DATTATRAYA PUTTO HONNANGI Vs. TULSABAI CHIDAMBAR HONNANGI

JUDGEMENT

(1.) THIS is a second appeal from the Assistant Judge of Belgaum, and it raises an interesting and important question on the construction of Section 39 of the Transfer of Property Act, 1882, on which there appears to be no direct authority. The facts found are, that the plaintiff is the widow of a man who was possessed of four fields at the time of his death. Defendant No.1 is the only son of that man. After defendant No.1 attained his majority he sold the four fields. He sold one of them on May 30, 1935, to defendant No.2, who is the present appellant, a second one on June 29 of the same year to defendant No.2; a third field in August 1935 to defendants Nos. 3 and 4, and the fourth field, in January 1936, to defendant No.2. Defendants Nos. 3 and 4 had no notice of the existence of the plaintiff as a widow of the vendor's father. But defendant No.2 knew of her existence and he also knew that the property was ancestral property. On those facts the plaintiff sued for maintenance, past and future, and the learned trial Judge held that she was entitled to certain past maintenance and to Rs. 200 a year for future maintenance, and, inasmuch as defendant No.2 had notice of her claims, he charged half the arrears of past maintenance and Rs. 50 a year in respect of future maintenance on the property in possession of defendant No.2.

(2.) APART from Section 39 of the Transfer of Property Act, the rights of a Hindu widow to maintenance are well settled. She is entitled to maintenance out of her husband's property, and also out of the property in which he was a coparcener at the time of his death; and it had been held in this Presidency in Lakshman v. Sarasvatibai (1875) 12 B.H.C.R. 69 and Lakskman Ramchandra Joshi v. Satyabhamabai (1877) I.L.R. 2 Bom. 494 that although a widow was entitled to maintenance out of the rents and profits of the whole of the immoveable property of her husband, that right did not amount to a charge on the property, unless of course a charge had been created; and if the property was sold by the owner to a purchaser, and the sale was not made with the intention of defeating the widow's rights, the purchaser got a good title as against the widow. It had also been held in Rachawa v. Shivayogapa (1893) I.L.R. 18 Bom. 679 that although a widow had not a charge upon the estate, if a portion of the estate had been assigned to her for her maintenance, a purchaser of that portion of the estate would take it subject to her right, on the general principle that notice that a person is in occupation of land is notice of that person's rights. So that, in this Presidency at any rate, before the passing of the Transfer of Property Act, the rights of the widow could only be saved by getting a charge on part of the immoveable property for maintenance either by agreement or by a decree of the Court, or by getting part of the immoveable property assigned to her for her maintenance.

(3.) THERE is another possible difficulty on the construction advocated by the plaintiff, which does not arise in this case and on the solution of which I do not propose to express an opinion. That difficulty is in regard to the rights of creditors of the husband. It is well settled that the right of an unsecured creditor of the husband takes precedence over the claim of the widow for maintenance. He can enforce the payment of his debt as against the immoveable property of the husband without regard to the widow's right to maintenance, and it would seem very improbable that the Legislature intended to alter the law in that respect. But if maintenance is regarded as payable out of the profits of all the immoveable property of the husband, it may be difficult to except from the operation of Section 39 property sold for payment of debts, and to limit the section to immoveable property not required to satisfy a claim having priority to the right to maintenance. However, as I have said, that question does not arise in this case.