At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE B.N. KRISHNAN
For the Petitioner: ---- For the Respondents: ---
( 1 ) THE appellants were defendants 3, 4, 7 and 10 before the Munsiff, Nagamangala, in O. S. 71/1977 and being aggrieved by the creation of charge for the maintenance awarded in favour of plaintiffs 1 and 3 on the properties purchased by them, have sought to challenge the concurrent findings of the two Courts below in this appeal.
( 2 ) S
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RI Gopal, the learned Advocate for the appellant canvassed two aspects in the course of this appeal. Firstly, it was contended by him that the right of plaintiffs 1 and 3 to receive maintenance from the husband of the 1st plaintiff who is also the father of the 3rd plaintiff, is a personal right and it cannot be said that they had a right to receive maintenance from the immovable properties of the husband alienated in favour of his client, till the creation of a charge by the Court and that, therefore, the lower Courts were not in justified in holding that this matter came within the purview of Section 39 of the Transfer of property Act. The matter in this regard is quite well settled by this Court as far back as 1962 itself in the decision reported in AIR 1962 Mysore 207 in the case of (Kare More Sharabanna Rudrappa and Others v Basamma and Others ). It has been held in this decision that the wife and children of a person have a right to be maintained out of his property and that their matter is squarely covered by the first part of Section 39 of the transfer of Property Act. This decision was sought to be distinguished by Sri Gopal on the ground that in that case, the transfer was not one for consideration but it was a case of a gift and partition and that, therefore, the proposition referred to above, as laid down in that decision has no application to the facts of the present case. No doubt, that case came to be decided in relation to a partition and gift, but the discussion in relation to the right of the wife to receive maintenance from the property of the husband is not at all based on the transfer being a gratuitous one and, therefore, it cannot be said that this decision has no application to a case where the transfer is for consideration. This view taken by this Court also finds support in the observation of the Supreme Court in the decision reported in AIR 1977 SC 1944 at page 1954. It has been pointed out by the Supreme Court relying upon a passage of Colbrooke in his book of 'digest of Hindu Law' that it is well settled that under the Hindu Law the husband has a personal obligation to maintain his wife and if he is possessed of properties, then his wife is entitled as of right to be maintained out of such properties. In view of the decision of this Court and also the later decision of the Supreme Court, it appears to me that it is too late in the day to contend that the right of the wife and daughter of a Hindu to be maintained is only a personal right and the same is not relatable to the properties of the husband. Therefore, this first contention has to fail.
( 3 ) THE next contention advanced was that the appellants are transferees for consideration with out notice of the right of the plaintiffs 1 and 3. On this aspect, the two Courts have come to a concurrent finding. It is purely a question of fact and, I do not see any point of law and much less a substantial point of law in relation to this contention. Therefore, I find that there is no merit in this appeal. In the result, the appeal is dismissed.
( 4 ) IT is needless for me to point out that it is open to the appellants to canvass before the executing Court that the properties which are still possessed of by the husband should be first sold and only if the amount is not realized, then the properties in their hands should be put to sale and if such a contention is raised, the same shall be disposed of according to law. Appeal dismissed