NIDAMANURI SUBBAYYA AND ORS Vs. NIDAMANURI RAMALAKSHMI

JUDGEMENT

(1.) The material facts are few. In O.S. No. 301 of 1905 on the file of the District Munsiff of Kanigiri a Hindu wife obtained a decree for maintenance against her husband. On 12th January, 1928, she filed a second suit, O.S. No. 47 of 1928, for enhancement of the maintenance that had been decreed to her. She also prayed for a charge over the properties set out in the schedule to the plaint. The husband remained ex parte and the suit was decreed. On 16th January, 1928, that is to say, four days after the wife had filed her second suit asking for increased maintenance the husband sold certain properties to the first appellant. The maintenance payable to the wife under the decree during the years 1944 to 1947 fell into arrears and to recover the amount due to her she proceeded against the properties that had been sold to the first appellant. The latter objected on the ground that the charge created by the decree could not be enforced against the properties he had purchased. Both the Courts below held that the purchase was affected by and that the purchaser took only subject to the charge that was created in favour of the widow. In that view the objections of the purchaser was overruled and execution ordered to proceed. The purchaser and his sons have, therefore, come to this Court.

(2.) Mr. Raghavayya, the learned advocate for the appellants, argued that there is a distinction between a suit for maintenance filed by a wife against her husband and a suit filed by a widow against the coparceners of her husband. In the former case the foundation of the liability is the personal relationship of husband and wife and in the latter case the foundation of the liability is the possession of property in which the deceased husband had an interest. Therefore, he argued, even though in a suit filed, by a wife against her husband a charge is created in favour of the wife over the properties of the husband such a charge could not bind a purchaser pendente lite of any property from the husband. In support of this contention he referred to the cases in Rattamma V. Seshachalam Sarma,1926 52 MadLJ 520, Official Receiver, Cuddappah v. Kalawa Subbamma,1925 99 IC 564 and Gangubai V. Pagubai, 1939 AIR(Bom) 403 and the following passage in Mullah's Transfer of Property Act, 3rd Edition at page 247:

(3.) In respect of the decision in Official Receiver, Cuddappah v. Kalawa Subbamma,1925 99 IC 564, it is sufficient to say that there is really no discussion of the principle involved and the observation there is merely obiter. Similar remarks apply to the decision in Gangubai's case , AIR1939Bom403 . So far as the case in Rattamma V. Seshachalam Sarma,1926 52 MadLJ 520, is concerned, practically every ground on which that decision is rested has been subsequently dissented from For instance, Devadoss, J., held in that case that a charge takes effect only from the date of the decree. Dealing with that a Bench of this Court stated in Seetaramanujacharyulu V. Venkatasubbamma, 1930 AIR(Mad) 824 , as follows: