“Section 28 of the Act will become applicable only after the order of maintenance is passed. Where the wife filed an application for grant of maintenance against husband and during pendency of said application husband sold property and died thereafter, wife cannot claim her right of maintenance against transferee since transferee had purchased the property for consideration before it was attached or any charge was created.
1. Opposite party Smt. Atwariya Devl filed Suit No. 52 of 1984 against her husband Jeeut for maintenance including the past maintenance. She also made a prayer in the suit for creating a charge for maintenance on Plot No. 410 owned by her husband.
2. Before any order could be passed in the suit, Jeeut transferred Plot No. 410 to the present revisionists by a sale deed. Thereafter, the present revisionists were impleaded in the suit as parties on their request. During the pendency of the suit, Jeeut died on 7.1.1987. On his death, the opposite party moved an application 25A for substitution of name of Lakhia, the only daughter of Jeeut as his legal heir. The application was opposed on the ground that cause of action for maintenance did not survive and, therefore, the suit has abated ; that the application for substitution is, therefore, liable to be rejected. The matter was considered by Sri S.K. Srivastava, District Judge, Ghazipur, and by order dated 11.3.1987, he rejected the application for substitution of name of Smt. Lakhia as heir of Jeeut. However, he held that the suit has not abated due to the death of Jeeut and it will proceed against the present revisionists as they have purchased plot No. 410. Aggrieved by this order, the present revision has been preferred.
3. I have heard Sri S.K. Verma, learned counsel for the revisionists and Sri A.N. Bhargava, learned counsel for the opposite party.
4. The main question for consideration is whether the right for maintenance survived after the death of the husband of the opposite party and whether the revisionists who have purchased Plot No. 410 are liable to pay maintenance to the opposite party and whether there is charge of maintenance on Plot No. 410 purchased by the revisionists.
5. Learned counsel for the opposite party has referred to the decision of this Court in Kehar Singh and others v. Smt. Jwala, 1981 ALJ 413. This was a suit for maintenance by a wife against the husband, the property of the husband was attached, inspite of the attachment the husband transferred the property. The transfer was found not without notice of wife's right of maintenance. Thereafter, it was held that the wife is entitled to enforce her claim against husband's estate in the hands of the transferees. Learned counsel for the opposite party has also referred to Section 28 of Hindu Adoptions and Maintenance Act, 1956, which provides that the right to receive maintenance may be enforced against the transferee of the property, provided the transferee has notice of the right and the transfer is not gratuitous.
6. Learned counsel for the revisionists has referred to Section 554 of the Mulla's Hindu Law, which provides that the maintenance of a wife by her husband is a matter of personal obligation ; that she cannot claim maintenance against her husband's property in the hands of a transferee from him.
7. I have considered the above provisions of law and Section 28 of the Hindu Adoptions and Maintenance Act. In this case, the revisionists purchased the property for consideration before it was attached or any charge was created. Therefore, the property in the hand of the revisionists cannot be liable to pay maintenance. The opposite party is not entitled to the benefit of provision of Section 28 of the Act, as there is no allegation that the transfer in favour of the revisionists was with a notice of the right of maintenance. Section 28 of the Act will become applicable only after the order for maintenance is passed. On the basis of this provision, an order for maintenance cannot be passed against the purchaser of the property from the husband.
8. In the present circumstances, the maintenance cannot be charged on plot No. 410 as no charge was created before the transfer of that plot in favour of the revisionists.
9. The claim of maintenance against the husband was the personal obligation and on the death of the husband, the claim does not survive. The right to sue, therefore, does not survive in the present case. As such the learned District Judge has erred in ordering that the suit shall proceed against the revisionists. The impugned order is liable to be set aside.
10. The revision is allowed. The impugned order dated 11.3.1987 is set aside and it is ordered that the suit of the opposite party for maintenance stands abated.
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Allahabad High Court
Kangal And Ors. vs Smt. Atwariya Devi on 7 January, 2002
Equivalent citations: 2002 (1) AWC 630
B.K. Rathi, J.1. Opposite party Smt. Atwariya Devl filed Suit No. 52 of 1984 against her husband Jeeut for maintenance including the past maintenance. She also made a prayer in the suit for creating a charge for maintenance on Plot No. 410 owned by her husband.
2. Before any order could be passed in the suit, Jeeut transferred Plot No. 410 to the present revisionists by a sale deed. Thereafter, the present revisionists were impleaded in the suit as parties on their request. During the pendency of the suit, Jeeut died on 7.1.1987. On his death, the opposite party moved an application 25A for substitution of name of Lakhia, the only daughter of Jeeut as his legal heir. The application was opposed on the ground that cause of action for maintenance did not survive and, therefore, the suit has abated ; that the application for substitution is, therefore, liable to be rejected. The matter was considered by Sri S.K. Srivastava, District Judge, Ghazipur, and by order dated 11.3.1987, he rejected the application for substitution of name of Smt. Lakhia as heir of Jeeut. However, he held that the suit has not abated due to the death of Jeeut and it will proceed against the present revisionists as they have purchased plot No. 410. Aggrieved by this order, the present revision has been preferred.
3. I have heard Sri S.K. Verma, learned counsel for the revisionists and Sri A.N. Bhargava, learned counsel for the opposite party.
4. The main question for consideration is whether the right for maintenance survived after the death of the husband of the opposite party and whether the revisionists who have purchased Plot No. 410 are liable to pay maintenance to the opposite party and whether there is charge of maintenance on Plot No. 410 purchased by the revisionists.
5. Learned counsel for the opposite party has referred to the decision of this Court in Kehar Singh and others v. Smt. Jwala, 1981 ALJ 413. This was a suit for maintenance by a wife against the husband, the property of the husband was attached, inspite of the attachment the husband transferred the property. The transfer was found not without notice of wife's right of maintenance. Thereafter, it was held that the wife is entitled to enforce her claim against husband's estate in the hands of the transferees. Learned counsel for the opposite party has also referred to Section 28 of Hindu Adoptions and Maintenance Act, 1956, which provides that the right to receive maintenance may be enforced against the transferee of the property, provided the transferee has notice of the right and the transfer is not gratuitous.
6. Learned counsel for the revisionists has referred to Section 554 of the Mulla's Hindu Law, which provides that the maintenance of a wife by her husband is a matter of personal obligation ; that she cannot claim maintenance against her husband's property in the hands of a transferee from him.
7. I have considered the above provisions of law and Section 28 of the Hindu Adoptions and Maintenance Act. In this case, the revisionists purchased the property for consideration before it was attached or any charge was created. Therefore, the property in the hand of the revisionists cannot be liable to pay maintenance. The opposite party is not entitled to the benefit of provision of Section 28 of the Act, as there is no allegation that the transfer in favour of the revisionists was with a notice of the right of maintenance. Section 28 of the Act will become applicable only after the order for maintenance is passed. On the basis of this provision, an order for maintenance cannot be passed against the purchaser of the property from the husband.
8. In the present circumstances, the maintenance cannot be charged on plot No. 410 as no charge was created before the transfer of that plot in favour of the revisionists.
9. The claim of maintenance against the husband was the personal obligation and on the death of the husband, the claim does not survive. The right to sue, therefore, does not survive in the present case. As such the learned District Judge has erred in ordering that the suit shall proceed against the revisionists. The impugned order is liable to be set aside.
10. The revision is allowed. The impugned order dated 11.3.1987 is set aside and it is ordered that the suit of the opposite party for maintenance stands abated.
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