance decree obtained by an illegitimate son against his father such maintenance being charged on the joint family property of the father and his legitimate sons, could be enforced against the sons after the father's death The present case is of a similar type. Though the maintenance decree was against the husband such maintenance was changed on his property. So long as the charge remains, the decree is enforceable against the successor-in interest of the husband even after his death. To hold otherwise would be to defeat the very purpose for which the charge was created.
12. Mr. Pal has relied on Chinna Goundan. v. Kalyana Sundaram, A. I. R. (28) 1941 Mad. 126 : (1940-2 M. L. J. 881) and Venkayya v. Raghavamma, A. I. R. (29) 1942 Mad. 1: (I. L. R. (1942) Mad. 24) for the view that where the basis on which a decree is passed has disappeared, such a decree becomes unenforceable. Chinna, Goundan v. Kalyana, A. I. R. (28) 1941 Mad. 126 : (1940) 2 M. L. J. 881) is, however, clearly distinguishable because there the decree ceased to be executable by the operation of a statute. This position admits of no doubt. For example there are some provisions in the Orissa, Money lenders Act (see Sections 11 and 17) which say that some decrees shall be deemed to have been satisfied under certain circumstances. No executing Court can execute a decree against the express provisions of an Act. In the present cage, however, this analogy will not apply because the Hindu Women's Rights to Property Act, 1937, does not expressly say anything about the enforceability or other wise of maintenance decrees obtained prior to the date of the commencement of that Act. In Venkayya v. Raghavamma, A.I.R (29) 1942 Mad. 1: (I. L. R. (1942) Mad. 24), the principles of English law regarding divorce and alimony were applied and it was held that a decree obtained by a Hindu wife against her husband for maintenance ceased to be enforceable if subsequent to the decree the wife resumes cohabitation with her husband. Therein it was pointed out that the basis on which a decree for maintenance was passed in favour of the wife namely the living of the wife separately from her husband for good reasons had disappeared by the act of the parties. By returning to her husband, she became disentitled to claim maintenance and therefore it was held that the previous decree became ineffective and the parties were restored to the position which they occupied when they were married. I do not think it will be proper to apply the principle of this decision to the present case. The base on which the decree was obtained by the respondent against her husband cannot be said to have disappeared. The decree was based on the relationship of husband and wife and the fact that the husband by his own conduct compelled his wife to live apart from him. Till his death the conditions remained as they were at the time of the passing of the decree and the only change that has been brought about is the change in her status from a wife to that of a widow and the consequent right to inherit his property under the Hindu Women's Rights to Property Act, 1937. The right of a wife to claim maintenance form from the estate of her husband is essentially different from that of a widow to claim maintenance from the estate of her deceased husband (see Sham Devi v. Mohan Lal, A.I.R. (31) 1934 Lah. 167). The former is based on the relationship between the two and the personal obligation arising out of it. The latter is, however, limited to those instances where she cannot succeed to her husband's estate as his heir. The Hindu Women's Rights to Property Act, 1937, may have the effect of extinguishing such rights of a widow but it has left the rights of the wife unaffected. When those rights have been embodied in a decree and a charge has been created in respect of several items of her husband's property, and there is nothing in the decree to indicate that its life is limited to the life of the husband, the executing Court has no other option except to execute-the decree as it stands. All that can be reasonably urged on behalf of the appellants is that in view of the improved financial position of the respondent caused by her inheriting her husband's property, the maintenance allowance may be substantially reduced or (if the evidence justifies it) may be cancelled altogether. But I think this can be done only by a separate suit and not by way of an objection in an execution proceeding.
13. I would, therefore, dismiss the appeal with costs.
14. I agree with my learned brother that the appeal is to be dismissed with costs.
15. The facts out of which this appeal arises have been fully set out in the judgment of my learned brother. The argument for the appellant is that since by the date of the application for execution, the husband of decree-holder had died, the decree is no longer executable as against the appellants. Various grounds are alleged in support of this position, (a) The decree is economic against the deceased husband of the respondent and there is no decree against the appellants. They cannot be said to be the legal representatives of the original judgment-debtor and the decree cannot be executed against them, (b) The decree has become inoperative and is no longer executable because, (i) It is based on the personal obligation of the husband which ceases with his death, (ii) After the husband's death, she has become an heir to her husband's property and has no longer any subsisting right of maintenance.
16. As regards the contention (a), the appellants who have purchased some items of the property charged, while the decree continues to remain unsatisfied, are clearly persona bound by the decree by virtue of Schedule 2 of the Transfer of Property Act and are in the position of judgment debtors under the decree in respect of execution against the said item of property. They may also be considered to be persons in possession of the assets of the original judgment-debtor whose property they have purchased subject to the charge, to the extent required for satisfaction of the decree out of the items so purchased and in that sense his leg preventatives. As regards contention (b), learned counsel for appellants has cited authorities to show that where the basis or foundation of a decree vanishes, the decree itself becomes inoperative and in executable and that this objection can be raised in execution under Schedule . 47, 0. P. C. without a separate suit having to be filed to set aside the decree. Syam Mandal v. Satinath Banerjee, 44 Cal. 954; (A. I. R. (4) 1917 Cal. 728) and Venkayya v. RagJiavamma, I. L. R. (1942) Mad. 54 : (A. I. R. (59) 1942 Mad. 1) and Narayan Chitko v. Vithal Parshotam, 12 Bom. 23, and a number of other cases have been brought to our notice. Assuming this proposition to be correct, the question is whether it can be said that the basis of the charge-decree for maintenance obtained by a wife against her husband necessarily vanishes with the death of the husband.
17. It is no doubt true that the obligation of the husband to maintain his wife is personal. But it does not follow that it does not survive. The right of the wife to get maintenance from her husband is one that can also be enforced against the property of the husband or the share of the husband in the family property. Ail that is meant when it is said that the husband's obligation in this behalf is personal is merely to emphasize that irrespective of having any property the husband is bound to maintain the wife. When, however, the obligation is charged on the property, it is no longer a mere personal liability, but is also a property liability. That this is so appeared from the fact that the charged property can be proceeded against irrespective of the possession of other property in the hands of the debtor and independent of whether the personal remedy is pursued in the first instance or not, Sham Lal v. Banna, 4 ALL. 296 (F. B.). It is, therefore, erroneous to say, as has been contended, that the obligation is merely personal and and that the charge is an accessory liability, which fall to the ground with the death of the husband. The right of the wife to obtain maintenance is prima facie for her life and hence the property charged can be followed during her life time into the hands of every person to whom it passes. This has been recognised in Subbanna Bhatta v. Subbanna, 80 Mad. 82: (1) M.L.J. 180) following Muttia v. Virammal, 10 Mad. 283 (F. B.) which has pointed out the distinction in this respect between a maintenance decree which has been obtained against a person individually and a maintenance decree which has been obtained against a representative of the family or which has been charged on the property. Those were, no doubt, cases of decrees obtained by a widow against another member of the family, but the principle would appear equally to apply to the case of a decree obtained by a wife against her husband There is nothing in Sham Devi v. Mohan Lal, 15 Lab. 591: (A. I. R. (21) 1984 Lah. 167) which has been cited to militate against this view.
18. Prima facie, the object of obtaining the charge for maintenance in respect of certain items of the property is that so long as the decree-holder's right to be maintained out of the property continues, the property charged is to be treated as the husband's assets in the hands of any successor or alienee, foe purposes of satisfaction of the liability charged, It appears to me, therefore, that in the case of a charge decree for maintenance, like the one under consideration in the present case, the fact of the death of the husband by itself does not in any way alter the foundation of the decree and does not make the decree inexecutable and that prima facie the decree enures for the lifetime of the decree-holder as against the charged property. Any other view would result in compelling the wife who has become a widow to sue afresh for her maintenance, the heirs or the coparcener of her husband. In a case where the husband has left no property at his death or has not left sufficient property to provide for her reasonable maintenance, she would be without any remedy and the purchaser of the charged property would be getting a release from the liability which he has not bargained for. We have been shown no authority compelling us to accede to any such view.
19. The only further question that remains is whether the fact of the respondent having succeeded to some property of her husband in this case, makes any difference. It has, no doubt, been held that where a widow succeeds to her husband's property she has no longer any right to maintenance because her right to a share is in lieu of her maintenance and she cannot obviously be a maintenance-holder in respect of the very property which she owns for her life; vide Misrilal v. Mst. Sinatra, 23 Luck. 277. It has been held on the other hand that where' the widow succeeds only to some of the properties of her husband as heir, her right to maintenance out of the other properties of the husband does not disappear, though the fact of her being the owner of some properties may be a ground for variation of the quantum of maintenance. Sarojini Devi v. Srikristne, I. L. R. (1945) Mad. 61 : (A. I R. (31) 1944 Mad. 401). In a case like the present one, where some of the properties of her husband which have been charged for her maintenance, have passed away from the husband's estate by the date of his death, she obviously cannot succeed as an heir to those properties and there can be no question of her being entitled to those items as owner and and, at the same time of getting maintenance out of them. There is no scope for the operation of the principle of merger. There is, therefore no reason why her right to maintenance out of those properties should be held to have vanished Those properties continue to be her husband's assets by virtue of the charge, for purposes of obtaining satisfaction of the decree, but have ceased to be her husband's property for purposes of any succession on account of their having been alienated away. Her right to maintenance out them may, therefore, be held on principle to have remained intact on the analogy of Sarojini Devi v. Srikristna, ILR (1945) Mad. 61: (A.I.R (31) 1941 Mad. 401) subject, of course, to any modification on the question of quantum by any separate proceedings.
20. In the result, therefore, I agree with the order of my learned brother.