Judgment:
P.K. Balasubramanyan, J.
1. The second defendant in a suit for recovery of maintenance filed by the respondents herein, is the appellant in this appeal. The first respondent claimed to be the wife of one Chidambaran Nayanar and respondents 2 and 3 claimed to be his children through the first respondent. The first respondent had earlier initiated proceedings under Section 125 of the Criminal Procedure Code against Chidambaran Nayanar wherein Chidambaran Nayanar disputed the status of the first respondent. After trial the contentions of Chidambaran Nayanar were overruled and it was found that the first respondent was the wife of Chidambaran Nayanar and that she was entitled to an order for maintenance under Section 125 of the Code of Criminal Procedure. The order for maintenance marked as Ext. A1 in this proceeding was passed in her favour.
2. While the said proceedings were pending Chidambaran Nayanar purported to execute a gift in respect of the only property held within the State in favour of the appellant-second defendant. Chidambaran Nayanar did not honour the order for maintenance made against him under Section 125 of the Code of Criminal Procedure. The respondents therefore filed the suit for recovery of arrears of maintenance from him charged on the plaint schedule property, the only property he possessed within the jurisdiction of the Court. The appellant came forward with a contention that there was a gift in her favour of that property under Ext. B1 dt. 29-10-1984 and that the said property could not be proceeded against. Meanwhile Chidambaran Nayanar died and the respondents impleaded the appellant-second defendant as an intermeddler in the estate on a plea that purporting to be under a deed of gift she has taken possession of the property of Chidambaran Nayanar. The appellant contended in the suit that the property, had been validly gifted to her by Chidambaran Nayanar prior to the present suit and that therefore the respondents are not entitled to a charge on the property for the alleged arrears of maintenance due from Chidambaran Nayanar.
3. In the trial court the first respondent got herself examined as PW1 and marked the order of the Magistrate as Ext. A1. The appellant got herself examined as DW1 and marked the deed of gift dt. 29-10-1984 as Ext. B1 and Exts. B2 and B3 in an attempt to show that she had a status as the wife of Chidambaran Nayanar. The trial Court accepted the evidence of PW1 corroborated by the finding in Ext. A1 and held that the first respondent was the legally wedded wife of Chidambaran Nayanar and respondents 2 and 3 were his children. The trial Court proceeded on the basis that the property was gifted by Chidambaran Nayanar to the appellant under Ext. B1 to hold that since the legally wedded wife and children could claim a charge over the property for the maintenance due to them, the property claimed by the appellant by way of gift from Chidambaran Nayanar was liable to be charged for the maintenance claimed. The trial Court therefore passed a charged decree in favour of the respondents 1 and 3 only as in the meanwhile' respondent No. 2 had got married and gone away. This appeal is filed by the second defendant challenging the decree passed by the trial Court and especially the charge provided for over the plaint schedule property which according to her belongs to her by way of a gift made even prior to the suit.
4. The learned counsel for the appellant submitted that there is no legal evidence in the case to come to a conclusion that the first respondent was the legally wedded wife of deceased Chidambaran Nayanar. He submitted that Ext. A1 the order of the Magistrate in proceedings under Section 125 of the Criminal Procedure Code had no evidentiary value and the finding of the Court below that the first respondent is the legally wedded wife of Chidambaran Nayanar is erroneous since it is mainly based on the order Ext. A1. The learned counsel for the respondents counters this argument by submitting that what the trial Court has in fact done is to accept the evidence of PW1 the first respondent corroborated by Ext. A1 and that in a case of this nature when the first respondent had borne nine children of Chidambaran Nayanar it is too much to contend that there was no valid marriage between the first respondent and Chidambaran Nayanar as spoken to by PW1. He also points out that the appellant examined as DW1 has not been in a position even to deny that the first respondent was the legally wedded wife of Chidambaran Nayanar. I have been taken through the oral evidence of PW1 and DW1 by counsel appearing on both sides, with particular emphasis on passages they wanted to rely upon. On going through the oral evidence of PW1 and DW1 I am satisfied that the trial court was justified in accepting the evidence of the first respondent as PW1 to find that she was the legally wedded wife of Chidambaran Nayanar. It can also be seen that in proceedings leading to Ext. A1 evidence was taken to find the marriage between the first respondent and Chidambaran Nayanar and though the said order is not conclusive or binding on the civil Court the fact remains that the said order Ext. A1 corroborates the version of PW 1 the first respondent. I therefore agree with the trial Court and held that the first respondent was the legally wedded wife of Chidambaran Nayanar and is entitled to claim maintenance. There can be no serious challenge to the quantum of maintenance awarded and therefore I am also in agreement with the trial Court as regards the maintenance awarded to respondents 1 and 3 herein.
5. The learned counsel for the appellant seriously challenges the charge provided by the decree against the properties gifted by Chidambaran Nayanar to the appellant. It is the contention of the learned counsel for the appellant that the respondents had not laid any foundation in the plaint for claiming a charge over the plaint schedule property. What the respondents did was to proceed as if the property continued to belong to Chidambaran Nayanar at the time of the filing of the suit. It is only when the appellant came forward with a claim over the properties and Chidambaran Nayanar himself died that the appellant was impleaded by the respondents as an additional defendant in the suit. The learned counsel emphasises that the impleading was not on the basis that the second respondent was the transferee of the only property belonging to Chidambaran Nayanar and that the said transaction tended to defeat the claim for maintenance made by the respondents who under law have a charge over the same. He points out that the appellant was impleaded only as an intermeddler in the estate and under those circumstances it may not be proper or correct for the trial Court to grant a decree charged on the property held by the appellant based on Section 39 of the Transfer of Property Act. It is also pointed out by him that if the stand of the respondents is that the gift had not taken effect then the respondents themselves being the legal representatives of deceased Chidambaran Nayanar were the owners of the property and that therefore there will be no question of granting a charge over the said items in respect of the maintenance that is decreed to the respondents. The learned counsel for the respondents on the other hand submits that though the appellant was impleaded as an intermeddler of the estate the only item of property belonging to Chidambaran Nayanar was transferred by him after the institution of the proceedings under Section 125 of the Code of Criminal Procedure and that the same was solely with the intention of defeating the claim for maintenance made by the respondents. He points out that the transaction of gift relied upon by the appellant cannot defeat the claim of maintenance made by the respondents in this suit. He also points out that the trial Court has proceeded on the basis that there is a valid gift in favour of the respondents and it is on that basis that a charge decree has been granted in favour of the respondents. He further submits that under Section 39 of the Transfer of Property Act the respondents are entitled to a charge over the property notwithstanding the fact that it has been transferred to the appellant gratuitously by Chidambaran Nayanar. He therefore submits that there is no reason for this Court to interfere with the decree passed by the trial Court and the appeal deserves to be dismissed.
6. Section 39 of the Transfer of Property Act provides for enforcement of the right against a gratuitous transferee where a third persons has a right to claim maintenance from the transferor from the profits of immovable property. It has been held by this Court in the decision reported in Kaveri Amma v. Parameswari Amma, 1971 KLT 299 : (AIR 1971 Ker 216) that the claim for maintenance cannot only be enforced against the property in the hands of the transferee but even a claim for enhancement of maintenance as against the transferee would lie in the case of a Hindu wife. Here the parties are admittedly Hindus and it cannot be contended that the respondents are not entitled to claim maintenance from Chidambaran Nayanar on the finding that he was the husband of the first respondent. The respondent had claimed maintenance against Chidambaran Nayanar in the proceedings leading to Ext. A1 order. It was while the said proceedings were going on that Chidambaran Nayanar purported to make a gift of the property to the appellant herein. The appellant is only a gratuitous transferee. The appellant is therefore bound by the charge provided the first respondent can claim a charge in terms of Section 39 of the Transfer of Property Act against the plaint schedule property, admittedly owned by Chidambaran Nayanar. The Court below has relied on the decision reported in Divakaran v. Chellamma, 1985 KLT 1001 to hold that the respondents are entitled to claim a charge over the properties secured on the basis of a gift by the appellant. In the said decision this Court had observed:
It is not open to a husband to effect an alienation of his properties, when such alienation has the effect of depriving her and other dependents of their maintenance. A wife is thus entitled to be maintained out of the profits of her husband's property. The wife and children therefore have a charge upon the properties of the husband and can invoke the same against the gratuitous transferee.
7. The Supreme Court in the decision in V. Tulasamma v. V. Sesha Reddi, AIR 1977 SC 1944 has explained the content of the Hindu female's right of maintenance. Their Lordships have stated thus (at pages 1977 & 1978):
The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jirists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property, and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has, the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right.
The Karnataka High Court in the decision reported in Siddegowda v. Lakkamma, AIR 1981 Kar 24 has dealt with a case where the transaction of sale of immovable property was entered into by the husband after coming to know that the wife was going to institute a suit for maintenance. In that case the Karnataka High Court held that under such circumstances the transaction cannot be said to be bona fide and therefore the property could be charged for ensuring payment of maintenance without voiding the sale deed. As early as in the decision reported in Shri Beharilalji v. Bai Rajbai, (1898) ILR 23 Bom 342 the Bombay High Court held that when the wife was entitled to recover her maintenance out of the property of her husband and the purchaser is aware of the claim for maintenance then the right of the wife to proceed against the property remains unaffected notwithstanding the sale in view of section 39 of the Transfer of Property Act. The Bombay High Court also noticed that this right to recover the amount from the property transferred would be available to her irrespective of the possibility of her claim being satisfied from other property on the basis of the facts obtaining in that case.
8. In this case the transfer effected by the first defendant in favour of the appellant is a gratuitous transfer. The gift in favour of the appellant was made after the wife had initiated proceedings for recovery of maintenance under Section 125 of the Code of Criminal Procedure. It is obvious that the attempt of the husband was to defeat the right of the wife even while the said right was being adjudicated upon. In the present case there cannot be any doubt that the appellant was aware of the claim for maintenance made by the respondents against the first defendant and it is while both the donor and the donee were aware of the claim that the gift was made by the first defendant in favour of the appellant. I have no hesitation in taking the view that the right of the wife for maintenance cannot be defeated by such a transaction. Considering the nature and the content of the right and the object of Section 39 of the Transfer of Property Act, I have no doubt that in this case the transaction relied upon by the appellant is not a bona fide one and could not prevail over the right of the wife to proceed against that property for recovering the maintenance due to her from her husband.
9. Sri K. N. Narayana Pillai the learned counsel for the appellant with reference to the decision reported in Manikyam v. Venkayamma (AIR 1957 AP 710) and Chandramma v. M. Venketareddy, AIR 1958 AP 396, contends that the property gifted by the appellant could be proceeded against only if it is shown that the first defendant had no property left against which the wife could proceed and in this case there is some admission by the wife examined as PW 1 that the first defendant had some property in Tamilnadu. He took me through the evidence of PW1 to point out that she has conceded that there was some plot of land in Tamilnadu belonging to the first defendant in which she and her son had put up a building. Apart from the fact that it is not very clear as to whether the first defendant had any other property, this admission by PW1, according to me, is not sufficient for this Court to hold that the first respondent would not be entitled to a charge over the plaint schedule property over which she had an undoubted claim for a charge. I must also take note of the fact that the appellant claims to have been living with the first defendant and was aware of the claim for maintenance made by the wife against the first defendant and participated in the fraudulent transfer by way of a gift in her favour so as to defeat the claim for maintenance made by the wife. Even assuming that the decisions of the Andhra Pradesh High Court referred to above lay down any absolute proposition that a charge against the property transferred can be given only when it is shown that there are no other properties, the said ratio cannot have any application to a case of this nature where the gift is effected merely with a view to defeat the claims for maintenance by the wife. I am therefore of the view that the property that is the subject-matter of the gift in favour of the appellant cannot escape the tentacles of Section 39 of the Transfer of Property Act in the present case. I think it is also relevant to note that the only property that the first defendant had within the jurisdiction of the Court in which the suit was filed was admittedly the property gifted to the appellant. The conduct of the first defendant and the appellant must also be noticed namely that it was clearly with the intention of defeating the order for maintenance that may be made in favour of the wife that the gift was created. I therefore find that there is absolutely no bona fides on the part of the appellant in taking the gift of this property and coming forward with the contention that the right of the wife must be defeated because possibly there is some other property in Tamilnadu against which the first respondent can proceed. I therefore overrule the argument of Sri. K.N. Narayana Pillai on this aspect.
10. The suit had to be laid by the respondents in spite of the order in their favour under Section 125 of the Code of Criminal Procedure because the first defendant attempted to defeat the order by donating the property to the appellant. This gift, according to me, cannot prevail against the claim for maintenance though according to Mr. Narayana Pillai this is not a case where the gift is vitiated by lispendence. But all the same the gift is vitiated by the fact that the clear intention was to defeat the claim for maintenance already put in judgment in the criminal Court and sought to be enforced through the present suit. I am therefore of the view that this transaction of gift relied on by the appellant cannot prevail over the claim of the wife for maintenance on the facts and in the circumstances of this case. I am thereforein full agreement with the decision of the trial Court in holding that respondents 1 and 3 are entitled to maintenance and that the properties are liable to be charged for the maintenance due to the first respondent.
In the result the appeal is dismissed with costs.