Kandasamy vs Selvambal and Jayaraman

A. Kulasekaran, J.—The second defendant in O.S. No. 615 of 1996 on the file of Principal District Munsif Court, Villupuram is the

appellant in this second appeal. The said suit has been filed by the Plaintiff/first respondent herein praying for (i) directing the petitioner to sue as an

indigent person; (ii) directing the 1st respondent to pay a sum of Rs.1,000/- per month towards maintenance by creating a charge over B Schedule

Described property (iii) directing the first respondent to pay Rs.18,000/- towards arrears of maintenance with a charge over the B Schedule

properties; and (iv) directing the first respondent to pay the court fee payable on the plaint to the Government and for costs. The trial court

dismissed the suit and on appeal, the first appellate court set aside the decree and judgment of the trial court, hence the present second appeal.

For the sake of convenience, the parties are referred to as they were arrayed before the trial court.

The case of the plaintiff/first respondent herein, as set out in the plaint are as follows:-

The suit was filed as a pauper. The marriage between the Plaintiff and the first defendant was solemnised at Ezhu Sembon Village 40 years ago and

they lived happily as husband and wife for a period of ten years; that out of the said wedlock, two female daughters namely Mahalakshmi and

Mangalakshmi were born; that thereafter, the first defendant developed illicit intimacy with one Manonmani and drove the plaintiff and her

daughters out of the matrimonial home; that the plaintiff went to her mother''s house at Sompet Village and lived there along with her daughters; that

she maintained herself and her daughters by doing manual labour work in the fields; that both the daughters had a prematured death due to

poverty; that the plaintiff was unable to maintain herself and her aged mother; that the plaintiff was aged and she could not even do labour work

and she needed financial support for maintenance of her life; that the first respondent also had illicit intimacy with one Mangai and out of the said

relationship, four sons were born; that her husband, the first defendant is possessed of 5 acres of agricultural land and house and he has been

earning Rs.50,000/- per annum out of the said lands; that the plaintiff required Rs.1,000/- per month towards food, clothing and shelter and the

first defendant is bound to pay the said amount; that the plaintiff is also entitled to claim past arrears for a period of three years, however, restricted

it to Rs.18 months, which works out to Rs.18,000/- payable by the first defendant; that the first defendant, in order to defeat the rights of the

plaintiff was attempting to sell the immovable property to the second defendant, hence, he was also impleaded as a party in the suit.

The first defendant has not chosen to contest the suit. He neither filed written statement nor participated in the trial, hence he was set exparte.

The second defendant has contested the suit by filing written statement stating that he was unnecessarily impleaded as a party to the suit; that the

''B'' Schedule described property shown in the plaint was purchased by him on 16.02.1996 for a valid sale consideration of Rs.27,000/- from the

first defendant and ever since the said purchase, he is in possession and enjoyment of the same; that the first defendant had sold the said property

to settle the debts incurred towards performance of the marriage of his daughters Mahalakshmi and Mangalakshmi; that even before the institution

of the suit, he had purchased the property from the first defendant; that there are other properties owned and possessed by the first defendant, but

the plaintiff has sought to create a charge only in the property purchased by him and prayed for dismissal of the suit.

Before the trial court, the plaintiff has marked Ex.A1 and A2 and examined herself as PW1. On the side of the second defendant, Exs. B1 to

B5 were marked, the second defendant examined himself as DW1, one Sarangapani, Ganesan and Dhandapani were examined as DWs 2 to 4

respectively.

The trial court considering the oral and documentary evidence found that the suit was instituted on 29.01.1996; that the plaintiff has not issued

any notice to the first defendant prior to filing the suit; that even prior to the filing of the suit, the second defendant had entered into sale agreement,

Ex.B1 dated 10.10.1995 to purchase the B Schedule described property from the first defendant and sale deed, Ex.B2 dated 16.02.1996 was

obtained for a valid consideration and in order to prove the same, the second defendant had examined DWs 2 and 3, who have deposed about the

execution of Ex.B1, sale agreement; that there is no oral or documentary evidence to show that she was living separately to grant the relief of

maintenance sought for by the plaintiff and dismissed the suit.

Aggrieved by the decree and judgment of the trial court, the plaintiff has filed A.S. No. 104 of 1999 before the Additional Subordinate Judge,

Villupuram and the first appellate Court on consideration of the oral and documentary evidence found that in Ex.B2, it is seen that the first

defendant had executed the same as a Guardian for the minor daughters Mahalakshmi and Mangalakshmi; that the first defendant has not chosen

to contest the suit and therefore the trial court ought to have allowed the claim of the plaintiff for maintenance and the finding of the trial court that

there is no oral or documentary evidence to prove the claim of maintenance is untenable; the first appellate Court relied on Section 18(2) of Hindu

Adoptions and Maintenance Act, hereinafter called as the Act, wherein it is stated that a Hindu wife, whether married before or after the

commencement of this Act, shall be entitled to be maintained by her husband during her life time. A Hindu wife shall be entitled to live separately

from her husband without forfeiting her claim to maintenance, if he is guilty of desertion or treated her with such cruelty and came to a conclusion

that the plaintiff is entitled to maintenance from the first defendant; that in Ex.B1, agreement of sale, it is found mentioned that a sum of Rs.6,000/-

was received as advance but the same was not found mentioned in Ex.B2, sale deed; that Ex.B1, agreement of sale was written in a white paper

instead of stamp paper and suspected its credibility and came to a conclusion that Ex.B2 is not reliable; that the sale transaction between the first

and second defendant is hit by the principles of lispendence as contemplated u/s 52 of the Transfer of Property Act and allowed the first appeal.

Mr. Raghavachari, learned Counsel appearing for the appellant/second defendant submits that the doctrine of lispendence is not applicable to

the case on hand; that Ex.B1, sale agreement dated 10.10.1995 was entered into prior to file of the suit; that Exs. B3 to B5 clearly proves that the

second defendant herein had discharged the loan amount of the first defendant and in order to repay the same, the property was sold to the second

defendant under Ex.B2, sale deed dated 16.02.1996; that there are other properties owned and possessed by the first defendant, but the plaintiff

has chosen only to create a charge in the B schedule described property, which was purchased by the second defendant in collusion with the first

defendant; that the provisions of Section 52 of the Transfer of Property has no application to the case on hand; that the evidence of DWs 1 to 4

reveals that the B schedule described property was sold to the second defendant prior to receipt of summons in the suit and the second defendant

is in possession of the same and prayed for setting aside the decree and judgment of the first appellate Court.

In support of this contention, the learned Counsel for the appellant relied on the below mentioned decisions:-

i) Pavayammal and another v. Samiappa Goundan and Ors. AIR (34) 1947 Mad 376 wherein in para-2 it was stated thus:-

In the first place, it cannot be said of the plaintiffs that they have got a right to receive maintenance ''from the profits of immovable property''

when only s. 39, will come into play. Secondly, mere knowledge of the legal right would not appear to be enough as, if it were so, there could be

no sale by a husband of his properties to third parties without the risk f wife turning up later and saying that they had notice of her right and that

therefore the transferee were bound to recognise her right. What the section contemplates is a claim based on the right to receive maintenance and

notice of such claim.

ii) Puppala Ramamurthi v. Kandulapati Kanakaratnam and Ors. AIR (35) 1948 Mad 208 wherein in para-8, it was held thus:-

After setting out Section 39 as it stood before the amendment, the learned Judges point out that it was amended in 1929 so as to eliminate the

necessity of proving the intention to defeat the right of maintenance and that all that a person having a right to receive maintenance has now to

prove is that the transferee has notice of such right or that the transfer is gratuitous.... The only effect of the amendment of S. 39 is to make it

unnecessary for the widow to prove that the transfer was made with the intention of defeating her right. If the transfer is gratuitous, there is nothing

for her to prove beyond her right to receive maintenance. If, on the other hand, the transfer is for consideration, she has only to prove, besides her

right to receive maintenance that the transferee had notice of her right.

iii) Rangasamy Gounder v. Murugan and three Ors. AIR 1983 TNLJ 111 wherein it is stated thus:-

The Plaintiff filed the present suit on 26.10.1972 and it was disposed of on 20.04.1978. The Court auction sale was on 25.02.1976. Learned

counsel for the appellant contended that as the Court auction purchase was during the pendency of the plaintiff''s suit, the sale is hit by lispendens

u/s 52 of the Transfer of Property Act and it is void and no title can pass in favour of the defendant. In support of this contention, learned Counsel

relied on a decision of the Allahabad High Court reported in Suraj Bhan Vs. Gaj Raj Singh and Others, . As pointed out by the Supreme Court in

the decision reported in 1959 SCR page 878, ''that the doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a pre-

existing right and if the sale is a transfer in recognition of a pre-existing debt and subsisting right, it would not be affected by the doctrine, as the

transfer does not create a new right pendente lite. What is prohibited u/s 52 of the Transfer of Property Act is the creation of a new right and the

transfer was in recognition of a pre-existing and subsisting right, such a transfer is not hit by Section 52 of the Transfer of Property Act.

Per contra, Ms. Geetha, learned Counsel appearing for the plaintiff/first respondent herein submits that first appellate Court, on consideration

of the oral and documentary evidence has rightly held that the plaintiff is entitled to maintenance as the first defendant was set exparte and he has

not chosen to contest the case; that the second defendant has purchased the B Schedule property knowing fully well the entitlement of the plaintiff

and her daughters over the same and therefore the suit is clearly governed by the principles of lispendence and the first appellate Court as rightly

decided the said issue and prayed for dismissal of the second appeal.

The learned Counsel for the first respondent relied on the below mentioned decisions in support of her contention:-

i) Chenchulakshmi v. Janardan Singh and Ors. 2000 I MLJ 349, wherein in para-17 it was held thus:-

17...Section 52 of the Transfer of Property Act where any suit or proceeding is pending with reference to a property, which is directly and

specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of

any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as may

impose. Therefore, there is no scope for purchaser of property pendente lite to contend that he is a bonafide purchaser for value without notice or

to say that he was not aware of the proceeding and had no notice of the pendency of the proceeding. It has become necessary that in his evidence,

PW1 would say that he was not aware of the pendency of the proceedings and had no notice. Even assuming for a moment that the evidence

tendered by him is true, even then that will not save him from the tentacles of Section 52 of the Transfer of Property Act. Equally, the contention

that property was purchased paying valuable consideration, is of no avail since Section 52 of the Transfer of Property Act does not purport to

exclude purchaser of the property from value from its operation. On the other hand, this section is emphatic in its terms that the property cannot be

transferred or otherwise dealt with by any party to the suit except under the authority of the Court and on such terms as it may impose....

The Plaintiff/respondent herein has filed the suit on 29.01.1996 as in forma pauperis for monthly maintenance of Rs.1,000/-, past arrears of

Rs.18,000/- praying to have her maintenance made a charge on suit immovable property and directing the first defendant to pay the court fee

payable by her. She has also sent a notice, Ex.A1 dated 14.02.1996 to the Anniyur Sub-registrar mentioning the details of the suit and requested

not to register any deed pertaining to the suit property. Ex.A2 dated 15.02.1996 is the communication sent by the Sub-registrar, Anniyur to the

plaintiff.

The trial court considering the oral and documentary evidence found that the suit was instituted on 29.01.1996; that the plaintiff has not issued

any notice to the first defendant prior to filing the suit; that even prior to the filing of the suit, the second defendant had entered into sale agreement,

Ex.B1 dated 10.10.1995 to purchase the B Schedule described property from the first defendant and obtained sale deed, Ex.B2 dated

16.02.1996 for a valid consideration and in order to prove the same, the second defendant had examined DWs 2 and 3, who have deposed about

the execution of Ex.B1, sale agreement; that there is no oral or documentary evidence to show that she was living separately to grant the relief of

maintenance sought for by the plaintiff and dismissed the suit.

The first appellate Court, after elaborate discussion found that the plaintiff and the first defendant married about 40 years prior to the filing of

the suit, lived together for 10 years and out of the said wedlock, two daughters Mahalakshmi and Mangalakshmi were born; that thereafter, the

first defendant developed illicit intimacy with one Manonmani and drove the plaintiff and her daughters from the matrimonial home, hence, the

plaintiff along with her daughters went to Sompet village and lived with her mother; that the plaintiff maintained herself and her daughters by doing

coolie work; that her daughters died after marriage; that the first defendant owns 5 acres of land and house and earns a sum of Rs.50,000/- per

annum and prayed for maintenance at the rate of Rs.1,000/- per month since she is residing separately. Considering the above said facts, the first

appellate Court set aside the finding of the trial court that the plaintiff has not proved that she is living separately. The said conclusion arrived at by

the first appellate Court is based on valid evidence and the same is hereby confirmed.

The Plaintiff prayed for arrears of maintenance and future maintenance from the first defendant, confining to the period of 18 months. The first

appellate Court relied on Section 18(2) of the Act wherein it is stated that a Hindu wife, whether married before or after the commencement of this

Act, shall be entitled to be maintained by her husband during her life time. A Hindu wife shall be entitled to live separately from her husband

without forfeiting her claim to maintenance, if he is guilty of desertion or treated her with such cruelty and awarded the maintenance arrears as

sought for by the plaintiff. In this case, the first defendant deserted the plaintiff and living with a concubine, hence, the finding of the first appellate

Court that the plaintiff is entitled to maintenance arrears and future maintenance is valid.

In so far as the fixation of maintenance and arrears are concerned, Section 23(1) of the Act contemplates that it shall be in the discretion of the

Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so the Court shall

have due regard to the considerations set out in Sub-section (2) or Sub-section (3), as the case may be, so far as they are applicable. Following

the above provision of law and taking into consideration of the status of the parties, the first appellate Court has rightly determined the maintenance

at Rs.1000/- per month payable by the first defendant to the plaintiff and calculated arrears at Rs.18,000/- for 18 months.

The plea of collusion between the plaintiff and the first defendant, advanced by the second defendant was also rightly rejected by the first

appellate Court on consideration of oral and documentary evidence.

Now, I have to decide whether Section 52 of the Transfer of Property Act can be made applicable to the facts of the case on hand or not.

Admittedly, after filing the suit, the second defendant purchased the suit property under sale deed, Ex.B2 dated 16.02.1996. After filing the suit,

the plaintiff sent notice, Ex.A1 dated 14.02.1996 to the Sub-registrar, Anniyur, who also sent a reply notice dated Ex.A2 dated 15.02.1996,

which are prior to Ex.B2, sale deed. Though Ex.B1, sale agreement said to have came into existence on 10.10.1995, the details of the same were

not found mentioned in Ex.B2, sale deed and the plaintiff sought for a charge on the suit property.

In this context, it will be useful to refer to the decisions of the Honourable Supreme Court and a judgment of the Division Bench of this Court,

which are as follows:-

i) Nagubai Ammal and Others Vs. B. Shama Rao and Others, , wherein in Para No. 9, it was stated thus:-

On this question, as the plaint in OS No. 100 of 1919-20 praying for a charge was presented on 6-6-1919, the sale to Dr Nanjunda Rao

subsequent thereto on 30-1-1920 would prima facie fall within the mischief of Section 52 of the Transfer of Property Act, and would be hit by the

purchase by Devamma on 2-8-1928 in execution of the charge decree.

Sri K.S. Krishnaswami Ayyangar, learned Counsel for the appellants, did not press before us the contention urged by them in the courts below

that when a plaint is presented in forma pauperis the lis commences only after it is admitted and registered as a suit, which was in this case on 17-

6-1920, subsequent to the sale under Exhibit VI - a contention directly opposed to the plain language of the Explanation to Section 52. And he

also conceded and quite rightly, 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....

ii) Muthulakshmi Vs. A.R. Sahasranam and Others, wherein in Para-2, it was held thus:-

In our opinion, the sale dated 20.08.1958 and the subsequent sale dated 08.02.1960 can operate only subject to the eventual result of O.S.

No. 145 of 1958. These two sales were by private treaty and effected by the father after his daughter had instituted the suit for maintenance.

Section 52 of the Transfer of Property Act clearly states that the property in suit cannot be transferred or otherwise dealt with during the pendency

of the suit by any party thereto or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made

therein, except under the authority of the Court and on such terms as it may impose. The Courts have uniformly held that a voluntary sale or a sale

by private treaty will be hit by Section 52 whatever the position may be with regard to sales in invitum. Though it is true that the sale made to the

appellant-plaintiff would not be invalid, it cannot prevail against the decree in O.S. No 145 of 1958, and, therefore, against the Court sale held in

execution of that decree. Seetharamanujacharyulu v. Venkatasubbamma 59 MLJ 485 appears to be on all fours with the case on hand. Once a

charge is granted by a decree of Court, it takes effect from the date of the plaint and another sale subsequent to the date of the plaint will naturally

be subject to lis pendens, and any conveyance during the pendency of the suit which includes execution proceedings, cannot prevail over the Court

sale held in execution of the charge decree. In Sathuluru Seetharamanujacharyulu Vs. Narra Venkatasubbamma and Another, , it was held that in

circumstances almost similar to those in the present case, Court auction purchase must prevail. We, therefore, hold that the sale held in execution

of the decree is valid and the sale in favour of the plaintiff-appellant cannot prevail over it.

The above said two decisions makes it clear that if the sale is effected after the suit was filed for maintenance, it is hit by the provisions of

Section 52 of the Transfer of Property Act which contemplates that property in suit cannot be transferred or otherwise dealt with during the

pendency of the suit by any party thereto or proceeding so as to affect the rights of any other party thereto under any decree or order which may

be made therein, except under the authority of the Court and on such terms as it may impose.

It is argued by the learned Counsel for the second defendant/appellant that the appellant purchased the property without notice since the

summons were served only subsequent to execution of Ex.B2, sale deed. It cannot be forgotten that the plaintiff, though not sent notice to the

second defendant, issued a notice, Ex.A1 dated 14.02.1996 to the Sub-registrar, Anniyur, having jurisdiction over the suit property stating that she

has filed the suit for maintenance and the same is pending. On receipt of the same, the Sub-registrar, Anniyur sent a reply, Ex.A2 dated

15.02.1996 to the plaintiff wherein it is stated that the plaintiff has filed an application for interim injunction, however, the sale deed, Ex.B2 for

which stamps were purchased on 16.02.1996 and the same was registered only on 19.02.1996.

It is the case of the second defendant that to discharge the loan borrowed by the plaintiff and the first defendant for performance of the

marriage of their daughters, the suit property was sold to him. The said allegation of the second defendant was denied by the plaintiff in her

evidence stating that the loan amount was not borrowed by the first defendant for performance of marriage of his daughters, but she alone spent for

the marriage of her first daughter and her second daughter had a love marriage.

It is canvassed by the second defendant that he purchased the suit property without notice, hence, he is protected u/s 39 of Transfer of

Property Act. Section 39 of the Transfer of Property Act does not apply to a case where a charge has been created and the decree provides that

in the event of non-payment the amount can be realised by enforcing the charge. In the this context, it will be useful to refer the decision reported in

Mahesh Prasad Vs. Mt. Mundar, wherein the Full Bench of the Allahabad High Court held in para No. 19 thus:-

... The Section was substantially amended by the Amending Act XX (20) of 1929 and the words ''with the intention of defeating such rights''

after the word ''transferred'' were omitted and the words ''of such intention'' after the word ''notice'' were replaced by the word ''thereof''. This

section relates to a case where no charge has been created but a person had a right to receive maintenance from the profits of immovable

property. The section was amended to give better protection to a person entitled to receive maintenance as it was difficult to prove under the old

section that an improvident alienation was affected with the intention of defeating the rights of the person entitled to maintenance. The argument of

learned Counsel for the appellant is that even under S. 39 a transferee for consideration but without notice is protected, and there is therefore no

reason why the appellant should be in a worse position than a transferee is under S. 39. Section 39 does not apply to a case where a charge has

been created and the decree provides that in the event of non-payment the amount can be realised by enforcing the charge. To my mind, s. 39 T.P.

Act is not relevant to this case and it need not be considered any further.

In a question in the cross-examination, the plaintiff stated that the second defendant is not a bonafide purchaser and she prayed for a charge in

the suit property since it was unsold property of the first defendant. Moreover, in Ex.B2, sale deed, the details of the loan amount borrowed by the

first defendant were not mentioned. In Exs. B3 to B5, the discharge pronotes, it is mentioned that the loan amount was borrowed by the first

defendant to meet his personal expenses. In a question in the cross-examination, the second defendant/appellant replied that the first defendant

own other properties but he has not let in evidence furnishing the details of the alleged other properties owned by the first defendant. Since the

second defendant has not furnished the details of the other properties owned by the first defendant in his evidence, the averment that the plaintiff

has deliberately proceeded against the property which was sold to him cannot be accepted.

It is an admitted fact that the plaintiff has not sent any notice to the second defendant. The suit summons were served on the defendants on

24.02.1996 i.e., after execution of Ex.B2, sale deed dated 16.02.1996. It is claimed by the second defendant that sale agreement, Ex.B1 was

entered into between him and the first defendant as early as 10.10.1995, which was also attested by Dws 2 and 3, but admittedly the details of the

sale agreement, Ex.B1 were not mentioned in the sale deed, Ex.B2. Even the advance of Rs.6,000/- paid on the date of Ex.B1 was not mentioned

in Ex.B2. Moreover, Ex.B1 was not written in stamp paper but only in white paper and revenue stamp is affixed thereon. The first appellate Court

found that Ex.B1 is not a valid document since it was executed in white paper and revenue stamps were affixed and the reason for execution of

Ex.B1, sale agreement in white paper is it could be easily anti-dated to suit the convenience as if it was executed prior to filing of the suit and to

forestall the claim of the plaintiff. The said finding of the first appellate Court that Ex.B1, sale agreement is untrustworthy is perfectly valid.

The doctrine of lis pendens does apply to a suit for maintenance by a Hindu wife in which she claimed to have her maintenance made a charge

on specific immovable property and a decree is passed granting a charge on such property, in such cases, the right of immovable property is

directly and specifically in question. Hence, this Court is of the considered view that the findings of the first appellate Court that the transaction

made under Ex.B2, sale deed is hit by Section 52 of Transfer of Property Act is perfectly valid.

In view of the discussion made above on various issues, this Court finds no reason to interfere with the well considered decree and judgment of

the first appellate Court and accordingly the same is confirmed. The second appeal is dismissed. No costs. Consequently, connected CMP is

closed.