The entitlement of a wife and children to enforce maintenance against the husband's property and the effect of S.39 of the Transfer of Property Act.

1. Chellamma, the 1st plaintiff was married to Devarajan the 1st defendant. To them were born a son and two daughters. The relationship between the parties got strained. According to the 1st plaintiff, she attempted to dissuade her husband from undesirable activities. Her attempts, however, had only negative results. She was manhandled and was taken to her parents' house along with the children. She then instituted proceedings under S.125 of the Criminal Procedure Code, M.C. No. 118 of 1978 before the First Class Magistrate's Court, Punalur. The 1st defendant owned 63 cents of land having a rubber plantation. He acted quickly to sell it to the 2nd defendant under Ext. BI sale deed dated 30-11-1978. The Magistrate Court allowed maintenance to the plaintiffs aggregating to Rs. 165/-per month. When information was received by the 1st plaintiff on 30-1-1980 about the execution of Ext. BI, the present suit was filed for a decree granting them maintenance charged on the plaint schedule property.

2. The 1st defendant remained ex parte. The 2nd defendant, the transferee under Ext. BI, claimed that he was a bona fide purchaser who did not have any notice of the order of maintenance in favour of the plaintiffs. This claim was strongly repudiated by the plaintiffs. They contended that the document was a sham one. In support of their claims, evidence was adduced, P.Ws. 2 to 4 being the witnesses examined in addition to P.W.I, the 1st plaintiff who gave evidence on behalf of the plaintiffs. The courts below have concurred to hold that Ext. BI is a sham document. Good and valid reasons have been urged in support of that finding. The 2nd defendant could not even explain the source of money when he was examined in chief. The evidence regarding the possible saving from out of his daily wages as a tapper was found unacceptable. Ext. BI was silent about the payment made by the 2nd defendant. His evidence in relation to the details of consideration was discrepant with and opposed to the recital in Ext. Bl. He had not gone to the document writer on any day prior to 30-11-1978 for having the document prepared. The stamp papers were, however, seen purchased on 15-11-1978 in the name of the 2nd defendant. Even as regards possession of the property, the courts below have accepted the 1st plaintiff's evidence, supported by evidence of P.Ws. 2 to 4 who were all independent witnesses living in close proximity to the property. That evidence was categoric that the 2nd defendant was not taking the income from the property or possessing it. In view of the above massive evidence, the finding that the document Ext. BI is a sham one cannot be interfered at all in the limited jurisdiction of the second appeal. The decree granted by the courts below in favour of the plaintiffs is therefore perfectly justified. The courts below have directed that the maintenance decree could be realised, if need be, from the plaint schedule properties.

3. Sri. Devarajan, counsel for the appellant raised a very interesting and important question of law. He submitted that the courts below committed a serious error of law in allowing a charge over the properties, at any rate as regards the 1st plaintiff. It was contended that she was not a'dependant' as that term is defined in S.21 of the Hindu Adoptions and Maintenance Act, 1956. S.21 defines dependants in relation to a deceased person for the purposes of Chapter III entitled 'Maintenance'. A widow comes within that category. Under S.27, only as regards a dependant's claim for maintenance, a charge could be created by the will of the deceased, by a decree of court or by agreement. A wife is not a dependant and therefore the court does not have any power to effect a charge under S.27 of the Act so proceeded the argument.

4. It is unnecessary to examine this contention in detail in this case; the question had not been urged before any of the lower courts. Having regard to the circumstances of the case, I do not think that the