DATTATRAYA PUTTO HONNANGI Vs. TULSABAI CHIDAMBAR HONNANGI

JUDGEMENT

(1.) This is a second appeal from the Assistant Judge of Belgaum, and it raises an interesting and important question on the construction of Section 39 of the Transfer of Property Act, 1882, on which there appears to be no direct authority. The facts found are, that the plaintiff is the widow of a man who was possessed of four fields at the time of his death. Defendant No. 1 is the only son of that man. After defendant No. 1 attained his majority he sold the four fields. He sold one of them on May 30, 1935, to defendant No. 2, who is the present appellant, a second one on June 29 of the same year to defendant No. 2; a third field in August 1935 to defendants Nos. 3 and 4, and the fourth field, in January 1936, to defendant No. 2. Defendants Nos. 3 and 4 had no notice of the existence of the plaintiff as a widow of the vendor's father. But defendant No. 2 knew of her existence and he also knew that the property was ancestral property. On those facts the plaintiff sued for maintenance, past and future, and the learned trial Judge held that she was entitled to certain past maintenance and to Rs. 200 a year for future maintenance, and, inasmuch as defendant No. 2 had notice of her claims, he charged half the arrears of past maintenance and Rs. 50 a year in respect of future maintenance on the property in possession of defendant No. 2.

(2.) Apart from Section 39 of the Transfer of Property Act, the rights of a Hindu widow to maintenance are well settled. She is entitled to maintenance out of her husband's property, and also out of the property in which he was a coparcener at the time of his death; and it had been held in this Presidency in Lakshman V/s. Sarasvatibai (1875) 12 B.H.C.R. 69 and Lakskman Ramchandra Joshi V/s. Satyabhamabai (1877) I.L.R. 2 Bom. 494 that although a widow was entitled to maintenance out of the rents and profits of the whole of the immoveable property of her husband, that right did not amount to a charge on the property, unless of course a charge had been created; and if the property was sold by the owner to a purchaser, and the sale was not made with the intention of defeating the widow's rights, the purchaser got a good title as against the widow. It had also been held in Rachawa V/s. Shivayogapa (1893) I.L.R. 18 Bom. 679 that although a widow had not a charge upon the estate, if a portion of the estate had been assigned to her for her maintenance, a purchaser of that portion of the estate would take it subject to her right, on the general principle that notice that a person is in occupation of land is notice of that person's rights. So that, in this Presidency at any rate, before the passing of the Transfer of Property Act, the rights of the widow could only be saved by getting a charge on part of the immoveable property for maintenance either by agreement or by a decree of the Court, or by getting part of the immoveable property assigned to her for her maintenance.

(3.) Section 39 of the Transfer of Property Act, as originally framed, gave statutory effect to the law as it existed in this Presidency, and provided that Where a third person has a right to maintenance or a provision for advancement or marriage from the profits of immoveable 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 in 1929 the section was amended so as to eliminate the necessity of proving an intention to defeat the rights of the widow, and the section now reads : Where a third person has a right to receive maintenance or a provision for advancement or marriage from the profits of immoveable 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 we have to determine is, what is the meaning of the expression, "has a right to receive maintenance from the profits of immoveable property" ? It is argued by the plaintiff that inasmuch as the widow's maintenance is payable out of the whole estate of her husband, it is payable out of the rents and profits of the suit property, which forms part of that estate, and, therefore, the section applies. On the other hand defendant No. 2 argues that although the maintenance is admittedly payable out of the income of the whole estate, it is not payable, nor is any rateable part thereof payable, out of the rents and profits of any particular property. It is pointed out that in some cases there may be moveable property amply sufficient to provide for any possible maintenance, and it is argued that in such a case it could not fairly be said that maintenance was payable out of the rents and profits of the immoveable property. It seems to me that on the language of the section it would be possible to adopt either construction without doing violence to the language, and one has to consider which construction best carries out the intention of the Legislature, which would seem to be the protection of a widow's right to maintenance.