B.K. Ray, J.
1. Defendant No. 1 is the appellant against a reversing judgment.
2. The plaintiffs instituted the suit out of which this appeal arises for creating a charge upon the properties described in schedule B of the plaint for their maintenance at the rate of Rs. 50-00 per month and for Rs. 2,000-00 towards the marriage expenses of plaintiff No. 2. The Plaint case, in short is, as follows: Plaintiff No. 1 is the wife and plaintiff No. 2 is the daughter of defendant No. 2. Defendants Nos. 1 and 2 are first cousins. Defendant No. 1 is separate in mess and property from defendant No. 2 since the time of their fathers. The properties described in Schedule B of the plaint belong to defendant No. 2 alone. Defendant No. I wanted his son to be adopted by defendant No. 2. Plaintiff No. 1 opposed this and hence defendant No. 1 bore a grudge against plaintiff No. 1. Defendant No. 1, therefore, instigated defendant No. 2 to ill-treat the plaintiffs and to stop maintaining them. Both defendants Nos: 1 and 2 are opium addicts. Under the influence of defendant No. 1, defendant No. 2 executed a sale deed in respect of the entire B schedule properties in favour of defendant No. 1 on 24-6-63. This sale deed is a collusive and sham transaction not sup-ported by consideration. Defendant No. 2 thereafter abandoned the plaintiffs and started living with defendant No. 1 without providing maintenance for the plaintiffs. Defendant No. 1 took the sale deed from defendant No. 2 with full knowledge that the plaintiffs are entitled to maintenance and to the marriage expenses of plaintiff No. 2 out of the income of the B Schedule properties. Hence, the said Properties are liable to be charged for the plaintiff's maintenance and for the marriage expenses of plaintiff No. 2. Defendant No. 1 therefore, is liable to pay a sum of Rs. 50.00 per month to the plaintiffs for their maintenance and to pay Rs. 2,000.00 for the marriage expenses of plaintiff No. 2 out of the income of the properties covered by the sale deed in his favour. On these allegations the plaintiffs claim the relief as mentioned above.
3. Defendant No. T alone contested the suit and defendant No. 2 remained ex parte.
4. Defendant No. 1 in his written statement states as follows: Defendant No. 2 has 6 daughters out of whom 5 are already married. The Properties described in Schedule B are situate in flood-affected area and the income therefrom was not sufficient to meet the maintenance expenses of defdt. No. 2 and of his family and to meet the marriage expenses of the 5 daughters of defendant No. 2. Defendant No. 2, therefore incurred loans. To repay the loans, he entered into an agreement with one Laxmidhar Behera to sell the suit lands for Rs. 3.200.00 and received Rs. 1,500.00 as advance. Therefore defendant No. 2 sold the suit properties to defendant No. 1 on receipt of consideration of Rs. 3,500.00 by two registered sale deeds D/- 24-6-1963 and 28-6-1963. Thereafter defendant No. 2 wanted to go away to the place of his father-in-law, but he could not do so immediately and lived in the suit house on payment of an annual rent of Rs. 24.00. The plaintiffs and defendant No. 2 are living together and the latter is maintaining them. Defendant No. 1 is a bona fide Purchaser for value without notice that the propertiespurchased by him are subject to a charge of maintenance and to the charge of marriage expenses of plaintiff No. 2. With these allegations dismissal of the suit is claimed.
5. The trial court found that even after selling away the suit properties defendant No. 2 is running a grocery shop and is maintaining the plaintiffs out of its income. It also found on the evidence of plaintiff No. 1 that plaintiff No. 2 had already been given in marriage, and therefore, held that the plaintiffs are not entitled to the marriage expenses as claimed by them. The plaintiff's story that defendant No. 2 is not maintaining and has abandoned them was not accepted by the trial Court. It also held that defendant No. 1 had no notice of the alleged charge on the suit properties at the time he purchased them. Regarding the quantum of maintenance, it held that the Plaintiffs were entitled to maintenance at the rate of Rs. 35.00 per month. On the Question of law, it hold that the plaintiff's right to be maintained is a personal right and the properties in suit cannot be charged for such maintenance. On these findings, it dismissed the plaintiff's suit.
6. The lower appellate court held that defendant No. 2 was not maintaining plaintiff No. 1. So, plaintiff No. 1 is entitled to maintenance at the rate of Rs. 20.00 per month from defendant No. 2 and that plaintiff No. 1 is not entitled to get anything towards the marriage expenses of plaintiff No. 2. On the Question of law as to whether the maintenance to which plaintiff No. 1 is entitled can be charged upon the properties described in Schedule B of the plaint, it held in favour of the plaintiffs, and accordingly, decreed the suit.
7. As per the findings of both the courts below plaintiff No, 2 having been already given in marriage, she is not entitled to any maintenance. This Position is not disputed before me, and has therefore become final. Regarding the quantum of maintenance allowed by the lower appellate court in favour of plaintiff No. 1' alone, there being no cross-objection by the plaintiffs, this question is not open to challenge in this appeal.
8. The only controversy between the parties is as to whether the maintenance by the court below is to be made a charge on the suit properties. Mr. Rahonoma learned Counsel for appellant rightly contends that under Section 18 of the Hindu Adoptions and Maintenance Act (hereinafter to be referred to as the Act), a Hindu wife shall be entitled to be maintained by her husband during her lifetime and this right cannot be enforced against the properties of the husband. The right of a wife for maintenance is an incident of the status and a Hindu husband is under a legal obligation to maintain his wife. This obligation is personal in character and arises from the existence of relationship between the parties. Sub-section (1) Section 18 of the Act only reiterates the general rule of Hindu law on the subject This right of a Hindu wife exists independently of the question as to whether the husband is in possession of any property of not. The wife's case cannot also come under Section 28 of the Act. As long as the husband is living, the wife is not a dependant as defined in Section 21 of the Act. Section 28 of the Act provides that where a de-pendant has a right to receive maintenance out of an estate and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee, if the transferee has notice of the right and the transfer is for consideration, Plaintiff No. 1 in the present case, not being a dependant, Section 28 of the Act in terms does not apply. The case of plaintiff No. 1 also cannot come under Section 39 of the Transfer of Property Act, The relevant portion of Section 39 of the T. P. Act may be emoted below:
'39. Where a third person has a right to receive maintenance. ..... from theprofits of immoveable 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 a transferee for consideration and without notice of the right, nor against such property in his hands.'
Before the Section is made applicable, it has to be established that plaintiff No. 1 has a right to receive maintenance from the suit property which has been transferred by Defendant No. 2 in favour of defendant No. 1 and it has to be further established that the transfer by defendant No. 2 is either gratuitous or, if for consideration is without notice of the right, [n the case before me, the trial court has held that the sale deeds by defendant No. 2 in favour of defendant No. 1 are supported by consideration. This finding has not been reversed by the lower appellate Court. On the basis of this finding in order to make Section 39 of the T. P. Act applicable to plaintiff No. 1's case, it has to be proved that the transferee (defendant No. 1) had notice of the right of plff. No. 1 to receive maintenance out of the Income of the properties in suit. As has been indicated above, the right of plaintiff No. 1 to receive maintenance from her husband (defendant No. 2) is a personal right and it has nothing to do with the properties of the husband. Therefore, in my view. Section 39 of the T.P. Act cannot be of any avail to plaintiff No. 1. Section 100 of the T. P. Act has also no application. The Section reads as follows:
'100. Where immovable property of one person is by act of parties or operation of law made security for the pavment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charee on the property: and all the provisions hereinbefore contained which apply to a simple mort-gage shall so far as may be, apply to such charge.
Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any Property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.' (The underlining is mine).
As per the provisions of the aforesaid section, it is rightly contended by Mr. Rahonoma that the properties in suit of defendant No. 2 have not been made security for the payment of maintenance to plaintiff No, 1 either by act of parties or by operation of law. That being the position, plaintiff No. 1 cannot be said to have a charge on the properties in suit. Reliance is Placed by Mr. H.K. Jena, learned Counsel for respondents on a decision reported in AIR 1960 Mad 42 Vella-yammal v. Srikumara Pilial. In that case, the question arose whether the right of a Hindu wife to get maintenance from her husband can be made a charge upon the husband's properties. Relying upon an earlier decision reported in AIR 1957 Andh Pra 710. Manikyam v. Venkayamma, his Lordship in the decision reported in AIR 1960 Mad 42 held that although the right of the wife to separate maintenance does not form a charge upon her husband's property ancestral or self-acquired, vet when it becomes necessary to enforce or preserve such a right effectively, it could be made a specific charge on a reasonable portion of the property; that if the right to maintenance is imperilled or jeopardised by the conduct of dealings of the husband or father with reference to the properties, the court can create a charge on a suitable portion thereof securing the payment of maintenance to the wife or children and that such a charge could be created not only over the properties in the hands of the husband or father but also over properties transferred by him either gratuitously or to persons having notice of the right to maintenance.
Although the principle laid down in that decision lends support to the view that in spite of the proposition of law that the right to claim maintenance of a Hindu wife against her husband is a personal right, such a right in certain circumstances can be secured by creation of a charge on the properties either in the hands of the husband or in the hands of a transferee from the husband who has got the transfer in his favour for consideration and without notice of the wife's right, on facts found in the present case, the aforesaid decision would be of no avail to plaintiff No. 1, because the finding of the trial court that plaintiff No. 1 and her husband (defendant No. 2) are living together and that defendant No. 2 has not abandoned and is maintaining her out of the income of a grocery shop run by him has not been set aside by the court below by drawing proper legal inference from evidence. Further, the court below has also not negatived the finding of the trial Court that on account of repayment of loans incurred by defendant No. 2 to meet the maintenance expenses of the family and to meet the marriage expenses of his daughters, he transferred the suit properties in favour of defendant No. 1 for consideration. Once these findings of the trial Court are allowed to stand and are not reversed, the case of plaintiff No. 1 cannot be covered by the decision reported in AIR 1960 Mad 42 which clearly lays down that in exceptional circumstances when the conduct of the husband in dealing with his properties leads the Court to think that his wife's right to get maintenance is being imperilled, then only the court would be justified in creating a charge upon the Properties belonging to the husband even in the hands of a transferee from the husband, as-indicated above.
The next decision relied upon by learned counsel for respondents is one reported in AIR 1951 All 141 (FB) Mahesh Prasad v. Mundar, That was a case where on the death of the husband, the widow wanted to create a charge upon the properties left by her husband. So that case has no application to the facts of the present case which is one where both the husband and wife are living together. Mr. Rahonoma, on the other hand, relies upon a decision reported in AIR 1955 All 4 (FB). Mst. Satwati v. Kali Shanker which lavs down the law as follows:
'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 hasnot been created either by a court of law or under a proper deed executed by the husband.
Where, therefore, the husband has transferred a property in his life time, his widow cannot claim that she has a right to reside in the house as against the transferee.'
Reliance is also placed by Mr. Rahonoma on another decision reported in AIR 1963 Pat 74. Sheodeni Kuer v. Umashankar the relevant portions of which are quoted below:
'Section ,39, T. P. Act is Intended to protect persons who are entitled to receive maintenance from the profits of any immoveable property. But the right to receive maintenance under Section 39 is available only when the transferee has 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. The onus to prove that the defendant transferee had notice of the plaintiff's right to receive maintenance is on the plaintiff and the knowledge of defendant of the plaintiff's right to receive maintenance cannot be inferred from the fact that her husband and the plaintiff's husband were full-brothers.....
The right envisaged in Section 39 Is a right to receive maintenance from the profits of immoveable 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 immoveable 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 profits of any immoveable property. It is a personal right, which ceased on the death of the husband.'
On the authority of the decisions relied upon by learned Counsel for appellant and on the basis of the findings of the trial court that defendant No. 2 and plaintiff No. 1 are living together and that defendant No. 2 has not abandoned or neglected to maintain his wife (Plaintiff No. 1) which findings have not been rightly reversed and which I accept on the basis of the evidence led by the parties, this appeal must succeed.
9. In the result, the appeal is allowed, the judgment and decree of the lower appellate court are set aside and the plaintiff's suit is dismissed with costs throughout.