Madras High Court
Pavayamal And Anr. vs Samiappa Goundan And Ors. on 12 March, 1947
Equivalent citations: (1947)1MLJ329, AIR 1947 MADRAS 376
Author: Chandrasekhara Aiyar
Bench: Chandrasekhara Aiyar
JUDGMENT Chandrasekhara Aiyar, J.
1. The plaintiffs who are the wife and the daughter respectively of the first defendant filed the suit for maintenance. Defendants 2 and 3 are the alienees from the first defendant of properties belonging to him. The District Munsiff decreed maintenance to the plaintiffs and made the payment a charge on the properties alienated by the first defendant to defendants 2 and 3 under Ex. D-2. On appeal by defendants 2 and 3 the Subordinate Judge has negatived the charge holding that Section 59 of the Transfer of Property Act does not apply because there was no evidence worth the name about the second and third defendants having knowledge of the claim for maintenance by the plaintiffs.
2. In the first place, it cannot be said of the plaintiffs that they have got a right to receive maintenance " from the profits of immoveable property " when only Section 39 will come into play. Secondly, mere knowledge of the legal right would not appear to be enough as, if it were so, there could be no sale by a husband of his properties to third parties without the risk of the wife turning up later and saying that they had notice of her right and that therefore the transferees were bound to recognise her right. What the section contemplates is a claim based on the right to receive maintenance and notice of such claim.
3. Moreover, in this case both Courts have found that the suit is the result of collusion between the husband and the wife. In fact, the Subordinate Judge says that he accepted the evidence of the second defendant.
4. The daughter stands on no better footing than the wife. She has got a claim for maintenance only up to the date of her marriage and not longer.
5. The second appeal is dismissed with costs. No leave.