Madras High Court
Saradhamani vs Subramanian on 3 January, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/01/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA APPEAL SUIT No.123 OF 1991 Saradhamani ... Appellant /Plaintiff Vs. 1. Subramanian 2. Valliyathal 3. Duraisamy 4. Muthusami Gounder ... Respondents/Defendants Prayer Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 08.04.1986 and made in O.S.No.86 of 1984 on the file of the Subordinate Court, Karur. !For Appellant : Mr.P.Pandi ^For Respondent : Mr.K.Chandrasekaran :JUDGMENT
This appeal is directed against the judgment and decree dated 08.04.1986 and made in O.S.No.86 of 1984 on the file of the Subordinate Court, Karur.
2. Shorn and niggard of details, the facts giving rise to the filing of the suit as set out in the plaint could be portrayed thus:
The appellant/plaintiff filed the original suit informa pauperis as against the first defendant her husband, the second defendant her mother-in-law and the third and fourth defendants, the alleged transferees of some of the properties described in 'A' schedule of the plaint, claiming maintenance in a sum of Rs.4,500/- towards past maintenance and a sum of Rs.250/- per mensum towards maintenance, a sum of Rs.500/- per annum towards clothing and medical expenses and a sum of Rs.25/- per mensum towards house rent, from the date of the suit and for recovering 40 Sovereigns of gold jewels as found set out in the 'C' Schedule of the plaint and also for recovering vessels described in the 'D' Schedule of the plaint. The first defendant even though under the duty to maintain the plaintiff, for no good reason neglected to maintain the plaintiff. For defeating the maintenance claim of the plaintiff, the first defendant made some fake arrangements with the third and fourth defendants by allegedly transferring some of the 'A' Scheduled properties. Nonetheless, the 'A' Scheduled properties are only in the possession of the first defendant. Hence, the suit.
3. Per contra, denying and disputing, challenging and impugning the averments/allegations in the plaint, the first defendant filed the written statement which was adopted by the second respondent, to the effect that the plaintiff was at fault and thereby she disqualified herself from claiming any maintenance; there were no jewels or vessels with the first defendant much less all those properties as described in 'C' and 'D' schedules of the plaint and accordingly, they prayed for the dismissal of the suit.
4. D.3 filed the written statement praying for the dismissal of the suit by pleading that item Nos.1 to 4 of the plaint scheduled properties are the absolute properties of the third defendant and his father Muthusamy Gounder, who are not at all liable to the maintenance as demanded by the plaintiff.
5. During trial, the plaintiff examined himself as P.W.1 along with P.W.2 and Exs.A.1 to A.8 were marked and the first defendant and the third defendant examined themselves as D.W.1 and D.W.2 along with D.W.3 and Exs.B.1 to B.7 were marked.
6. Ultimately, the trial Court decreed the suit awarding a sum of Rs.2,700/- towards past maintenance at the rate of Rs.150/- per mensum for 1 . years and future maintenance at the rate of Rs.350/- per mensum. The charge was also created on the 'A' Schedule of the property negativing the contrary claim of the defendants.
7. No other relief was granted in favour of the plaintiff. No appeal was filed by any of the defendants. However, the plaintiff filed the appeal on the following grounds among others:
(i) The trial Court awarded a meagre maintenance.
(ii) The trial Court failed to order for return of the jewels and money found set out in the plaint.
8. Points for consideration are:
(i) Whether the quantum of compensation awarded could be enhanced and if so at what rate?
(ii) Whether the plaintiff is entitled to recover the jewels and the vessels as found set out in 'C' and 'D' Schedules of the plaint and also to recover the money as claimed in the plaint?
(iii) Whether there is any infirmity in the judgment and decree of the trial Court?
9. Point Nos.(i) to (iii) are taken together for discussion for the reason that they are inter-linked and interwoven, inter-twined and inter-connected with one another.
Point Nos:(i) to (iii)
10. Right at the outset, I may proceed to record the submission made by the learned Counsel for the appellant to the effect that the appellant would be satisfied if enhancement is ordered at least from the date of filing of the appeal and also for recovery of five sovereigns of gold jewels on the admission made by D.W.1, the deceased first defendant during his life time, while deposing before the Court. The fact remains that the first defendant died during the pendency of the proceedings.
11. In the deposition, D.W.1 would candidly and categorically admit that at the time of marriage between the plaintiff and the first defendant, 15 sovereigns of gold jewels were given by the bride's parents and out of that, 10 sovereigns of jewels were turned to be spurious ones. As such there was admission that five sovereigns of gold jewels were with the first defendant and there is nothing to show that the said five sovereigns of gold jewels were returned to her.
12. The trial Court failed to order return of even those five sovereigns of gold jewels. The trial Court proceeded on the footing that there was no document to show that the jewels were given as claimed in the plaint. It is not readily found set out in the pleadings as to when the marriage took place between them. The perusal of Ex.A.8, the copy of H.M.O.P.No.22/82 would reveal that the plaintiff and the first defendant got married 3 " years before 1982 and by that one could understand that the marriage took place between the two, somewhere in the year 1978 and it is common knowledge that during those years, the practice of obtaining the list of articles at the time of marriage, was not in vogue. In such view of the matter, the expectation of the trial Court was wrong.
13. It is a trait proposition of law that the preponderance of probabilities would govern the adjudication in civil cases. Here, it is the case of the plaintiff that she was ignobly driven out of her matrimonial home. Her deposition as P.W.1 would adequately and sufficiently, candidly and apparently, convincingly and cogently, elucidate and reveal, show and prove, that she was left high and dry without even food and she was also deprived of her jewels and her money. Hence, in these circumstances, it is quite clear that her prayer at least for the return of 5 sovereigns of gold jewels or its money equivalent is grantable legally.
14. In the plaint, she valued 40 sovereigns in a sum of Rs.48,000/- and correspondingly five sovereigns of gold would work out to Rs.6,000/-. It is quite clear that now the market value of one sovereign of gold is around Rs.7,000/-. However, by way of compensating the plaintiff, the damages in the form of interest on Rs.6,000/- at the rate of 6% also could be awarded from the date of suit till the date of recovery.
15. Relating to the vessels as found set out in the 'D' Schedule of the plaint, the plaintiff claimed a sum of Rs.2,000/- and relating to which the learned Counsel for the plaintiff has submitted that the plaintiff is not very particular about it.
16. The trial Court awarded a sum of Rs.150/- per mensum for food for 1 . years i.e, for 18 months towards past maintenance which comes to Rs.2,700/-. In addition to that, Rs.200/- per year was granted towards clothing and medical expenses. Even applying the cost of living that prevailed at that time, it is at once clear that a lady will not be able to live with such meagre amount of Rs.150/- per month and Rs.200/- per year towards clothing and medical expenses and no more elaboration is required. However, the learned Counsel for the plaintiff would in all fairness submit that if enhancement is awarded from the date of filing of the appeal that would meet the ends of justice towards the claim of the plaintiff. The Court has got ample powers to grant enhancement at and from any stage.
17. At this juncture, the learned Counsel for the respondents would argue that over and above what is prayed in the plaint could not be granted legally, even from the date of filing of appeal, for which, the learned Counsel for the plaintiff would torpedo such plea by stating that the Court has got ample powers depending the change of circumstances during the pendency of the proceedings. In this connection, the learned Counsel for the plaintiff cited the decision in Indira Bai v B.A.Patel reported in AIR 1974 ANDHRA PRADESH 303 which would highlight the proposition that enhancement of maintenance could be awarded even by taking judicial notice of the abnormal increase in cost of living without any additional evidence in this regard. The decision of this Court in Pavayammal v. Komarasami and others reported in 2002 (2) MLJ 601 would highlight the proposition that owing to change of circumstances, maintenance could be enhanced. This Court being the High Court, is fully competent to take judicial notice of the change of circumstances and the long pendency of the appeal ever since 1991.
18. No doubt, the seeker of maintenance, the appellant herein, appears to have filed a separate application and owing to technical defects, the application itself was taken back by the plaintiff. However, the learned Counsel for the appellant made oral submissions on behalf of the plaintiff that the maintenance might be enhanced over and above what was prayed in the plaint during the year 1984 and that this Court has got inherent powers to enhance it so. The realities of life, the cost of living and the change of circumstances should necessarily be taken into consideration. The maxim "Actus curiae neminem gravabit" should also be taken into account in this case for the reason that the appeal is pending from the year 1991 and now, we are in the year 2007 and the fact remains that this is a proceeding for claiming maintenance and in such a case, there cannot be any embargo for the High Court to award the enhancement from the date of filing of the appeal over and above what is prayed in the plaint itself during the year 1984. In the plaint which was filed in the year 1984, she prayed for awarding a sum of Rs.250/- per mensum and an additional sum of Rs.500/- per year towards clothing and medical expenses and Rs.25/- per month towards house rent and based on the same prayer if in the year 2007 in the course of same proceedings, ie., in the appeal for enhancement the compensation is fixed, it would be totally unjust and no more elaboration or dilation is required in this regard. No doubt, during the pendency of the suit, the first defendant died. D.2 is the mother-in-law of the plaintiff and the trial Court negatived the contention of the defendants that the 'A' Schedule of properties were sold etc., and as such the charge was created over 'A' Scheduled properties by the trial Court over which there is no appeal. Hence, considering the quantum of property available which represents the deceased first defendant estate, the compensation could rightly be fixed. In the 'A' Schedule of property of the plaint, there are as many as seven items of immovable properties.
19. In the present case, the cost of living would require as per the rate prevailing even in the year 1991, the year in which the appeal was filed, the wife would be entitled to a sum of Rs.30/- per day in all towards food, shelter and clothing, and accordingly it works after to Rs.900/- per mensum and a sum of Rs.100/- for medical expenses, could be added to it. As such the monthly maintenance comes to Rs.1,000/-.
20. In the result, the appeal is partly allowed with costs by granting the following reliefs:
The judgment and decree of the trial Court is confirmed relating to the quantum awarded towards past maintenance and also the quantum awarded up to the filing of the second appeal and from the date of filing of the appeal, the appellant is entitled to enhanced monthly maintenance of Rs.1,000/-. The plaintiff is also entitled to recover a sum of Rs.6,000/- (Rupees Six Thousand only) towards jewels with 6% interest per annum from the date of filing of the suit till the date of recovery. The charge created over 'A' Schedule property by the trial Court is confirmed and the said property shall be under the charge for meeting the decretal dues as per this Court's decree also. The second defendant is liable only to the extent of the value of 'A' Schedule property and nothing more and she is not personally liable to meet the dues under the decree passed by the trial Court as well as this Court.
rsb To The Subordinate Court, Karur.