Effect of a Decree for Maintenance over Hindu Joint Family Property

With regard to the effect of a charge created by a decree for maintenance obtained by the wife of the manager of a joint Hindu family over the joint family property, the Andhra Pradesh High Court laid down the following principles in Pokuru Rangaiah v. Pokuru Chinnaiah,:—

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(1) A maintenance holder can obtain a decree for maintenance against a member of the undivided family and create a charge over the joint property when their family was joint.

(2) When once her right to maintenance has been declared, defined and reduced to a certainty by a decree of court, such right cannot be taken away by any subsequent alienation of such property or by partition of such property effected amongst the members of that family.

(3) Any person including the step-son of a maintenance holder, who was a member of joint Hindu family at the time of the institution of the maintenance suit and the creation of a charge towards the decree obtained by her on the joint family properties, cannot question her right over such properties, in case such properties, or any portion of the same are allotted to him in a subsequent partition or devolved on him.

(4) The charge created on those properties prior to the division of the family will be subsisting and continue till the life time of the maintenance holder and the rights of the third party, if any, in such properties will be only subject to the charge created in her favour.

According to Section 26, debts of the every description, contracted or payable by the deceased shall have priority subject to the provisions of Section 27, over the claims of his dependants for maintenance under this Act.

In Rabin Kumar Chandra v. Sikha Chandra, the Court observed that maintenance decree passed by the Court should be effective from the date of institution of suit and not from the date of decree. The cause of action arises when the husband refuses to maintain his wife.

According to Section 28 the dependant’s right to receive maintenance may be enforced against a transferee, if—

(1) The transferee has notice of the right of dependant’s claims to maintenance.

(2) The transfer is gratituitous (i.e., without consideration), transferee is liable even if he may not have the notice of the right of maintenance. Where the father-in-law gifted away his entire estate to his daughter after a suit for maintenance was filed by his widowed daughter-in-law, it was held that the father- in-law was liable to pay maintenance and gift was gratituitous.

The liability to maintain cannot be fastened on the transferee for consideration without notice of right of maintenance. It is unreasonable to create a charge over properties out of proportion to the quantum of maintenance decree by the Court.

If during the pendency of a suit instituted by a widow to establish a charge on specific immovable property for the maintenance, the property is transferred by any other party to the suit, and a decree is subsequently passed creating a charge on the property for the widow’s maintenance, the transferee must hold the property subject to such charge, unless the transfer has been affected for the purpose of paying off a debt which has priority over the widow’s claim for maintenance.

This rule is based on the principle of I is pendence as enumerated in Section 52 of the Transfer of Property Act. The rule does not apply where a widow claims maintenance without asking, and at the same time that it should be made a charge on the property.