Madras High Court
Rajakannu vs Sarojammal And Seven Others on 9 September, 1999
Equivalent citations: 2000(1)CTC763
ORDER
1. The plaintiff is the appellant herein.
2. The suit was filed by the plaintiff for declaration and permanent injunction. The property measuring 1.13 acres comprised in S.No. 229/3 and situate in the village of Senthurai, is the suit property. The 1st defendant is the wife of the 4th defendant. Defendants 2,3,8 and 9 are the children of the defendants 1 and 4 the 7th defendant is the 1st wife of the 4th defendant. Defendants 5 and 6 are the children of the 7th defendant born of the 4th defendant. The suit property belonged to the 4th defendant, who on 12.6.1975, after receiving a consideration of Rs. 3,600 executed a sale in favour of the plaintiff. The sale was executed by the 4th defendant himself and as guardian of his minor children, defendants 8 and 9. As per the recitals in the sale deed, the promissory note executed by the 4th defendant on 1.6.1974 was discharged. The plaintiff is a bona fide purchaser of the property for value. The defendants 1 to 3 filed a suit in O.S.No. 344 of 1975 for payment of maintenance and obtained a decree collusively. In execution of the said decree, the suit property was brought up for sale. The defendants 1 to 3 are disputing the right and title of the plaintiff to the suit property. All the defendants are residing in the same house in the village of Kattuthular. The plaintiff is not a party to the maintenance suit. Hence, the decree is not binding upon him. Since the title of the plaintiff to the suit property is denied, the plaintiff has filed a suit for declaration, restraining the defendants from bringing the properties to auction.
3. The written statement filed by defendants 1 to 3 was adopted by defendants 8 and 9, where they contended as follows:
The suit is not maintainable. The sale deed dated 12.6.1975 is not true. It is not valid and it is not supported by consideration. It will not bind the defendants. There was no necessity for the 4th defendant to borrow any amount from the plaintiff. The said debt will not bind defendants 1 to 3. The sale deed did not come into force. The allegation that a decree has been obtained in O.S.No. 344 of 1975 collusively, by the defendants, is false. It is also not true to allege that the defendants are all residing in the same house in the village Kattuthular. The plaintiff is not entitled to either declaration or injunction. Proper court fee is not paid. The plaintiff bound to pray for cancellation of the decree. The defendants 1 to 3 were driven out of the house by the 4th defendant. Therefore, the defendants by notice dated 2.4.1975 demanded the 4th defendant to pay maintenance to them. Later, they followed it up with a suit. The decree passed in O.S.No. 344 of 1975 was confirmed in A.S.No. 294 of 1977. Since no amount was paid towards the decree, an application in E.P.No. 45 of 1977 was filed. Again E.P.No. 709 of 1980 was filed to realise the decree amount. With a view to defeat and delay, the suit has been filed. The defendants 8 and 9 with reference to their 2/3rd share in the property, filed a suit in O.S.No. 26 of 1976, which is pending. Therefore, the defendants pray that the suit may be dismissed with costs.
4. The 7th defendant filed a written statement, which has been adopted by the defendants 5 and 6, which runs as follows:
The plaintiff is put to strict proof of the allegation that he is the purchaser of the property for valuable consideration. The defendants never attempted to interfere with the plaintiff's possession. The defendants therefore pray that the suit may be dismissed with costs.
5. In support of his case, the plaintiff examined himself as P.W.1 and Exs. A1 to A4 were marked on his side. The 1st defendant examined herself as D.W.1 and Exs. B.1 to B 7 were marked.
6. The learned District Munsif, Ariyalur, by his judgment dated 9.7.1985 dismissed the suit with costs. Aggrieved by the said decision, the plaintiff preferred an appeal to the Sub- court, Ariyalur, in A.S. No. 155 of 1985. By its judgment dated 30.6.1987, the lower appellate court allowed the appeal in part and modified the judgment and decree of the trial court, holding that the plaintiff is entitled 1/3rd share in the suit item, subject to the charge under the maintenance decree. The plaintiff has therefore, come up with this appeal. The defendants 1 to 3 and 9 have come up with cross-objections.
7. At the time, when the second appeal was admitted, the following substantial question of law was formulated for consideration:
"Is the 1st defendant entitled to charge over suit property punja 1.13 acres on the basis of maintenance decree against the 4th defendant, the plaintiff's vendor, when her husband, the 4th defendant himself died and she got substantial properties from her husband as his heir?
8. THE POINT: The suit was filed by the 2nd wife of Samidurai, claiming maintenance for herself and her minor daughters Rajakumari and minor Lakshmi. In that suit, the property comprised in S.No. 229/3 situate in the village of Kattuthular was the 1st item. The suit was decreed with costs, directing the husband to pay a maintenance of Rs. 50 per month to the wife and Rs. 25 to the children. A further decree was passed directing the husband viz., the father of the minor children to pay a sum of Rs. 500 to each of the daughters for their marriage expenses. The correctness of the said decision was challenged by the plaintiff in A.S.No. 294 of 1977. The judgment and decree of the trial court was confirmed, however holding that the minor defendants 2 and 3 are not entitled to marriage expense of Rs. 500. The plaintiff has purchased the property on 12.6.1975. The suit for maintenance was filed on 11.4.1975. Therefore, the sale is hit by the rule of lis pendent. However, the sons of Sarojammal and Samidurai filed a suit in O.S.No. 26 of 1976 for partition and separate possession of their 2/3rd share in the property. The plaintiff herein was impleaded as the 6th defendant. A decree was granted as prayed for. It was held in that suit that the 6th defendant is a bona fide purchaser for value. Further, it was held that a decree is granted in favour of the plaintiffs in the suit viz., the sons of Sarojammal and Samidurai for 2/3rd share in the suit properties subject to the equity of the 6th defendant. The sons of Sarojammal and Samidurai have attained majority, for their age is given as 9 and 2 years respectively, on the date of the suit in O.S.No. 26 of 1976. Therefore, the 1st plaintiff in O.S.No. 26 of 1976 would have attained majority in 1985, while the 2nd plaintiff would have attained majority in the year 1992. It is also to be pointed out that the two minor plaintiffs in the maintenance suit viz., Rajakumar and have also attained majority. They have been described as aged 8 and 4 respectively in the year 1975. Therefore, they would have attained majority by 1983 and 1989. Hence, the decree for maintenance granted is no longer enforceable as regards minor plaintiffs 2 and 3 in O.S.No. 344 of 1975 in view of their having attained majority and in view of the fact that they have been married off. There is nothing to show that in pursuance of the decree obtained by the minor plaintiffs in O.S.No. 26 of 1976, they had obtained any final decree and took delivery of the property. It is also pertinent to point out that when the maintenance suit was pending, the person who was liable to pay the maintenance died viz., the husband of the 1st plaintiff and father of the plaintiffs 2 and 3, after passing of the decree in O.S.NO. 344 of 1975. Therefore, the position is that the two minor children, who were entitled to payment of maintenance had attained majority and have been married off and therefore, their claim for maintenance will no longer survive nor will be enforceable.
9. The male children of Samidurai and Sarojammal had obtained a preliminary decree for partition of their 2/3rd share in the property. They have also become majors. The father Samidurai died after passing of the decree in the maintenance suit, with the result that as regards his 1/3rd share, his wife, two sons and two daughters would become each entitled to a share in the same. The widow of Samidurai had only a charge for payment of the maintenance due to her by reason of the decree passed in her favour. But, on account of the death of her husband, she becomes an heir of her husband and become entitled to 2/3rd share in the 1/3rd share left behind by her husband. In the partition suit, the purchase by the plaintiff has been held to be valid and he has been found to be a bona fide purchaser for value as a result, it was held that he is entitled to equities, as regards item No.1 of the property. This partition suit was laid by the minor sons of Samidurai represented by their mother and guardian Sarojammal. In the maintenance suit, the plaintiff herein was not made a party but in the partition suit only he has been made a party. A finding given in the maintenance suit with regard to the nature and character of sale in his favour is therefore, not binding upon him. When Sarojammal, representing her sons as a guardian filed a suit for partition, the plaintiff herein was impleaded as a defendant. Though the suit for maintenance was filed even in the year 1975, it was over in the year 1977 only when the decree was passed. Whereas the suit for partition was filed even in the year 1976 apparently when the suit for maintenance was pending. In fact from the decree we find that the plaint for partition was presented on 31.7.1974. When they filed a plaint on 31.7.1974, they chose to implead the plaintiff herein as a defendant in the suit. Whereas, in the maintenance suit, inspite of the knowledge of the fact that one of the items of the properties has been sold by the husband and father of the plaintiff to Rajakannu, the plaintiff herein, they did not choose to implead him. Therefore, the finding given with regard to nature and character of sale in favour of the plaintiff by the 4th defendant rendered in the maintenance suit, in the absence of the plaintiff herein as a party, will not therefore, bind the plaintiff herein. But, in the suit of partition, there is a finding in favour of the purchaser as a bona fide purchaser for value.
10. According to Section 100 of the Transfer of Property Act, where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property. The proviso is to the effect that no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.
11. The charge is not one created by act of parties. It is by reason of a decree passed in a suit filed for maintenance. There are some decisions to the effect that a charge created under a decree is not a charge by operation of law. This view has been expressed in the decisions reported in 1956 (60)Cal. W.N Jata Bahadur v. Krishna Bhamini, AIR 1940 (20) Patna 86, Basumati Koer v. Harbansi Koer, 1955 (2) M.L.J. 618, Seethalakshmi Ammal v. Srinivasa, , Naganna Naidu v. Janardhana Krishna Ranga Rao and AIR 1949 All. 790, H.C Mukherji v. Radha Mohan.
12. Charge does not create any interest in property. Further, in this case, there is a merger. The only person who can execute the decree for maintenance is the wife. After passing of the decree for maintenance, the husband died, with the result that to the 1/3rd share left behind by him, his wife would become an heir, entitled to succeed to a share in the properties left behind by her husband. Therefore, subsequent to the charge in her favour, the wife had become entitled to higher right. Therefore, the security in the form of charge obtained by him, would therefore become merged with her grater right and would thus be extinguished. It is a case of merger of a lower right in a higher right. Thus, two legal rights held by the wife become united in her. She was entitled to proceed against the property for realisation of the maintenance due to her. She subsequently became entitled to a share in the properties of her husband. Therefore, the right she has acquired as an heir of her husband is of superior nature in law, to the one she has as maintenance holder. Therefore, in such a case, the merger extinguishes her legal right as to charge holds to proceed against the property. Her right to get a share in the property, being higher in nature and superior in law would put an end to her legal remedy to proceed against the property for realising the maintenance amount. Therefore, in my opinion, she can no longer execute the right to proceed against the property by reason of her having acquired higher right in the property. Moreover, in the partition suit, a specific decree has been passed, holding that the purchaser is entitled to equities. Even in the maintenance suit, a direction is there to the effect that the decree holder shall proceeding against other properties.
13. That certain things had happened subsequently, is not disputed. It is stated that the maintenance decree holder, after the death of her husband sold certain properties left behind by her husband and it is stated that a number of items belonging to Samidurai has been disposed of by his wife and children and this is the only property that now remains. Therefore, I am of the view that in the peculiar circumstances of the case, the plaintiff is entitled to a declaration and injunction as prayed for. The courts below have failed to note that on the death of her husband, the maintenance decree holder becomes entitled to a larger interest and of a superior nature than a mere right to proceed against the property for the recovery of maintenance, which their would get extinguished. If at all, on the date of the death of her husband, certain claim for payment of maintenance was there against him. But, on and after the death of her husband, the right of the plaintiff to ask for maintenance comes to an end. It is only for the arrears of maintenance, if any there that was due, she had a right to proceed and not otherwise. Therefore, in such circumstances, the courts below have failed to appreciate the peculiar position prevailing in this case and ought to have taken into consideration and applied the propositions indicated in Section 100 of the Transfer of property Act. Hence, I have to hold that the plaintiff/appellant is entitled to a decree as prayed for, granting him a declaration and injunction.
14. In this view of the matter, the appeal is allowed with costs, setting aside the judgment and decree of the courts below. There will be a decree in favour of the plaintiff/appellant, declaring his right to the 1 acre 13 cents of land is Patta No. 616 and S.No. 229/3 in the village of Kattuthular. In the costs. The case objection is dismissed. No cost.