Patna High Court
Ambika Rai And Anr. vs Mt. Tetara Kuer on 3 May, 1956
Equivalent citations: AIR1956PAT293, AIR 1956 PATNA 293
JUDGMENT Choudhary, J.
1. This appeal by the defendants is directed against the judgment and decree of the learned Subordinate Judge, Second Court, Chapra, affirming those of the first Munsif there.
2. The plaintiff, who is the widow of one Jan-gi Rai, instituted a suit against Jagarnath Rai, who had succeeded to the estate of Jangi Rai, for maintenance in the year 1923 and obtained a decree on award, according to which she was to get a sum of Rs. 407- annually as maintenance which was made a charge on the family property of Jagarnath Rai. and over and above that she was to enjoy the usufruct of two mango trees, one 'kathal' tree and one bamboo clump.
It appears that the two mango trees and the bamboo clump were cut sometime in the year 1947. Thereafter in 1948, she filed a suit, out of which the present appeal arises, for increasing the amount of her maintenance, and she claimed to get a sum of Rs. 27/- per month as her maintenance. This claim was made against the appellant on the ground that they had inherited the property of Jagarnath Rai.
The suit was contested by them, inter alia, on the ground (1) that they were not the heirs of Jagarnath Rai and that they were in possession of his property by reason of purchase for value from his heirs, and (2) that the plaintiff was not entitled to have the amount of maintenance increased, nor were they liable for payment of any increased amount.
3. Both the Courts below negatived the contention of the plaintiff that the appellants were the heirs of Jagarnath and accepted their case that they had purchased his property with notice of the charge of maintenance made by the decree of the Court in the year 1923. They also held that in view of the circumstances of the case, she was entitled to have the amount of her maintenance increased, and they concurrently found that a sum of Rs. 12/- per month would be the proper amount of maintenance for her. They further held that the appellants were liable to pay the above amount of maintenance inasmuch as they were purchasers of Jagarnath's property with notice of the plaintiff's claim of maintenance. On these findings, the suit of the plaintiff was decreed and the defendants have come up to this Court in second appeal.
4. It has not been challenged before me in this case on behalf of the appellants that if they were liable to pay the increased amount, the sum of Rs. 12/- a month as maintenance was excessive. Counsel for the appellants has, however, argued, and that is the only point for consideration in this case, that the appellants being purchasers could not be liable for the enhanced amount.
This is a case of first impression, and counsel for the parties nave not been able to place any authority in support of their respective contentions on this point. There is, however, an indication in Mulla's Hindu Law, according to which, in my opinion, the appellants could not be liable for any enhanced amount. Section 569 of Hindu Law by Mulla, 11th Edn., states as follows:
"The claim, even of a widow, for maintenance is not a charge upon the estate of her deceased husband, whether joint or separate, until it is fixed and charged upon the estate. This may be done by a decree of a Court, or by an agreement between the widow and the holder of the estate, or by the will by which the property was bequeathed. There fore, the widow's right is liable to be defeated by a transfer of the husband's property to a bona fide purchaser for value without notice of the widow's claim for maintenance. It is also liable to be de feated by a transfer to a purchaser for value even with notice of the claim, unless the transfer was made with the intention of defeating the widow's right and the purchaser had notice of such inten tion....."
From the above passage it is manifest that so long as the amount of maintenance has not been fixed and made a charge upon the estate, the claim for maintenance cannot be enforced against the bona fide transferee. Even after the decree has been passed and a charge has been made, the transferee is liable only for the amount fixed before the transfer was made. He is not, in my opinion, lia-ble to pay any enhanced amount which was not made a charge upon the estate of which he has taken transfer.
The passage "It is also liable to be defeated by a transfer to a purchaser for value even with notice of the claim, unless the transfer was made with the intention of defeating the widow's right and the purchaser had notice of such intention" is very significant. According to this passage, it is clear that the transferees could not be liable for any such claim by the plaintiff unless the transfer was made in their favour with the intention of defeating the plaintiff's right to claim enhanced amount and the transferees had notice of such intention.
There is no material on the record of this case to show nor is there any allegation to the effect, that the transfer in favour of the appellants was made with the intention of defeating the plaintiff's right to claim enhanced amount or that the appellants had notice of that intention. That being the position, I fail to understand how in law the appellants coula be liable to pay any enhanced amount of maintenance.
5. For the reasons given above, the judgments and decrees of the Courts below appear to be wrong in law and are liable to be set aside. The result is that the appeal succeeds and is allowed with costs. These judgments and decrees of the Courts below are set aside.