(1) This second appeal is preferred against the decree and judgment of the learned Subordinate Judge of Dindigul in A. S. No. 34 of 196, reversing the well-considered judgment of the learned District Munsif of Dindigul in O. S. No. 48 of 1954.
(2) The established facts are: The plaintiff Vellayammal was married to the first defendant Ramaswami Pillai in 1940. One child was born of this union but it died. The families of the plaintiff and the first defendant fell out. The first defendant started neglecting the plaintiff and she had to go to her father's house and stay there. The second defendant is practically the next door neighbour distant relative of the parties well acquainted with the affairs of these families. In these circumstances the 2nd defendant took a sale of all the properties of the first defendant, excepting the family residential house, under two sale deeds Exts. B. 1 and B. 2 for Rs. 500 and Rs. 200 respectively. The consideration was made up of the execution of a promissory note by the second defendant to the first defendant for Rs. 200 and alleged hand loans of Rs. 150 said to have been given for meeting the karumathi expenses of the first defendant's father and moneys borrowed to meet the sundry debts due to Rajalingam Pillai, Perumal Pillai, Sangu Pillai and Maniappa Pillai.
These sales are said to have been taken by the 2nd defendant from the first defendant after the second defendant enquiring as to why the first defendant was disposing of his properties and to whom he was indebted and for which the answer said to have been given by the first defendant was that he (second defendant) need not worry about it and that he (first defendant) would himself discharge the debts. In fact the second defendant has gone to the extent of saying that he did not know if the first defendant was married at all and that he did not even enquire if he had any issue. The learned District Munsif who saw the witnesses in the box stated that he was unable to accept the version of the second defendant and that he did not believe that the second defendant was a bona fide purchaser for value.
(3) The plaintiff Vellayammal filed the suit, out of which this second appeal arises, in the pauper form for separate maintenance with a charge on the plaint A schedule properties, i.e., properties sold to the second defendant. The defendant raised all sorts of frivolous objections. The first defendant contended that his wife is much older than himself, that they never lived together as husband and wife, that the plaintiff has been in illicit intimacy with one Marudainayagam Pillai, that ten years earlier Panchayats were held, that the plaintiff refused to come and live with him and preferred to remain with Marudanayagam Pillai and that therefore she is not entitled to separate maintenance. In regard to the sale deeds he stated that the lands were sold for proper consideration for discharging debts.
The second defendant contended that he was a bona fide purchaser for value without notice of the plaintiff's claim for maintenance. The learned District Munsif found that the allegations made by the first defendant to defeat the claim of the plaintiff for separate maintenance were false and that the second defendant had purchased the properties with notice of the charge and the transfer itself is a gratuitous one, and that the plaintiff was entitled to separate maintenance at Rs. 8 per month with past maintenance of Rs. 75 and erected the same as a charge on the A schedule properties. There was an appeal and the learned Subordinate Judge following the decision of Chandrasekhara Aiyar J. in Pavayamal v. Samiappa Gounden : AIR1947Mad376 , dismissed the suit as against the second defendant and hence this second appeal by the defeated plaintiff.
(4) The short point for determination is whether S. 39 of the Transfer of property Act would be applicable in the circumstances of this case. Section 39 runs as follows:
'Where a third person has a right to receive maintenance 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 the transferee for consideration and without notice of the right nor against such property in his hands.'
The view taken by Chandrasekhara Aiyar J. was the view taken under the old section, namely, that the transferee was not bound, unless he had notice of the intention to defeat the right of the widow. The old S. 39, which itself was based upon the principles of Lakshman Ramachandra Joshi v. Satyabhama Bai, ILR 2 Bom 494, was enacted to protect innocent purchases for value and required before a transferee could be made liable; (1) that the transferee must have intended to defeat the right of the third person and (2) the transferee should have notice of such intention and not merely the existence of the right. But this section was amended as it was felt that it failed to give sufficient protection to the persons entitled to receive maintenance etc., against fraudulent transfers, inasmuch as it was extremely difficult to prove in most cases that the transferee had knowledge of the fraudulent intention of the transferor. In order to relieve against this hardship courts had to resort to presumptions of fact: Yamunabai v. Nanabhai, 8 Ind Cas 1057 (Bom), and Mt. Dan Kaur v. Mt. Sarla Devi, . Therefore, the section was amended as it now stands on the report of the Transfer of Property Act (Amendment) Bill 1929, extracted at page 565 of the AIR Commentaries on the Transfer of Property Act, 3rd Edn. So, now under the new section notice of the existence of the right is sufficient to bind the transferee.
(5) The case in : AIR1947Mad376 has been the subject matter of elaborate consideration by Viswanatha Sastri J. in Manikyam v. Venkayamma, 1956 Andh WR 1021 : AIR 1957 AP 710. The learned Judge came to the following conclusion:
'It is well known that the Hindu Married Women's Right to Separate Residence and Maintenance Act was intended to enlarge and liberalise the rules of Hindu law governing the rights of Hindu woman to maintenance from her husband in the contingencies therein specified. The act does not curtail or cut down the right of maintenance conferred either by the Hindu law or by S. 39 of the Transfer of Property Act. It does not affect the right of a wife to have payment of her separate maintenance secured by a charge on her husband's properties in his hands or in the hands of his gratuitous transferees, if, under any other law, she has such right.
Though the right of the wife to separate maintenance does not form a charge upon her husband's property, ancestral or self acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it could be made a specific charge on a reasonable portion of the property. If the right to maintenance is imperilled or jeopardised by the conduct of dealings of the husband or father with reference to the properties, the court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children. Such a charge could be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance.
A transferee, like the appellant, who joins in a fraudulent and clandestine arrangement for defeating the right of maintenance binding on the conscience of the transferor and who pays no consideration for the transfer by her son in her favour takes the properties subject to that right. The property in her hands is legally chargeable with the payment of maintenance to the wife and children of the transferor under S. 39 of the Transfer of Property act.'
(6) This decision of Viswanatha Sastri J. has been approved by a Bench of the Andhra Pradesh High Court in Chandramma v. M. Venkatareddi, 1958 1 Andh WR 46 : AIR 1958 AP 396, wherein Subba Rao C. J. held:
'The Hindu law texts and the important commentaries impose a legal personal obligation on a husband to maintain his wife irrespective of his possession of any property whether joint or self acquired. They recognise the subordinate interest of the wife in her husband's property arising out of her married status. They also prohibit the alienation of properties by the husband which has the effect of depriving her and other dependents of their maintenance. They further treat her as a member of Hindu joint family entitled to be maintained out of joint funds. The decisions of the various High Courts show the same line, and recognise her subordinate interest in her husband's property and enforce his personal obligation by creating a charge on his properties either self acquired or ancestral. A wife, therefore is entitled to be maintained out of the profits of her husband's property and, if, so, under the express terms of S. 39 of the Transfer of Property Act, she can enforce her right against the properties in the hands of the alienee with notice of her claim.'
: AIR1947Mad376 , dissented and 1956 Andh WR 1021 : AIR 1957 AP 710, approved.
(7) In Maragathammal v. Dharma Gounder, S. A. 726 of 1955 (Mad), in identical circumstances as here I dissented from : AIR1947Mad376 and followed 1956 Andh WR 1021 : AIR 1957 AP 710; see also Mullah's Transfer of Property Act, 4th Edn. (revised by S. R. Das C. J., Supreme Court of India, pages 171-172).
(8) Therefore, the decision of the learned Subordinate Judge which proceeded from a wrong conception of the amended S. 39 of the Transfer of Property Act, cannot be supported. The decree and judgment of the learned Subordinate Judge are set aside and those of the learned District Munsif are restored. This second appeal is allowed with costs. No leave.
(9) Appeal allowed.