Apart from that, the argument of Mr. Ramamurti Iyer overlooks the effect of Section 39 which is that if an alienation is made of the husband's property with notice of the right of his wife to maintenance, the alienation will not affect her right in any way. In other words, she can proceed against the alienated property as if it had not been alienated to the extent necessary. If that were so, nothing stands in the way of the Court creating a charge over the alienated properties. I hold, therefore, that the Courts below were right in their view that it was open to them to create a charge over the alienated properties in favour of the plaintiff for her maintenance.
Madras High Court
Ramaswamy Goundar And Anr. vs Baghyammal And Ors. on 25 June, 1965
Equivalent citations: (1966) 2 MLJ 579
1. The third and fourth defendants are the appellants from a decree of the Subordinate Judge of Salem by which he confirmed the decree of the trial Court for maintenance in favour of the plaintiff with a charge over the plaint A and B Schedule properties except for the modification he made of the quantum of maintenance. On 11th February, 1959, the first defendant who is the husband of the plaintiff, sold the plaint A Schedule properties to the appellants for a consideration of Rs. 22,500, On 16th December, 1959, the plaintiff sued her husband for maintenance and for a charge over the A and B Schedule properties in respect of it.
2. Mr. Ramamurti Iyer contends that the Courts below were wrong in granting a charge in favour of the plaintiff over the plaint A Schedule properties. He says that the Hindu Adoptions and Maintenance Act, 1956, which is an amending and codifying law on the subject of maintenance, lays down the entire law as to that matter so that the right to follow property alienated by a person liable to maintain dependents out of a, deceased's properties, with notice on the part of the alienees, is now confined to dependents as defined in that Act, and that, therefore, a wife who is not a dependent under the Act, is not entitled to the benefit of Section 39 of the Transfer of Property Act any longer.. On that basis he argues that the charge given by the Courts below in favour of the plaintiff over the A Schedule properties cannot be maintained.
3. The Hindu Adoptions and Maintenance Act, 1956 is no doubt an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Chapter III of this Act contains provisions relating to maintenance of wife, widowed daughter-in-law, children, aged parents and certain categories of persons included in the definition of dependents. The chapter also provides for the determination of the amount of maintenance and as to when maintenance will be a charge on the estate of a deceased and the effect of transfer of property on right to maintenance. Section 18 deals with a wife's right of maintenance and says that a Hindu wife, whether married before or after the commencement of the Act, shall be entitled to be maintained by her husband during her lifetime. This provision is of course subject to the other provisions of the section. Under Section 19 a widowed daughter-in-law is entitled to be maintained from the estate of her husband or her father or mother as the case may be. Section 21 mentions certain categories of persons as coming within the definition of dependents and a wife is not one such person. Section 22 provides for maintenance of dependents as defined by Section 21. Section 28 says:
Where a dependent 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, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right.
4. This section has been framed on the pattern of Section 39 of the Transfer of Property Act.
5. Being an amending and codifying law, Says Mr. Ramamurti Iyer, the Act should be taken to be exhaustive on the subject-matter and applying this principle, he says, Section 28 contains the entire law relating to the effect of transfer of property in relation to right to maintenance. He deduces, therefore, that since this section covers only dependents and should be taken to be exhaustive, a wife is not entitled to follow up the property of her husband in case it is alienated, be it with notice of her right to maintenance. Learned Counsel does not dispute that if it were not so, Section 39 of the Transfer of Property Act would cover the case of a wife.
6. As to the principle of construction of an amending and codifying law, there cannot be any doubt. The Privy Council in Narendranath Circar v. Kamalabasini Dasi (1896) L.R. 23 I.A. 18 : 6 M.L.J. 71 : I.L.R. 23 Cal. 563, 573 (P.C.) quoting from Bank of England v. Vaglian Brothers L.R. (1891) A.C. 107 stated.
If a statute, intended to embody in a code a particular branch of law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object With Which it Was enacted Will be frustrated. The purpose of such a statute surely Was that on any point specifically dealt With by it, the law should be ascertained by interpreting the language used instead of, as before roaming over a vast number of authorities in order to discover What the law was, extracting it by a minute critical examination of the prior decisions....
7. The Supreme Court accepted this principle in Satyabrata Ghose v. Mugneeram Bangar and Co, and Anr. (1954) S.C.J. 1 : (1954) 1 M.L.J. 41 : (1954) S.C.R. 310, 319 as the correct one and observed:
It must be held also that to the extent that the Indian Contract Act deals with a particular subject, it is exhaustive upon the same and it is not permissible to import the principles of English Law 'dehors' these statutory provisions.
There is therefore no doubt that where an amending and codifying law deals with a certain subject it must be taken that the law so amended and codified is exhaustive of the subject to the extent to which it has dealt with it. But the Hindu Adoptions and Maintenance Act, 1956, itself contains an interpretation section, which is Section 4. That provides for the over ridding effect of the Act and says:
Save as otherwise expressly provided in this Act,
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect With respect to any matter for Which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
The first part deals only with any text, rule or interpretation of Hindu Law or any custom or usage as part of that law which does not touch upon the effect of transfer of property on right to maintenance. Further, this part of the section will have application only if any point covered by any text, rule or interpretation of Hindu Law or any custom or usage has been dealt with by the Act. The second part of the section relates to any other law but will have application only in case of such a law being inconsistent with any of the provisions contained in the Act. In view of this section and its effect, I am of the view that the mere fact that Section 28 specifically deals with the effect of transfer of property on right to maintenance so far as it relates to dependents does not necessarily mean that the right of a wife in case of a transfer falling within the purview of Section 39 of the Transfer of Property Act has been abrogated. Not only is Section 39 of the Transfer of Property Act not within the purview of Clause (a) of Section 4 but is also not inconsistent with any of the provisions of the Act so far as a wife is concerned. I am unable to accept the contention of Mr. Ramamurti Iyer therefore, that Section 28 of the Hindu Adoptions and Maintenance Act, 1956 has overridden Section 39 of the Transfer of Property Act in its application to "a Hindu wife in respect of her maintenance. As I said Section 28 of the 1956 Act does not purport to deal with the wife's right and is only confined to dependents and is, therefore, not exhaustive and a Hindu wife is still entitled to rely on Section 39 of the Transfer of Property Act which is entirely left unaffected by the 1956 Act.
8. The finding of the Courts below in this case is that the appellants purchased the property with notice of the right of the plaintiff to maintenance. Mr. Ramamurti Iyer contends that Section 39 by itself does not create a charge and as Section 28 of the 1956 Act is exhaustive she is not entitled to a charge. He argues that all that the plaintiff can do is to follow the A Schedule properties and that she is not entitled to a charge on that account. I have already held that Section 28 does not deal with the wife's right and is, therefore, not exhaustive in that sense. Apart from that, the argument of Mr. Ramamurti Iyer overlooks the effect of Section 39 which is that if an alienation is made of the husband's property with notice of the right of his wife to maintenance, the alienation will not affect her right in any way. In other words, she can proceed against the alienated property as if it had not been alienated to the extent necessary. If that were so, nothing stands in the way of the Court creating a charge over the alienated properties. I hold, therefore, that the Courts below were right in their view that it was open to them to create a charge over the alienated properties in favour of the plaintiff for her maintenance.
9. The next argument of Mr. Ramamurti Iyer is that even assuming that the plaintiff was entitled to a charge, it will be unreasonable to create a charge over properties far out of proportion to the quantum of maintenance decreed in favour of the plaintiff and that it is but equitable that in the first instance the plaintiff should be made to pursue the properties still in the hands of her husband and it is only when it is necessary for her to do so, she be permitted to proceed against the A Schedule properties. I think there is force in both the contentions. The Courts below have not ascertained the extent of income from the A and B Schedule properties and whether the charge should not be limited to such extent of the A arid B Schedule properties as the income from which would be sufficient to meet the maintenance decree in favour of the plaintiff. I think on this ground the decrees for granting a charge in favour of the plaintiff should be set aside and the matter be remitted to the trial Court in order that it may find out the extent of properties in the A and B Schedule properties the income from which will be just sufficient to satisfy the maintenance fixed for the plaintiff and grant a charge in her favour over only that extent of properties in the A and B Schedules. If the income from the B Schedule property is sufficient to meet the maintenance granted to the plaintiff, then of course no question of creating a charge over the A Schedule property will arise. So far as the decree for past maintenance is concerned, I think it reasonable that in the first instance it should be executed against the B Schedule properties and it is only when the decree is still not satisfied, the plaintiff can proceed against the A Schedule properties. This will be provided for in the revised decree to be passed by the trial Court. The Second Appeal is allowed in those terms. But there will be no order as to costs. Pending the trial Court passing a revised decree, the appellants will not alienate the properties covered by Exhibit B-l. The Court-fee paid on the Memorandum of Second Appeal will be refunded.
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