Karnataka High Court
Smt. Kanthamma And Ors. vs Nanjunda Devaru And Ors. on 20 October, 1997
Equivalent citations: ILR1998KAR4271, 1998 A I H C 3295, (1999) 1 HINDULR 213, (1999) 1 RECCIVR 457, (1999) 1 ICC 352, (1999) 1 CIVLJ 449, (1998) 4 CURCC 590, (1999) 1 RENTLR 180
ORDER XLI Rule 33 - First Appellate Court has power to make an order not only as between the Appellant and Respondent but also in favour of or against the Respondent who is a party and who has not preferred any Cross Objections. In view of the above contingency of the cases, the principles that evolves is that Order 41 Rule 33 is wide enough to include a power on the part of the appellate Court to make whatever order it thinks fit not only as between the appellant and the respondent but also in favour of the respondent who is a party and who has not preferred cross-objection. It cannot be said that under no circumstances the appellate court cannot give him a relief, under the provisions of Order 41 Rule 33. JUDGMENT T.N. Vallinayagam, J.
1. Plaintiffs 1 to 3 are the appellants. The plaintiffs feel aggrieved by the judgment and decree of the first Appellate Court, which has created a charge for maintenance decree only in respect of one property as against the claim of the plaintiffs over 12 other properties.
2. Appellant No. 1 is the wife of respondent-1 and appellants 2 and 3 are their children. The suit is for separate maintenance and residence against defendant-1 and also for a charge on all the suit schedule properties; the trial court granted the decree directing defendant-1 to pay a sum of Rs. 50/- to each of the plaintiffs and further directed a charge to be created on the suit schedule properties in respect of the claim of maintenance of the plaintiffs. Past maintenance was also granted. No appeal was preferred by the other defendants who were alienees of the properties and the first defendant alone preferred the appeal challenging the grant of maintenance. The plaintiff filed cross-objections claiming enhanced maintenance. The Appellate court allowed the cross-objections, but however, declined to create a charge in respect of all the properties except item No. 2. According to the plaintiffs, there should have been a charge in respect of half share of the first defendant, inasmuch as, the other defendants have not preferred any appeal and the appeal as against them has become confirmed. Their claim not having been accepted by the first Appellate Court, the plaintiffs are once again before this Court seeking such a relief.
3. The case of the plaintiffs was that the first plaintiff is the legally wedded wife of the first defendant, having married on 15.5.1968. Ever since the date of marriage, defendant is not on cordial terms with the first plaintiff. Plaintiffs 2 and 3, the daughter and sons were born to the defendant out of the lawful wed lock. Defendants 2 and 3 who are brother and mother of the first defendant-husband are instigating the first defendant not to yield to the demand for maintenance of the first plaintiff and her children. Therefore, the suit for maintenance along with the claim for a charge over the property were filed by the plaintiffs.
4. The defendant also claimed that he has already sold items 3, 5, 11, 12 and 8 and a portion in item No. 7. Therefore, what is available with him was only 1 acre 32 guntas of land in Sy.No. 2. Defendant-2 inter alia contended that items 4, 6, 7, 9 and 13 are in his possession, while defendant-3 would say that the suit properties are renumbered as Sy.Nos. 15/2 and 16/1 and Sy.No. 15/2 has been sold to the second defendant on 7.9.1974 under a registered sale deed. The third defendant further contended that the lands bearing Sy.Nos. 20/1, 20/2, 20/3, 20/6 and 20/8 were inherited from her father and they are re-numbered as Sy.Nos. 15/2 i.e., item No. 1, and 16/1, item No. 2 and the other defendants also raised similar contentions in respect of different properties and ultimately while holding that the husband has accepted to maintain the first plaintiff, the trial Court granted the decree of maintenance of Rs. 50/- per mensum to each of the plaintiff and created a charge on all the schedule properties. The first defendant alone questioned the right of maintenance of the plaintiff and other defendants did not appeal at all. Therefore, the decree in respect of the other defendants has become final. So far as the charge created on the properties in their hands is concerned the appeal made by the first plaintiff came to be dismissed and the cross-objections allowed increasing the maintenance to Rs. 300/- per mensam. But the charge exception in item No. 2 have been raised by the first appellate Court. The Appellate Court found that defendants 4 to 10 are the purchasers of the lands from the first defendant and some other lands were sold after partition; the partition is found in the records in 1972, and therefore the partition cannot be construed to be a concocted document. Though there is no written partition deed, the oral partition as spoken to by the witnesses is acceptable. The Trial Court created a charge of 1/3rd right of the first defendant in respect of the entire suit lands. According to the Appellate Court, the Trial Court ought to have accepted the charge in respect of the properties passed on by the first defendant and his brother in favour of other defendants long before the suit. Notwithstanding the fact that the appeal has not been filed by defendants 2 to 10, the Appellate Court relying upon Order 41 Rule 33 has granted the relief in favour of those defendants. Thus, the appeal was disposed of partly in favour of the plaintiffs and partly in favour of the other defendants.
5. It is contended by the plaintiffs once again before this Court that under Section 39 of the Transfer of Property Act, the purchases made by the other defendants from the first defendant is to the knowledge of the pre-existing right of the plaintiff for maintenance. The second contention was that the other defendants having not filed appeal, the Appellate Court cannot rely upon Order 41 Rule 33 to give relief to those defendants who are not before the Court. The first objection under Section 39 of the Transfer of Property Act is well taken. This is what Section 39 says:
"Section 39 - Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred....the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands."
6. Justice West in the case of LAKSHMAN v. SATYABHAMARAI, AIR 1877 (2) Bom 494 held thus:
"If the heir sought to defraud her, he could not indeed, by any device in the way of parting with the estate, or changing its form, get rid of the liability which had come to him along with the advantage derived from his surviorship; and the purchaser taking from his with reason to suppose that the transaction was one originating not in an honest desire to pay off debts, or satisfy claims for which the estate was justly liable, and which it could not otherwise well meet, but in a design to shuffle off a moral and legal liability - would, as sharing in the proposed fraud, be prevented from gaining by it."
It was therefore immaterial that the transferee had notice of the claim to maintenance."
The section was amended in 1939 by Act 20/1929, where the earlier wordings "transferred with the intention of defeating such right" was amended. These wordings are found in the said section. Therefore, if the purchaser is a transfer for consideration, it takes subject to the right, if it is a gratuitous transfer, it takes subject to the right whether he has notice of it or not. The effect of the amendment is to make the widow to prove the transfer made with the intention of defeating her rights. Therefore, the view of the Appellate Court in raising the charge created by the trial Court over the properties transferred by the first defendant is wrong.
7. However, under Order 41 Rule 33, is concerned, this what Order 41 Rule 33 says:
"33. Power of Court of Appeal. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees."
In TUMMALLA ATCHAIAH v. VENK NARASINGH RAO, the Supreme Court considered that "the High Court is not justified in interfering with the decree of the Trial Court in a case where there was no specific ground in cross-objection. It is no doubt true that the power of the appellate Court is well protected, as has been held in KOKSINGH v. SMT. DEOKABAI, :
"If an appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below it may pass or make such further or other decree or order as the justice of the case may require. Hence, it was held in the instant case that even if the respondent did not file any appeal from the decree of the trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge."
In the case reported in CHIKKAHANUMA v. SMT. VENKATAMMA, AIR 1972 Mys. 167 (V.S. Malimath as he then was), it is held as follows:
"Appellate Court can pass a decree in favour of non-appealing plaintiff who is impleaded as respondent in the appeal."
A Division Bench of this Court in DEVAKI v. SPEL. L.A.O., MFA No. 271/1970, dt. 20.10.1975 held in a case of enhanced compensation that "the High Court can grant enhanced compensation to claimant who not referred an appeal."
In RANGASWAMY v. THIMMAKKA,1981(2)K.L.J 169 this Court has held thus:
"The Court should not tend to read down the language of Rule 33 of CPC so that the Courts become helpless to pass a just and equitable order in the appeal before it. If it is so read-down, then the very object of giving such wide powers to the appellate Court where the discretion ought not to be exercised but that will depend on the facts and circumstances of each case."
Again in BIBISAHEBI v. MAKTUM HUSSAINSAB, 1981(1) KLJ 393 while considering the power of Court of appeal, this Court held as follows:
"Reading of. Order 41, Rule 33, it becomes clear prima facie that the appellate Court shall have power to pass any decree or make any order which ought to have been passed or made by the Trial Court. It further states that it may exercise its power notwithstanding that the appeal is as to part only of the decree. Further, it states that it may pass a decree in favour of the respondent or parties although such respondents or parties may not have filed any appeal or objections. Thus, it becomes clear that the appellate Court has ample powers to rectify the form of decree if it is technically wrong against parties or respondents. If, however, the appellate Court changes the decree, it can so change the decree in favour of a party or respondent even though the party is absent before it. It cannot, however, change or modify the decree so as to affect the interest of the party for the first time against him unless obviously he is given the opportunity by being present before the Court. It can, however, change the decree in favour of a party in the suit who is not arrayed as a respondent before the Court. All the same the appellate Court has power to correct a technical defect in the order or decree when it is satisfied that it is not for the first time passing any order to the prejudice of any party to the suit who is not present before it."
In PATEL CHANDRAPPA v. HANUMANTHAPPA, 1990(3) K.L.J. 264a Division Bench of this Court also held in a partition suit that "though the unmarried daughters did not prefer any appeal, they being entitled to share in law, it is the duty of court to grant relief to them"
8. In view of the above contingency of the cases, the principles that evolves is that Order 41 Rule 33 is wide enough to include a power on the part of the appellate Court to make whatever order it thinks fit not only as between the appellant and the respondent but also in favour of the respondent who is a party and who has not preferred cross-objection. It cannot be said that under no circumstances the appellate court cannot give him a relief, under the provisions of Order 41 Rule 33.
9. In this case, the power exercised by the first appellate court under Order 41 Rule 33 cannot be questioned. But the finding rendered being one against the provisions of Section 39 of the T.P., Act, is liable to be set aside. In this case, the power has been wrongly exercised in favour of a person who does not deserve such relief to be granted in view of the law against him.
10. In this view, the judgment and decree of the Appellate court is set aside. The decree of the trial court is restored and the second appeal is allowed.