Patna High Court
Mt. Sheodeni Kuer vs Umashankar Prasad Sahi on 10 May, 1962
Equivalent citations: AIR1963PAT74, AIR 1963 PATNA 74, ILR 42 PAT 860 1962 BLJR 677, 1962 BLJR 677
JUDGMENT Kanhaiya Singh, J.
1. Jamuna Prasad Sahi, resident of Mauza Sandha, died leaving him surviving two sons, Ramashankar Sahi and Umashankar Sahi. In 1942 Ramashankar executed a usufructuary mortgage bond dated 21st December, 1942 (exhibit C) in favour of his brother, Umashankar, in respect of 3 kathas 11dhurs of land for a consideration of Rs. 50/-. There is a recital in this bond that after the death of their father the two brothers Ramashankar and Umashankar, separated in all respects and are still separate. In 1943 Ramashankar executed in favour of Srimatl Dulhin Radha Devi, wife of his brother Umashankar, a registered sale deed conveying to her 3 bighas 14 kathas 13 1/2 dhurs of kasht land i.e., all the lands he was possessed of, for a consideration of Rs. 500/- (Vide exhibit A). Out of the consideration, the vendee retained with herself Rs. 50/- for redemption of the aforesaid mortgage (exhibit C). The reason for the sale, as recited therein, was that three years before, Ramashankar had settled in mauza Bahur Chapra, his father-in-law's place and wanted to purchase lands there, as he felt considerable difficulty in cultivating those lands from a long distance.
Ramashankar died in 1949, leaving behind him Sheodeni Kuer, his widow. The present suit was brought by her in forma pauperis on 20th December, 1951, against Umashankar and his wife, Srimati Dulhin Radha Devi, for partition of the disputed properties, on the allegations that her husband and Umashankar (defendant No. 1) constituted an undivided Hindu family, that her husband died in a state ot jointness with his brother, that the suit properties constituted joint family properties and that she was entitled 1o a partition of her husband's share therein under the Hindu Women's Rights to Property Act, 1937. In the alternative, she claimed maintenance at the rate of Rs. 900 per annum and also Rs. 2000 on account of arrears of maintenance. She averred that in her absence the defendants procured from her husband a usufructuary mortgage bond and a sale deed fraudulently, by practising fraud on him and that they (sic) were spurious deeds, not binding upon her.
2. Defendant No. 1 and his wife filed separate written statements, raising however, common defence. They denied jointness of the family and alleged that the plaintiff's husband and defendant No. 1 were separate in mess, business and property, that one had no concern with the other and that the usufructuary mortgage bond and the sale deed were genuine, valid and for consideration and binding upon the plaintiff. They further denied liability to maintain the plaintiff.
3. The learned Additional Subordinate Judge held that the two brothers, Ramshankar and Umashankar, were separate and that the usufructuary mortgage bond (exhibit C) and the sale deed (exhibit A) were genuine, valid and for consideration and that the plaintiff was not entitled to maintenance. He accordingly dismissed the suit. From that decree and judgment the present appeal has been preferred by the plaintiff.
4. The first and important question ior consideration is whether the plaintiff's husband and defendant No. 1 were separate.
(After discussion of evidence His Lordship proceeded:) Thus, the oral evidence of the defendants' witnesses, supported by the earlier statements of Ramshankar Sahi, and the mutual transactions between them establish beyond any shadow of doubt that both the brothers were separate, and I hold accordingly.
5. As to the claim for maintenance, it is undeniable that the widow of a separated brother is not entitled to claim maintenance from her husband's brother. Mr. Mukherji urged that her claim for maintenance was founded upon the provisions of section 39 of the Transfer of Property Act. This section provides as follows:
"Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveabie property, and such property is transferred, the right may be enforced against the transferee, if he has notice (sic) 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."
This section is intended to protect persons who are entitled to receive maintenance from the profits of any immoveabie property. But the right to receive maintenance under section 39 is available only when the transferee had notice thereof or if the transfer is gratuitous. This right cannot be enforced against a transferee for consideration and without notice of the right, nor against such property in his hands. In the instant case, the sale was not gratuitous; it was for adequate consideration. But the onus was clearly on the plaintiff to prove that defendant No. 2 had notice ot her right to receive maintenance. It is urged that as the plaintiff's husband and the husband of defendant No. 2 were full-brothers, defendant No. 2 is expected to Know that the plaintiff was entitled to receive maintenance from the properties transferred to her. I am unable to accede to this argument. The knowledge of defendant No. 1 cannot be appropriately attributed to his wife also, it will be observed that there is no allegation, much less proof, that defendant No. 1 was the real transferee and defendant No. 2, his wife, was his benamidar. On the contrary, it is stated in the sale deed itself that she was purchasing the property with her own money. In these circumstances, the knowledge of defendant No. 2 of the plaintiff's right to receive maintenance cannot be inferred, from the tact that her husband and the plaintiff's husband were funbrothers. In my opinion, the plaintiff has miserably failed to establish that defendant No. 2 was aware of her right to maintenance. Accordingly, the right of the plaintiff to receive maintenance under this section, if any, cannot be enforced against defendant No. 2, the transferee, as she was a transferee for consideration and had no notice ot such right. On this ground alone, the plaintiff's claim to maintenance must be disallowed.
6. Apart from this, section 39 of the Transfer of Property Act has no application in the instant case. The right envisaged in this section is a right to receive maintenance "from the profits of immoveabie property". Where, therefore, the right to maintenance is a right maintainable against the person personally, and not in virtue of his holding any property, this section does not come into play. Thus, between a husband and a wife the right to maintenance arises because of the personal relationship created by the marriage, and the right of the wife to receive maintenance is not restricted to the profits of immoveabie property. As between them, this right may be enforced, irrespective of the possession by her husband of any property, and, therefore, such a case does not fall under section 39 of the Transfer of Property Act, simply because there is no right to receive maintenance from the protits of any immoveabie property. It is a personal right, which ceased on the death of the husband. The view 1 have expressed above receives support from the decision of a Fun Bench of the Allahabad High Court in Mst. Satwati v. Kali Shanker, AIR 1955 All 4 (FB). Their Lordships of the Allahabad High Court have laid down that though on marriage a husband becomes both legally and morally bound to maintain his wife and to provide her with a suitable place of residence according to his status and circumstances, it is the personal right against the husband and the widow has got no charge on any property belonging to the husband if a charge has not been created either by a Court of law or under a proper deed executed by the husband, and, therefore, where the husband has transferred a property in his lifetime, his widow cannot claim that she has a right to reside in the house as against the transferee. As stated in Mulla's Principles of Hindu Law, Twelfth Edition, page 721, a Hindu widow is debarred from impeaching alienations of joint family property made in her husband's lifetime. The reason is that when her right of maintenance comes into existence (that is to say on her husband's death) she takes that right in the property as it stands at the time of her husband's death.
7. Mr. Mukharji relied upon a Bench decision of the Bombay High Court in Dattatraya v. Tulsabai, AIR 1943 Bom 412. In this case, the joint family consisted of a father, mother and a son. The father died leaving behind him his widow and son. After the death of the father the son. sold four fields which they were possessed of at the time of the father's death. This case, therefore, is clearly distinguishable, and the mother will be entitled to receive maintenance from the profits of the four fields in the hands of the transferee. It is not a case where the family consisted of husband and wife and the properties were transferred by the husband himself. To vary the facts of the present case if the plaintiffs husband and defendant No. 1 had been joint and her husband died in a state of jointness and on his death defendant No. 1 transferred the joint family properties, the plaintiff would undoubtedly be entitled to claim maintenance from defendant No. 1 and his transferees, because in such a case she had a right to receive maintenance from the profits of the immovable properties, in which her husband also had an interest.
He also referred to a decision of the Full Bench of the Allahabad High Court in Mahesh Prasad v. Mt. Mundar, AIR 1951 All 141 (FB). This case has no application at all, as their Lordships themselves have observed that Section 39 of the Transfer of Property Act is not relevant to this case and need not be considered any further. The decision of the Privy Council in Dan Kuer v. Sarla Devi, AIR 1947 PC 8, cited by him, also has no bearing on the facts of this case, because in that case, the maintenance had been made a charge on certain properties.
The last case relied upon by Mr. Mukharji is the case of Radhabai v. Gopal, AIR 1944 Bom 50. The decision of this case cannot be stretched beyond the facts involved therein. It was a case in which a wife claimed maintenance from the husband in his lifetime. They were not considering the right of the widow to claim maintenance from the properties transferred by the husband in his life-time for valuable consideration. Therefore this case also has no application. Not a single case has been cited which is in direct conflict with the view I have ventured to express above.
8. Thus, taking any view of the case, the plaintiti is not entitled to claim maintenance from the defendants. It appears from the sale deed (exhibit A) that botn the brothers had given 2 bighas of land to their mother for maintenance, and it is further stipulated by the sale deed that on the death of the mother 1 bigha, which represents the share of the plaintiff's husband, would reVert to him. On this recital, Mr. Mukharji founded an argument that in any case the plaintiff was entitled to get back 1 bigha of land. No such claim was laid in the plaint. There is no evidence as to what became of those 2 bighas after the death of their mother. In fact, we gave Mr. Mukharji time to find out the specifications of those 2 bighas and also gave him liberty to amend the plaint, claiming 1 bigha out of those 2 bighas. In spite of his having ample time, his client coud not give the description and location of those lands and how they have been dealt with and in whose possession they are, in absence of evidence and pleading, this claim cannot be entertained at this stage, merely on the recitals in the sale deed. Therefore, this contention also has no force and must be overruled.
9. It follows that there is no merit in this appeal which must be dismissed with costs.
S.N.P. Singh, J.
10. I agree.