1. The plaintiff obtained a decree for arrears of maintenance against her husband, the 1st defendant; she attached his property before judgment and a claim petition against the attachment was allowed in favour of the claimant. The appellant has brought the present suit for setting aside the order of the claim petition, and for a declaration that the suit property is liable to be attached and sold in execution .of her decree. The District Munsif decreed her suit as regards items 2, 3 and 4, and dismissed it as regards items Nos. 1 and 5. The Additional Subordinate Judge of Palghat has allowed her appeal as regards items Nos. 1 and 5. The 2nd defendant, the vendee of items Nos. 1 and 5 has preferred this second appeal.
2. It is contended by Mr. Ramachandra Aiyar for the appellant that the right to separate maintenance of a Hindu wife arises only in certain circumstances and when it does, the liability is a personal one and does not depend upon the possibility of property and the husband is entitled to alienate the property by sale or mortgage and the right to maintenance does not attach itself to his property till it is declared to be a charge on it by act of parties or by the Court and therefore the plaintiff cannot question the alienation in favour of the plaintiffs. In the case of a Hindu widow, the right of maintenance depends upon her husband's share in the family property; in other words, those who succeed to her husband' s property are under an obligation to maintain her out of its income. The creditors of her husband have a prior claim to the widow. If a testator devises all his property by will without making any provision for his widow the legatee would get the bequest subject to her maintenance (see Mayne, Para. 466, p. 646 of the 8th Edition). The husband can sell his property and the wife cannot object to the sale on the ground that she has a claim for maintenance. If the husband makes a gift of his entire property without providing for his wife's maintenance, the donee takes it subject to her right to maintenance (see Narbadabai v. Mahadeo Narayan  5 Bom. 99 and also Jamna v. Machul Sahu  2 All. 315.
3. As long as the wife is living with her husband and so long as he is willing to live with her or maintain her, she has no right to claim separate maintenance. If owing to cruelty or desertion of the husband the wife is unable to live with him, she will be entitled to separate maintenance. Even if there be no desertion or cruelty, if the Court finds that it would be injurious to the health of the wife to live with her husband, it may decree separate maintenance to her. In this case the husband deserted his wife for several years and she had to live in her father's house. She made a demand for her maintenance before he sold the property to the 2nd defendant. The simple question in this case is, Is the husband, after having deserted his wife and after she had made a claim for past maintenance entitled to alienate his property with a view to defeat her claim to maintenance? In other words is she a creditor within the meaning of Section 53 of the Transfer of Property Act? I have not the slightest hesitation in holding that the amount which a husband is liable to pay for the maintenance of his wife during the years he has deserted her is as much a debt as any other contracted by him. The liability to pay for past maintenance is a legal liability and it is difficult to see how it does not amount to a debt. If a father forsakes his child and someone supplies the necessaries of life to the child to keep it from starvation, would not the father be liable to make good the amount spent for the upkeep of the child? If a wife who is entitled to be maintained and protected by her husband is deserted by him and she is maintained by her parents, is not the husband bound to make good the amount spent for a wife's sustenance? There can only be one answer to the question to the extent of the amount spent for her maintenance, he is a debtor. The husband can be arrested and sent to jail in execution of his wife's decree for maintenance. Now is her claim for maintenance which has become a debt different from other debts? In giving a decree for maintenance the Court simply determined what the amount is and the claim for maintenance does not become a debt only after the Court passes a decree in favour of the wife; for the liability of the husband is antecedent to the filing of the plaint.
4. The finding in this case is that the sale under Ex. I is not a bona fide transaction and was entered into to defraud the plaintiff's claim for maintenance. Mr. Ramachandra Aiyar attacks the finding but I am satisfied that the finding is fully justified by the evidence on record. It is urged that there was no decree for maintenance on the date of the sale to the appellant and therefore that the sale to her cannot be attacked. It is not necessary that the debt should be merged in a decree in order to attract the provisions of Section 53. The existence of a debt is sufficient to bring the transaction within the meaning of that section. A man may alienate his property in order to defeat future creditors. If he does so his alienation would be voidable under Section 53 of the Transfer of Property Act. see Hoosein Bhai v. Haji Ismail Sait  5 Bom. L. R. 255 quoted with approval in Thomas Pillai v. Muthurama Chettiar  33 Mad. 205.
5. It is next urged that there are other items of property belonging to the 1st defendant and that it is not shown that the plaintiff's decree cannot be satisfied by their sale and therefore the sale in favour of the appellant cannot be impeached. In the light of the clear finding that Ex. I was executed in order to defeat the plaintiff's claim it is unnecessary to consider whether the 1st defendant had other properties sufficient to satisfy the plaintiff's decree. The appellant is not entitled to marshalling in her favour. This contention, even if tenable, cannot avail the appellant as the 1st defendant has since the filing of the suit sold Items Nos. 2, 3 and 4 to a relation of the appellant's husband.
6. The cases relied upon by Mr. Ramachandra Aiyar have no bearing on the question for decision in this case and it is therefore unnecessary to consider them at length. In Jayanthi Subbiah v. Alamelu Mangamma  27 Mad. 45 it was held that:
under the Hindu Law the maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relation and quite independent of the possession by the husband of any property ancestral or self-acquired.
7. This case does not mean that the husband is entitled to make away with all his property in order to defeat his wife's claim for maintenance. As long as she is living with him she may not be able to question the validity of his alienation, but after her claim for separate maintenance has arisen he cannot dispose of his property in order to defeat her claim. In Re Lakshman Ramchandra Joshi v. Satyabhama Bai  2 Bom. 494 is the case of a widow and does not touch the question in this case. In Gangabai v. Janiki Bai A. I. R. 1921 Bom. 380 it was found that the sale deed, the validity of which was attacked, was a real transaction.
8. It is not disputed that the husband can sell his property but if the sale is to defeat a creditor, whether the creditor be the wife or anyone else, Section 53 of the Transfer of Property Act fastens itself upon such a transaction. The mere fact that the husband's obligation to maintain his wife is a personal one does not prevent that obligation from becoming a debt. The case Ramzan v. Ram Daiya  40 All. 96 does not help the appellant. The observations of the learned Judges at p. 102 that:
she cannot set up a right of maintenance or residence as against alienations effected during the lifetime of her husband
should be taken along with the facts of the case. If the alienation by the husband is with a view to defraud his wife's right to maintenance it can be challenged his death if it comes within Section 53 of the Transfer of Property Act. The decision in Saminatha v. Rangathammal  12 Mad. 285 does not apply to the present case as the facts in that case are distinguishable from the facts of the present case. In that case a Hindu wife obtained a decree for maintenance against her husband in O. S. No. 400 of 1875. In O. S. No. 360 of 1886 she prayed for a declaration that certain lands which remained unalienated by her husband and their produce were liable for maintenance, There was no allegation that the husband was about to alienate any particular property in order to defeat her claim. The contention in that case was that she was entitled to an equitable relief by having a charge on the property of the husband. This contention was disallowed. The learned Judges held that the plaintiff had no cause of action which would entitle her to the declaration prayed for. If in that case there was a finding that the husband alienated the property in order to defeat her decree for maintenance the result of the case would have been different.
9. This second appeal fails and is dismissed with costs.