Calcutta High Court
Kuloda Prosad Chatterjee And Ors. vs Jageshar Koer on 7 June, 1899
Equivalent citations: (1900)ILR 27CAL194
JUDGMENT
Ghose and Rampini, JJ.
1. The main contention raised in this appeal is that, having regard to the provisions of Section 39 of the Transfer of Property Act, the charge created in favour of the defendant under the compromise decree in 1886 could not affect the interest of the plaintiffs, because they (the plaintiffs) were persons who took the property without notice of the right of maintenance in the defendant, the widow. It appears to us, however, that Section 39 of the Transfer of Property Act has no application to a case like this, where there has been a decree between the widow on the one hand, and the plaintiffs' vendors on the other a decree by which certain immoveable property was charged with the maintenance of the widow. The predecessor of the plaintiffs subsequently took a mortgage of the property from the defendant, against whom the said decree was passed; and therefore they are bound, in the same manner as their mortgagor was bound, by it. Then again the plaintiffs could hardly be said to be transferees without notice of the right of maintenance in the widow, because it does not appear that they, before they took a mortgage, made any inquiry as to the right of the widow, and whether any charge existed upon the property in question.
2. The learned Vakil for the appellants has further argued that, inasmuch as the maintenance which was claimed by the defendant, and for which the property in question was attached and about to be sold, accrued due subsequent, to his client's mortgage, the defendant should be regarded as second mortgagee, the plaintiffs being regarded as first mortgagees. But it is obvious that argument cannot hold good, for the simple reason that the defendant does not claim as mortgagee in the strict sense of the word, but she claims the right of maintenance which was declared by the decree, and by which decree certain specific immoveable property was charged with such maintenance.
3. Upon these grounds, we think this appeal should be dismissed, and we accordingly dismiss it with costs.