Authored By : S.C. Ghose, Robert Fulton Rampini

S.C. Ghose and Robert Fulton Rampini, JJ.

1. The main contention raised in this appeal is that, havingregard to the provisions of Section 39 of the Transfer of Property Act, thecharge created in favour of the defendant under the compromise decree in 1886could not affect the interest of the plaintiffs, because they (the plaintiffs)were persons who took the property without notice of the right of maintenancein the defendant, the widow. It appears to us, however, that Section 39 of theTransfer of Property Act has no application to a case like this, where therehas been a decree between the widow on the one hand, and the plaintiffsvendors on the other a decree by which certain Immovable property was chargedwith the maintenance of the widow. The predecessor of the plaintiffssubsequently took a mortgage of the property from the defendant, against whomthe said decree was passed; and therefore they are bound, in the same manner astheir mortgagor was bound, by it. Then again the plaintiffs could hardly besaid to be transferees without notice of the right of maintenance in the widow,because it does not appear that they, before they took a mortgage, made anyinquiry as to the right of the widow, and whether any charge existed upon theproperty in question.

2. The learned Vakil for the appellants has further arguedthat, inasmuch as the maintenance which was claimed by the defendant, and forwhich the property in question was attached and about to be sold, accrued duesubsequent, to his clients mortgage, the defendant should be regarded assecond mortgagee, the plaintiffs being regarded as first mortgagees. But it isobvious that argument cannot hold good, for the simple reason that thedefendant does not claim as mortgagee in the strict sense of the word, but sheclaims the right of maintenance which was declared by the decree, and by whichdecree certain specific Immovable property was charged with such maintenance.

3. Upon these grounds, we think this appeal should bedismissed, and we accordingly dismiss it with costs.

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Kuloda Prosad Chatterjee and Ors. vs. Jageshar Koer (07.06.1899 - CALHC)