SOMASUNDARAM CHETTY Vs. UNNAMALAI AMMAL

JUDGEMENT

(1.) THIS matter arises in execution. A suit was brought in July 1913 against the father of a debtor who was undivided from his father, for money borrowed. The son died in March 1913. An application for attachment before judgment was obtained on the 11th July 1913. There was a simple money decree against the father executable against the assets of the son in his hands. On the 30th of July 1914, the widow of the son sued her father-in-law for maintenance and claimed that it should be charged against the family properties. The decree as prayed for was made on the 28th of November 1914. Meantime the decree-holder under the money decree brought the property to sale. He had notice of the charge created in favour of the daughter-in-law. THIS lady has now applied to execute her decree for maintenance against the purchaser under the money decree. It must be taken to have been found that the decree against the father-in-law was for a claim binding on the family. The first question which was argued was that as the decree creating a charge was during the pendency of the attachment under the money decree, the charge is affected by his pendens. One answer to this contention is that Section 64 of the C.P.C. relates to voluntary transfer and not to charges created by a decree. However this may be, we have not materials to enable us to say that the sale and the purchase were in pursuance of the attachment before Judgment and that such an attachment was subsisting when the charge was created.

(2.) THE more important question is whether the charge is ineffective as against a creditor whose debts are binding on the family. In the first place it seems undesirable to draw a distinction between the kinds of charges created under a decree. Whatever may have been the original obligation which was pursued in a court of law, the moment that a court declares that its decree is to be discharged by the creation of a charge on immoveable property it is as binding on all subsequent purchasers of the property at least as if there was a mortgage for a binding debt created by the debtor on the property. In this view the charge would take precedence over all claims which have not ripened into a lien on the property. Secondly, the proposition that a debt binding on a Hindu family takes precedence over a maintenance claim in all cases is not supported by any clear authority. It may be stated as a general proposition that in the administration of a Hindu s estate, binding debts would take precedence over mere claims for maintenance or residence on the part of the female members of the family. But there is no clear authority for the proposition that a charge bona fide created for maintenance can be defeated by a creditor who has lent money for family purposes Sham Lal v. Banna (1882) I.L.R. 4 All. 296 and Gur Dayal v. Kaunsila (1883) I.L.R. 5 All. 36 have been relied on before us. In neither of them was a charge created in favour of the maintenance claimant. THE obiter dictum that even if there is a charge it would be subordinated to the claim of the creditor is not supported by any text of Hindu law or by any decided case. THE observations in Krishna Patar v. Sinnaponnu (1914) 26 I.C.759 are of the same character. On the other hand there are the observations of Bashyam Ayyangar J. in Jayanti Subbiah v. Alamelu Mangamma (1902) I.L.R. 27 M. 45 which are to the effect that a creditor transferee can under certain circumstances be subjected to the obligation of paying the maintenance. In Rangamma v. Echammal (1898) I.L.R. 22 M. 305 : 9 M.L.J. 14. Subramania Aiyar, J. pointed out that the moral obligation to maintain a daughter-in-law would ripen into a legal obligation the moment that a decree is passed. It would be an a fortiori case where such a decree charges specific property. In our opinion, the rule of Hindu law is limited in its application only so long as the two obligations--the one to pay a binding debt and the other to pay maintenance, are both of them not made charges on the property. If either of them assumes that shape, then it would take precedence over the other. This is the principle underlying Section 39 of the Transfer of Property Act and that principle is quite consistent with the rule of the Hindu Law. In our opinion, therefore, the lower Court is right and this appeal should be dismissed with costs.