Judgment:
1. The only short question of law we are called upon to answer in this second appeal is whether the wife has a right of residence in the house of her husband when the husband has wilfully parted with his interest therein in favour of a third person and whether she can be evicted from such house as a licensee by the alienee.
2. The undisputed facts of this case are the plaintiff-appellant Shri Basudeb Dey Sarkar is the husband's brother or Smt. Chhaya Dey Sarkar the wife defendant-respondent. The plaintiff-appellant brought this suit claiming to be the absolute owner of an undivided moity share in respect of a partly two storeyed and partly single storeyed brick built house and that his brother Gourhari Dey Sarkar the husband of the defendant-appellant was the owner of other undivided half share in the suit premises. It was alleged that due to family troubles the brother of the plaintiff i.e., the husband of the defendant-respondent was living apart and the appellant was living in one room on the ground floor of the suit premises. It was also alleged that brother of the plaintiff has filed a matrimonial suit against his wife which is still pending. It was the further case of the plaintiff that by virtue of a registered deed of settlement dated 8-8-84, the brother of the plaintiff, absolutely transferred his undivided half share in the suit premises, appointing the plaintiff as the sole trustee for the plaintiffs children delivering possession of his half share in the suit premises. The defendant-respondent was allowed to occupy a room of the suit premises as a licensee without payment of any fee and the said licence having been revoked and the defendant-respondent having not vacated the same, the plaintiff was compelled to bring the suit.
3. The defendant-wife contested the suit on various grounds alleging that the deed of settlement or trust was nothing but a sham transaction created only for the purpose ofdefeating her claim and that she being still a member of Hindu family of her husband is entitled to right of residence and cannot be treated as a licensee. It was asserted also by the defendant-wife that all her ornaments were taken over by her husband for meeting the expenses of repairing the room of the said premises in lieu of his promise to make a gift of a room in her favour. It was asserted that as a wife her right to maintenance including the right of residence creates a charge upon the disputed premises and if there is any transfer of such property, it was gratuitous one and the same cannot imperil or jeopardise her interest in such property and the transferee will get it subject to encumbrance of maintenance. The learned Munsif decreed the plaintiffs suit for recovery of possession of the suit property by evicting the defendant-wife therefrom on a finding that she had no interest in such property, nor her position was that of either a co-owner or a trespasser but simply that of a licensee.
4. On an appeal being preferred by the defendant-wife, the learned Additional District Judge, Alipore reversed such finding of the trial court and dismissed the plaintiffs suit on a finding that the position of the defendant-wife was not that of a licensee but that she was entitled to maintenance including the right of residence and that she can enforce that right against the plaintiff.
5. Being aggrieved by the same, the plaintiff has preferred this second appeal.
6. Undisputedly, the plaintiff is the brother of the husband of the defendant-respondent. Undisputedly also, the defendant-respondent had undivided 8 annas share in the disputed premises, a room of which is occupied by the defendant-respondent. It is also an undisputed fact that due to matrimonial dispute between the husband and wife, the husband of the defendant is living apart and that a matrimonial suit is pending between them and up till now there has been no termination of such matrimonial relationship. The plaintiff claims to have become the absolute owner of the suit premises by virtue of a deed of settlement (Exbt. 2) appointing him as a trustee by the husband of defendant-respondent for the welfare of his (plaintiff's) children. According to the plaintiff, the position of the defendant-wife occupying a room of such premises is nothing hut that of a licensee and that she is obliged to vacate such premises on the revocation of such licence by the plaintiff.
7. As already stated, the defendant-wife has alleged such deed of settlement to be a sham transaction created for the purpose of defeating her claim of maintenance and right of residence.
8. It goes without saying that a wife is entitled to maintenance by the husband during the subsistence of the matrimonial relationship, such right of maintenance also includes the right of residence. The background in which the deed of settlement (Exbt. 2) was made and as it also appears from the recital of the deed itself that it was created obviously for a definite purpose. The deed itself is undoubtedly gratuitous in nature to a close relation i.e., the brother who had the clear notice of the position of the wife, being a resident of the said premises. Cl. (e) of such deed shows that the husband reserves the right to appoint trustee and showing further that it was just a device to get back the properly afterwards. It is not a simple deed of gift or even a family settlement and the purpose for which such deed was created is strictly forbidden u/S. 4 of the Trust Act. The obvious purpose was to defeat the right of the defendant wife claiming right of residence. If a deed of trust is made for a purpose which is other than lawful or to defeat the provision of particular Act, or for a fraudulent purpose to injure the person or property of another, hardly it can be said to be a lawful transaction and is forbidden u/ S. 4 of the Trust Act.
9. The question is whether the defendant can be said to be a licensee as it has been defined u/ S. 52 of the Easements Act. Licence as defined is where one person grants to a or definite number of other persons a right to do in or upon the immovable property of the grantor, something, which would in the absence of such right be unlawful and such right does not amount to an easement or an interest in the property the right is calledlicence.
10. A Hindu wife, as already stated, shall be entitled to maintenance by her husband during her lifetime. She shall be also entitled to live separately from her husband without forfeiting her claim to maintenance subject, of course, to the fulfilment of any of the conditions mentioned in the clauses (a) to (g) of S. 18(2) of the Hindu Adoptions and Maintenance Act, 1956. It appears from evidence on record that the husband himself is living apart from the defendant wife and not that the defendant-wife has left her husband. Anyway, a matrimonial dispute is pending and it cannot be said at this stage that wife has forfeited her right or claim to maintenance including residence. It is also an undisputed fact that the wife since her marriage has been residing in the ground floor of the suit premises as a member of the plaintiff's family. As such, she cannot be said to be licensee within the meaning of the expression licensee as defined in the Easement Act. The next question that arises is whether wife can enforce such right of maintenance including residence even against the transferee of the property of her husband.
11. It has been argued on behalf of the learned Advocate for the defendant-wife that she can do so if not as a dependent as defined in S. 21 of the Hindu Adoptions and Maintenance Act or u/S. 28 of the said Act but certainly she is entitled to do so and can claim protection u/S. 39 of the Transfer of Property Act.
12. Section 39 of the Transfer of Property Act reads thus: 'Where a third person has a right to receive maintenance or a provision for advancement or marriage, from the profits or immovable 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.'
13. The principle of law that the wife can enforce such right, under the express terms of S. 39 of the Transfer of Property Act findsendorsement from the decision of the different High Courts and it has been held that both the Shastric Hindu Law and the subsequent statutes recognise this right of the wife to enforce such right against the properties in the hands of the alienee with notice of her claim. We may refer in this connection to the decision of Subha Rao, C.J. as reported in AIR 1958 Andh Pra 396 and also anotherdecision of the same High Court reported in AIR 1957 Andh Pra 710. In, the latter decision, it was held that '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 rightagainst 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 juristsstarting from Jajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has apersonal obligation to maintain his wife and ifhe or the family has property, the female has,the legal right to be maintained therefrom. If acharge is created for the maintenance of afamily the said right becomes a legallyenforceable one. At any rate, even without acharge the claim for maintenance is doubtlessa pre-existing right.'
14. This also finds support from the decision of the Supreme Court in V. Tulasamma v. Sesha Reddi, AIR 1977 SC 1944. So, it is seen that the husband of the defendant-respondent in the instant case has made a deed of settlement of the disputed premises in favour of his brother without making any provision for the maintenance or residence of the defendant-wife she will be entitled to enforce her right of maintenance including residence against the brother who is nothing but a trustee under the deed of settlement (Exbt. 2). Obviously in this case, the plaintiff had notice of such gratuitous transfer of his brother's share of the suit premises in favour of the plaintiff and that too being without consideration, the plaintiff acquires such interest in the suit property subject to the right of residence of the defendant-respondent.
15. The defendant can neither be therefore, called a licensee nor a trespasser on revocation of such alleged licence. Her position as a wife, remains as before and her right of maintenance including residence therefore remains as before, so long the same is not terminated in a matrimonial proceeding by a competent court. .
16. I find, therefore, no reason to interfere with the finding and decision of the first appellate court and the same is upheld.
17. The result is the appeal fails and the same be dismissed without costs.
18. Appeal dismissed.