Sivagangai Ammal vs Jagadambal

(1)This appeal arises out of execution proceedings, wherein the appellant prayed the court that her property which was purchased free of charge

for the maintenance decree should not be brought to sale by the decreeholder in O. S. 334 of 1947 on the file of the District Munsif, Cuddalore.

The courts below have held that though the appellant purchased the property on the previous occasion in the execution of the maintenance decree,

still the property is not free from the charge, and dismissed her application. It is against the orders of the courts below, she has filed the present

appeal.

(2) In this appeal the same question arises for consideration viz, whether the property is free from charge.

(3) It is not disputed that the property in dispute has been subject to a charge under a maintenance decree obtained by the respondent against one

Rajagopal Pandithan and others in O. S. 334 of 1947.

(4) The appellant purchased this property from Rajagopal Pandithan, and his wife Angammal for Rs. 2000 on 24-8-1949, during the pendency of

the maintenance suit filed by the respondent. Therefore the sale dated 24-8-1949 is not valid, as it is directly hit by the doctrine of lis pendens. But

the appellant contends that, when the respondent brought the suit property for sale in pursuance of the maintenance decree, it was not mentioned

that the property was subject to future charge and therefore it was sold for its real market value on 7-9-1958. Under that sale, the property was

purchased by one Kesava Kounder, the father of the appellant. Subsequently, the said Kesava Kounder settled the property on the appellant on

19th April 1961 under Ex. A-1, registered settlement deed. The question turns upon whether the sale deed dated 7-9-1958 was free from

encumbrances, that is, free from charge forever. According to the appellant, this property was purchased by her father free of all encumbrances;

whereas the respondent contends that the property was sold to the appellant''s father under the previous execution proceedings subject to her

rights to bring the very property to sale for future maintenance. In order to prove her case that this property was sold free of all encumbrances, the

appellant filed Exs. A-2 to A-5, A-7, A-8, and A-9. In the execution proceedings, it is true that no mention of any encumbrance was made, and

so the appellant would contend that the respondent waived the charge for future right of maintenance over the property mentioned in the execution

application. On the other hand, the respondent would contend, that since a charge has been created by decree of court, there was no necessity to

specifically mention the same in the execution petition and that she has the right to bring the property for sale once again in execution of the charge

decree for arrears of maintenance. In order to find out whether this property was sold free of encumbrances, the courts below considered whether

the property was sold for its full value or the market value. The finding of the courts below is that the price at which the appellant''s father

purchased the property in court auction sale could not be said to be its real value, and I do not want to interfere with this finding of fact.

(5) Once I come to the conclusion that the property was not sold for its real value, the next question is whether the respondent would be entitled to

bring the same property once again for sale for arrears of maintenance accrued subsequent to the sale in favour of the appellant''s father. A

Division Bench of this court in Thangavelu v. Thirumalaswami 1955 2 MLJ 618: AIR 1956 Mad 67 have observed thus:

...................................So long as the decree for maintenance is a charged decree in respect of the property any purchaser who buys the property

in execution of the decree for arrears of maintenance will only buy that property subject to the charge which still subsist in respect of future

maintenance. The Liability in respect of future payments of maintenance always remains even after one or two sales have taken place after the

realisation of the arrears payable under the decree. It cannot be argued that the effect of the sale of the property to satisfy the claim for the arrears

extinguishes the charge completely and once for all. It is only a sale to satisfy the particular claim for the arrears and not to satisfy the maintenance

decree as a whole, even as the charge for future maintenance still remains attached to the property and the auction purchaser gets the property only

subject to the charge.

Ramakrishnan J. has observed in Tirugnana Sambanda Mudaliar Vs. Meenakshi Ammal and Others, that the omission to mention the existence of

the charge for future maintenance in the sale proclamation on the first execution petition wherein the third party bought the property will not amount

to a waiver of the right to future maintenance or estoppel against claiming such right. Following these two decisions, I am of the view that, even

though the appellant''s father purchased the property in the previous execution proceedings in execution of the maintenance decree still the property

is not free from liability for future maintenance. The appellant has therefore failed in her attempt to prevent the decreeholder from bringing the very

same property to sale in exercise of her rights over the charged property.

(6) The charged property consists of a number of items and it is not clear whether the other items have been exhausted. The Court has got inherent

jurisdiction to give relief to the party concerned. In the circumstances, I direct the respondent-decree-holder to exhaust the other items before she

exercises her right of sale over this property. The present execution petition may be kept pending, and the decree-holder permitted to renew it

after she exhausts the remedies over the other items.

(7) In the result, I allow the appeal to the extent indicated above. There will be no order to as costs. No leave.

(8) Order accordingly.