V. Balasubrahmanyan, J.
1. This second appeal raises a difficult problem in Mohamedan Law relating to maintenance of children by a father. The question is whether the father's obligation is-purely personal or whether it attaches to his property in such a way as to be forced even against an alienee from the father. To find a solution to this problem learned Counsel had to hunt for material in ancient texts of Islamic Jurisprudence. For, there was a surprising dearth of case-law on the subject. And, as I shall presently show, the one solitary case on the subject figuring in our law reports contained little or no reference to ancient sources.
2. The question in this case arose this way One Mohammed Ali had three properties and two wives. Under a settlement of the year 1972 he settled all the three properties on his first wife, Ibrahim Fathima, to the entire exclusion of the second wife, Ummul Bashira, and her four minor children. The document value of the settled properties was. Rs. 55,000.
3. The circumstances under which Mohammed Ali parted with his properties under the settlement are not very much in dispute. He had fallen out with his second wife, for some reason, and switched his affections back to his first wife. The neglected second wife then filed a petition before the Magistrate for maintenance of herself and her children. An order by consent was, passed in that petition for payment of a monthly maintenance of Rs. 40 to the second wife and Rs. 10 to each of the minor children. Mohammed Ali did not pay the amounts, but filed on amendment petition before the Magistrate saying that he had divorced his second wife, in the meantime, and the earlier maintenance order should be limited to the period of the iddat or up to 1975. It was during the pendency of these proceedings that he effected the settlement in favour of the other wife.
4. In the events that happened, the second wife took steps to protect the interests of her nine children. As their next friend, she sued her husband for payment of future maintenance to the children. In the suit she asked for a charge decree for maintenance, on a charge of the three properties which her husband bad earlier given over to the first wife under the settlement. Apparently for this reason, the first wife was also made a defendant in the suit.
5 In the suit, the plea put forward by Ummul Bashira on behalf of the minor children was that the settlement effected by their father in favour of their step-mother was sham and nominal. It was also pleaded that the transaction was put through with intent to defeat the rights of the minor children to have recourse to the properties in question, for working out their maintenance.
6. The suit was resisted by both Mohammed Alt, the father, and Ibrahim Fathima, the step-mother. Their contention was that the properties had always belonged to Fathima and the settlement only regularised the position. In any event, it was further contended that the settlement was valid. Lastly, it was urged that the children could not question the settlement on a mere claim for maintenance against the father.
7. The learned District Munsif, Tiruchirapalli, who tried the suit, passed a decree directing the father, Mohammed Ali, to pay maintenance at the rate of Rs. 40 each to the two elder minor children and Rs. 30 to each to the two younger ones. The maintenance so decreed was also made a charge on the properties which the second wife, Ibrahim Fathima, had taken under the settlement.
8. In passing the decree in the manner aforesaid, the District Munsif recorded the finding that Mohammed Ali had effected the settlement of all his properties in his first wife's favour with a view to defeat his second wife's children from enforcing their right to maintenance from those properties. Proceeding, he held that notwithstanding the settlement the minor children were entitled to a charge over the settled properties, relying on Section 39 of the Transfer of Property Act, 1882.
9. On appeal, the Sub Court confirmed the quantum of maintenance decreed by the trial Court, subject to a slight variation in the period of payment. As to the legal effect of the earlier settlement of the properties, the learned Subordinate Judge agreed with the trial Court in holding that it was effected to defeat the minor's recourse to these properties. The learned Judge took the view that in any case the settlement will not affect the minor children's charge on those properties for payment of the maintenance. In effect, the learned Sub Judge confirmed the charge decree passed by the trial Court.
10. In this second appeal filed by Ibrahim Fathima, wife of Mohammed Ali and stepmother of his minor children, her learned Counsel, Mr. Abdul Hadi did not and could not raise any contest over the decree for maintenance as such. His objection was to that part of the decree which made the payment of maintenance a charge over the settled properties.
11 Mr. Hadi sought to assail the findings of the Courts below on the subject of the settlement deed of 1973, He was not so much against the findings themselves, but against the wisdom of rendering findings at cross purposes, as it were. But, the Courts, he said, had found: (i) that the settlement was sham and nominal; and (ii) that it was effected with intent to defeat the minor children's right to maintenance. He said that the two findings cannot co-exist. A settlement can defeat other's rights in the property settled only if it was real, and not if it was not genuine, he said. The two findings, according to him, were self-contradictory.
12. Logically speaking, Mr. Hadi may be right in his criticism of the two findings. But they cannot be rejected out of hand for that reason, because, as factual findings, they are amply supported by the evidence on record, and such, in its own way, supports the Court's ultimate determination in the case.
13 Mr. Hadi then put forward his major submission that maintenance payable by a Muslim father to his children, for which he may be rendered liable by a Court decree, can never be made a charge on his properties. This contention would bear examination, in any case, even on the footing that the settlement effected by Mohammed Ali was a genuine and valid settlement in favour of his first wife.
14 Mr. Hadi's thesis was that Mohamedan Law does not recognise the minor children's maintenance as a charge on the father's property. I was taken aback by this asserties. For I had always thought the general principle to be quite otherwise and I imagined Mohamedan Law to be no exception. It also seemed quite reasonable and civilised to expect all systems of law to link children's maintenance with property as its security. Mr. Hadi, however said that Mohamedan Law was different, and to a Muslim father the obligation to maintain his minor children was purely personal. He laid emphasis on the word personal. If it was a personal obligation, pure and simple, then, he said, that offers no scope for any charge being laid on the father's property to any extent.
15. I do not except this semantic argument of Mr. Hadi. The obligation may be described as a personal obligation, and may be correctly so described. But that does not mean that the context of that obligation falls within the literal meaning of the expression, 'personal'. Saying that an obligation is personal does not mean that the only sanction which the law imposes for the performance of the obligation is to proceed against the obligee's person whenever he tails to discharge that obligation. In the context of the relationship between a father and his minor children, all that the idea of personal obligation imports is that he is under a duty to maintain them even on the mere aspect of his being their parent. This idea is brought out forcefully in the following passage from a judgment of Viswanatha Sastri, J., in Manikyam v. Venkayamma 1956 An. W.R. 1021 : A.I.R. 1957 A.P. 710
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.
Although these observations were rendered in the context of a Hindu wife's right of maintenance against her husband or of a Hindu infant against his father, I adopt those observations, with respect, as bearing a general character, deriving therefrom a proper conception about the nature and content of the right to maintenance of Mohamedan children as against the property of their father.
16. Mr. Hadi referred me to a decision of a learned single Judge of the Bombay High Court reported in Mohamed Fusab v. Haji Adam. I.L.R.(1911) 37 Bom. 71 In that case, a Mohamedan minor child under the age of seven years sued his father for maintenance decree on a charge of the father's share in certain properties. Holding that the minor child was not entitled to a charge on the father's property the learned Judge observed:
It has only to be added that no authority has been quoted for charging the maintenance on the father's property and there would appear to be none under Mohamedan law.
17. Mr. Hadi placed great reliance on this case. He said that this was the only reported authority, on the subject and I should follow it is deciding the present case.
18. Mr. Hajee P.K. Jamal Mohamed. appearing for the minor children agreed with Mr. Hadi that the Bombay decision was the only one the subject figuring in our law reports to date. But he regretted that this solitary decision should have been rendered per incurium, without any reference to the original sources of Mohamedan Law. He cited some text books to show that this ruling does not prevent the Courts from exercising their discretion in appropriate cases and charging the father's property for the maintenance of his minor children. Citing Mohamedan Law by Babu Ram Verms (Second edition) 195 and Muslim law by Mushin Tayyabji (Fourth edition) 276, Mr. Jamal Mohamed submitted that Muslim lawyers in this country had never understood the law in the categorical and inexerable terms in which it was laid down in the Bombay decision when it said that in no case was a Muslim minor child entitled to a charge on the properties of the father for payment of maintenance.
19. Mr. Hadi attempted to supply some plausible juristic basis for his proposition that children's maintenance had nothing whatever to do with the father's property. He said that under Mohamedan Jurisprudence, a father is enjoined to maintain his children irrespective of whether he has any property or none. Quoting 340, he said that the father's obligation to his children in this regard is not affected even by his indigence, so long as he has some ability left to somehow care. This principle, according to learned Counsel, has the effect of dissociating the idea of maintenance from the existence of property interests in the father.
20. If the true view of maintenance was that it is an obligation in itself even in the absence of property, it followed, according to Mr. Hadi, that the mere accident of possession of property by a father in a given case cannot make it a necessary attribute of the obligation itself.
21. Mr. Jamal Mohamed said that for this doctrine of maintenance rights profounded by Mr. Hadi, there was no support in ancient writings. What they laid down, he said, was the exact opposite. He referred to two texts based on the words of the prophet himself. According to the tradition, the prophet once said to Hind, the wife of Abu Sufian, 'Take from his property what is required for thy needs, and the needs of thy child'. This tradition is reported by Bukhari and Muslim, and has been explained at length in Fathu'l Qadir. Vide Muslim Law by Mushin Tayyabji (Fourth Edition) 266. Ameer Ali in Mohamedan Law (Fifth Edition, Vol. II) at page 406 quotes Hedaya as found in Sahib-ul- Bukhari to refer to another ancient illustration. The tradition is that on one occasion Hind, daughter of Otta, came and complained to the Prophet that her husband Abu Sofin was a minor, and did not support her and her child properly. The Prophet is stated to have replied: 'Take what is necessary, but be moderate'.
22. Both the texts, above quoted, might, for aught we know, be variations of the same theme. But both show what the Prophet as the supreme law-giver had to say on the subject of maintenance of wives and children and the liability of the husband's or father's property, as the case may be, to such maintenance. Reducing the Prophet's words in modern legal terminology Mr. Jamal Mohamed paid that a Muslim father's obligation to maintain his children attaches to his property and runs with it. I think I must agree with this interpretation of the law according to the prophet.
23. Mr. Hadi, however, cautioned me as a Court sitting in twentieth century India from reading ancient Arabic texts too astutely and two liberally for mouthing new-fangled legal (principles. He cited the observations of the Privy Council in Aga Mohamed Jaffar Bindaneen v. Koohon Bee Bee; (1897) 24 I.A. 196 : I.L.R. Cal. 9 : 1897 7 M.L.J 115 Baker Ali Khan v. Anjuman Am Begam (1903) 30 I.A. 94 : I.L.R. All. 236 and said that Courts of law should not attempt to put their own construction on the Quran nor give any effect to new rules of law, however logically they may be deducible from ancient texts, when they have not been dealt with earlier by authoritative commentators.
24. I bow to the caution administered by the Privy Council and by Mr. Hadi as a salutary one. But then I should not take liberties with, or put a gloss of my own on the law laid down by ancient Muslim sources, I cannot at the same time, ignore the plain dictates of tradition as reported by acknowledged authorities or text writers on Islamic jurisprudence. In particular, I cannot brush aside the clear and pointed reference in the Hedays and other sources to the liability of the father's property to answer the claim of maintenance of his minor children. In the Bombay case, Mohamed Jusab v. Haji Adam I.L.R.(1911) 37 Bom. 71, cited earlier, the learned Judge had asserted, much we confidently, that there can be no authority under the Mohamedan Law for the proposition that the minor children are entitled to a charge on the father's property for their maintenance. The texts from Fathul Qadir and Sahib-ul Bokhari, to which I have made reference earlier, were not apparently brought to the notice of the learned Judge. The value of that decision as a precedent, is, therefore, so much less.
This being so, and in the absence of any other binding authority, I conceive that this Court and other Courts in this land must administer the personal law for Muslims on this difficult question only on the basis of the ancient textual authorities, whose validity as sources of law can hardly be questioned. Having regard to the tradition handed down from the Prophet himself in the two anecdotal reference I have earlier cited, there seems to me to be every judicial compulsion to follow the injunction which the Prophet administered to his followers as the only rule of law bearing on the subject of maintenance.] Wihout attempting to discover exact parallels between one system of personal law and another I may make bold to assert that it would be quite purposeless and self-stultifying for any system of family law or jurisprudence worth the name to confer a right on minor children to maintenance, while allowing the parent, at the same time, the liberty of sapping the substance of that right.
25. Mr. Hadi had one last argument to make by way of criticism of the trial Court's judgment. That Court seemed to found the basis for a charge decree in this case on the provisions of Section 39 of the Transfer of Property Act, 1882. Learned Counsel said that this was the last provision one could look for and rely on in a case involving maintenance rights over a Muslim's property.
26. Section 39 of the Transfer of Property Act, it may be observed, lays down, inter alia, that a person's right to maintenance on a charge of the properties of another person may be enforced even against a transforce from that person, where transfer was gratutous. A similar provision, it may be mentioned, is also found in Section 20 of the Hindu Adoptions and Maintenance Act, 1956. But Mr. Hadi's point was that Section 39 of the Transfer of Property Act, had no application where the Courts have to administer rules of Mohamedan Law.
27. This contention has to be accepted on the basis of Section 2 of the Transfer of Property Act. The effect of that saving provision is that rules of Mohamedan Law cannot be affected or overridden by Section 39 or any other provision in Chapter 11 of the Transfer of Property Act. All the same, I cannot help observing that the particular rule of Mohamedan Law which 1 have been able to derive from the ancient texts far purposes of this case does not differ from, but more or less accords with, the principle on which Section 39 of the Transfer of Property Act had been enacted.
28. At the end of the discussion I am quite satisfied that under the Mohamedan Law, minor children are entitled to have a decree for their maintenance made a proper charge on the property of the father, I hold that the children's right to maintenance in a Muslim household always attaches to the father's property in such a way and in such measure that it is not affected by any subsequent alienation by the father with notice of the charge or by an alienation which is gratuitous.
29. The result is that I confirm the judgment and decree of the Court below on the point, and dismiss the second appeal with costs.