SOBHANA v. ASSMI A. SOBIN

K.A.Abdul Gafoor & Antony Dominic, JJ.==========================M.F.A.No.776 of 2001========================Dated this the day of February, 2007.JUDGMENTAntony Dominic,J.The second defendant in O.S.No.122 of 1995 on the file of theFamily Court, Kollam is the appellant. Brief facts that are necessaryfor the disposal of this appeal alone are noted. It is stated that thefirst respondent herein was married to the fourth respondent and themarriage was solemnised on 25.1.1981. In their wedlock, the firstrespondent gave birth to respondents 2 and 3,who were minors at thetime when the suit was instituted. For various reasons, respondents 1and 2 could not live together and they are separately living since31.3.1989 with the children living with the mother. It is stated that byExt.B3 dated 12.6.1989 the plaint schedule property which belongedto the fourth respondent was purchased by the appellant, who wasthe second defendant in the suit, for valid consideration. In 1995respondents 1 to 3, the wife and children of the fourth respondent filedthe suit before the Family Court, Kollam praying for maintenancecharged on the plaint schedule property along with interest and costs. MFA 776/01-: 2 :-2. The suit was contested by the appellant with the fourthrespondent remaining ex parte. By judgment and decree dated20.1.2001, the Family Court decreed the suit allowing respondents 1to 3 to realise maintenance at the rate of Rs.400/- for the wife andRs.300/- each for the children from the fourth respondent – husbandand charged upon the plaint schedule property and from the estates ofthe fourth respondent. The plaintiffs were also held to be entitled tothe cost of the suit from the defendants. Aggrieved by the above, thesecond defendant in the suit, the purchaser of the plaint scheduleproperty, has come up in appeal.3. We heard counsel for the appellant and respondents 1 to 3.In this Court also, the fourth respondent remained ex parte despite theservice of notice on him.4. Obviously, the entitlement of respondents 1 to 3 before theFamily Court was asserted based on Section 28 of the Hindu Adoptionsand Maintenance Act, 1956 (hereinafter referred as 'Act 1956') andSection 39 of the Transfer of Property Act, 1882 (hereinafter referredas 'T.P.Act'). Section 28 of Act, 1956 provides as follows:“Where a dependent has a right to receive maintenanceout of an estate and such estate or any part thereof istransferred, the right to receive maintenance may be enforcedagainst the transferee if the transferee has notice of the right orif the transfer is gratuitous; but not against the transferee forconsideration and without notice of the right”. MFA 776/01-: 3 :-A bare reading of the Section would show that the benefit of theSection is available only to a dependent, who has a right to receivemaintenance out of an estate. Section 28 of Act, 1956 occurs inChapter III of the Act and Section 21 of Act 1956 defines dependentsfor the purposes of Chapter III. On a reading of Section 21 of Act1956, it is to be noticed that the categories enumerated as dependentsin the Section do not include wife or children. Since wife and childrenare not included among the various categories of dependents, theycannot claim the benefit of Section 28 of Act 1956. Therefore, theplaintiffs in the suit being the wife and children of the fourthrespondent, they are not entitled to invoke Section 28 of Act 1956 andraise the claim on that basis.5. What remains to be considered is the effect of Section 39 ofthe T.P. Act, which is extracted below for reference:“Where a third person has a right to receivemaintenance, or a provision for advancement or marriage fromthe profits of immovable property, and such property istransferred, the right may be enforced against the transferee,if he has notice thereof or if the transfer is gratuitous; but notagainst a transferee for consideration and without notice of theright, nor against such property in his hands”.An analysis of Section 39 of the T.P. Act extracted above would showthat where a third person has right to receive maintenance from the MFA 776/01-: 4 :-profits of immovable property and if such property is transferred, he isentitled to enforce his right against the transferee subject to the otherconditions mentioned therein. In so far as the facts of this case isconcerned, the wife and the children, who are plaintiffs, are entitled tobe included in the category of third person. However, their claim toreceive maintenance is only against the fourth respondent. They donot have any right to claim maintenance from the profits of theimmovable property held by him. They also have not set up such acase in their pleadings. Unless they have a right to receivemaintenance from the profits of the immovable property transferred infavour of the appellant, even if the remaining conditions mentioned inSection 39 of Act 1956 are satisfied, they cannot claim the benefit ofSection 39 of Act 1956.5. It is true that it is the case of respondents 1 to 3 that thetransfer of property in favour of the appellant was a sham one as itwas not supported by any valid consideration and therefore isgratuitous. Though a reading of the plaint would show that no reliefwas sought in this respect, the Family Court had raised issue No.2 asfollows: “ Is not the document in favour of the second defendantsham and void?” Considering this issue, the court has concluded thatthe transaction is collusive and Ext.B3 is sham and created with a view MFA 776/01-: 5 :-to defeat the claim of the plaintiffs. Be that as it may, since theplaintiffs do not satisfy the first limb of Section 39 of the T.P. Act,namely, a right to receive maintenance from the profits of theimmovable property, the nature and validity of the transaction isimmaterial. Thus, the plaintiffs have not made out a right underSection 39 of the T.P. Act as well.6. In the aforesaid circumstances, we hold that the plaintiffsclaim do not come within the scope of Section 28 of the HinduAdoptions and Maintenance Act, 1956 or Section 39 of the Transfer ofProperty Act, 1882. For the aforesaid reasons, we are unable tosustain the judgment of the Family Court, Kollam in O.S.No.122 of1995 and set aside the same as against the appellant. In view of ourfindings herein above, the appeal stands allowed and the suit will standdismissed as against the appellant with no order as to costs.K.A.Abdul Gaffoor,Judge.Antony Dominic,Judge.ess 9/2