The court established that under S.39 of the Transfer of Property Act, a person with the right to receive maintenance from immovable property can enforce it against the transferee, even without proving the transferor's intention to defeat the right.

Sankarasubban, J.

Defendants 2 and 3 in O.S. No. 660 of 1979 on the file of the Munsiff Court, Sherthallai are the appellants and Respondents 1 and 2 are the plaintiffs. The third respondent is the first defendant in the case. The plaint allegations are as follows:

The first plaintiff is the wife of the first defendant and the 2nd plaintiff is the daughter of the first plaintiff, viz. the first respondent and the first defendant. Till 1147 M.E. first plaintiff and first defendant were residing together in the first defendant's house. Thereafter, the first defendant neglected his wife and refused to maintain them. Plaintiffs were forced to reside in the first plaintiffs parents' house. Therefore, they instituted MC. 13/72 before the Judl.1st Class Magistrate's Court, Sherthallai for maintenance. That petition was allowed on 22.5.1974. 1st plaintiff was allowed a maintenance of Rs. 30 P.M.. and the 2nd plaintiff Rs. 15/-P.M., Inspire of the order, the first defendant has not paid any amount. With a view to defeat the claim of the plaintiff, the first defendant has executed sale deeds in respect of the plaint properties in favour of defendants 2 and 3. Defendants 2 and 3 are none other than the brothers of the first defendant. Plaintiffs have prayed for arrears of maintenance for the past three years at Rs. 1717.82 with future interest at 6% on the principal sum of Rs. 1620 charged on the plaint schedule properties. There was a further prayer for declaration that the first plaintiff was entitled to maintenance at Rs. 30/-P.M.. and the second plaintiff at Rs. 15/ pm and the same may be allowed to be recovered from the first defendant and charged on plaint schedule properties.

2. The first defendant did not file any written statement. He remained ex parte. Defendants 2 and 3 filed a joint written statement. Their contention are as follows: The first defendant has another wife. The order in M.C. 13/72 was obtained in collusion between the first plaintiff and the first defendant and the same is not binding on defendants 2 and 3 and plaint schedule properties. The allegation that the sale deeds in favour of defendants 2 and 3 are executed fraudulently and benami in the name of defendants 2 and 3 is not true and is denied. Item No.1 was purchased by the 2nd defendant as per Ext. B2 dated 18.1.1973 from the first defendant and his father. Similarly, Item No. 2 was purchased by the 3rd defendant from the first defendant and his father as per Ext. B2. The sale deeds are genuine and bonafide transactions. They were executed for valuable consideration and no decree charged on the properties can be passed.

3. The trial court passed the decree in terms of the plaint, and to realise the amount from the first defendant charging on the plaint schedule properties. Against that defendants 2 and 3 filed an appeal. The appeal was heard by the Sub Court, Shertallai and the decree of the trial court was confirmed. Hence, this second appeal is filed.

4. Learned counsel for the appellants submitted that the findings of the Courts below that the sale deeds taken by defendants 2 and 3 are fraudulent and to defeat the claims of the plaintiffs are not correct. Further, he contended that no decree can be passed charged on the properties as they are bonafide purchasers. Learned counsel further contended that there is no provision for passing a decree charged on the plaint schedule properties. It was also contended that the order in MC. 13/ 72 was obtained in collusion.

5. Learned counsel for the plaintiffs-respondents submitted that defendants 2 and 3 are the brothers of the first defendant. Defendants 1 to 3 were residing together in their father's house, at the time when the M.C. case was pending. All of them were aware of the pendency of the M.C. case. It was not to defeat the rights of the plaintiffs that the sale deeds were executed during the pendency the criminal case. It was further submitted that the first defendant obtained the properties as p