A wife's right to maintenance and residence is a pre-existing right that is not extinguished by the transfer of her husband's property.

JUDGMENT :- 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 willfully 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 husbands 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was allowed to occupy a room of the suit premises as a licensee without payment of any fee and the said licence having been revoked and the defendant-respondent having not vacated the same, the plaintiff was compelled to bring the suit.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 ground, alleging that the deed of settlement or trust was nothing but a sham transaction created only for the purpose of defeating 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