P. Subramonian Poti, J.
1. The Interesting Question that arises for decision in this Second Appeal is whether a Hindu widow who had obtained a decree for maintenance charged on certain properties of the joint family is entitled to claim enhanced maintenance out of these properties later, on the plea that the circumstances have altered justifying enhancement of maintenance when the properties have passed into the hands of an alienee purchasing for consideration with notice of the decree obtained by the widow for maintenance. The trial Court found that the widow, who is the plaintiff, was entitled to sue for enhancement of maintenance. But the appellate court has reversed this and has dismissed the suit. This appeal is by the widow who has been as non-suited by the appellate decision.
2. One Kaveri Amma, who was the plaintiff, married one Vishnu Bhatta who died leaving the plaintiff a widow at a very early age. The joint family of Vishsu Bhatta was possessed of extensive properties. Kaveri Amma brought a suit for maintenance in the District Munsiffs Court of Puttur. The matter was compromised and decree was passed in terms of the compromise on 12-3-1923. Ext. B. 4 is the copy of that decree. It is seen from the decree that a charge is created on certain items of properties which are the suit properties here. Some time after Ext. B-4 compromise decree, plaint schedule items 1 to 5 were sold by the joint family under Ext. A-2 on 24-4-1926 to a stranger and the vendee subsequently sold it to another under Ext. A-3 dated 1-4-1933. Defendants claim under the said sale deed. Plaintiff now sues for enhanced maintenance. What was awarded by Ext. B-4 decree was maintenance at the rate of Rs. 66/- per annum. What is now claimed in the plaint by way of enhanced maintenance is 5 maunds of arecanuts and 15 muras of rice per annum. The plaintiff has made certain averments to show that in the changed circumstances she is entitled to the enhancement claimed.
The first defendant is the main contesting defendant. Defendants 2, 3 and 4, by separate written statements, and defendants 5 and G by a joint written statement, have supported the case of the first defendant. Their case is that the plaintiff is entitled to a charge only to the extent of the amount awarded under the earlier maintenance decree Ext. B-4, as against the properties obtained by them. The sale deed of 1926 is said to be one executed for legal necessity of the family making due provision for meeting the obligations of the family under Ext. B-4 decree. The right to enhancement claimed is also disputed. On these pleadings the question that had to be decided was whether the first defendant who claims under the sale deed from the joint family alleged to have been taken for necessity binding on the tarwad was entitled to defeat the claim of the plaintiff to enhanced maintenance as against the properties of the family which had gone out of the tarwad. It Is on this question that different views have been taken by the courts below.
3. The learned counsel for the plaintiff relies on Section 25 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act) to justify her claim for enhancement of maintenance. The said Section runs as follows:
'25. The amount of maintenance, whether fixed by a decree of court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration'.
Section 28 is also relied on as that provides for the enforcement of right to receive maintenance against the properties transferred by the family. That section runs as follows:
'28. Where a dependant has a right to receive maintenance out of an estate, and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right.' It would appear that the courts below have assumed that these sections are applicable to the case of a Hindu widow claiming maintenance against the joint family. But it appears to me that the provisions of the Hindu Adoptions and Maintenance Act, 1956 relating to maintenance of dependants do not have any application to the case of enforcement of a claim against the joint family. Section 18 of the Act indicates that a Hindu wife is entitled to be maintained by her husband during her lifetime and after the death of her husband by her father-in-law. Maintenance of dependants is also dealt with in the Act. The widow is one of the dependants so long as she does not remarry. It is in Section 22(1) that provision is made for maintenance of dependants. It is necessary to extract that section here:
'22(1). Subject to the provisions of Sub-section (2) the heirs of a deceased Hindu are bound to maintain the dependants of the deceased out of the estate inherited by them from the deceased.' It can be seen from this provision that a widow's right to maintenance as dependant is as against those who inherit the estate of the deceased. The very concept of inheritance indicates that the maintenance contemplated in the Act in favour of a dependant is against the assets of the deceased and not as against the joint family assets. Therefore neither Section' 25 nor Section 28 of the Act will apply to the case of a claim for maintenance by a Hindu widow, not against the heirs of the husband who hold his properties but against the joint family of the husband. 'In these sections what is purported to be dealt with is the right of maintenance as against a Hindu and not a right of maintenance as against a Hindu Joint family, In regard to that the provisions of Hindu Law must be taken to continue not with standing the Hindu Adoptions and Maintenance Act, 1956. If so the reliance placed on these sections must be held to be unfounded.
4. I am aware that a different view has been taken by a Division Bench of the Andhra Pradesh High Court in a case reported in Kameshwararnma v. Subramanyam. AIR 1959 Andh Pra 269. That was a case whore the dispute in a suit for recovery of maintenance by the widow of one of the members of a Hindu joint family was settled by a compromise and the settlement further provided that there should be no subsequent claim for enhanced maintenance. It was contended that this agreement debarred the plaintiff, from later claiming enhancement of the maintenance awarded. The High Court took the view that though normally this would he the case, on the language of Section 25 which enabled a party to raise a claim for enhanced maintenance notwithstanding an agreement, the widow will be entitled to sue far enhancement of maintenance. No doubt, that was a case whore Section 25 could have had no application in view of what I have pointed out about the scheme of the provisions of the Act and in particular language of Section 22(1) of the Act. It appears that the eminent Judges who decided that case had no occasion to consider this aspect of the casa. Their Lordships assumed that Section 25 would be applicable to ever/case of claim for enhancement of maintenance by a Hindu widow as she would be a dependant of her husband. In the circumstances I cannot accept the view contended for by learned counsel for the plaintiff. I must state here that I am not persuaded to take that view by the decision of the Andhra Pradesh High Court especially since this aspect was possibly never brought to the notice of the learned Judges.
5. But apart from the provisions of the Hindu Adoptions and Maintenance dt. 1956, the plaintiff may have a case in regard to any claim for enhanced maintenance, if she is able to show that circumstances have altered justifying the enhancement. That is a right which a Hindu widow has as against a joint family of which she is a member. She exercised her right to claim maintenance and obtained a decree. That was in 1923. The Court below has found, and I see no reason to disagree with it that the circumstances have altered justifying the enhancement. The present suit Is filed in 1960, nearly about 37 years after Ext. B-4 decree. Hence normally the plain-tiff will be entitled to enhancement. The question that has to be decided here is whether it makes any difference now' that the property against which a charge was created in Ext. B-4 decree has gone into the hands of strangers who according to the first defendant, have purchased it not only for consideration but also for discharge of debts binding on the tarwad. On the question whether Ext. A-2 sale was for discharge of tarwad debts there is neither sufficient evidence in the case nor a proper discussion in the judgment of the court below and if I find that the position canvassed by the learned counsel is correct, necessarily, the matter may require reconsideration by the courts below. What I have to decide is whether. In the circumstances stated, the plaintiff will have to be denied a decree for enhancement.
6. Section 28 of the Hindu Adoptions and Maintenance Act 1956 is modelled on Section 39 of the Transfer of Property Act. 1882. That section runs as follows:--
'39. 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'. This is the section as it stands after its amendment in 1929. Prior to such amendment the section provided that in order to enforce the right against the transferee in the property transferred it is necessary1 to show that the transfer was with the intention of defeating such right. The result was that, even when property was transferred with notice of the right of a person to receive maintenance and such transfer was for consideration, the right to receive maintenance could not be enforced against the transferee unless the intention to defeat the person entitled to receive maintenance from such property was also shown to exist. By reason of the amendment, it is no longer necessary to show that there was an intention to defeat the right of the person to receive such maintenance.
7. In answer to the case of plain-tiff based on Section 39 of the Transfer of Property Act, two Grounds are urged by the learned counsel Sri P. Krishna-moorthy, appearing for the respondents in this case. According to him no reliance can he placed on this section in this case to obtain a decree against the transferee. The reasons urged are: (l) Section 39 of the Transfer of Property Act only speaks of a right to receive main-tenance from the profits of immovable property. When once a right to receive maintenance has been recognised by way of a decree granted by a court, a right for enhancement of such maintenance is not Within the scope of Section 39(2) Though the section says that when immovable property is transferred for consideration to a transferee who has notice of the right to receive maintenance from the profits thereof the right could be exercised notwithstanding the transfer, such right would not be available if the transfer is for payment of debts binding on the family, as the claim of other debtors would be entitled to as much preference as the right to maintenance. In the present case it is for the payment of such debts binding on the family that A2 sale was effected and, therefore even assuming that Section 39 applies to the case of a right to claim enhanced maintenance that would not operate against the transferee who purchases for consideration utilised or intended to be utilised for the discharge of debts binding on the joint family. I will now consider the latter contention first as it is the one very strenuously urged.
8. The contention of the learned counsel for the respondents that the right to receive maintenance from out of the properties of a joint family would be defeated when the transfer is effected for the purpose of discharging the debts binding on the transferor's joint family is really not based on the language of Section 39 of the Transfer of Property Act. The section makes it clear that the right may be enforced against the transferee either if he has notice of the transfer or if the transfer is not gratuitous. But if the transfer is for consideration and without notice of the right it cannot be enforced against the transferee or against the properties in his hands. What is really urged is in effect to read a further exception and that is that the right cannot be enforced against a transferee for consideration with notice of the right but the transfer itself is for consideration raised to discharge the debts of the transferor. I see no warrant to read into Section 39 a further exception or proviso which is not there. Certainly that would be doing violence to the language of Section 39. The learned counsel urges that a creditor of a joint family is entitled to as much preference in regard to the matter of discharge of his debt as the widow or any other member of the family who has a claim to payment of maintenance and therefore when a transfer is made for payment of such debt as is binding on the tarwad the member who is entitled to receive maintenance cannot claim any precedence or preference. I do not want to go into this or express any view whether this proposition is correct. It is suffi-cient if 1 point out that the question whether the member's right to maintenance can be defeated by an alienation effected for discharging other debts of the transferor is not one which may arise in the face of the plain language of Section 39. What should have been the provision is not a matter with which the court is concerned. The court must construe the section as it is.
9. The learned counsel for the respondent who urged this contention before me was presumably inspired by a decision of the Madras High Court reported in Ramamurthi v. Kanakaratnam, AIR 1948 Mad 208. That decision purports to follow the principle laid down by the Privy Council in Dan Kuer v. Sarla Devi, AIR 1947 PC 8. I see nothing in the decision of the Privy Council to -justify the contention urged before me. The question that arose in the case before the Privy Council was one of application of Section 39 of the Transfer of Property Act. 1882 as it stood after the amendment in 1929. On the facts of the case the Privy Council hold;
'As the mortgage and sale related to all the property which was available for the payment of maintenance and the purchaser was aware of this fact and of the circumstances of the family, the transfer was subject to the widow's right of maintenance'.
Before the Privy Council it was urged on the authority of the decision in Lakshman Ramachandra Joshi v. SatyabhamaLai, (1878) ILR 2 Bom 494 and of Sm. Bhagabati v. Kanailal Mitter. (1872) 8 Beng LR 225 that the debts which were paid out of the mortgage amount and proceeds of the sale in the case of a transfer by way of mortgage and sale, were debts of the family legally recoverable from the father's share, and therefore the transferee for value would not be bound by the widow's claim for maintenance. The case in (1878) ILR 2 Bom 494 was distinguished on the ground that the decree for maintenance in that case was a personal decree against the person liable for the maintenance, and not against the ancestral estate, nor was any charge created on the family property- So long as the decree was not against the ancestral estate there could not have been any objection to a transfer. Referring to the case reported in (1872) 8 Bengal L.R 225 the Privy Council noticed a passage in that judgment.
'what was purchased with know ledge of a right which would thus be prejudiced is liable to her claim from the first'.
A passage from the same decision was quoted by their Lordships in their judgment and it is profitable to extract the passage:
'The knowledge of collateral rights created by agreement, in equity frequently qualifies those acquired by a purchaser. The widow's right to maintenance is right maintainable against the holders of the ancestral estate in virtue of their holding no less through the operation of the law than if it had been created by agreement, and so when the sale prevents its being otherwise satisfied it accompanies the property as a burden annexed to it in the hands of a vendee with notice that it subsists.' After citing this passage their Lordships said:
'Their Lordships are in complete agreement with this view of the law.' I do not see anything in the Privy Council decision which would go against what I have stated in the judgment earlier.
10. Now I will come to the Madras decision which purports to apply the decision of the Privy Council to the facts of that case. I am referring to the decision reported in AIR 1948 Mad 208. My attention was drawn to paragraph 7 of that judgment and I will extract paragraph 7 here:
'The mortgage being thus fully supported by consideration, it is argued for the appellant that having regard to the purpose for which it was given it is binding on the family and will take precedence over the plaintiff's claim for maintenance, which would ripen into a charge only when such a charge is declared or created by act of parties 'or by a decree or order of Court. There can be no dispute that the discharge of the debts of defendant 1's father and the expenses of the litigation which defendant 1 had to conduct in order to establish his rights as the adopted son of Gopalan, principally, it will be recalled, against the plaintiff herself who was stoutly denying his status as such adopted son, are purposes which could render the mortgage binding on the entire family consisting of the plaintiff, her co-widow, defendant 1 his wife and his minor son'.
After referring to the decision of the Privy Council and also the decision cited by the Privy Council in support of the view taken by their Lordships, the Court holds:
'The rule of Hindu law that though a Hindu widow has a right to be maintained out of the family estate, she has no charge in respect of such right over any portion of the estate till one is created by agreement, or by a decree of Court or by getting a part of the immovable property assigned to her for maintenance, is not, in our opinion, intended to be affected by the amendment of Section 39, so that any alienation made for purposes which would have precedence over the widow's claim for maintenance would, in the absence of any charge created as in-dicated above, bind the widow and her right to have her maintenance charged upon on appropriate portion of the family estate can be enforced only subject to such alienation'.
I need only point out that the language of Section 39 of the Transfer of Property Act does not seem to justify the view taken by the Madras High Court. But whatever that be, it is not necessary for the purpose of this case to go into that question further because even on the reasoning adopted by the Madras High Court, the plaintiff will be entitled to succeed here.
11. The Madras High Court seems to hold that Section 39 may not operate as against a transferee purchasing the joint family property at a sale executed for meeting family debts, in the enforcement of a claim by a Hindu widow for maintenance, as the Hindu widow has no right to a charge against properties unless it be by an agreement or decree of the court. Section 39 does not contemplate the existence of any charge, for its operation. That apart, in the present case it cannot be said that the plaintiff is not entitled to a charge in regard to the properties. Under Ext. B-4 decree a charge against items 1 to 5 in regard to the maintenance decreed to her was created. Reading Section 39, literally it is possible to say that she is a person who has a right to receive maintenance from the profits of immovable property, namely plaint items 1 to 5. Such property is transferred to a stranger under whom, now, the defendants claim. Against such transferee, the right may be enforced. Therefore, I think, in any view of the matter the plaintiff will be entitled to enforce her claim for maintenance against the properties in the hands of strangers.
12. The other objection as I narrated earlier, is that, whatever may be said on the question whether the right to receive maintenance under a decree of court is governed by Section 39, such right may not extend to one to receive enhanced maintenance. The learned counsel wants to restrict the meaning of the term 'right to receive maintenance' so as to exclude any claim to receive enhanced maintenance. I see no justification to limit it in such a manner. A Hindu widow's right to claim maintenance against a joint family estate is a recurring right. It is a right which may be enforced for each period with reference to the circumstances obtaining at the time. The fact that a person obtained a decree in enforcement of such right for any particular period does not in. any way disable such person in law, to claim maintenance for a future period. The adjudication of such claim would depend upon the circumstances obtaining during the period for which a claim is made. This being the case, a right to receive maintenance within 'the meaning of Section 39 will include not only the right to receive maintenance either by agreement or by way of decree but also the right to claim enhanced maintenance from time to time. If so viewed. Section 39 would necessarily apply to the case of the plaintiff to enable her to claim enhanced maintenance as against the defendants,
13. I am supported In this view by a Division Bench of the Mysore High Court in a case reported in Vedavathi Williams v. Rama Bat. AIR 1964 Mys 265. The facts in that case are more or less the same as here. There, a person who obtained a decree for maintenance as against the properties, claimed enhanced maintenance as against the same properties after the property had gone into the hands of a transferee. The question was whether the right to enhanced maintenance was available under Section 39. Somnath lyer, J., speaking for the Division Bench said:
'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.' Incidentally I may also refer to the fact that the Mysore High Court noticed the decision of the Madras High Court in AIR 1948 Mad 208 on which considerable reliance is placed by the learned counsel before me. That case was distinguished by the Mysore High Court as one where there was an alienation of property even before the widow could obtain a charge under a decree. The Mysore High Court has also noticed, in answering the contention raised by the learned counsel appearing for the respondents there, that, to adopt the view urged by counsel, would be to overlook the provisions of Section 39 of the Transfer of Property Act. That is what appears to me would be the case if I am to accede to the contention of the learned counsel for the respondent here.
14. In view of what I have stated above, it follows that the widow is entitled to claim the enhanced maintenance. The quantum has been fixed by the trial court as 3 maunds of areca nuts and seven muras of rice per annum. This is based upon an admission by P. W. 1, examined on behalf of the first defendant. I see no reason to interfere with the quantum fixed.
In the result, the Second Appeal Is allowed with costs and the decree of the court below is vacated restoring the decree of the trial court.