Madras High Court
Pavayammal vs Komarasami, Pongiammal, Raja Gounder ... on 14 June, 2002
Equivalent citations: (2002)2MLJ601
JUDGMENT A.S. Venkatachalamoorthy, J.
1. One Pavayammal (Plaintiff) filed a suit against the respondents herein (D-2, D-4, D-1 and D-5 respectively) and one Marayee Ammal (D-3, since dead) in O.S.125 of 1983 on the file of District Munsif Court, Bhavani praying the Court to pass a decree directing the defendants to pay her enhanced maintenance at the rate of Rs.250/- per month towards her food, clothing and residence from the date of suit throughout her life time and for further decree directing the properties described in the schedule annexed to the plaint over which a charge for the proper payment of the maintenance at the previous rate had already been created in O.S.No.171 of 1965 on the file of District Munsif Court, Erode will continue to remain charged for the proper payment of the enhanced maintenance and for other reliefs.
2. The case of the plaintiff is that she is the wife of the first defendant and the marriage was celebrated in the year 1962. The first defendant fell into the bad company of one chennarayan and Natesan and started to ill-treat the plaintiff and finally she was deserted. With a view to deprieve the plaintiff for her maintenance rights, the first defendant conveyed his immovable properties comprising of very valuable and fertile agricultural land and a house property in favour of the said Chennarayan and Natesan and that was nothing but collusion. The plaintiff thereafter filed a suit in O.S.171 of 1965 on the file of District Munsif Court, Erode against the first defendant and the said Chennarayan and Natesan claiming separate maintenance and also praying for creation of charge over the immovable properties alienated by the first defendant in favour of the said two persons, who were also arrayed as defendants 2 and 3 in that suit. The defendants in that suit contested and finally Court passed a decree on 17.8.1967 awarding maintenance to the plaintiff at the rate of Rs.30/- per month with costs and with a charge over the immovable properties. Out of the charged properties described in the schedule to the plaint in the present suit, item No.1 is a landed property and the same was sold by the said Chennarayan and Natesan to one Marappa Gounder of Kavundapadi cusba. After the demise of the said Marappa Gounder, defendants 2 to 4 herein succeeded as legal representatives and that they are in possession of the said items. Defendants 2 to 4 are also bound under law to pay maintenance from out of the charged properties in their possession and enjoyment. Item No.2 was also purchased by Marappa Gounder, who later sold it to the fifth defendant in the suit. According to the plaintiff, after 1967 when the decree came to be passed in O.S.171 of 1965 by the learned District Munsif, Erode, because of the several change in circumstances, necessity arose for the plaintiff to claim enhanced maintenance for herself. Plaintiff would contend that the value of the rupee has gone down at least five times and the cost of living and price of food grains and other goods increased more than ten times between 1967 and 1983 and that on the other hand the income from the charged properties when calculated in rupees also increased more than ten times and that further because of her age and illness, she is unable to do any coolie work as she was doing earlier, to earn for her livelihood. Plaintiff made a claim for enhanced maintenance at the rate of Rs.250/- per month, but the defendants refused to heed to her request and this prompted her to send a registered notice dated 13.7.1980. Though the second defendant gave a reply raising false and untenable contentions, the others did not respond.
3. Defendants 2 and 4 filed a common written statement denying various allegations contained in the plaint and calling upon plaintiff for strict proof of the same. These defendants denied the allegation that the first defendant fell in the bad company of Chennarayan and Natesan and plaintiff was ill-treated and to defeat the plaintiff's right for maintenance, first defendant conveyed his immovable properties. The averment made by the plaintiff that item No.1 of the property was purchased by Marappa Gounder and that thereafter defendants 2 to 4 succeeded to the same as heirs of the said Marappa Gounder has been admitted as true. These defendants would deny the claim of changed circumstances and increase in cost of living, so also the contention that the suit properties in the hands of D-2 and D-4 yield more income. A specific averment in the written statement is made that Marappa Gounder purchased item No.1 from Chennarayan and Natesan without knowing the filing of the suit by plaintiff and passing of the decree and creation of charge over the properties. A claim is also made by these defendants that it was Marappa Gounder who reclaimed item No.1 of the scheduled property which was unfit for cultivation and who also dug a well. A contention is raised that income from the property is not enough even to cover the the interest for the amounts invested in the lands. According to these defendants the cost of materials and labour have increased and consequently the income from the land has gone down and that being the position, plaintiff would not be entitled for enhanced maintenance.
4. The second defendant also filed an additional written statement stating that their father purchased suit property from Chennarayan and Natesan and the same was charged only to the extent of Rs.30/- per mensem and as the creation of charge in the property was only for Rs.30/-, in the absence of anything in the Judgment in O.S.171 of 1965 to indicate that the charge created was variable as per the future exigencies of the cost of living, the claim of the plaintiff cannot be sustained.
5. Fifth defendant filed a separate written statement, who also denied all the allegations contained in the plaint as false and calling upon the plaintiff for strict proof of the same. A claim is made in the said written statement that all the allegations in regard to the filing of the suit in O.S.171 of 1965 on the file of District Munsif Court, Erode and passing of the decree are not known to him as he was not party in the said suit. The 5th defendant is categorical that without knowing the right of the plaintiff against her husband, he had purchased the property for valuable consideration of Rs.1,500/- from one Subramania Gounder and Marappa Gounder and that this defendant was not informed at all about the prior proceedings. According to this defendant, item No.1 of the property alone is sufficient to satisfy the decree. With regard to the claim of change in circumstance and cost of living, this defendant has reiterated what has been claimed by defendants 2 and 4.
6. The learned District Munsif, Bhavani framed as many as five issues for consideration. At the time of trial, plaintiff examined herself as PW-1 and marked Exs.A-1 to A-5. On the side of defendants, second defendant was examined as DW-1. Learned District Munsif after elaborately considering the materials on record, came to the conclusion that in view of the various change in circumstances and increase in cost of living, plaintiff would be entitled for maintenance of Rs.120/- per month. The trial Court also held that there will be a charge over the plaint scheduled properties as claimed by the plaintiff.
7. Being aggrieved by the said Judgment and decree, defendants 2 and 4 filed an appeal in A.S.No.44 of 1988 on the file of Additional District Court, Erode. Plaintiff filed cross objection in the said appeal claiming that the trial Court ought to have awarded maintenance at the rate of Rs.250/- per month. The learned District Judge, Erode by his Judgment dated 15.3.1989 held that the plaintiff would be entitled for maintenance only at the rate of Rs.120/- per month, but however held that there will be no charge over the suit properties. The cross objection filed by the plaintiff was also dismissed.
8. Being aggrieved by the Decree and Judgment of the lower appellate Court, plaintiff has filed the above appeal. At the time of admission, this Court framed the following substantial question of law for consideration, "Whether the purchasers of the charged properties having notice of a charge decree for maintenance over the same are liable for enhanced maintenance amount?"
9. Before this Court, the learned counsel for the appellant/plaintiff contended that Marappa Gounder, father of defendants 2 and 4, in fact purchased the plaint scheduled properties from Chennarayan and Natesan with full knowledge about the decree in O.S.171 of 1965 on the file of District Munsif Court, Erode and that being so, it would be futile to contend that the decree will not bind these respondents (defendants 2 and 4) and that further the charge created is for maintenance amount (i.e.) both originally fixed and enhanced later. The learned counsel also made yet another submission to the effect that the Courts below ought to have awarded maintenance at the rate of Rs.250/- per month as claimed.
10. The learned counsel appearing for the respondents 1 and 2 (D-2 and D-4) contended that there is not even a pleading in the plaint that their father Marappa Gounder purchased item No.1 of the scheduled property with knowledge about the charge created over the said property in O.S.No.171 of 1965 on the file of District Munsif Court, Erode and Marappa Gounder being a bona fide purchaser for value, without notice, no charge can be created over the item No.1 of the plaint scheduled property. Secondly it is contended that even assuming that Marappa Gounder was aware about the charge over the said item of property and purchased the same with full knowledge, certainly the property cannot be over burdened with reference to the increased maintenance amount, if any. Thirdly it is contended that the claim for maintenance at the rate of Rs.250/- is highly excessive.
11. The first question that arises for consideration is whether the plaintiff has to fail on the simple ground that there is no pleading to the effect that Marappa Gounder purchased the property with knowledge of the decree in O.S.No.171 of 1965 on the file of the District Munsif Court, Erode. Certainly it is for the person who alleges that the vendee purchased property with knowledge about the decree with charge; that is to say, in this case Marappa Gounder, who has to prove.
12. There is no dispute between the parties that first defendant is the husband of the plaintiff, who sold the plaint scheduled properties to Chennarayan and Natesan somewhere in the year 1964. The suit O.S.171 of 1965 on the file of District Munsif Court, Erode was filed by the Plaintiff against the first defendant so also against two others - Chennarayan and Natesan, praying the Court to pass a decree granting maintenance and also to create charge over the plaint scheduled properties. That suit was decreed on 17.8.1967 and the Court held that the plaintiff would be entitled to receive maintenance at the rate of Rs.30/- per month. The Court also created a charge over the plaint scheduled properties in the hands of said Chennarayan and Natesan. Admittedly, the father of the defendants 2 to 4 viz., Marappa Gounder purchased the suit properties after the said decree from Chennarayan and Natesan. Before filing this suit, a notice dated 13.7.1980 was issued to the defendants, wherein it is specifically averred that they are liable to pay maintenance out of the charged properties and on account of the highly increased cost of living and larger income obtained from out of the charged properties and other properties and earnings made by the husband, the plaintiff would be entitled for enhanced maintenance. For this notice, a reply was sent only by the second defendant Kumarasamy Gounder through his counsel and the said reply is dated 17.7.1980. In the said notice, it has been clearly stated, "My client as the legal representative of the deceased Marappa Gounder, had been paying the maintenance to your client as per the decree passed in the above suit."
Of course, if one examines the plaint filed under Order 7 Rule 1 of Code of Civil Procedure, it could be seen, there is no positive statement made to the effect that Marappa Gounder, father of the defendants 2 and 4 purchased the property with knowledge about the decree passed in O.S.171 of 1965 on the file of District Munsif Court, Erode. It is also true, that in paragraph 6 of the written statement filed by the defendants 2 and 4, a contention is raised that Marappa Gounder purchased item No.1 of the suit property from Chennarayan and Natesan without knowing the filing of suit and passing of decree and creation of charge over the properties. But in the additional written statement filed by the second defendant, in the opening sentence it is stated as under, "This defendant humbly submits that when this defendant's father Marappa Gounder purchased suit property from one Chennarayan and Natesan, the same was charged over to the extent of Rs.30/- per mensem."
The second defendant, who deposed as DW-1, in the cross examination has clearly admitted as under, ";fpiuak; th';Fk;nghJ L U.30 kl;oYk; ,Ue;jJ. .................
vd; jfg;gdhh; U.30 kl;Lk; fl;Lntd; vd;W xg;ge;jk; fz;L vGjp th';ftpy;iy. thjpapd; $%tdhk;r ghj;jpaij xg;g[f;bfhz;L fpuak; th';fpdhh;."
So, if this Court examines the vital admissions made before the Court in the cross-examination of DW-1 in the background of what has been stated in the reply notice Ex.A-5 and the additional written statement of second defendant referred supra, it is crystal clear that the defendants though raised a contention in the written statement that Marappa Gounder was a bona fide purchaser for value without notice, the same was given up in evidence by the second defendant. The parties agitated the only issue as to whether the plaintiff would be entitled for enhancement of maintenance and if the answer is 'yes', whether the charge has to be created for the enhanced maintenance amount as well. This finding is further strengthened by the fact that when defendants 2 and 4 being aggrieved by the fact that the trial Court in O.S.125 of 1983 on the file of District Munsif Court, Bhavani granted decree creating charge even in respect of increased maintenance amount, when filed an appeal in A.S.44 of 1988 on the file of District Court, Erode, has not raised a point anywhere that Marappa Gounder purchased property without knowledge of the charged decree in O.S.171 of 1965. On the other hand, what has been stated therein is, "Lower Court failed to see that the appellants are not liable to pay anything more than Rs.30/- per month and the claim of the plaintiff if any should be against her husband personally."
Consequently, it has to be held that when Marappa Gounder purchased the plaint scheduled property, subsequent to the decree in O.S.171 of 1965, he purchased with full knowledge of the decree passed in the said suit.
13. In view of the above finding, the submission made in the plaint that there is no averment that Marappa Gounder purchased the properties from Chennarayan and Natesan with notice and that being so, on the sole ground the Courts below ought to have dismissed the suit. Even assuming what is contended by the learned counsel for the appellant/plaintiff is factually correct, inasmuch as both the parties knew well at the time of trial the nature of controversy between them and the issues which the Court is going to decide, absence of pleading or failure to frame necessary issues would not in any way go against the plaintiff. In this regard, the following rulings will be relevant,
(b) KAMESWARAMMA v. SUBBA RAO, ,
(c) BANK OF INDIA v. KEKHIMONI DAS, ,
(d) MD.YUSUF v. MD.YUSUF, AIR 1958 MADRAS 527.
14. The case of the plaintiff is that in view of the increase in the cost of living and value of rupee having gone down several times, and when at the same time defendants are getting more income from the suit properties, the plaintiff must be granted enhanced maintenance at the rate of Rs.250/- per month. As per Section 25 of the Hindu Adoptions and Maintenance Act, 1956, a person can claim enhanced maintenance if there is a material change in the circumstances justifying alteration of the amount fixed by way of compensation. It is necessary to extract hereunder the said provision in verbatim, "25. The amount of maintenance, whether fixed by a decree of court or by agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances justifying such alteration."
15. The question that arises for consideration is whether there is a material change in the circumstances justifying alteration and if the answer is 'yes', what is the reasonable amount that can be fixed as maintenance, in the facts and circumstances of the case. The plaintiff in her evidence has categorically stated that because of the ill-health, she is not in a position to go to work regularly and earn her livelihood. That apart, she has also stated before Court that cost of living has gone up very much and the value of the rupee has gone down much. She has further deposed before the Court that the value of the land is Rs.1,00,000/- per acre and because of the fertility of the soil and copious supply of water available in the well, item No.1 of the property will get at least a sum of Rs.20,000/- as net income. Even though second defendant as DW-1 denied this, it has to be stated that he has not come out openly as to how much income he was deriving from the land every year, which would indicate that he is not inclined to come out before Court with truth. In such circumstances, this Court is rather inclined to accept the testimony of PW-1 substantially. That apart, this Court can certainly take judicial notice of the fact that the cost of living in 1982 was more when compared to that was in the year 1967. A similar view was taken in the decision (DB) (Indira Bai v. B.A.Patel). Hence this would constitute a change of circumstance.
The plaintiff, exercising her right to claim maintenance, had obtained a decree in 1967 and the Court fixed maintenance payable at the rate of Rs.30/- per mensem. Subsequently Plaintiff gave notice in the year 1980 claiming enhanced maintenance at the rate of Rs.100/- per month. As there was no response from the defendants, she filed the present suit on 23.2.1982 along with a petition under Order 33 Rule 1 of Code of Civil Procedure seeking permission to file the suit informa pauperies. The suit was numbered as O.S.125 of 1983 and ultimately the trial was held in 1987 and Judgment was delivered. According to the plaintiff, the defendants 2 to 4 are getting a net income of Rs.20,000/- from item No.1 of the plaint schedule properties, which this court has already indicated can be taken as very near to truth. Even assuming that the figure 20,000 is on the higher side, this Court considers it safe to adopt Rs.15,000/- per year would be the net income from item No.1 of the property. When in 1967 the Court fixed Rs.30/- per month as maintenance, certainly plaintiff cannot be said to be unfair to claim Rs.100/- per month as maintenance in the year 1980. Of course, this Court is aware of the fact that while in the notice Ex.A-2, plaintiff claimed Rs.100/-, at the time of filing of the suit, she claimed Rs.250/- per month as maintenance. That appears to be slightly on the higher side. In all these matters, the Court cannot calculate the amount with mathematical accuracy, but can only to strike at a balance. It has to be noted that the suit was tried only in the year 1987 and decree came to be passed in that year. Taking an overall view of the facts and circumstances, this Court considers that it is safe to fix the maintenance at the rate of Rs.200/- per month payable to the appellant/plaintiff. In this view of the matter, appeal has to be allowed in part.
16. The learned counsel for the defendants would put forth a contention that creation of charge on the property in O.S.171 of 1965 was only to the extent of Rs.30/- and there is nothing in the Judgment in O.S.171 of 1965 that the charge created was variable for future exigencies of cost of living. This submission of the learned counsel for the respondents/defendants cannot be sustained. Once a charge is created over the properties, which would stand as a security for the payment of maintenance, the charge will continue to be there even if the maintenance amount is increased due to change of circumstances and would also be available for the entire amount (i.e.,) including enhanced maintenance. That apart, the second defendant as DW-1 has categorically admitted in the cross examination that at the time of purchase it was not agreed between the vendor and purchaser that the purchaser would pay only a sum of Rs.30/- per month. It is necessary to quote the exact wordings from the evidence of DW-1 (cross-examination), which reads as under, "vd; jfg;gdhh; U.30 kl;Lk; fl;Lntd; vd;W xg;ge;jk;
fz;L vGjp th';ftpy;iy"
17. The following rulings can be usefully referred to at this juncture.
(a) KAVERI AMMA v. PARAMESWARI AMMA, , where the Court observed as under, "A Hindu widow, having a decree for maintenance charged on certain properties of the joint family, is entitled to claim enhanced maintenance out of those properties later, if the circumstances have altered justifying enhancement of maintenance even when the properties have passed into the hands of an alienee purchasing for consideration with notice of the decree obtained by the widow for maintenance."
(b) In VEDAVATHI WILLIAMS v. RAMA BAI, AIR 1964 MYSORE 265, a Division Bench of Mysore High Court observed as under, "Section 39 of the Transfer of Property Act employs the words "where a third person has a right to receive maintenance." The right to receive maintenance about which this section speaks is not only the right to receive maintenance in the first instance but also the right to receive enhanced maintenance which may be claimed if there is a material change of circumstances. For the same reasons for which the plaintiff would have been able to enforce her right to receive maintenance against defendant 2 on the property purchased by her even if there was no decree in her favour we should, in my opinion say that the plaintiff has also the right to enforce her right to receive enhanced maintenance against defendant 2 and the property purchased by her. It is not, in my opinion, necessary to enforce that right to prove that defendant 2 had notice of any intention on the part of any one to defeat that right. What ensures the success of the right to enhanced maintenance is the fact that defendant 2 had notice of that right." "
18. As far as 5th defendant, who purchased item No.2 of the plaint scheduled property is concerned, inasmuch as he failed to give any reply to the notice sent by the plaintiff in the year 1980 and that further evaded to appear before Court and explain his stand, the Court has only to proceed on the basis that in the facts and circumstances of the case, the 5th defendant when he purchased item No.2 of the plaint scheduled property from Marappa Gounder had full knowledge of the decree in O.S.171 of 1965 on the file of District Munsif Court, Erode. In that event, there is bound to be a charge over the item No.2 of the plaint scheduled property as well.
19. In the result, the second appeal is allowed in part with costs. The appellant/plaintiff is entitled to a maintenance of Rs.200/- per month from the date of suit throughout her life time. The plaint schedule properties will be available as security for the due payment of enhanced maintenance amount as well (i.e.) the charge already created in O.S.No.171 of 1965 on the file of District Munsif Court, Erode is also available for the enhanced compensation.