Madras High Court
Sasikumar vs K.Sulochana on 18 February, 2009
Author: S.Rajeswaran
Bench: S.Rajeswaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/02/2009 CORAM THE HONOURABLE MR. JUSTICE S.RAJESWARAN S.A.(MD)NO.741 of 2008 Sasikumar ... Appellant Vs 1.K.Sulochana 2.Mini 3.Jeyaraj 4.Ajiraj ... Respondents PRAYER Second Appeal filed under Section 100 of the Civil Procedure Code against the judgement and decree dated 26-09-2007 made in A.S.No.77 of 2001, on the file of learned Sub-Judge, Kuzhithurai, modifying the judgment and decree dated 18-04-2001 made in O.S.No.469 of 1994 on the file of the learned Principal District Munsif, Kuzhithurai. !For Appellant ...Mr.Sreekumaran Nair ^For Respondents ...Mr.K.N.Thampi :JUDGMENT
The second defendant in the suit in O.S.No.469 of 1994 is the appellant before this Court.
2.O.S.No. 469 of 1994 was filed by the first respondent/plaintiff against her husband Thiru Amirtharaj for maintenance. The first respondent herein is the first plaintiff in the suit and she filed the suit not only for herself but also on behalf of her three minor children who are plaintiffs 2 to 4 in the suit.
3.The case of the respondents/plaintiffs before the trial Court is that, the defendant in the suit is the husband of the first plaintiff and the father of the plaintiffs 2 to 4. The defendant husband was an alcholic and he used to torture the first plaintiff wife for bringing dowry. In fact her husband went to the extent of beating her and pushing her into a well. As the conduct of the defendant husband did not improve, the first plaintiff and her children were forced to leave the matrimonial home and as they did not have any money to maintain themselves, each of the plaintiffs sought for a sum of Rs.250/- per month as maintenance. It is also stated in the plaint that the defendant husband is a Government Employee drawing a salary of Rs.2,500/- per month. That apart, the husband owned the suit schedule properties and the suit properties, the husband was also earning a sum of Rs.2,000/- per month. It was also stated in the plaint that the defendant husband was taking urgent steps to alienate the suit properties.
4.The husband as defendant opposed the suit by filing a writtent statement wherein the marital position and the father relationship were all accepted. But the husband denied all the allegations levelled against him and in fact made a counter allegation against the first plaintiff wife by stating that as his mother is suffering from Lucoderma, the wife did not like to be with her and that is why she herself ran away from the matrimonial home.
5.When the suit was pending, Item No.1 of the suit schedule property was alientated and the purchaser was impleaded in the suit at the behest of the plaintiffs on 20-02-1988 in I.A.No.489 of 1996. The second defendant filed a written statement wherein it was stated that there was no matrimonial relationship between the first plaintiff and the first defendant. In so far as Item No.1 of the suit schedule property is concerned, it was not properly described in the schedule and this was purchased by him from all the legal heirs of one Poul Nadar who originally owned Item No.1 of the suit property. He further contended that the said Poul Nadar had a wife, four daughters and one son who is the first defendant in the suit. According to him, he purchased the property from all the six persons and therefore, he became the absolute owner of Item No.1 of the suit property. When there are other properties and when the husband is a Government employee, the plaintiffs could only proceed against the other properties and salary and they could not proceed against Item No.1. Hence, he prayed for the dismissal of the suit in so far as the Item No.1 of the suit schedule property.
6.A reply statement was filed on behalf of the plaintiffs wherein it was stated that an injunction order was granted by the trial Court in the suit and inspite of the injunction order being in force, the second defendant who is a close friend of the first defendant and who knows very well about the pending suit and the injunction order, purchased the property and therefore, the same is invalid by applying the doctrine of Lis Pendens.
7.On the basis of the above pleadings, the trial Court framed the following issues:
1)Whether plaintiffs 1 to 4 are together entitled to get a monthly maintenance of Rs.1,000/- from the date of suit from the first defendant and his assets including the suit properties?
2)Is the suit not maintainable?
3)Whether the first defendant is liable to pay maintenance to the plaintiffs?
4)Whether the sale deed taken by the second defendant from the first defendant on 05-05-1993 is valid and competent?
5)Has the first defendant sufficient means to satisfy the claim of the plaintiffs?
6)Whether the plaintiffs have any cause of action against the second defendant?
7)Is it not a collusive suit?
8)Is the first defendant the absolute owner of suit item No.1?
9)Has the second defendant notice of the claim of the plaintiffs and the injunction order in the suit?
10)Is the second defendant and his property liable for the claim of the plaintiffs?
11)To what relief and the plaintiffs entitled to get?
12)What is the order as to costs?
4.The first plaintiff examined herself as PW.1 and she marked Exs.A1 to A4 on her side. The husband, the first defendant in the suit remained Ex-parte and did not participate in the trial. The second defendant examined himself as DW.1 and marked Exs.B1 to B9 on his side.
5.On the basis of the evidence let in, the trial Court came to the conclusion that all the plaintiffs are entitled to get maintenance from the first defendant husband and accordingly decreed the suit as prayed for. The trial Court has also permitted the plaintiffs to proceed against the suit schedule properties for getting maintenance amount of Rs.1,000/- per month.
6.Aggrieved by the judgment of the trial Court, the second defendant filed A.s.no.77 of 2001 and the first appellate Court after re-evaluating the evidence, concurred with the findings of the trial Court that all the plaintiffs are entitled to a sum of Rs.1,000/- per month, but it restricted the amount from the date of filing of the plaint to 26-11-2002, on which date, the husband passed away. In sofar as the first item or the suit property is concerned, the lower appellate Court found that it was jointly owned by six persons and the husband was entitled to only 1/6th share and accordingly permitted the plaintiffs to proceed against the 1/6th share of the first item property and other properties towards the maintenance amount. Thus, the lower appellate Court modified the order of the trial Court by restricting the maintenance amount of Rs.1,000/- from the date of the plaint to the date of the death of the husband and restricted the share of the plaintiffs in Item No.1 of the suit property to 1/6th for which alone the husband was entitled to.
7.Thus, against this judgment of the first appellate Court, the second defendant in the suit has filed the above second appeal under Section 100 CPC.
8.The main contention of the appellant in the appeal is that, the suit for maintenance itself filed by the wife and children is not maintainable after the death of the first defendant husband and when there are other properties owned by the husband and when the wife is entitled to family pension after the death of the husband, it is not correct to proceed against Item No.1 of the suit properties for the 1/6th share. It is the appellant's further case that the doctrine of Lis Pendens will not apply to the facts of the present case as he is bona fide purchaser who is unaware of the suit proceedings.
9.From the above, the following substantial questions of law are arising for consideration:
1)Whether the suit filed by the wife and children and the first defendant is maintainable after the death of the first defendant?
2)Whether the plaintiffs should only file a suit for partition after the death of the first defendant and whether they are not entitled to proceed with the suit proceedings?
3)Whether the doctrine of Lis Pendens will apply to the first item of the suit property.?
10.I have heard the learned counsel for the appellant and the learned counsel for the respondents on the above substantial questions of law.
11.The learned counsel for the appellant relying on the judgment of this Court reported in AIR 1971 MAD 469 (Velammal and others -vs- Chokkiah Gounder and others) contended that after the death of the first defendant husband, the wife became entitled to a share in his property and therefore, the suit filed by them for maintenance is not maintainable.
12.Placing his reliance on the judgment of the Honourbale Supreme Court reported in AIR 1956 SC 593 (Nagubai Ammal and others -vs- B.Shama Rao and others) the learned counsel for the appellant submitted that the doctrine of Lis Pendens will not apply in the present case and therefore, the plaintiffs are not entitled to proceed against Item No.1 of the suit property.
13.Per contra, the learned counsel for the respondents submits that the suit for maintenance is very much maintainable evenafter the death of her husband and as Item No.1 of the suit property was alienated when the suit was pending and when the injunction order was in force. Hence, according to him it would definitely attracts Section 52 of the Transfer of Property Act. In support of his submissions, he relied on the following decisions:
a)AIR 2003 CAL 263(M/s.Ceean International Pvt Ltd -vs- Ashok Surana and another)
b)AIR 2002 GUJ 209(Narendrabhai Chhaganbhai Bharatia- vs- Gandevi Peoples Co-op.Bank Ltd and others)
c)AIR 1967 MAD 457(Ramaswamy Goundar and another -vs- Baghyammal and others)
d)AIR 1970 SC 1717(Kedarnath Lal(dea)by his legal representatives and another -vs- Sheonarain and others)
14.I have considered the rival submissions carefully with regard to facts and citations.
15.A perusal of the lower appellate Court's judgment will clearly show that it has correctly appreciated the evidence and concurred with the findings of the trial Court that each of plaintiffs is entitled to a sum of Rs.250/- per month towards maintenance. It also applied the correct principles of law by holding that the plaintiffs are entitled to the above said amount from the date of the plaint to the date of the death of the husband. It also adverted to the fact that the husband's share in the first item of the suit property is only 1/6th and accordingly directed the plaintiffs to proceed against their 1/6th share in item No.1 and also against other properties for getting the maintenance amount as ordered by the Court.
16.First, let me consider the contention of the learned counsel for the appellant that after the death of the husband, the wife and the children could not continue the suit for maintenance and they should only file a suit for partition.
17.In AIR 1971 MAD 469(cited supra) the plaintiff filed a suit for maitenance against her husband and subsequent to the suit, the husband passed away. Consequent on the death of the husband, the wife who has a share in the suit property, filed an application for an amendment of the plaint to claim partition and separate possession of her share. This was resisted by the other side and the trial Court has also upheld the objection and dismissed the amendment petition. When this was challenged before this Court, this Court held as under:
"Para No.3. In the present case, the plaintiffs claimed future maintenance and after the death of the first defendant no decree for maintenance subsequent to the date of his death could be granted as the plaintiffs will be entitled to a higher right namely one of partition. In order therefore to facilitate the grant of a decree and shorten the litigation it is just and necessary that the amemendment is ordered."
18.From the above, it is very clear that the facts in the present case and the facts in the above judgment are entirely differen and even otherwise this Court in para 3 clearly held that after the death of the husband, no decree for maintenance subsequent to the date of the death of the husband could be granted. Thus, it is very clear that the maintenance suit could be maintained up to the date of the death of her husband and not thereafter. Hence, the lower appellate Court has correctly decided the issue and granted a decree for maintenance up to the date of the death of the husband. In such circumstances, I am of the considered view that the plaintiffs could very well maintain the suit for maintenance up to the date of the death of the first plaintiff's husband only thereafter they could also file a suit for partition. Therefore, the substantial questions of law 1 to 2 are decided in the above terms, in favour of the respondents and against the appellant herein.
19.Now, let me consider the question of applicability of doctrine of Lis Pendens as contemplated under Section 52 of the Transfer of Property Act, 1882.
20.In AIR 1956 SC 593 (cited supra) the Honourable Supreme court held that when a suit is filed for maintenance, and there is a prayer that it be charged on specified properties, it is a suit in which right to immovable property is directly in question and the Lis commences on the date of the plaint and not on the date of the decree which creates the charge. The Honourable Supreme Court further observed as under:
"Para 25. But it is argued for the appellants that having regard to the words of S. 52 that pendente lite "the property cannot be transferred", such a transfer must, when it falls within the mischief of that section, be deemed to be non est, that in consequence Keshavananda must, for purposes of lis pendens, be regarded as the owner of the properties, notwithstanding that he had transferred them, and that the Official Receiver who succeeded to his rights had a right to be impleaded in the action.
This contention gives no effect to the words "so as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with the rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the parties thereto.
It will be inconsistent to hold that the sale deed dated 30-1-1920 is effective to convey the title to the properties to Dr. Nanjunda Rao, and that, at the same time, it was Keshavananda who must be deemed to possess that title. We are, therefore, unable to accede to the contention of the appellants that a transferor pendente lite must, for purposes of S. 52, be treated as still retaining title to the properties."
21.In AIR 1970 SC 1717(cited supra) the Honourable Supreme Court held as under:
"Para:16: The second ground of attack is that before the proceeding commenced before the Registrar these fields had been attached and therefore, the doctrine of lis pendens again cannot apply. We are unable to accept this argument either. If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. Therefore the attachment was ineffective against the doctrine. Authority for this clear position is hardly necessary but if one is desired it will be found in Moti Lal v. Karrab-ul-Din, (1897) 24 Ind App 170 (PC).
"Para:18: Lastly it was argued that if the fields were released from the operation of the mortgage they could not be made the subject of a mortgage decree, and whatever was done in the mortgage proceedings was not of any consequence. To this there are two answers. Firstly, the respondent before the Registrar (Ram Narain Ram) made no objection to the inclusion of the plots in the petition for a mortgage award. Secondly, the doctrine of lis pendens applies irrespective of the strength or weakness of the case on one side or other. See Gouri Dutt Maharaj v. Sukur Mohammed, 75 Ind App 165 = (AIR 1948 PC 147). There is, however, one condition that the proceedings must be bona fide. Here no doubt the Society knew that the plots had been released from the mortgage, but it was also clear that the release was to enable Ram Narain Ram to dispose of some of the plots and pay Rs. 500 to the Society. This amount was never paid and the Society must have bona fide felt that the plots still remained encumbered. In fact the attitude of Ram Narain Ram in not claiming that these plots be removed from the mortgage award shows that he too felt that this was the true position. In Gouri Dutt Maharaj's case, 75 Ind App 165 = (AIR 1948 PC 147), referred to by us, it was said that if the proceedings were bona fide, the applicability of Section 52 was not avoided."
22.In AIR 2003 CAL 263(cited supra) a Division Bench of the Calcutta High Court observed as under:
"Para:11. The ground that the defendant No. 2 was a bona fide transferee for value without notice cannot be available in the facts and circumstances of this case. This principle would have been applicable to him as provided in Section 19(b) SR Act if the transfer was a pre-suit transfer. Admittedly, the transfer was effected on 19th June 1995. Whereas the present suit was filed on 28th of April 1995. Therefore, this transfer is hit by the principles of lis pendence provided in Section 52 of the Transfer of Property Act, 1882. The principle of lis pendence is excluded in a suit or proceeding which is collusive and where the right to immovable property is not directly and specifically in question. This case does not come under any of the two exceptions. Therefore, the benefit of Section 19(b) of the SR Act is not available to the defendant No. 2 in this case."
23.In AIR 2002 GUJ 209(cited supra) the Gujarat High Court held as under:
"Para:21:- In Kedarnath Lal's case (AIR 1970 SC 1717) (supra) the Supreme Court has said that it is true that Section 52 of the TP Act strictly speaking, does not apply to involuntary alienations such as Court sales but it is well established that the principle of lis pendens applies to such alienations. For coming to the aforesaid conclusion, the Supreme Court has relied on its previous decision in the case of Samarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 1440. It is also held in the said decision that the doctrine of lis pendens applies irrespective of strength or weakness of the case on one side or other. There is, however, one condition that proceedings must be bona fide. If proceedings are bona fide, applicability of Section 52 of the TP Act was not avoided. For coming to the aforesaid conclusion, the Supreme Court has relied upon the judgment of the Privy Council in the case of Gauri Dutta Maharaj's case (AIR 1948 PC 147) (supra).
"Para:24. From the ratio laid down in the aforesaid judgments of the Supreme Court, Delhi High Court, Privy Council and Mumbai High Court, following salient features of Section 52 of the TP Act can be culled out:
i) Even if it is taken for granted that the provisions of Section 52 of the TP Act were not applicable as such, the principles contained in it were applicable.
It is well established that wherever TP Act is not applicable, such principles in the provisions of the said Act, which are based on justice, equity and good conscience are applicable.
ii) The applicability of Section 52 of the TP Act cannot depend on matters of proof or strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such test is to misconceive the object of the enactment.
iii) In the case of a transfer which is hit by the doctrine of lis pendens under Section 52 of the TP Act the question of good faith which is essential to be established before an equitable relief can be granted in favour of a subsequent vendee under Section 41 or Section 51 of the TP Act is totally irrelevant.
iv) Though by the making of the decree there was no lis, still once the application for execution is filed and proceeding commenced, the property becomes the subject-matter in dispute and, therefore, it may fall within the meaning of "the proceeding in respect of the property".
24.In AIR 1967 MAD 457(cited supra) this Court held as under:
"Para:9:-.The next argument of Mr.Ramamurthi Aiyar is that even assuming that the plaintiff was entitled to a charge, it will be unreasonable to create a charge over properties far out of proportion to the quantum of maintenance decreed in favour of the plaintiff and that it is but equitable that in the first instance the plaintiff should be made to pursue the properties still in the hands of her husband and it is only when it is necessary for her to do so, she be permitted to proceed against the A schedule properties . I think there is force in both the contentions. The courts below have not ascertained the extent of income from the A and B schedue properties and whether the charge should not be limited to such extent of the A and B schedule properties as the income from which would be sufficient to meet the maintenance decree in favour of the plaintiff. I think on this ground the decrees for granting a charge in favour of the plaintiff should be set aside and the matter be remitted to the trial Court in order that it may find out the extent of the properties in the A and B schedule properties the income from which will be just sufficient to satisfy the maintenance fixed for the plaintiff and grant a charge in her favour over only that extent of properties in the A and B schedules. If the income from the B schedule property is sufficient to meet the maintenance granted to the plaintiff, then of course no question of creating a charge over the A schedule properties will arise. So far as the decree for past maintenance is concered. I think it reasonable that in the first instance it should be executed against the B schedule properties and it is only when the decree is still not satisfied, the plaintiff can proceed against the A schedule properties. This will be provided for in the revised decree to be passed by the trial Court. The second appeal is allowed in those terms. But there will be no order as to costs. Pending the trial court passing a revised decree the appellants will not alienate the properties covered by Ex.B1. The Court fee paid on the Memorandum of Second Appeal will be refunded."
25.In the light of the above legal pronouncements, I am of the considered view that as the Item No.1 of the suit property was alienated pending suit and when the order of injunction was in force, the transaction is invalid in sofar as the plaintiffs are concerned and therefore, they have every right to proceed against that property also, to the extend of their share. Thus, this substantial question of law is also answered against the appellant and in favour of the respondents.
26.In the result, I do not find any merits in the appeal and accordingly the same is DISMISSED. No costs.
gsr To
1.The Principal District Munsif, Kuzhithurai.
2.The Subordinate Judge, Kuzhithurai.