Malik, C.J. and Agarwala, J. - (1.) The facts of this case are very simple, but, in view of the difference of opinion between the Oudh Chief Court and the Allahabad High Court before their amalgamation; it appears to us desirable that it be referred to a larger Bench of five Judges for decision.
(2.) Mt. Munder had filed a Suit No. 166 of 1913 in the Court of the Subordinate Judge of Allahabad for the following reliefs : (a) Rupees 60 per month or any amount which may be adjudged by the Court may be fixed as maintenance allowance. The said maintenance allowance of the plaintiff may be a charge on the whole or a sufficient portion of the family ancestral property as specified below in the list A, and the defendants may be ordered to pay the same every month to the plaintiff out of the income of the said property. (b) One house out of the ancestral houses may be awarded to the plaintiff for her abode. (c) Costs of the suit may be awarded against the defendants. (d) Other proper directions which may be deemed necessary for doing justice to the plaintiff may be given by the Court." To the plaint was attached a list of the family ancestral property in the possession of the defendants. The plaintiff, Mt. Munder, was the widow of one Kanhai Lal and the defendants to the suit were Bhagwan Das, Kanhai Lal's father, Bachchu Lal, Kanhai Lal's brother and three sons of Bachchu Lal, namely, Gaya Prasad, Vishnu Lal and Sarju Prasad. The suit was contested on behalf of the defendants on various grounds, but it is not necessary to set out those grounds now. The suit was dismissed by the trial Court on 21-9-1914. There was a First Appeal No. 34 of 1915--filed in this Court which was allowed by Richards C. J. and Sir Pramoda Charan Banerji J. on 21-2-1917. The Court fixed Rs. 20 a month as maintenance and created a charge on the family property. The relevant portion of the judgment of this Court is as follows: "The result is that we set aside the decree of the Court below and make a decree in favour of the plaintiff for maintenance at the rate of Rs. 20 a month and declare that it be a charge on the property of the family. She will be entitled to recover this maintenance from the date of the institution of this suit. The plaintiff will get her costs in both Courts in proportion to her success. . . . ." The relevant portion of the decree of this Court in F. A. No. 34 of 1915 is as follows : "The decree be and is hereby passed in favour of the plaintiff appellant for recovery of the maintenance allowance at the rate of Rs. 20 a month from the date of the institution of the suit. It is hereby declared that such a maintenance allowance shall be a charge on the property of the family."
(3.) The plaintiff-decree-holder filed an application for execution of the decree (Execution Case No. 1 of 1944) for the arrears of maintenance due to her from 5-12-1940, to 4-1-1944. The application was filed against 17 persons, four of whom were those against whom the decree in Suit No. 166 of 1913 had been passed by this Court and the rest were transferees from them. Three of such transferees were Pandit Madan Mohan, Mt. Premwati and Bate Krishna Das. Pandit Madan Mohan is now dead and he is represented by his son, Mahesh Prasad, who is the appellant in Ex. F. A. No. 254 of 1945. Mt. Premwati is also dead and she is represented by Mt. Brij Rani. The third appellant is Bate Krishna Das. They are transferees of properties which were included in the list of ancestral properties given in the plaint of Suit No. 166 of 1913. The transferees claim that they are transferees for consideration who have purchased the property in good faith and without notice of the charge created under the decree passed by this Court in the year 1917. The lower Court was of the opinion that to a charge created by a decree Sections 39 and 100, T. P. Act had no application and the Court therefore allowed the decree to be executed by sale of the properties in the hands of the three appellants. The lower Court recorded a distinct finding that the transferees had purchased the properties without notice and in good faith and for proper consideration. Mr. Kedar Nath Gupta, holding the brief of Mr. A.P. Pandey, is not able to challenge that finding and we must, therefore, accept the finding of fact recorded by the lower Court.;