T. Jamna Bhai Ammal vs A. Balakrishna Tawker and Others

Venkatasubba Rao, J.—The question I have to decide in this suit is mainly a question of law--does a widow''s 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 insolvent''s property has vested. The plaintiff''s 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 plaintiff''s 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?

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 son''s right by birth becomes illusory in the

face of the doctrine of pious obligation.

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 widow''s right is liable to

be defeated by a transfer of the husband''s 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 widow''s 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 widow''s 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 widow''s 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.

The point that arises in this case is, however, slightly different. On the one hand the widow''s 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 ILR (1876) 470 and

Somasundaram Chetty Vs. Unnamalai Ammal and Others, .. 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 maintenance is actually awarded to her, the family debts existing at the moment are deducted from the available

assets and the rate of maintenance is fixed only with reference to the balance of the estate and the debts are thus clearly allowed to take

precedence of the right to maintenance.

It was suggested that in the administration of an insolvent''s estate a widow may be allowed in the way the creditors are to prove for the amount

due to her subject however in this case to an estimate being made of the value of her right. This view, however, cannot be supported. If the estate

is worth Rs. 10,000 and the family debts amount to Rs. 9,000, the rate of maintenance, it admits of no doubt, can be fixed only with reference to

the balance, namely, Rs. 1,000. If next the debts are equal to the value of the estate (Rs. 10,000) the widow can get no maintenance at all. Can it

then be consistently said that when the debts exceed the assets, that is in the case of the estate of a bankrupt (say, when the assets amount to Rs.

10,000 and the debts to Rs. 20,000) she can get some maintenance on the ground that her demand is provable in insolvency?

I am therefore of opinion that family debts take precedence of a widow''s right to maintenance. The cases cited by Mr. N. Chandrasekhara

Aiyar, the learned vakil for the plaintiff, have but a remote bearing on the question to be decided. Nothing, however, that I have said would

preclude the plaintiff from having her claim met out of the surplus if any that may remain in the hands of the Official Assignee after payment of the

family debts. Subject to this reservation the plaintiff''s claim must fail. 1 may mention that this is not a claim against the 1st defendant personally but

only against his estate in the hands of the Official Assignee.

The suit is dismissed, but, in the circumstances, I make no order as to costs.

The remuneration of Mr. Govinda Pillai, the Commissioner appointed in this case, is fixed at Rs. 50 and the plaintiff is directed to pay him that

sum.