Madras High Court
Palaniammal vs Mala on 28 September, 2021
S.A.No.1807 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.1807 of 2002
1.Palaniammal
2.Ganesh Perumal ... Plaintiffs 1&2/ Respondents / Appellants
-Vs-
1.Mala
2.Kiruthika
3.Gandhimathiammal ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree of the Principal District Judge,
Dindigul, made in A.S.No.10 of 1998 dated 20.06.2001 reversing the decree
and judgment of the first Additional District Munsif, Dindigul, made in
O.S.No.1806 of 1990, dated 28.11.1997.
For Appellants : Mr.G.Gomathi Sankar
For R1 : Mr.A.Hariharan
For R2 : Mr.K.Gnanasekaran
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S.A.No.1807 of 2002
JUDGMENT
The plaintiffs in O.S.No.1806 of 1990 on the file of the first
Additional District Munsif, Dindigul, have filed this second appeal.
2.The plaintiffs filed the said suit seeking payment of monthly
maintenance to the tune of Rs.300/- from the first defendant namely
Samundiapillai. The plaintiffs are the mother and son. They filed the said
suit claiming a sum of Rs.300/- from the first defendant Samundiapillai
towards monthly maintenance. They also wanted a charge to be created on
the suit 'A' schedule property. The first defendant who was the husband of
the first plaintiff and father of the second plaintiff remained exparte.
During the pendency of the suit, the property was purchased by the third
defendant Mala. The first plaintiff examined herself as P.W.1 and Ex.A1 to
Ex.A7 were marked. The contesting defendant Mala examined herself as
D.W.1 and Ex.B1 to Ex.B8 were marked. Through witnesses, three
documents were marked. The trial court after a consideration of the
evidence on record by judgment and decree dated 28.11.1997 directed the
first defendant to pay a sum of Rs.300/- towards monthly maintenance in
favour of the first plaintiff. Charge was also created on the 'A' schedule
property. Aggrieved by the same, the contesting defendant filed A.S.No.10
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S.A.No.1807 of 2002
of 1998 before the Principal District Judge, Dindigul. The first appellate
court by the impugned judgment and decree dated 20.06.2001 sustained the
decree for maintenance but set aside the creation of charge over the 'A'
schedule property. The appeal was allowed in favour of the third defendant.
Challenging the same, this second appeal came to be filed. The second
appeal was admitted on the following substantial questions of law:-
“Whether the lower appellate court ought to have held that the sale
(Ex.B1) in favour of the third defendant by the first defendant, the husband of
the first plaintiff during the pendency of the maintenance suit with the prayer
for creating a charge over the suit property is fraudulent and void?”
3. The learned counsel for the appellants submitted that the first
appellate court erred in setting aside the creation of charge over the
schedule 'A' property. He wants this Court to restore the decision of the
trial court by answering the substantial question of law in favour of the
appellants.
4. Per contra, the learned counsel for the contesting respondent
submitted that her vendor Samundiapillai died some time in the year 1998
and that the first appellant Palaniammal as widow is receiving pension. He
wanted this Court to take into account the said aspect. The court below had
granted maintenance decree, since she was otherwise bereft of any
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S.A.No.1807 of 2002
substance or support. The decree directing the grant of maintenance will
have to automatically go. He submitted that the first appellate court has
given convincing reasons for setting aside the creation of charge. He also
would submit that no substantial question of law really arises for
determination. In any event, the contesting defendant is ready to pay a sum
of Rs.1,00,000/- towards full and final settlement of all outstanding issues.
5. I carefully considered the rival contentions and went through the
evidence on record. The relevant statutory provision is Section 39 of the
Transfer of Property Act, 1882 which reads as under:-
39.Transfer where third person is entitled to maintenance:- Where
a third person has a right to receive maintenance or a proviso for
advancement or marriage, from the profits of immovable property, and
such property is transferred, the right may be enforced against the
transferee, if he has notice thereof or if the transfer is gratuitous but not
against the transferee for consideration and without notice of the right
nor against such property in his hands.
6. There is no dispute that Palaniammal and the first defendant
Samundiapillai were wife and husband. This fact stands confirmed in view
of the receipt of pension by the first plaintiff following the demise of her
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S.A.No.1807 of 2002
husband. Therefore, the right of the first appellant to receive maintenance
from her husband Samundiapillai cannot be disputed. That is why, after
granting maintenance, the trial court directed creation of charge over the
subject property. The order granting maintenance was not at all challenged
by Samundiapillai. The question of this Court taking note of receipt of
receiving pension by the first appellant for setting aside the maintenance
decree will not arise at all, when there is no challenge to the same. I must
proceed on the premise that maintenance decree passed in favour of the first
appellant has become final.
7. The suit was filed some time in the year 1984. We are now in the
year 2021. Therefore, the amount of arrears recoverable from the suit
property comes to not less than Rs.1,36,800/-. The first plaintiff is said to
be aged around 80 years. I assume that she has another 10 years. The
purpose of creating charge over the property is only to ensure that money
claim is enforceable. If the first respondent pays a sum of Rs.2,00,000/- to
the first plaintiff, then, the purpose for creating charge would stand
fulfilled. The first appellate court failed to take note of Section 39 of the
Transfer of Property Act. Here is the case where the purchaser purchased
the property knowing fully well about the pendency of the maintenance
claim between the plaintiffs on the one hand and the first defendant on the
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S.A.No.1807 of 2002
other. Ex.A1 is the copy of the notice issued to the contesting defendant. It
is not the case of the contesting defendant that she did not receive the
notice. Only if the transferee did not have notice of the plaintiff's right on
the property, Section 39 of the Transfer of Property Act, 1882 can be
pressed into service. In this case, the transferee had clear notice of the
appellant's right. Therefore, I answer the substantial question of law in
favour of the appellants. The judgment and decree passed by the first
appellate court is set aside. The decision of the trial court is restored.
However, if the first respondent deposits a sum of Rs.2,00,000/- within five
months to the credit of O.S.No.1806 of 1990 on the file of the Additional
District Munsif, Dindigul, the creation of charge over the “A” schedule
property would stand cancelled. On such deposit, the trial court is directed
to send a communication to the jurisdictional sub registrar for entering the
same in the encumbrance register. The second appeal is allowed with this
direction. Registry to return the records to the Additional District Munsif,
Dindigul without any delay. No costs.
28.09.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A.No.1807 of 2002
To
1.The Principal District Judge, Dindigul.
2.The first Additional District Munsif, Dindigul.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.1807 of 2002
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.No.1807 of 2002
28.09.2021
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