Family debts take precedence over a widows right to maintenance in the absence of a surplus remaining after payment of the family debts.

Venkatasubba Rao, J.

1. The question I have to decide in this suit is mainly a question of law--does a widows claim to maintenance take precedence over debts binding on the family? The plaintiff is the mother of the 1st defendant who having become an insolvent is now represented by the 4th defendant, the Official Assignee, in whom the insolvents property has vested. The plaintiffs husband carried on business in diamonds and his son, the 1st defendant, assisted him in that business. It is not seriously disputed that the property of which the plaintiffs husband died possessed, was joint family property which on his death survived to his son the 1st defendant. The latter continued the business, but having incurred large debts was declared an insolvent. The Official Assignee sold some properties and paid off all the secured creditors. The estate now consists of a sum of money about Rs. 6,600 and a house at Tanjore. There are many unsecured creditors whose debts remain to be discharged and the question to be decided is, whose right takes precedence, the right of the plaintiff or the right of the creditors?

2. It is often difficult to reconcile the undoubted right of a widow to maintenance under the Hindu Law with the right of creditors against joint family property, but at present the law may be treated in certain respects as settled although the result of the cases may not be quite satisfactory. The right to maintenance when in competition with creditors claims is often reduced to a shadow just as a Hindu sons right by birth becomes illusory in the face of the doctrine of pious obligation.

3. The maintenance of a Hindu widow is not a charge upon the estate of her deceased husband until it is fixed and specifically charged upon that estate either by agreement or by decree of Court. As a corollary from this, three propositions have been established. The widows right is liable to be defeated by a transfer of the husbands property to a purchaser for value, unless the transfer has been made with the intention of defeating that right and the transferee has notice of such intention. (Cf. Section 39 of the Transfer of Property Act.) The fact that the purchaser in that case has notice of the widows claim to maintenance, is immaterial for the obvious reason, that in the case of a widow under the Mitakshara law, there is always present such a claim and it is impossible to restrict on that account the right of male members to deal with the property. Secondly, it is also well settled that if a property belonging to the joint family is alienated for the discharge of family debts (that is, debts incurred for the benefit of the family) the right of the alienee overrides the right of the widow even if the alienee has notice of the widows claim to maintenance. This case, I conceive, is unlike the other case of alienation I have first-referred to, namely, the one governed by the principle of Section 39 of the Transfer of Property Act, in so far as the transfer to the creditor cannot be invalidated by want of bona fides on his part. Thirdly, if the widows claim has ripened into a specific charge it has priority over the claims of creditors whose rights have not been secured by alienation of property.

4. The point that arises in this case is, however, slightly different. On the one hand the widows claim to maintenance has not ripened into a specific charge and on the other the creditors with whom we are concerned being unsecured creditors have similarly acquired no interest in the property. When such a conflict arises, the question is one of greater difficulty. [See in this connection Johurra Bibi v. Sri Gopal (1876) ILR IC 470 and Somasundaram Chetty v. Unnamalai (1920) ILR 43 M 800 : 39 MLJ 179].. But it seems to me that the principles now applied to the claims of widows to maintenance can lead to but one result. Although in theory a widow can get maintenance up to the limit of the proceeds of the share of her deceased husband, still when the ma