YAMNABAI Vs. NANABHAI SADANAND

JUDGEMENT

(1.) This is a suit by the plaintiff, a Hindu widow, to recover maintenance from her brothers-in-law the defendants 1 to 6, defendants 4 and 5 being minors and defendant 6 their guardian, and the purchaser of the ancestral house, defendant 7. It appears that after the death of her father-in-law, who maintained her to the year 1893 or thereabouts, the first defendant continued to maintain the plaintiff as he swears for about three years but as she says for a much shorter period. Since that time whether 1896 or before, she has been maintained by her sisters one of whom was the widow of the late Mr. Justice Telang; but she now complains that her surviving sister Gungabai is too poor to continue supporting her, and she, therefore, makes this claim for maintenance against her brothers-in-law and their alienee.

(2.) Most of the argument has turned upon Section 39 of the Transfer of Property Act. That section, I think, is very unhappily worded as becomes evident upon a consideration of some of the judgments which have been delivered upon it by way of exegesis. The truth is that the two parts of the section do not correspond, and as it stands it is quite impossible to say whether the Legislature really meant a purchaser-for-value's right to be postponed to a maintenance-holder's right if at the time of the purchase he had notice of her claim to maintenance, or if in addition to that the dominant intention of the vendor had been to defeat the maintenance-holder's right and the vendee had been aware of that intention also. Now, the latter case could hardly occur in practice, unless indeed the vendors had announced their intention and it could be proved that the vendees had heard them doing so; else the Court would be left to infer from the surrounding circumstances only and inferences of that kind would always fall far short of being irresistible although possibly in exceptional cases Courts might deem them cogent enough to warrant discovering the intention as the true underlying fact. If, however, the intention of the Legislature in enacting that section was to postpone a purchaser- for-value's right to that of a maintenance-holder if the purchaser-for-value had notice of the claim to maintenance, then the section would go beyond and would conflict with the rule of Hindu Law. So that by Section 2 of the Transfer of Property Act its operation would be excluded where the rights of parties were governed by that Law. That is the case here, and I am now, therefore not concerned to pursue with rigor an analysis of the case law which has grown up upon this section.

(3.) The general Hindu Law applicable to a case of this kind is I think fairly clear and well settled. Widow's right to maintenance can only become a charge upon any definite portion of an undivided family estate when it has been made so by a decree of a Court or by an express agreement. Failing that, it is subject like many other rights founded in what the old Hindu lawyers deemed pious obligations to be defeated by sheer necessity. The further distinction to which the case law lends a great deal of colour, although upon this head it might be thought to need clarifying, is the distinction between the complete right of maintenance and a part included in it, namely the right to a residence in the family house. Cases might conceivably arise in which the distinction, to which some Courts seem to have inclined, between the conditions governing the legal apportionment of the part and of the whole might possibly be of some practical value, and give rise to practical difficulties. But broadly and generally I take it that that necessity which will be sufficient to defeat the larger will also be sufficient to defeat what is included in and less than the larger right. No doubt when the attention of the Courts is being concentrated upon the effect of the doctrine of notice upon the rights in controversy, distinctions of this kind may seem to acquire some importance; for of course it is a common place of the Hindu Law that the widow's right to residence is referable to the ancestral house and, therefore, the purchasers of the ancestral house aware of the existence of the widows, even when the widows are not residing in the house at the time, may without much straining be deemed to be . affected with notice of the right: a fortiori when the widows are actually residing at the time of the sale and purchase. Nevertheless it seems to me a strange doctrine that a right of that kind separated from the entire right of maintenance can be earned over and made a burden upon the purchaser-for-value of the ancestral property, even with notice, when it is certainly the belter doctrine that the larger right of maintenance cannot be so carried over and made a burden upon what he buys merely because he has notice of the claim to maintenance; and practical effect being given to this special doctrine would make all sales of ancestral property in which widows claim a right of residence impossible, for it is absurd to suppose that any purchaser would care to acquire household property subject to the rights of an indefinite number of ladies to reside in that property for indefinite periods. I think, however, it will not be seriously disputed that if the sale of the ancestral property was necessitated in the interest of the family as a whole, then a bona fide purchaser-for-value would acquire a right paramount to that of the widows either to maintenance or residence. Otherwise, doubtless, where the maintenance holder's right had been made a definite charge, as I began by saying, upon the property sold, that would constitute a distinct legal limitation of the otherwise unlimited interest of all coparceners acting together. So too if we look at what is required of a purchaser with notice of Hindu widow's claim to maintenance, that would be governed, I apprehend, by altogether different considerations from those which apply in deciding whether the purchaser from one who has merely a limited estate, such as a Hindu widow has, acted with proper caution and circumspection. It may indeed be doubted whether any duty is thrown upon a purchaser from all the coparceners to investigate the character of their needs merely by the fact that some Hindu widow in the family has given him notice that she claims maintenance. If I am right in this brief and necessarily rather sketchy outline of the Hindu Law on this subject, which will be found expounded at very great length and perhaps not always very consistently in the numerous judgments to which my attention has been drawn, then it follows that the substantial question I have to answer here is a question of fact whether or not the alienation of the ancestral property was a proper alienation, or as expressed in one of the issues, for a legal necessity.