BANDA MANIKYAM Vs. BANDA VENKAYAMMA

JUDGEMENT

(1.) The and defendant is the appellant. The sui t was for separate maintenance by a wife for herself and her two minor daughters against her husband the 1st defendant and his mother, the and defendant. The lower Appellate Court In agreement with the trial Court, recorded the following finding :

(2.) The expression " legal cruelty " in the above passage has reference to a wholly unfounded charge of immorality made by the husband against the wife prior to suit. That the plaintiffs are entitled to separate maintenance from the 1st defendant is not disputed. After the relations between the husband and wife had become estranged and a fortnig before the suit, the 1st defendant purported to settle all his properties on his mother, the and defendant, under Exhibit B-1 dated 18th September, 1948. The recital in Exhibit B-1 is that the document was executed because it was apprehended that the 1st defendant who was given to bad ways might waste the property. The trial Court found that the settlement was. "a mala fide and gratuitous transfer" and was affected by section 39 of the Transfer of Property Act. The Lower Appellate Court also held that the and defendant who was a gratuitous transferee would take the properties subject to the plaintiff's right of maintenance. The Courts below directed that the maintenance decreed to the: plaintiffs should be a charge on a portion of the properties settled on the and defendant under Exhibit B-1 and the only objection to the decree is as regards the charge created thereby.

(3.) It was argued for the appellant that the properties settled on her under Exhibit B-1 were not legally liable to be charged for the maintenance of the plaintiffs and that section 39 of the Transfer of Property Act had no application to the case- This point was not specifically or pointedly raised in the grounds of Second Appeal; but, as it was one of law, I heard arguments on it. Reliance was placed for the appellant on a recent decision of Chandrasekhara Ayyar, J., in Pavayammal v. Samiappa Goundan,1 which, if correct would cover the present case. The judgment, of the learned Judge on this point is, however, very brief consisting of one sentence and does not refer to any texts or decisions. It purports to be based entirely on the expression " right to receive maintenance from the profits of immoveable property " occurring in section 39 of the Transfer of Property Act. The underlying assumption of the learned Judge is that a wife and minor children have a right to be maintained by the husband or father irrespective of the possession of any property and therefore these persons could not be regarded as having a right to receive maintenance " from the profits of immoveable property " within the meaning of section 39. Reference was also made by the appellant to sections a and 3 of the Hindu Married Women's Right to Separate Residence and Maintenance Act (XIX of 1946) entitling a wife to separate maintenance from her husband on one or more of the grounds enumerated therein. It is well known that this enactment was intended to enlarge and liberalise the rules of Hindu Law governing the rights of a Hindu woman to maintenance from her husband in the contingencies therein specified. The Act does not curtail or cut down the right of maintenance conferred either by the Hindu Law or by section 39 of the Transfer of Property Act. It does not affect the right of a wife to have payment of her separate maintenance secured by a charge on her husband's properties in his hands or in the hands of his gratuitous transferee if, under any other law, she has such a right. The decision in Pavayammal v. Samiappa Goundan, (1947) 1 M.L.J. 329. leads to considerable hardship in a case like the present where a delinquent husband, out of spite and vindictiveness, cruelly ill-treated and unjustifiably abandoned his innocent wife and minor children and gratuitously trans ferred all his properties to his mother in order to defeat their claim for maintenance. If, however, the law is as laid down in the decision cited above, the appellant must succeed. With great respect to Chandrasekhara Ayyar, J., both as a Judge and as the Editor of the nth Edition of Mayne's Hindu Law (page 832), I am unable to share his opinion.