What Are The Effects Of The Transfer Of The Family Property On The Right Of Maintenance?

Section 28 of the Hindu Adoption And Maintenance Act, 1956, lays down that where a dependant 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 transferred 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.

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In a case where dependant has a right to receive maintenance out of an estate that is to say in a case where the right in mainte­nance is enforced against the estate of deceased in the hands of his or her heirs under Section 22 and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee having notice about the right of maintenance and also against gratuitous transferee but not against transferee without notice of right. [See 1982 All 1] 616].

The claim for maintenance of a widow is not a charge on the estate of the deceased husband whether joint or separate until it is fixed and charged upon the estate.-Therefore, the widow’s rights to maintenance are liable to be defeated by a transfer of the husbands estate to bona fide purchaser for value without notice.

The widow’s right to receive maintenance is one of an indefi­nite character, which, unless made a charge upon the property, is enforceable only like any other liability in respect of which no charge exists. But where maintenance has been made a charge upon the property and the property is subsequently sold, the pur­chaser must hold it subject to the charge.

Debt contracted by a Hindu takes precedence over the right of maintenance of his wife and children of his widow after his death.

Debts contracted by a manager of a joint Hindu family for the benefit of the family or for family business also take precedence over the maintenance. So the interest of the widow is also binding upon the sale of the property for the payment of debt.

The Privy Council has laid down the two obligations of the joint family in Mst. Dan Kuer v. Mst. Sarla Devi, (1946) 73 I.A. 208: (1964) All. 756: 516 C.W.N. 18.

(1) The obligation to pay family debts and (2) the duty to provide maintenance to the widows of the family. The first would take preference over the second so long as neither of these obliga­tions has taken the form of a charge on the family property; but if either of them assumes the shape of a charge it would take precedence over the other.

Illustration:

A and his brother B, are members of a joint Mitakshara fam­ily. A dies leaving a widow. After A’s death B sells the property in order to satisfy debts binding on the family. The widow has no claim for maintenance either against the purchaser or against the property. [Lakshman v. Satyabhamabai, (1877) 2 Bom. 496]

If a Hindu disposes of his entire property by gift or will, so as to defeat the right of the widow to maintenance, the donee or devisee must hold the property subject to the widow’s right of maintenance, and the widow may enforce her right against the donee or devisee. [Becha v. Mathina, (1901) 20 All. 86].

If during the pendency of a suit for maintenance the property is transferred by another party and subsequently a decree is passed creating a charge on the property for the maintenance of the widow, the transferee must hold the property subject to such charge unless the transfer is made for paying off a debt which has prefer­ence over the maintenance. [Dose Thimmana Krishna, (1906) 29 Mad. 508].

A widow is entitled to reside in the family dwelling house in which she lived with her husband. If the house is sold by the surviving coparceners without necessity the sale is not binding upon the widow. It does not affect her right, and the purchaser cannot evict her until suitable residence is found for her. [Gangee Devi v. Jagannath, (1947) 22 Luck. 518]. If the purchaser pur­chases the house with the knowledge that the widow is residing in it, the purchaser is not entitled to oust her even though there may be other property from which she can be maintained.

But if the sale is for the family necessity she is liable to be evicted even though the purchaser had notice that she was in occupation of the house. [Mst. Champa v. Official Receiver, Karachi, (1934) 15 Lah 9:1.C. 666: (33) A.L.J. 901], But the right of residence also cannot prevail against the husband’s debt.

A and his nephew B are coparceners residing together in the family dwelling house. A died leaving a widow. After A’s death B sells the family dwelling house without family necessity. The purchaser is not entitled to evict A’s widow. (All. 262).

The unmarried daughters of deceased coparceners are also entitled to reside in the family dwelling house until their marriage and the purchaser of the houses is not entitled to evict them unless the sale was for family necessity.

When the family consists of only a husband, a wife and un­married daughters, the wife or daughters cannot assert their right of maintenance against the purchaser in execution of a decree passed against the husband in his life-time or after his death or even against a purchaser under a private sale from the husband without necessity. [Ganga Bai v. Janki Bai, (1821) 45 Bom. 337: 59 I.C. 813: (21) A.B. 300].

Illustration:

A sells the family dwelling house without any family neces­sity to PP. sues A and his wife for possession. A then dies leav­ing his widow. P is entitled to possession free from the widow’s right of residence.

The reason for this is that a husband or a father is under a personal obligation to maintain his wife or unmarried daughter quite independent of the possession of any property, ancestral or self-acquired.