REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                   OF 2008 (Arising out of S.L.P. (C) No.3670 of 2005)

Komalam Amma    …..Appellant

Vs.

Kumara Pillai Raghavan Pillai and Ors.     …..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single

Judge of the Kerala High Court dismissing the second appeal filed in terms

of Section 100 of the Code of Civil Procedure, 1908 (in short `the Code').

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The second appeal was filed by the appellant, who was defendant No.1 in

O.S. No.426 of 1986 on the file of learned first Additional Munsiff's Court,

Thiruananthapuram. She and the present respondent Nos. 2 and 3 were the

defendants and respondent No.1 was the plaintiff, who is the husband of the

appellant  and  father  of respondent  Nos.  2  and  3.   The Suit  was  one for

declaration  of  title  in  respect  of  Plaint-A Schedule  Property  where  the

defendants were residing and for recovery of possession with mesne profits.

3. The Trial Court as well as the first appellate court concurrently

decreed the suit finding title over the plaint-A Schedule property with the

plaintiff-husband.  They held that Plaint-A Schedule property was purchased

by him under Exh.A-1 (sale deed) utilising his own funds and the funds for

the acquisition of the property were not provided by the present appellant-

wife.   The concurrent  decrees  passed  by  the  courts  below were assailed

before the High Court.

4.  Stand of the appellant and the present respondent nos.2 and 3

was that being the wife of the plaintiff, the present appellant is entitled to

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reside in the matrimonial home situated in the plaint schedule property.  It

was  also pointed out  that  she had  already obtained a  charged decree for

maintenance over the schedule property as per the decree in OS No.139 of

1977.  It was, therefore, her stand that the decree passed in the present case

will result in conflicting decrees defeating the statutory charge under Section

39 of the Transfer of Property Act, 1882 (in short ‘the TP Act’).

5. The High Court  was of the view that even if the appellant had

obtained a decree for maintenance against the husband, the decree passed in

the case for recovery of possession does not in any way, defeat the right of

the wife to enforce the charge. Section 39 of the T.P. Act will have operation

only if the charged property is transferred in which case, the transferee who

is not a bona-fide transferee for value without notice will be liable for the

charge.  The High Court further held that in view of the factual setting in the

case when the relationship between the husband and the wife is estranged,

the wife cannot still claim a right of residence in the matrimonial home so as

to  resist  a  decree  for  possession.   Therefore,  the  second  appeal  was

dismissed.   

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6. Learned  counsel  for  the  appellant  submitted  that  the  view

expressed by the High Court runs counter to the decision of this Court in

Mangat  Mal (Dead) and Anr. Vs.  Punni Devi (Dead) and Ors. (1995  (6)

SCC 88).  

7. Learned  counsel  for  respondent  No.1,  on  the  other  hand,

supported the judgment of the High Court.

8. In  Mangat  Mal’s case (supra),  this  Court  was  considering the

question whether maintenance encompasses a provision for residence.  The

case was considered in the light of Section 14(1) of The Hindu Succession

Act, 1956 (in short ‘the Act’).

 9. Maintenance,  as  we  see  it,  necessarily  must  encompass  a

provision for residence.  Maintenance is given so that the lady can live in the

manner,  more  or  less,  to  which  she  was  accustomed.   The  concept  of

maintenance must, therefore, include provision for food and clothing and the

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like and take into account the basic need of a roof over the head. Provision

for residence may be made either by giving a lump sum in money, or property

in lieu thereof.  It may also be made by providing, for the course of the lady`s

life, a residence and money for other necessary expenditure. Where provision

is made in this manner, by giving a life interest in property for the purposes

of  residence,  that  provision  is  made  in  lieu  of  a  pre-existing  right  to

maintenance and the Hindu lady acquires far more than the vestige of title

which is deemed sufficient to attract Section 14 (1).

10. Mulla’s Hindu Law (Sixteenth Edition) sets out the position in

law prior to the Act. The Manager of a joint Mitakshara family is under a

legal obligation to maintain all male members of the family, their wives and

their children.  On the death of any one of the male members he is bound to

maintain  his  widow  and  his  children.  The  obligation  to  maintain  these

persons arises from the fact that the Manager is in possession of the family

property (para 543).  An heir is legally bound to provide, out of the estate

which  descends  to  him,  maintenance  for  those  persons  whom  the  late

proprietor was legally or morally bound to maintain (para  544).  A wife is

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entitled to be maintained by her husband, whether he possesses property or

not. When a man with his eyes open marries a girl accustomed to a certain

style of living, he undertakes the obligation of maintaining her in that style

(para 554). A widow who does not succeed to the estate of her husband as

his heir is entitled to maintenance out of his separate property as well as out

of property in which he was a co-parcener at  the time of his death (para

559).  A  Hindu   widow  is,   in  the absence of  special circumstances,

entitled to reside  in the  family  dwelling house in  which she  lived with her

husband (para 562).  The maintenance to be allowed  to a  widow should be

such  an amount as  will enable her to live consistently with her position as

a widow,  with  the  same degree of comfort and reasonable luxury as she

had in her husband’s house, unless there are  circumstances which affect,

one way or the other, her mode  of living  there.  In determining the amount

of maintenance the Court should have regard, inter alia, to the provision and

status of the deceased husband and of the widow and the reasonable wants

of the widow, including not only the ordinary expenses of living, but what

she might reasonably expend for religious and other duties incidental to her

station in  life (para  566).  Where an undivided family consists  of two or

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more males, related as  father and son or otherwise, and one of them dies

leaving a widow, she is entitled to reside in the family dwelling house in

which she lived with her husband. If the house is sold by the surviving co-

parceners  without  necessity,  the  sale  does  not  affect  her  right,  and  the

purchaser cannot evict her until another suitable residence is found for her

(para 573).  A widow who is entitled to maintenance may sue, inter alia, for

a charge on a specific portion of her husband`s estate for her maintenance

and residence (para 579).

11. The Hindu Adoption & Maintenance Act, 1959, was enacted to

amend  and codify  the  law relating  to  adoptions and maintenance among

Hindus, and it  defines  maintenance  in Section 3 (d) to  include "(1) In all

cases,  provision  for  food,  clothing,  residence,  education  and  medical

attendance and treatment."   

12. In  B.P. Achala Anand Vs.  S. Appi Reddy and Anr.  (2005 (2)

SCALE 105) it was observed as follows:

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“Having said so generally, we may now deal with the right of a wife to reside in the matrimonial home under personal laws.  In the  factual  context  of  the  present  case,  we  are  confining ourselves  to  dealing  with  the  personal  law  as  applicable  to Hindus  as  the parties are so.  A Hindu wife is entitled to be maintained by her husband.  She is entitled to remain under his roof and protection.  She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart  from him. Right to residence is a part and  parcel  of  wife's  right  to  maintenance.  The  right  to maintenance cannot  be  defeated  by the husband  executing a will to defeat such a right. (See: MULLA, Principles of Hindu Law, Vol. I, 18th Ed. 2001, paras 554 and 555) The right has come to  be  statutorily recognized  with  the  enactment  of the Hindu Adoption and Maintenance Act, 1956. Section 18 of the Act provides for maintenance of wife.  Maintenance has been so defined in clause (b) of Section 3 of the Hindu Adoption and Maintenance  Act,  1956  as  to  include  therein  provision  for residence amongst other things. For the purpose of maintenance the term 'wife' includes a divorced wife.”

13. These aspects have not been considered by the High Court. It will

be appropriate for the High Court to consider the issues by re-hearing the

appeal in the light of what has been stated in Mangat Mal’s and B.P. Achala

Anand’s cases (supra).   

14. We make it clear that we have not expressed any opinion on the

merits by remitting the matter to the High Court.

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15. The appeal is disposed off accordingly without any order as to

costs.

……………………………………J. (Dr. ARIJIT PASAYAT)  

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: November 14, 2008

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