Charles A. Turner, Kt., C.J. and Muttusami Ayyar, J.
1. The plaintiff is the widow of Andiappa Chetti who, dying, was succeeded by his son Krishnasami Chetti, the father of the first defendant.
2. Krishnasami Chetti, with the aid of such property as he had inherited from his father, had large transactions in connection with the Sivagunga zamindari, of which he was at one time a manager and at another time a lessee : he also carried on the business of a banker. Of the properties, which are the subject of this suit, seven are said to have been acquired by the plaintiff's husband, and six by Krishnasami Chetti. In the course of his business, Krishnasami Chetti mortgaged the whole of the properties in suit to the second defendant to secure a loan of Rs. 25,000 : he also mortgaged the property, No. 1 in the schedule to the plaint, to the third defendant to secure a loan Rs. 15,000, and he mortgaged all the properties in suit to the fourth defendant to secure a loan of Rs. 15,000. On these mortgages, suits have been brought and decrees obtained; and the decree-holders were proceeding to carry out the orders for sale, when the plaintiff instituted this suit, praying that the execution of the order for sale might be stayed, inasmuch as she, as the widow of Andiappa Chetti, is entitled to a half-share in his estate and in the properties which, since his death, have been acquired, as she averred, with the proceeds of his estate. In the alternative she asserted that she was entitled to maintenance; and she also claimed to retain the accommodation she has heretofore enjoyed in the house No. 6. For these reasons, she contended no sale could take place until, by an appropriation of the property, the rights claimed were secured to her.
3. There are, no doubt, texts which favour the right, of a wife or mother to a portion on partition (Vyavahara Mayukha, Chapter IV, Section 4, paras, 15--19), and this right is recognized by Vijnaneswara (Mitakshara, Chapter 1, Section 7, Sections 1, 2); but, inasmuch as this right does not arise, as in the case of co-parceners, from independent ownership, the wife or mother cannot call for partition.
4. The portion is, in fact, an assignment by way of maintenance Smriti Chandrika, Chapter 4, Sections 8-17. Where there is no partition, the mother may demand such an assignment, if she can establish that the ancestral fund is being wasted, or if provision is not duly and punctually made for her maintenance, in accordance with the position and wealth of the family.
5. The mere right to maintenance does not create a lien on the family property. To affect a bond fide purchaser, the right must have been ascertained by contractor by decree and charged on specific property. In the case before us, the appellant took no steps to secure a charge on the property before the mortgage was created, and it is not shown that in their creation any fraud on the appellant right was contemplated. She cannot resist the sales; but should more be realized than will discharge the mortgage debts, her right to maintenance may be enforced against the surplus. She is, however,; entitled to continue to reside in the house she has hertofore occupied, and, although this does not entitle her to resist the sale of it, the house must be sold subject to this right.
6. We vary the decree of the Court below by awarding to the appellant a declaration to this effect; in other respects, we affirm it and dismiss this appeal. Appellant will pay her own costs and pay five-sixths of the respondent's costs in all Courts.