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Raghavan and anr. Vs. Nagammal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberAppeal No. 505 of 1975
Judge
Reported inAIR1979Mad200
ActsHindu Adoptions and Maintenance Act - Sections 21 and 28; ;Transfer of Property Act - Sections 39; Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 - Sections 2
AppellantRaghavan and anr.
RespondentNagammal and anr.
Cases ReferredChandramma v. M. Venkatareddi
Excerpt:
family - maintenance - sections 21 and 28 of hindu adoptions and maintenance act, section 39 of transfer of property act, 1882 and section 2 of hindu married women's right to separate residence and maintenance act, 1946 - suit filed against appellant-defendant for recovery of maintenance and marriage expenses of second plaintiff - trial court held that first plaintiff entitled to maintenance at rate of rs. 50 and second plaintiff entitled for marriage expenses of rs. 1000 and maintenance at rate of rs. 35 - first defendant gifted properties in favour of second defendant without making provision for maintenance of first plaintiff - second plaintiff married on 04.07.1974 and not entitled to maintenance from date of marriage - subject to this modification decision of trial court upheld. -.....1. the defendants in o. s. no. 3785 of 1970 on the file of the city civil court at madras are the appellants. the plaintiffs filed the suit in forma pauperis for recovery of maintenance past and future and for the recovery of a sum of rs. 5000/- for the marriage expenses of the second plaintiff in the following circumstances. the first defendant (first appellant is that husband of the first plaintiff-first respondent). the marriage took place in 1948 at madras. the second plaintiff lakshmi is the daughter born to them. in 1951 the first plaintiff and gant to illtreat the first plaintiff and ceased to look after her and the second plaintiff. the plaintiffs were therefore compelled to file o.s. no. 1829 of 1958 on the file of the city civil court for maintenance. that ended in a compromise,.....
Judgment:

1. The defendants in O. S. No. 3785 of 1970 on the file of the City Civil Court at Madras are the appellants. The plaintiffs filed the suit in forma pauperis for recovery of maintenance past and future and for the recovery of a sum of Rs. 5000/- for the marriage expenses of the second plaintiff in the following circumstances. The first defendant (first appellant is that husband of the first plaintiff-first respondent). The marriage took place in 1948 at Madras. The second plaintiff Lakshmi is the daughter born to them. In 1951 the first plaintiff and gant to illtreat the first plaintiff and ceased to look after her and the second plaintiff. The plaintiffs were therefore compelled to file O.S. No. 1829 of 1958 on the file of the City Civil Court for maintenance. That ended in a compromise, under which the second plaintiff was awarded future maintenance at the rate of Rs. 35/- per month and a sum of Rs. 400/- for past maintenance. The claim of the first plaintiff for maintenance was not pressed. Thereafter, the first defendant filed O.P. No. 205 of 1961 for restitution of conjugal rights against the first plaintiff. Though the petition was dismissed by the trial court, this court ordered restitution in C.M.A. No. 196 of 1963. Subsequent to the disposal of C.M.A. No. 196 of 1963 by this Court, the first defendant has been keeping the second defendant as his concubine in his house and did not bother to take back the first plaintiff to live with him. He also committed default in the payment of monthly maintenance to the second plaintiff. He had settled all his properties in the name of the second defendant his concubine. The plaintiffs therefore filed the suit in forma pauperis claiming maintenance for the first plaintiff at Rs. 100/- per month, a sum of Rs. 2880/- towards past maintenance, a sum of Rs. 600/- for residence and clothing for the past three years, Rs. 50/- per month for residence and clothing for the future period. A charge is also claimed over the plaint A Sch. property. The prayer in respect of the second plaintiff is future maintenance at the rate of Rs. 65/- per month, for recovery of a sum of Rs. 2340/- towards past maintenance and a sum of Rupees 5,000/- towards marriage expenses. For these amounts also a charge is claimed over the plaint A Schedule property.

2. The first defendant filed a written statement which was adopted by the second defendant. The first defendant contended that the suit was bad for misjoinder of causes of action. He further pleaded that the claim of the first plaintiff for maintenance was not sustainable on account of the decree for restitution of conjugal rights passed in C.M.A. No. 196 of 1963 on the file of this Court. It was also pleaded that the second plaintiff had married one Arumugam and was therefore not entitled to get Rs. 5000/- for marriage expenses. The second plaintiff's right for enhanced maintenances was also denied. The first defendant further stated that the plaintiff's are not entitled to get a charge over A Schedule properties as they had been settled in favour of the second defendant for proper and valid consideration. The settlement deed itself was executed since the second defendant undertook to discharge the mortgage which subsisted on the suit properties.

3. The trial Court raised the necessary issues for consideration. The trial Court held that the first plaintiff was entitled to claim maintenance and it fixed the quantum of maintenance at the rate of Rs. 50/- per month. It disallowed the claim of the first plaintiff for Rupees 600/- for residence and clothing for the past three years and Rs. 50/- per month for residence and clothing for the future period. It however held that the first plaintiff would be entitled to past maintenance for three years at the rate of Rs. 50/- per month.

4. As regards the second plaintiff the learned Judge held that she would be entitled to a sum of Rs. 1000/- for marriage expenses. He also found that the second plaintiff would be entitled only to get maintenance at the rate of Rs. 35/- per month and was not entitled to any enhanced maintenance. He further found that the settlement deed was executed gratuitously with knowledge of the plaintiff's right for maintenance over the first defendant and accordingly he further held that the plaintiffs were entitled to a charge for the maintenance amount over the plaint A schedule properties. The learned Judge accordingly decreed the suit. Against this decree of the trial Court the defendants have filed the appeal. Sri R. Alagar raised the following two contentions; (1) The learned trial judge ought not to have created a charge over the plaint A schedule properties for the maintenance amount. (2) The learned trial judge having found that the second plaintiff was not entitled to enhanced maintenance should have dismissed the suit as against the second plaintiff in view of the fact that the second plaintiff had already obtained a decree for maintenance in O.S. No. 1829 of 1958 against the first defendant. The learned counsel for the appellants fairly conceded that in view of the fact that it has been admitted that the first defendant is now living with the second defendant, he could not challenge the finding of the trial Court that the first plaintiff would be entitled to maintenance from the first defendant. He was also fair enough to state that he could not assail the quantum of maintenance fixed by the trial Court in favour of the first plaintiff at Rs. 50/- per month. The learned counsel also submitted that the sum of Rs. 1000/- allowed by the trial Court in favour of the second plaintiff towards the marriage expenses has already been deposited in Court, and this fact was admitted to be correct by the learned counsel for the respondents. It is also now admitted that the second plaintiff has married one Arumugam on 4-7-1974. The appellants have filed the invitation for the marriage of second plaintiff, with in application to receive the same as additional evidence under O. 41 R. 27 C.P.C. The learned counsel for the respondents also does not object to the said additional document being received in evidence. I therefore allow C.M.P. No. 1729 of 1978 filed by the appellants and the said letter of invitation is marked as Ex. B-9.

5. Let me first take up the contention of Sri Alagar that a charge could not be created over the plaint A Schedule properties for the maintenance amount. According to Sri Alagar the first defendant had gifted the property to the second defendant, his second wife on 20-6-1961 and therefore the right to maintenance of the first plaintiff cannot been forced against, the said property. In other words, the contention of Sri Alagar is that the first plaintiff is not entitled to a charge on her husband's property and if that is so then the right to maintenance cannot be enforced against the property that had been gifted to the second defendant by the first defendant under Ex. B-6. According to learned counsel. Section 28 of the Hindu Adoptions and Maintenance Act could not be availed of by the first plaintiff. S. 28 of the Act reads thus:

'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 is clear from this section, that a person whose right to maintenance is protected under the section must be a dependant. A defendant is defined in Section 21 of the Act. It is (sic not?) necessary to extract the entire S. 21 herein except to say that a wife is not taken in the definition of the word ;dependant'. In the circumstances, Sri Alagar is well founded in his contention that the first plaintiff will not be entitled to have a charge over the suit properties for her maintenance and that the same cannot be enforced against the property gifted to the second defendant under S. 28 of the Hindu Adoptions and Maintenance Act.

6. The only other provision under which the first plaintiff could claim a charge for maintenance against the property of her husband, the first defendant, is under the provisions of S. 39 of the Transfer of Property Act. S. 39 of the TP. Act reads thus:

'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.'

In the submission of Sri Alagar S. 39 of the T.P. Act would not entitle the first plaintiff to have a charge created over the suit properties in respect of her maintenance. According to the learned counsel the liability of a Hindu to maintain his wife under Hindu Law is a personal obligation and does not depend upon the fact whether he possessed properties or not. Section 39 would apply only to persons who will be entitled to maintenance from and out of the income from immovable properties of her husband, so argue the learned counsel, she will not be entitled to a charge over the properties of her husband.

7. The question for consideration is whether this submission of the learned counsel is correct. The learned counsel relied upon a decision in Pavayammal v. Samiappa AIR 1947 Mad 376. There, the wife and the daughter of a Hindu filed a suit against him and two of his alienees for maintenance. In the suit they claimed a charge in respect of the properties alienated by the husband and father to the alienees. The question arose whether under S. 39 of the T.P. Act the plaintiffs would be entitled to have a charge on the properties alienated Chandrasekhara Aiyar, J. as he then was stated as follows:

'In the first place, it cannot be said of the plaintiffs that they have got a right to receive maintenance 'from the profits of immovable property' when only S. 39 will come into play. Secondly, mere knowledge of the legal right would not appear to be enough as, if it were so, there could be no sale by a husband of his properties to third parties without the risk of the wife turning up later and saying that they had notice of her right and that therefore the transferred were bound to recognise her right. What the section contemplates is a claim based on the right to receive maintenance and notice of such claim.'

In this view, the learned Judge held that no charge could be created under S. 39. Certainly, this decision supports the learned counsel for the appellants. But we have to examine how far this case has been correctly decided and accepted as such by other High Courts and by our own High Court later.

8. Before we consider the applicability of S. 39 of the T.P. Act in such cases we have to sea what the right of a Hindu wife for maintenance against her husband under Hindu Law is. Under Hindu Law the maintenance of a wife by her husband is of course a matter of personal obligation which attached from the moment of marriage. From the date of her marriage her home is necessarily in her husband's house. He is bound to maintain her in it while she is willing duties If she willing to reside with him and discharge her duties. If she quits him of her own accord, either without cause or on account of such ordinary quarrels as are incidental to married life in general, she can set up a claim for separate maintenance. Under S. 2 of the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, a Hindu married woman is entitled to separate residence and maintenance from her husband on grounds stated therein. The doctrine of maintenance of a wife can be traced to the smritis and the principal Hindu commentaries upon them. These texts enjoin a mandatory duty upon the husband to maintain his wife. The duty does not depend upon the husband possessing any property. It imposes a personal obligation on him enforceable by the Sovereign or State. However when it is stated that there is a personal obligation on the part of the husband to maintain the wife it does not mean that the obligation is not referred at all to his property and that he can alienate all his property and deprive his wife of the right to maintenance from the income of the property. In fact the exact meaning and scope of the personal obligation on the part of the husband to maintain the wife is even wider in the sense that his obligation will exist even if he has no properties from which he could derive any income. It is unnecessary for me to state the various texts of ancient Hindu Law on this subject as they have been elaborately dealt with and discussed in the various decisions which I shall now presently refer to. But it may be stated that even according to the ancient texts the wife was supposed to be a co-owner of her husband's property though in a secondary sense.

9. As early as Lakshman Ramachandra v. Satyabhama ILR (1877) 2 Bom 494 West, J. considered the Hindu law texts pertaining to the rights of a Hindu woman in her husband's property and pointed out that, by marriage, she acquired an interest in the husband's property though only, according to some writers, of a secondary kind such as may be divested by gift by the husband to a third party.

10 In Jamna v. Machul Sahu ILR (1878) All 315 it was ruled by the Allahabad High Court that a wife is, under the Hindu Law, in a subordinate sense a co-owner with her husband and, therefore, the husband cannot alienate his property or dispose of it by a will in such a wholesale manner as to deprive her of her maintenance.

11. In Narbadabai v. Mahadeo Narayan ILR (1880) 5 Bom 99 West, J. made the following observations:

'The co-ownership of the wife in her husband's property, if that can property be called ownership at all which involves no independent or co-equal powers of disposition or exclusive enjoyment, is not of a kind that accepts the rules applicable to an ownership in the ordinary sense. Her right to maintenance does not depend on it, for the husband is bound to support her, though he should have no property at all. It is rather a latent right coming into operation only when natural affection which usually prompts the mutual acts of members of families, fails of its proper effect, and law has to step in with its rigid rules and imperfect remedies. Unless she be deserted or the family be divided, the wife is strictly dependent as to her so called property. In these events a right to a share of the estate springs up, but till then she has only a right which is completely subordinate. It is not one that she can transfer by individual act, as this is opposed to the theory even of joint ownership, and no substitution is possible of another for herself in the supposed co-ownership with her husband in the common estate. No other could take her place in the joint celebration of the family sacrifices with the family estate or some interest in it must accompany and support. Her right to maintenance is connected with the right called co-ownership with her husband and rests on the same conception of a moral identity arising from the marriage relations but the two are rather co-ordinate rights than one the basis of the other. The husband's duty of maintaining his wife is one which he cannot owe to another. Her right as against him is one that he cannot transfer to another'.

12. In Lakshmi Devi Amma v. Naganna : AIR1925Mad757 Srinivasa Aiyangar, J. stated the law thus:

'It is true that the Hindu Law imposes an obligation on the Hindu husband to support his wife, without any reference to any property or share possessed by him, even as it impose a similar obligation on sons to maintain their mother and father. But when the joint family is possessed of property, a claim by wife against her husband need not be regarded merely as a suit for the enforcement of any personal obligation, but may well be regarded as a suit against the family itself, represented to her husband, through whom alone, so long as he is alive, she has to obtain the relief'.

The same question arose for consideration before Viswanatha Sastri, J. in Manikyam v. Venkayamma AIR 1957 A.P. 710. The learned Judge considered the following questions: Do the words 'right to receive maintenance from the profits of immovable property occurring in S. 39 exclude the case of a wife entitled to claim separate maintenance from her husband, because the obligation of the husband to maintain the wife exists irrespective of his ownership of any property: Does the existence of a personal obligation on the part of the husband negative the right of the wife to be maintained out of his properties, ancestral or self acquired? Is not the personal liability of the husband something in addition to the liability to maintain his wife out of his properties? Is not the wife entitled to the protection of Sec. 39 and pursue her claim for maintenance against the property of her husband in the hands of a gratuitous transferee who has taken with full notice of her claim, when the husband is left with no other means of providing for the maintenance of the wife? The learned Judge after a due consideration of the relevant authorities on the subject held as follows (at p. 713):

Though the right of the wife to separate maintenance does not form a charge upon her husband's property ancestral of 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 of maintenance is imperilled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children (at p. 713). '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 person having notice of the right to maintenance. A transferee, like the appellant, who joins in a fraudulent and clandestine arrangement or 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 T. P. Act.'

13. It may also be mentioned that Viswanatha Sastri, J. considered the decision of Chandrasekhara Aiyar, J. in Pavayammal v. Samiappa AIR 1947 Mad 376 and held that the said decision was contrary to earlier Bench decisions and dissented therefrom.

14. The right of a Hindu wife to a charge on her husband's properties and to the protection of S. 39 of the T.P. Act arose for consideration before a Bench of the Andhra Pradesh High Court in Chandramma v. M. Venkatareddi, AIR 1958 A.P. 396. Subba Rao, C. J. as he then was, who spoke for the Bench went into the question in a very elaborate manner. The learned Judge referred to the passages in Manu, Vyasa and Jimutavahana and Apastamba Dharma Sutras and held that the Hindu Law texts recognise: that a wife, by reason of her status, acquires an interest in the property of her husband though according to some writers, not co-equal with him but of a secondary kind. They also impose a personal obligation on him to maintain his wife enforceable by the Sovereign or the State. Other texts prohibit a person from alienating all his properties in such a way as to deprive his dependants including his wife of the maintenance. The learned Judge referred to the conflict of views of Chandrasekhara Aiyar, J; in Pavayammal v. Samiappa AIR 1947 Mad 376 and Viswanatha Sastri, J. in Manikyam v. Venkayamma AIR 1957 A.P. 710 and observed thus:

'Chandrasekhara Aiyar, J. in : AIR1947Mad376 in a brief sentence rejected the claim of the wife by stating that it cannot be said of the plaintiffs that they have got a right to receive maintenance from the profits of immovable property. But, Viswanatha Sastri, J. in 1956 AWR 1021: AIR 1957 A.P. 710 gave a considered and elaborate treatment to the subject. After considering the different aspects he summarised his view thus at p. 1026 (of Andh WR): (at p. 713 of AIR): 'This right to separate maintenance which was previously based on texts and decisions is now expressly conferred by statute under Act XIX of 1946. It is true that the husband or father is under a personal obligation to maintain his wife or infant children. This does not mean that the obligation could be enforced only by sending him to jail in case of default and that the wife or infant children have no right to be maintained out of the property of the husband or the father as the case may be. The rule as to personal obligation only emphasises the legal and imperative duty of the husband to maintain his wife and minor children irrespective of the possession of any property'.

15. We respectfully agree with the aforesaid observation. Finally the learned Judge summarised the law in the following words:

'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 dependants of their maintenance. They further treat her as a member of a Hindu joint family entitled to be maintained out of joint funds. The decisions of the various High Courts to the same line, 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 T.P. Act, she can enforce her right against the properties in the hands of the alienee with notice of her claim'.

In Smt. Vellayammal v. Srikumara Pillai : AIR1960Mad42 , Ramaswami, J. had to deal with a similar situation. The learned Judge dissented from Pavayammal v. Samiappa AIR 1947 Mad 376 and Chandramma v. M. Venkatareddi AIR 1958 A.P. 396.

16. In K. M. S. Rudrappa v. Basamma AIR 1962 Mys 207 the question that was posed for consideration was whether the plaintiffs, the wife and children were entitled to charge over the suit properties for the maintenance decree in their favour. It should be remembered that the husband has gifted the properties in favour of others. The same contention was urged before the learned Judges that the obligation of a Hindu husband to provide maintenance to his wife and children was only a personal liability and that it has nothing to do with his property. In other words, an obligation was there irrespective of his possessing any property and that consequently S. 39 of the T.P. Act could not be attracted. Pavayammal v. Samiappa AIR 1947 Mad 376 was relied upon in support of the argument that Sec. 39 of the T.P. Act could not be attracted, while on the other side the decisions in Manikyam v. Venkayamma AIR 1957 A.P. 710, Chandramma v. M. Venkatareddi AIR 1958 A.P. 396 and Velayammal v. Srikumara Pillai : AIR1960Mad42 were relied on for the view that the wife and children were entitled to have a charge upon the properties and could enforce the same against the gratuitous transferee. The learned Judge has held that Pavayammal v. Samiappa AIR 1947 Mad 376 did not lay down the correct law and chose to follow the other decisions and held that a charge could be created in favour of the wife and minor children over the husband's property

17. A recent decision of the Supreme Court in V. Tulasamma v. Sesha Reddi : [1977]3SCR261 though not exactly on the point in controversy before me would show that the basis on which the earlier decisions proceeded in holding that a Hindu wife will be entitled to a charge on her husband's property and claim protection under Section 39 of the T.P. Act is well founded The learned Judge has referred to the following passage as regards the nature of the liability of the husband as found in Hindu Law by Golapchandra Sarkar Sastri:

'When the husband is alive, he is personally liable for the wife's maintenance, which is also a legal charge upon his property, this charge being a legal incident of her marital co-ownership in all her husband's property. But after his death, his widow's right of maintenance becomes limited to his estate, which when it passes to any other heir, is charged with the same. There cannot be any doubt that under Hindu Law, the wife's or widow's maintenance is a legal charge on the husband's estate; but the Courts appear to hold, in consequence of the proper materials not being placed before them, that is not so by itself, but is merely, a claim against the husband's heir, or an equitable charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on his estate; hence the husband's debts are held to have priority, unless it is made a charge on the property by a decree'.

The learned Judge then observed:

'To sum up, therefore according to Sastri's interpretation of Shastric Hindu Law the right to maintenance possessed by a Hindu widow is a very important right which amounts to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co-owner of the husband's property though in a subordinate sense i.e. the wife has no dominion over the property'.

Therefore, in the light of the above decisions, I respectfully follow the decisions in Velayammal v. Srikumara Pillai : AIR1960Mad42 ; Manikyam v. Venkayamma AIR 1957 A.P. 710; Chandramma v. M. Venkatareddi AIR 1958 A.P. 396 and K. M. S. Rudrappa v. Basamma AIR 1962 Mys 207 and hold that a Hindu wife is entitled to have a charge on the property of her husband and to claim protection under S. 39 of the T.P. Act. Once I come to that view, then Ex. B-6 being a gift in that view, then second defendant by the favour of the second defendant by the first defendant husband cannot avail against the right of the plaintiff to have a charge for maintenance amount.

18. The learned counsel for the defendants contended that even at the time of Ex. B-6 the suit property was subject to heavy liability and after setting off the liabilities the property would be worth really only Rs. 140/-. I do not agree with this submission of the learned counsel for the defendants or with the manner in which he arrived at the value of the property. In any event, that cannot in any way prevent a charge being created in favour of the first plaintiff over the suit property in respect of the amount decreed for maintenance.

19. Another contention that was put forward by the learned counsel for the defendants is that even assuming that a charge could be claimed under S. 39 at the time Ex. B-6 was executed the first plaintiff had no right to separate maintenance and that consequently no charge could be created and that the right to maintenance cannot be enforced against the second defendant. The argument is elaborated by the learned counsel thus: The settlement was in 1961. In 1965 this Court allowed C.M.A No. 196 of 1963 granting restitution of conjugal right in favour of the first defendant. That meant that the first plaintiff had no right to separate residence and maintenance and that consequently Ex. B-6 which was executed at the time when the first plaintiff had no right to separate residence and maintenance could not be defeated by any decree for maintenance which might be passed subsequently. The decisions already referred to by me would show that the right of a Hindu wife to maintenance is also interlinked with her interest in her husband's property. The Supreme Court in V. Tulasamma v. Sesha Reddi : [1977]3SCR261 described the right of maintenance of a Hindu female thus (at pp. 1977-78):

'The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has, the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right.'

20. Where a Hindu husband alienated the whole of his immovable property, though self-acquired, without making a suitable provision for his wife's maintenance it was ruled in Narbadabai v. Mahadeo Narayan ILR (1880) 5 Bom 99 that the alienation would not affect her right to maintenance. So too, where a husband made a gift of his entire estate leaving his wife without maintenance, it was ruled in Jamna v. Machul Sahu ILR (1878) All 315 that the donee took the estate subject to her right of maintenance. Where a husband executed a will which had the effect of defeating his wife's right to maintenance it was held in Periambal Chettiar v. Sundarammal AIR 1945 Mad 193 that she was entitled to be maintained out of the estate of her husband. Subba Rao, C. J. in Chandramma v. M. Venkatareddi AIR 1958 A,P. 396 held that the restriction imposed on the husband's power to alienate his properties to protect the wife's right to maintain is indicative of the subordinate interest of the wife in the property and also the link between the obligation and the property of the husband. Viewed on this basis it is not necessary that the right to maintenance should become crystallised in the form of a decree to enable the wife to proceed against the property in the hands of the husband or her transferees. Merely because at the time, Ex. B-6 was executed the first plaintiff had not obtained a decree for maintenance would not mean that she will not be entitled to enforce the right of maintenance against the property gratuitously transferred by the first defendant to the second defendant. When once it is seen that the first defendant has gifted the properties in favour of the second defendant without making provision for the maintenance of the first plaintiff, then she will be entitled to have a charge created against the very properties and enforce the charge against the properties. I therefore overrule the contention of Sri Alagar and hold that the plaintiffs are entitled to a charge over the suit properties in respect of maintenance decree in their favour.

21. The next contention of Sri Alagar is that the suit as against the second plaintiff ought to have been dismissed as not maintainable on the ground that she has obtained a decree for maintenance in O.S. No. 1829 of 1958. According to the learned counsel a second suit for maintenance is not maintainable. However, the learned counsel concedes that it will be open to the second plaintiff to file a suit for maintenance at an enhanced rate. Now the present suit by the second plaintiff is not merely for maintenance but for maintenance at enhanced rate and also for marriage expenses of Rs. 5,000/-. In that sense therefore it cannot be said that the suit filed by the second plaintiff is not maintainable. No doubt, a degree for maintenance at the enhanced rate has not been granted but merely because the relief prayed for was not granted would not make the suit not maintainable. Further a decree has been granted in favour of the second plaintiff for Rs. 1,000/- for marriage expenses. Therefore, I hold that the suit by the second plaintiff was maintainable. Then it is argued that the second plaintiff would not be entitled for maintenance since she has married one Arumugam on 4-7-1974. As the factum of marriage is not disputed by the counsel for the respondents. I hold that the second plaintiff will not be entitled to maintenance from 4-7-1974. In the result I confirm the judgment and decree of the Court below subject to this modification that the second plaintiff will be entitled to maintenance only till 4-7-1974, the date of her marriage with Arumugam. Subject to this modification, the appeal is dismissed with costs.

22. Appeal dismissed.


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