CHANDRAMMA Vs. MANIAM VENKATAREDDI

JUDGEMENT

(1.) The main question that is raised in this appeal turns upon the application of section 39 of the Transfer of Property Act to the right to maintenance claimed by a wife against her husband. Under section 39 where a third person has a right to receive maintenance or a provision for advancement or marriage, from the profits of immovable property and such property is transferred, the right may be enforced against the transferee, if he has notice thereof, or, if the transfer is gratuitous ; but not against a transferee for consideration and without notice of the right, nor against such property in his hands. The question is whether a wife has a right to receive maintenance from the profits of immovable property in the hands of her husband. On this question, a decision of a single Judge of the Madras High Court and that of a single Judge of Andhra High Court speak in different voices. While Chandrasekhara Ayyar, J., in Pavayammal v. Samiappa Goundan, (1947) 1 M.L.J. 329. says mat a wife has not got a right to receive maintenance from the profits of immovable property, Viswanatha Sastri, J., in Manikyam v. Venkayamma, (1956) An.W.R. 1021. holds that she has such a right. I do not propose to add my view introducing thereby confusion in the Subordinate Courts.

(2.) It is necessary that this question should be decided by a Division Bench of this Court. It is also contended that, as the wife subsequently lived with her husband section 39 cannot affect the transaction that took place at the time she was living separately from her husband. This also raises an interesting question which requires to be decided by a Bench. Post this appeal before a Bench of two Judges. The Second Appeal then came on for hearing before the Bench in pursuance of the aforesaid order.

(3.) This Second Appeal has been referred to a Division Bench for resolving the conflict between the decisions of two single Judges, one that oi the Madras High Court delivered before 5th July, 1954 and the other that of the Andhra High Court. It raises an interesting question of law, namely, whether the wife of a Hindu has the right to receive maintenance from the profits of immovable property within the meaning of section 39 of the Transfer of Property Act. Chandrasekhara Ayyar, J., held in Pavayammal v. Samiappa Goundan1, that she has no such right, whereas Viswanatha Sastri, J., held in Manikyam v. Venkayamma, that she has such a right. The facts, either admitted or found, may be stated : The plaintiff is the second wife of the first defendant. As he ill-treated and neglected her, she took criminal and civil proceedings for maintenance. In 1940, the Sub-Divisional Magistrate, Chittor, made in her favour an order for maintenance at Rs. 5 per month and she was receiving that amount till 1946. On 12th August, 1942, the first defendant executed a gift deed, Exhibit B-4, in favour of his daughter, the second defendant, conveying to her items 1 to 16 of the plaint C Schedule, subject to the condition that the donee should discharge a mortgage debt of Rs. 700 in favour of the Land Mortgage Bank. In 1947, the first defendant filed two suits for setting aside the gift deed in respect of items 1 to 16 and for recovering other items alleged to have been purchased by the first defendant benami in the name of the third defendant, the husband of the second defendant. On 16th July, 1949, the suits were compromised. Under the compromise, the title of the second defendant to items 1 to 16 except itenv, 10 and 11 was recognised. The excluded items were set apart for the joint enjoyment for life of the plaintiff and the first defendant and the second defendant was directed to pay Rs. 50 per year to the first defendant and the vested remainder in the said .items was to go to the second defendant. The plaintiff was not a party lo this compromise. The plaintiff, who, at the time of the said compro. mise was living with her husband, filed the present suit attacking the binding nature of the compromise and claiming maintenance at the rate of Rs. 75 per month with arrears of past maintenance, besides payment of Rs. 2,000 for her jewels. She, alleged that, from about four months prior to the filing of the suit, when she asked for return of her jewels, he began to ill-treat her and neglect her, compromised the suit with defendants 2 and 3 behind her back and refused to return her jewels. On those allegations, the suit was filed for the aforesaid reliefs.