Karnataka High Court
Siddegowda vs Lakkamma And Ors. on 19 August, 1980
Equivalent citations: AIR1981KANT24, ILR1981KAR96, 1980(2)KARLJ326, AIR 1981 KARNATAKA 24, ILR (1981) 1 KANT 96, (1981) HINDULR 40, (1980) 2 KANT LJ 326
JUDGMENT
1. This Second Appeal under Section 100 of the Civil P. C. as it was before the J977 amendment is by the 2nd defendant against the concurrent findings of the Court below.
2. The facts ma briefly stated as follows:
The 1st respondent, plaintiff filed a suit for maintenance against the respondent defendant-I who had deserted her for over a period of eight years. She made the appellant-Defendant N 2 a party to the proceedings because about three months prior to the filing of the suit the appellant had purchased from Defendant No. 1 (Respondeut-2) two items of property described in the suit as items 3 and 4 of the suit schedule. The respondent plaintiff among, other reliefs, sought for a charge to be created on suit schedule items 3 and 4 as well, for ensuring and securing payment of her maintenance if she succeeded in the suit.
3 Among several issues framed by the trial Court issue No. 5 was as follows:
"Is not the 2nd defendant a bona fide purchaser for value without notice?"
The trial Court came to the conclusion, on appreciating the evidence on record that the sale in favour of the appellant as pet Exhibit-D1 was a transaction which was entered into between the defendants after coming to know that the plaintiff was going to present a suit for maintenance. It was in that circumstance that the trial court held that under the terms of Section 39 of the T. P. Act the suit schedule properties 3 and 4 were liable to be charged for ensuring payment of maintenance to the plaintiff. Aggrieved by the judgment and decree in so far as it affected the suit schedule properties 3 and 4 the appellant preferred R. A. 278/1972 in the lower appellate Court. The lower appellate Court also came to the conclusion, on appreciating the evidence on record, that issue No. 5 should be answered against the appellant.
4. In this Court, the learned Counsel appearing for the appellant has urged many grounds in the grounds of appeal but they are mere repetitive grounds and can be summarised into two grounds only.
5. The first of such grounds is that the Courts below erred in coming to the conclusion that the appellant had not passed any consideration in respect of Exhibit-DI the sale deed conveying suit schedule properties 3 and 4. This conclusion is not the finding of the Court on an issue raised in the suit. The conclusion reached was solely in connection with issue No. 5 which was raised only to test whether the appellant was a bona fide purchaser without notice or with notice, and solely for the purpose of creating a charge in terms of Section 39 of the T. P. Act. Therefore, the mere observations made by the trial Court in the matter of passing of consideration in respect of the transaction as per Exhibit D-1 can at best be observations not amounting to voiding the sale transaction under Exhibit D-1. In fact, it is not voided. Therefore, this ground is not of much assistance to the appellant in pointing out any error of law on the relief granted on the basis of the finding in respect of Issue No. 5.
6. The 2nd ground is to the effect that even after the alienation under Exhibit D-1 on account of the purchase made of another garden land under Exhibit D2, the 2nd respondent-lst defendant had sufficient property which was adequate security in respect of which alone the charge should have been created for the payment of maintenance ordered by the Courts below and it was not correct in law for the Courts below to create a charge in respect of the properties conveyed to the appellant under Exhibit D1. In support of this ground, the learned Counsel has relied upon the decision of Andhra Pradesh High Court reported in the case of Banda Manikyam v. Venkayamma, (AIR 1957 Andh Pra 710). In the said case, learned Judge observed as follows:
"Though the right of the wife to separate maintenance does not form a charge upon her husband's property, ancestral or self-acquired, yet, when it becomes necessary to enforce or preserve such a right effectively, it could be made a specific charge on a reasonable portion of the property. If the right of maintenance is imperilled or jeopardised by the conduct and dealings of the husband or father with reference to his properties, the Court can create a charge on a suitable portion thereof, securing the payment of maintenance to the wife or children."
7. It is the learned Counsel's contention that once it was proved that the husband had other properties, it was unnecessary to create change on the properties alienated by the appellant. The learned Counsel has relied upon that portion of the observation which is underlined by me.
8. I do not see how that is really, of any assistance to the appellant because the charge is created in terms of statutory provisions contained in S. 39 of the Transfer of Property Act. Once the Courts below came to the conclusion based on the finding of facts that the transfer under Exhibit DI was not bona fide transfer without notice, then S. 39 of the T. P. Act, should operate without hindrance as was held by this Court in the decision rendered by a Division Bench of this Court in the case of Kare More Sharabhanna Rudrappa v. Basamma, (AIR 1962 Mys 207). The Court held as follows:
"After that partition, the third defendant purported to gift all his properties in favour of defendants 4 and 5 who are the sons of the second defendant. The Courts below have, come to the conclusion that the partition in question was effected with a view to defeat the claims of the plaintiffs and that the plaintiffs had been compelled to leave the house some time prior to that partition. They have also come to the conclusion that the Gift Deed Exhibit B-2 (dated 23-5-1952) in favour of defendants 4 and 5, the sons of the second defendant, was also executed with the same object in view.
In the opinion of the first appellate Court, despite the gift under Ex. B2, the plaintiffs are entitled to a charge over the properties gifted in view of S. 39 of the T. P. Act. The Courts below did not set aside either the partition deed or the gift deed as the transactions covered by those deeds had been voluntarily entered into by the third defendant whatever might have been his motive in so doing. Therefore, all that we have to consider in this appeal is whether the provisions contained in S. 39, T. P. Act can be availed of in justification of the charge granted by the Courts below...... The next question is, had the plaintiffs right to receive maintenance from the profits of the suit property? If they had such a right, then the can rely on S. 39 in support of the charge granted in their favour.
9. After discussing several cases including the decision rendered by Viswanatha Sastry, J., as he then was in Banda Manikyam's case (AIR 1957 Andh Pra 710), the Division Bench came to the conclusion that:
"The charge in question is claimed not under Section 18 or under S. 20 of the "Act" but under S. 39 of the T. P. Act. We have earlier come to the conclusion that the wife as well as the minor children have a right to receive maintenance from the profits of the immovable property of the husband or the father as the case may be."
10. In fact, the contention urged in the said case of Kare More Sharabanna Rudrappa v. Basamma was somewhat similar to the contention urged in this appeal by the learned Counsel for the appellant.
11. Therefore, the Courts below correctly extended the benefit to the plaintiff which flows from the provisions of S. 39 of the T. P. Act by creating a charge on suit schedule properties 3 and 4 without voiding the transaction under Exhibit D-1. I, therefore, see no error of law in the judgments of the Courts below in so far as the appellant is affected.
12. In the result, this second appea1 is dismissed. But, in the circumstances of the case, parties will bear their respective costs in this Court.
13. Appeal dismissed.