Andhra HC (Pre-Telangana)
Hasmath Bee Alias Mehrum Bee And Anr. vs Mrs. Khatija And Ors. on 16 September, 1997
Equivalent citations: 1997(6)ALT809
JUDGMENT Krishna Saran Shrivastav, J.
1. The plaintiffs are the appellants.
2. It is no longer in dispute before me that one Khader Basha had legally married the first plaintiff and the 2nd plaintiff is his daughter. He also legally married the first defendant and the defendants 2 and 3 are his children. On 16-11-1969 he had executed a registered gift deed in favour of the first defendant which is at Ex.B-2. Through this registered gift deed Ex.B-2 he had gifted the plaint 'B' schedule property which is a residential house. The defendants are staying in the suit house. The said Khader Basha died in the year 1972. The plaintiffs filed suit for declaration of their title and possession of the suit house alleging that the plaintiff No. 1 is the widow while the plaintiff No. 2 is the daughter of the deceased Khader Basha and they are the only legal heirs who have inherited the suit house because the defendant No. 1 was the concubine of late Khader Basha and the remaining defendants are his illegitimate children. The defendants resisted the suit.
3. The trial Court on assessment of the evidence on record found that the first plaintiff and the first defendant were legally married to late Khader Basha and the 2nd plaintiff is the daughter from the first plaintiff while the defendant No. 2 and defendant No. 3 are his legitimate children from the first defendant. It also found that late Khader Basha had executed a registered gift deed in respect of the suit house in favour of the first defendant and she is residing in the same with the defendants 2 and 3. It, however, found that under Section 39 of the Transfer of Property Act (for short 'the Act') the gift deed Ex.B-2 is inoperative. The plaintiffs have got share in the suit house along with the defendants but the plaintiffs have not filed the suit for partition and separate possession and therefore, their shares cannot be declared and they cannot be put in separate possession of the suit house because they had claimed exclusive title and exclusive possession. Holding so, the trial Court dismissed the suit. The appellate Court agreed with the findings of facts and law recorded by the trial Court and dismissed the appeal.
4. Feeling aggrieved by the impugned judgment and decree of dismissal of the suit, the plaintiffs have preferred the second appeal.
5. Relying on Pendyala Narasimham v. Pendyala Venkata Narasimha Rao, 1962 (1) An.W.R. 282, it has been urged by Sri Ramana Reddy, the Counsel appearing for the appellants that both the Courts below have erred in holding that relief for partition and separate possession could not be granted in favour of the appellants though it was a lesser relief claimed. But when the provisions of Section 39 of the Act were brought to his notice during the course of the arguments that the gift deed Ex.B-2 cannot be declared invalid under Section 39 of the Act, the learned Counsel for the appellants conceded and rightly conceded that under Section 39 of the Act the gift deed Ex.B-2 cannot be declared invalid. But, relying on Ibrahim Fathima v. Mohamed Saleem, ,. he has argued that a charge can be created on the suit house for the maintenance of the appellants.
6. It has been held in the case of P. Narasimham that in a suit for possession of certain property with sole and exclusive rights therein, a decree for partition could be granted notwithstanding the absence of an alternative prayer, provided, such relief would not result in much prejudice or injustice to the other party. When a party claims certain property only on the score of exclusive title therein residing in him, there is no reason why he should not be permitted to ask for a portion thereof, if it is based on the same title and if the grounds upon which he is entitled to a lesser relief are not inconsistent with the case set up by him in the original plaint or would lead to the determination of issues which would embarrass him.
7. On the principles laid down in Narasimham's case (supra), I hold that both the Courts below had fallen in error of law in holding that a lesser relief for partition and separate possession could not be granted to the appellants merely on the ground that they had laid a suit for title and separate possession but had not claimed the relief for partition though both the Courts have found (though wrongly as I will presently show) that they had got a share in the said property.
8. Section 39 of the Act reads as under:-
"Section 39. 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.... the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right, nor against such property in his hands."
A plain reading of Section 39 of the Act shows that where a third person has a right to receive maintenance or a provision for advancement or marriage from the profits of the 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 such transfer is gratuitous but not against a transferee for consideration and without notice of right nor against such property in his hands. It is crystal clear that four contingencies should be established for taking benefit under Section 39 of the Act. They are: (1) a third person should have a right to receive maintenance etc., (2) that the immovable property should yield profit to the third party, (3) that the transfer should either be gratuitous or (4) if it is a transfer for consideration, the transferee should have notice of such right.
9. By no stretch of imagination, it can be said that the gratuitous transfer is liable to be set aside or liable to be declared invalid under Section 39 of the Act merely on the ground that the third party has a right to maintenance from the transferor. In the case on hand, there is evidence on record that the suit property is a residential house in which the respondents are residing. There is no evidence on record that they were getting rent even from a portion of the house. Thus, it is established that the defendants were not earning any profit from the suit house. The plaintiffs had not filed the suit for maintenance. Under these circumstances, as rightly conceded by the learned Counsel of the appellants, the gift deed Ex.B-2 could not be declared as invalid or inoperative and the findings recorded by both the Courts below that the gift deed Ex.B-2 is invalid and inoperative are, therefore, reversed and the gift deed Ex.B-2 is declared as valid and operative.
10. In the case of Ibrahim Fathima (supra) the learned single Judge of Madras High Court relying on the following commentary on Muslim Law by Mushin Tayyabji (4th Edition 266) which passage has been reproduced in Ameer Ali's Mohammedan Law (5th Edition Volume II at page 406) was of the view that the maintenance allowance of wives and children is liable to be recovered from the property of the husband. The passage reads as under:-
"The Prophet once said to Hind, the wife of Abu Sufian: "Take from his property what is required for thy needs and the needs of thy children"."
The learned authors have reproduced this passage from Fathul Qadir reported by Bokhari and Mushin. The learned single Judge has further observed that the tradition handed down from the Prophet himself being the rule of law bearing on the subject of maintenance gives the right to the minor children to maintenance from the property of his or her father and therefore, a charge can be created under Section 39 of the Act because Section 2 of the Act is not an impediment for the simple reason that the provisions of Section 39 of the Act do not affect the rule of the Muslim Law so far as the creation of charge for the maintenance is concerned.
11. The marriage between a Muslim male and a female is dissolved by the death of the husband. A widow is not entitled for maintenance except for the period of 'iddat'. The husband of the first plaintiff has died on 15-6-1972 and the suit for partition has been filed on 16-6-1976. She has not claimed the maintenance even for the period of 'iddat'. The age of the 2nd plaintiff has been given as 18 years in the plaint. Thus, it appears that the 2nd plaintiff was aged about 18 years as on 16-6-1976. The judgment of the trial Court was pronounced on 26-11-1982. By that time, the second plaintiff must have attained the age of about 24 years. It can be presumed that by this time she would have been married. The maintenance to a daughter can be granted at best upto the date of her marriage because with the marriage she goes to another family and her husband becomes liable for maintenance. It is noteworthy that it is not a suit for maintenance at all. As noted above, the suit house does not yield any income. Therefore, the provisions of Section 39 of the Act are not at all attracted.
12. For the foregoing reasons, the question whether a muslim minor child is entitled to claim maintenance from the property of his or her father and whether a charge can be created on that property for recovery of maintenance is a question of an academic exercise for this Court. I find that the question raised by the learned Counsel of the appellants is not at all free from difficulty and I would not like to decide it one way or the other without examining it in some length. The reason is obvious. Only on the basis of the aforementioned illustration reproduced in para 10 supra, it would not be fair to conclude that a muslim minor has a right to claim maintenance from the property belonging to his or her father or husband. Even the 'dower' debt is not a secured debt. But it is only a simple debt. Reliance is to be taken from the Holy 'Quran' for deciding whether a charge can be created on the property of the person who is liable to maintain his wife or children. I do not think that this is a proper case in which I should decide the question particularly because, as noted above, the suit was not filed for recovery of maintenance and the provisions of Section 39 of the Act are not at all attracted in this case and, therefore, the question in issue has become purely academic. I, therefore, do not propose to make any observation in this regard.
13. In result, the appeal fails and is hereby dismissed.
14. The appellants have been permitted to prefer the second appeal in forma pauperis. Had they not been permitted to do so, they would have been required to pay the Court fees of Rs. 321/- and therefore, the Court fees of Rs. 321/- shall be recoverable by the State Government from the estate of the appellants. The parties to the appeal shall, however, bear their own costs of appeal.