1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.39 OF 1993. Tejabai W/o Rama Yedge, Age 45 years, Occ.Household, R/o village Lohara, Taluka Udgir, Dist. Latur. ... Appellant. Versus Rama S/o Ganpati Yedge, died through his L.Rs. 1. Sonaprao S/o Laxman Kotead, Age 58 years, Occ.Agri., R/o Narsingwadi, under village Lohara, Tq. Udgir, Dist. Latur. 2. Shivaji S/o Gangadhar Momale, Age 16 years, Minor under guardian of natural father Gangadhar S/o Tukaram Momale, Age 39 years, Occ.Agri., R/o Lohara, Tal.Udgir, Dist. Latur. ... Respondents. ... Mr. P.P.Dawalkar, advocate holding for Mr.S.P.Deshmukh, advocate for the appellant. Mr.B.B.Yenge, advocate for the Respondent Nos.1 and 2 absent. ... 2 CORAM : V.R.KINGAONKAR,J. Date : 06.11.2009. ORAL JUDGMENT : 1. This Second Appeal arises out of judgment rendered by learned Additional District Judge, Latur in RCA No.97/1985, whereby dismissal decree in suit (RCS No.81/81) came to be confirmed. 2. The appellant is wife of deceased defendant Rama. The marriage was performed somewhere in 1965. She resided with him till 1971. She claimed separate maintenance allowance under provisions of Section 488 of the Cr.P.C. (Old) by filing proceedings before the Court of learned Judicial Magistrate (F.C.), Udgir in 1972. The spouses settled the matter outside the Court. She started residing with the husband as a result of such compromise. 3. The plaintiff's case in the trial Court was that deceased defendant became extravagant and was addicted to liquor. He used to ill-treat 3 her. He had beaten up her. On one occasion he attempted to administer poison to her. Thus, she was given cruel treatment by him during the period of consortium. He ousted her on 15.1.1981 from the matrimonial home. Since then she is residing with her parents. He has not provided any maintenance allowance to her. He is owner of agricultural lands and is able bodied person. She claimed separate maintenance at the rate of Rs. 150/- p.m. 4. The deceased defendant resisted the suit claim on various grounds. He denied that the plaintiff (appellant) was ill-treated by him. He asserted that he was required to alienate agricultural lands to provide medical treatment to his old aged ailing mother. He does not owe any landed property. He was unable to provide separate maintenance allowance. He contended that the wife has abandoned him without any lawful excuse. Consequently, he sought dismissal of the suit. 5. The parties went to trial over issues 4 framed below Exh.25. They adduced oral and documentary evidence in support of the rival contentions. The learned Civil Judge held that the plaintiff was unable to establish the allegations regarding matrimonial cruelty meted out to her. He reached conclusion that the plaintiff was guilty of desertion and hence, was not entitled to claim separate maintenance allowance. The suit was dismissed. The plaintiff's appeal also came to be dismissed. 6. Heard learned counsel Mr.Dawalkar, holding for Mr.S.P.Deshmukh. None appears for the Respondent. 7. At the outset, it may be noticed that original defendant Rama died during pendency of the appeal before the District Court. In his place, the present two Respondents have been substituted as the legal representatives. In fact, they are unrelated to him. They are the purchasers of certain land owned by him. No charge was created on either of the property of deceased defendant Rama. The question would be 5 as to whether the subsequent purchasers are liable to pay the maintenance allowance. They were joined at the stage of appeal and had no opportunity to defend themselves by filing written statement or participating in the suit proceedings. The added Respondents can not be treated as legal representatives of deceased Rama. 8. The Second Appeal was admitted on following substantial questions of law : "(i) Whether the Courts below were right in declining the claim of the maintenance of appellant on and out of the ancestral joint family property of deceased Respondent.? (ii) Whether the Courts below were right in dismissing the claim of the appellant for charge over the property of the Respondent.?" 9. The pleadings of the appellant go to 6 show that the suit was filed when the deceased -Rama was indulging in the alienations of the agricultural land. The main contention of the wife was that she was ill-treated. She asserted that after period of about five (5) years he started beating her and was not giving sufficient food and clothing at the instance of his mother. The trial Court as well as the first appellate Court rendered finding of fact that mother of deceased defendant was not alive during relevant period. According to the wife, about one year before her ouster from the matrimonial house, the ill-treatment has started. The mother of deceased defendant was no more since at least one and half years before the alleged ouster of the plaintiff. Both the Courts appreciated oral evidence tendered by the parties. The finding of fact the appellant failed to prove alleged matrimonial cruelty is supported by material on record. It can not be regarded as perverse. 10. So far as provision of Section 18 of Hindu Adoptions and Maintenance Act, 1956 is concerned, it would be clear that for claiming 7 separate maintenance allowance a Hindu wife would be required to establish her case within the meaning of sub-clause 2(a) to 2(g) of Section 18. It is the specific contention of the appellant that her case come within ambit of sub-clause 2(b). The cruelty alleged must be of such nature so as to cause a reasonable apprehension in the mind that it will be harmful or injurious to live with her husband. It appears that the appellant pleaded, therefore, that on one occasion he had attempted to administer poisonous substance to her. On consideration of oral evidence, it is manifestly clear that she did not specify so- called instance of his attempt to administer poisonous substance to her. What she stated before the Court is that he asked her to drink a glass of milk but she had refused to do so because she suspected some foul play. How come that she could gather knowledge that drinking of the glass of milk would be injurious to her health is not made clear. There is no reliable material to believe that she was being subjected to matrimonial cruelty during the relevant period. Both the Courts below have duly 8 appreciated the evidence of the witnesses. In fact, if he had no intention to continue the consortium with the plaintiff, he would not have accepted the terms of the compromise. Secondly, after such compromise in 1972, she resided with him for almost about 7/8 years. On her own showing, till before one year of her ouster from the matrimonial house, the relationship was of cordial nature. Nothing is on record to show as to why abruptly there was change in the attitude of the deceased defendant (husband). Considering these aspects, there is no substantial reason to interfere with the concurrent findings of facts in regard to the absence of matrimonial cruelty meted out to the plaintiff. 11. Though the ground is raised in respect of failure of the Court to create charge over the joint property, yet, this also can not be treated as substantial question of law. For, once the appellant (plaintiff) was found ineligible to receive separate maintenance allowance, there was no question of creating charge on the joint Hindu family property. It is argued that the 9 Respondents are liable to pay because of legal fiction available U/s 39 of the Transfer of Property Act, 1882. The relevant provision would fasten liability on third person only when it is shown that he has notice of the claim for separate maintenance allowance or if the transfer is proved to be gratuitous. As stated earlier, the Respondents had no opportunity to prove the available defences. The liability can not be enforced if it is proved that the transfer was for consideration or without notice of such right. No such issue was raised during the course of the trial. The appellant did not seek framing of such issue by the appellate Court and, therefore, now it is not open to consider such kind of request to enforce the right against the third person that is the Respondents who have been subsequently added. 12. In the result, the appeal fails and is dismissed. No order as to costs. (V.R.KINGAONKAR,J.) asp/office/sa3993 Authenticated Copy (Pvt.Secy. to Hon'ble Judge)