KAUSALAI AMMAL Vs. SANKARAMUTHIAH PILLAI

JUDGEMENT

(1.) The appellant is the widow of a person who was a member of a joint Hindu family. Her husband died some time before 1926, but the actual date does not appear in the record. On the 18 October, 1926, the appellant filed a suit to recover from Murugesam Pillai, the surviving member of the joint Hindu family, money by way of maintenance. She succeeded and the Court made the sums awarded to her under the decree a charge on certain immovable properties. On the 25 July, 1926, Murugesam Pillai mortgaged these properties to the respondent, who in 1931 filed in the Court of the District -Munsif of Cuddalore the suit out of which this appeal arises to enforce the mortgage. The appellant was made a party and she pleaded that her charge for maintenance took priority of the respondent's mortgage. The District Munsif and the Subordinate Judge of Cuddalore on appeal upheld the appellant's contention, but the respondent appealed to this Court and Krishnaswami Aiyangar, J., allowed his appeal. This appeal has been filed under Clause 15 of the Letters Patent, Krishnaswami Aiyangar, J., having given the necessary certificate.

(2.) Stated shortly the appellant case is that the respondent was placed on inquiry whether a Hindu widow had a claim on : the properties, and as he failed to make any inquiries he is postponed to the appellant. Section 39 of the Transfer of Property Act, as it stood at the time of the mortgage, read as follows: 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 with the intention of defeating such right, the right may be enforced against the transferee if he has notice of such intention 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.

(3.) Therefore, under this section in order that a transferee should be postponed to a person entitled to maintenance or a provision for advancement or marriage the transfer had to be made with the intention of defeating the right and the transferee had to have notice unless he accepted the transfer without giving consideration.