Alfred Henry Lionel Leach, C.J.
1. The appellant is the widow of a person who was a member of a joint Hindu family. Her husband died some time before 1926, but the actual date does not appear in the record. On the 18th October, 1926, the appellant filed a suit to recover from Murugesam Pillai, the surviving member of the joint Hindu family, money by way of maintenance. She succeeded and the Court made the sums awarded to her under the decree a charge on certain immovable properties. On the 25th July, 1926, Murugesam Pillai mortgaged 'these properties to the respondent, who in 1931 filed in the Court of the District -Munsif of Cuddalore the suit out of which this appeal arises to enforce the mortgage. The appellant was made a party and she pleaded that her charge for maintenance took priority of the respondent's mortgage. The District Munsif and the Subordinate Judge of Cuddalore on appeal upheld the appellant's contention, but the respondent appealed to this Court and Krishnaswami Aiyangar, J., allowed his appeal. This appeal has been filed under Clause 15 of the Letters Patent, Krishnaswami Aiyangar, J., having given the necessary certificate.
2. Stated shortly the appellant' case is that the respondent was placed on inquiry whether a Hindu widow had a claim on : the properties, and as he failed to make any inquiries he is postponed to the appellant. Section 39 of the Transfer of Property Act, as it stood at the time of the mortgage, read as follows:
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 with the intention of defeating such right, the right may be enforced against the transferee if he has notice of such intention 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.
3. Therefore, under this section in order that a transferee should be postponed to a person entitled to maintenance or a provision for advancement or marriage the transfer had to be made with the intention of defeating the right and the transferee had to have notice unless he accepted the transfer without giving consideration.
4. In 1929 the section was amended to read as follows:
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.
5. It is said by the learned advocate for the appellant that the section as amended has retrospective effect. It is not necessary to embark upon a discussion of this question, because it is obvious that the respondent could not by reason of the amendment be required to do more than he was required to do by the law as it stood when the property was mortgaged to him.
6. In 1926 the definition of notice given in Section 3 of the Transfer of Property Act read as follows:
A person is said to have notice of a fact when he actually knows that fact or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent under the circumstances mentioned in the Indian Contract Act, 1872, Section 229.
7. Krishnaswami Aiyangar, J., considered that the use of the word 'wilful' in the definition made it clear that the abstention from inquiry should be designed, and due to a desire to avoid an inquiry which would lead him to ultimate knowledge, and that an omission to make inquiries was not to be regarded as sufficient to constitute constructive notice within the meaning of the section. The learned Judge pointed out that no authority dealing with Section 39 had been quoted to him, and no authority has been quoted to us, but there is support for his interpretation of the word 'wilful', and I agree with him that in this case the omission to make inquiries is not to be regarded as sufficient to constitute constructive notice within the meaning of the section. In Joshua v. Alliance Bank of Simla I.L.R.(1894)Cal. 185 , the Calcutta High Court held that the words 'wilful abstention from an inquiry or search' must be taken to mean such abstention from inquiry or search as would show want of bona fides, and no reason has been suggested why the word 'wilful' should be construed in a different sense here. It has been accepted that the mortgage was a genuine transaction and that the consideration passed. There has been no suggestion that the mortgage was created in order to defeat the appellant. It has in fact been assumed by the learned advocate for the appellant that the mortgage was created for a necessary purpose, namely a purpose which would be necessary from the point of view of the members of a joint Hindu family. However the case is looked at it is obvious that there has been no wilful abstention or gross negligence on the part of the respondent, and in these circumstances the mortgage which was created in his favour stands. Consequently it must take priority of the appellant's charge.
8. For these reasons the appeal fails and will be dismissed with costs.