JUDGMENT

The plaintiffs in O.S.No.1806 of 1990 on the file of the first Additional District Munsif, Dindigul, have filed this second appeal.

2.The plaintiffs filed the said suit seeking payment of monthly maintenance to the tune of Rs.300/- from the first defendant namely Samundiapillai. The plaintiffs are the mother and son. They filed the said suit claiming a sum of Rs.300/- from the first defendant Samundiapillai towards monthly maintenance. They also wanted a charge to be created on the suit 'A' schedule property. The first defendant who was the husband of the first plaintiff and father of the second plaintiff remained exparte. During the pendency of the suit, the property was purchased by the third defendant Mala. The first plaintiff examined herself as P.W.1 and Ex.A1 to Ex.A7 were marked. The contesting defendant Mala examined herself as D.W.1 and Ex.B1 to Ex.B8 were marked. Through witnesses, three documents were marked. The trial court after a consideration of the evidence on record by judgment and decree dated 28.11.1997 directed the first defendant to pay a sum of Rs.300/- towards monthly maintenance in favour of the first plaintiff. Charge was also created on the 'A' schedule property. Aggrieved by the same, the contesting defendant filed A.S.No.10 of 1998 before the Principal District Judge, Dindigul. The first appellate court by the impugned judgment and decree dated 20.06.2001 sustained the decree for maintenance but set aside the creation of charge over the 'A' schedule property. The appeal was allowed in favour of the third defendant. Challenging the same, this second appeal came to be filed. The second appeal was admitted on the following substantial questions of law:-

“Whether the lower appellate court ought to have held that the sale (Ex.B1) in favour of the third defendant by the first defendant, the husband of the first plaintiff during the pendency of the maintenance suit with the prayer for creating a charge over the suit property is fraudulent and void?”

3. The learned counsel for the appellants submitted that the first appellate court erred in setting aside the creation of charge over the schedule 'A' property. He wants this Court to restore the decision of the trial court by answering the substantial question of law in favour of the appellants.

4. Per contra, the learned counsel for the contesting respondent submitted that her vendor Samundiapillai died some time in the year 1998 and that the first appellant Palaniammal as widow is receiving pension. He wanted this Court to take into account the said aspect. The court below had granted maintenance decree, since she was otherwise bereft of any substance or support. The decree directing the grant of maintenance will have to automatically go. He submitted that the first appellate court has given convincing reasons for setting aside the creation of charge. He also would submit that no substantial question of law really arises for determination. In any event, the contesting defendant is ready to pay a sum of Rs.1,00,000/- towards full and final settlement of all outstanding issues.

5. I carefully considered the rival contentions and went through the evidence on record. The relevant statutory provision is Section 39 of the Transfer of Property Act, 1882 which reads as under:-

39.Transfer where third person is entitled to maintenance:- Where a third person has a right to receive maintenance or a proviso for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous but not against the transferee for consideration and without notice of the right nor against such property in his hands.

6. There is no dispute that Palaniammal and the first defendant Samundiapillai were wife and husband. This fact stands confirmed in view of the receipt of pension by the first plaintiff following the demise of her husband. Therefore, the